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The Bharatiya Nyaya Sanhita (BNS), the Bharatiya Nagrik Suraksha Sanhita (BNSS), and the Bharatiya Sakshya Adhiniyam (BSA) replaces the Indian Penal Code (IPC), 1860, the Criminal Procedure Code (CrPC), 1973, and the Indian Evidence Act, 1872 respectively. These three Bills were passed in Parliament last December. In this article we will analyse the significance and the associated concerns with these Bills/sanhitas.
What are the additions, deletions and changes in the provisions of the Bhartiya Nyay Sanhita (BNS) and Bharatiya Nagrik Suraksha Sanhita (BNSS)?
Addition of New Provisions in the Bhartiya Nyay Sanhita (BNS)
| Mob lynching | Clause 103 codifies offences linked to mob lynching and hate-crime murders. It is applicable for cases when a mob of five or more individuals commits murder based on factors such as race, caste, community, language, place of birth or personal belief. The provision has punishment that extends from life imprisonment to death. |
| Organised Crime | Clause 111(1) codifies organised crime and terrorism. Organised crime and terrorism has been brought under the realm of ordinary criminal law for the first time. Unlawful Activities Prevention Act was used for terrorism, and state-specific laws such as the Maharashtra Control of Organised Crime Act for organised crime. |
| Deceitful Promise to Marry | Clause 69 criminalises ‘deceitful‘ promise to marry. ‘Deceitful means’ shall include the false promise of employment or promotion, inducement, or marring after suppressing identity. It will be punished with imprisonment till 10 years, and will be liable for a fine. |
| Attempt to Suicide | It criminalises attempts to commit suicide with intent to compel or restrain any public servant from discharging official duty. This provision could be invoked to prevent self-immolations and hunger strikes during protests. |
| Snatching | Clause 304 (1) adds snatching as a ‘new’ crime. It has been made distinct from theft. Both theft and snatching have a punishment of upto three-years in jail |
Major Deletions in the Bhartiya Nyay Sanhita (BNS)
| Unnatural Sexual Offences | Section 377 of the IPC, which criminalised homosexuality among other ‘unnatural’ sexual activities, has been repealed under the Bhartiya Nyay Sanhita (BNS). |
| Adultery | The offence of adultery, which was struck down by the Supreme Court as unconstitutional in 2018, has been omitted under the Bhartiya Nyay Sanhita (BNS). |
| Thugs | Section 310 of the IPC criminalises them who have been ‘habitually associated with committing robbery or child-stealing‘ and labels them a thug. This provision is criticised for attaching colonial notions of criminality for certain tribes. The BNS has fully omitted this provision. |
Changes in the Bhartiya Nyay Sanhita (BNS)
| Gender Neutrality | Bhartiya Nyay Sanhita (BNS) has tweaked other laws, especially those dealing with children, to bring gender neutrality. Earlier offences like the offence of outraging the modesty of women (354A of the IPC) and voyeurism (354C) has now become gender neutral for the accused under the BNS. This means that women can also be booked under the law. |
| Fake news | The BNS introduces a new provision under the BNS which deals with hate speech, criminalising publishing false and misleading information. |
| Sedition | The BNS introduces the offence of sedition under a new name and with a wider definition. It changes the name of the offence from ‘rajdroh’ to ‘deshdroh’. The new provision adds the following crimes to the offence of sedition- a. Aiding through financial means, acts of ‘subversive activities‘ b. Encouragement of ‘feelings of separatist activities‘. |
| Community Service | The BNS also provides for community service as a punishment for petty offences. It will be the part of penal code for the first time. |
Major Changes in the Bharatiya Nagrik Suraksha Sanhita (BNSS)
| Expansion of Detention in Police Custody | There has been an expansion of detention in police custody from the 15-day limit in the CrPC to up to 90 days. |
| Victim being given an opportunity of being heard | The BNSS states that in cases where the punishment is seven years or more, the victim shall be given an opportunity of being heard before withdrawal of the case by the government. |
| Trials in absentia | According to this provision added in the BNSS, a person accused of a crime can be tried and convicted in his absence, as if he was present in court and has waived his right to a fair trial for all offences. |
| Removal of Statutory bail Provisions | The BNSS removes the provision for statutory bail if an accused has more than one offence against his name. Earlier under the CrPC, an accused could be granted statutory bail if he has served at least half of the maximum sentence prescribed for the offence. |
What is the significance of Bhartiya Nyay Sanhita (BNS), Bharatiya Nagrik Suraksha Sanhita (BNSS) and Bharatiya Sakshya Adhiniyam (BSA)?
1. Decolonisation of laws- The passage of these new sanhitas (laws) in Parliament, represent laws that have been framed by Indians for Indians.
2. Revamping of criminal justice system in India- Committees like the Law Commission of India, Bezbaruah Committee, Viswanathan Committee, Malimath Committee, Madhav Menon Committee have suggested revamping of the criminal justice system in India. These laws represent the present-day dynamics and aspirations of Indian society.
3. Incorporation of SC Judgments- These new laws incorporate the supreme court judgements on contentious issues. For ex- Omission of Section 377 of the IPC which criminalised homosexuality from the Bhartiya Nyay Sanhita. This was decriminalised by the Supreme Court in the Suresh Kumar Koushal vs. Naz Foundation.
4. Gender Neutrality- Introduction of gender neutrality in certain provisions of the Bhartiya Nyay Sanhita (BNS) is an important step towards updation of the IPC. Crimes against women in the BNS, comes before in Chapter V before offences against the state (like sedition). It reflects contemporary societal norms and values. Sexual intercourse with a minor wife has been brought under the ambit of rape.
5. Community service as an alternate form of punishment- The introduction of Community service as an alternate form of punishment keeps first-time convicts and those convicted for minor offences out of prison. This is important as three-fourths of India’s prison population are undertrials.
6. Acknowledgement of Hate Crimes- The inclusion of offences for mob-lynching and hate crimes is a legislative acknowledgement of these crimes. The emphasis on video-conferencing of trials, and prescription of timelines for speedy trials will improve justice delivery.
What are the concerns with these Sanhitas?
1. No break from colonial legacy- According to critics these sanhitas make minimal progress in the main objective of ‘decolonisation of laws‘. The sanhitas continue to rely on long-term imprisonments and the death penalty, by adding and increasing mandatory minimum sentences for certain offences, and by retaining vague definitions for offences against the state as well as for defamation.
2. Ambiguity in definitions- In BNS new offence has been added that criminalises exciting secession, armed rebellion, subversive activities or encouraging separatist feelings. However, these have not been defined. The framing of this provision is very similar to that of sedition and can be misused by the government to curb dissent.
3. No definition of community service- The BNS does not define what constitutes community service. It leaves it to the discretion of judges, which creates judicial ambiguity.
4. Cosmetic changes in sedition- BNS has in fact introduced the offence with a wider definition. It incorporates the SC guidelines in the 1962 Kedarnath Singh case, which upheld the constitutional validity for the crime of sedition. There has been a simple name change- from rajdroh (rebellion against the king) to deshdroh (rebellion against the nation).
5. Lack of Transformational Changes- According to critics except the reordering of the sections, much of the language and contents of the original laws have been retained. Some legal experts opine that although the new laws make significant changes, they do not ‘overhaul’ the existing laws.
6. Lack of adequate Legislative Scrutiny- The three Bills that replace the body of criminal laws in India were passed by Parliament in its ongoing session, where more than 140 MPs were suspended.
7. Fear of Misuse by the state- Critics argue that the introduction of trials in absentia under normal criminal law allows the state to forgo its duty to properly locate the accused before the trial begins.
8. Provision on Terrorism- Critics argue that ‘terrorism’ should not have been included in the general Sanhita. It is punishable under special legislation. Critics argue that grave charges such as terrorism should not be invoked on a regular basis.
9. Marital Rape not Included as a Criminal Offence- The provision legalising marital rape has been retained.
What Should be the Way Forward?
1. Modernization and Clarity- It must be ensured that BNS laws are clear, concise, and easily understandable by both legal professionals and the general public.
2. Victim-Centric Approach- The provisions of the BNS must strengthened to protect victims’ rights and ensure their access to justice. This must include better support system, compensation, and participation in legal proceedings.
3. Focus on Rehabilitation- There must be emphasis on rehabilitative justice and reintegration of offenders into society alongside punitive measures. There must be promotion of alternate sentencing options, especially for non-violent offenses, to reduce overcrowding in prisons and provide a chance for reform.
4. Technology Integration- There must be incorporation of technology to streamline legal processes, improve investigation techniques, and enhance evidence collection. This could include digitization of records, use of forensic technology, and modernizing court procedures.
5. Public Awareness and Education- There should be regular conduction of public awareness campaigns and educational programs to inform citizens about their rights and responsibilities within the criminal justice system.
6. Consultation and Stakeholder Involvement- We should encourage active participation from various stakeholders, including legal professionals, law enforcement agencies, NGOs, and affected communities, in the reform process to ensure inclusivity and diverse perspectives.
Reforming criminal laws is a complex and ongoing process that requires collaboration, thoughtful deliberation, and a commitment to upholding justice and fairness for all members of society.
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