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The Bharatiya Nyaya Sanhita (BNS), 2023, set to replace the Indian Penal Code (IPC), 1860 was recently passed in the Parliament. It is part of the government’s efforts at a complete overhaul of the country’s criminal justice system.
Earlier, the Ministry of Home Affairs in 2020 had constituted a committee headed by Ranbir Singh to review criminal law. The mandate of the committee was to ‘recommend reforms in the criminal laws of the country in a principled, effective and efficient manner – which ensures the safety and security of the individual, the community and the nation; and which prioritises the constitutional values of justice, dignity and the inherent worth of the individual’.
What are the key changes introduced?
New offences:1) Mob lynching: It codifies offences linked to mob lynching and hate-crime murders, 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. 2) Organised Crime: For the first time, tackling organised crime is brought under the realm of ordinary criminal law. There are special state legislations for organised crime syndicates, such as Maharashtra’s MCOCA, 1999. These special laws prescribe vast powers of surveillance and relax standards of evidence and procedure in favour of the state, which is not found in ordinary criminal law. 3) Terrorism: The BNS brings terrorism under the ambit of ordinary criminal law. 4) Attempt to Suicide: The BNS introduces a new provision that criminalises “whoever attempts to commit suicide with the intent to compel or restrain any public servant from discharging his official duty”. This provision could be invoked to prevent self-immolations and hunger strikes during protests. 5) Promise to Marry: The BNS introduces Clause 69 criminalising “deceitful” promise to marry. It adds that “deceitful means” shall include the false promise of employment or promotion, inducement, or marring after suppressing identity. |
Deletions:1) Unnatural Sexual Offences: Section 377, which criminalised homosexuality among other “unnatural” sexual activities, has been repealed under the BNS. 2) Adultery: The offence of adultery, which was struck down by the Supreme Court as unconstitutional in 2018, has been omitted under the BNS. 3) Thugs: The IPC under Section 310 criminalises those 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. |
Other Important Changes:1) Gender neutrality: While rape laws continue to operate only for women, the BNS has tweaked some other laws, especially those dealing with children, to bring gender neutrality. 2) Fake news: The BNS introduces a new provision under IPC Section 153B which deals with hate speech, criminalising publishing false and misleading information. 3) Sedition: The BNS introduces the offence of sedition under a new name and with a wider definition. Apart from a name change from ‘rajdroh’ to ‘deshdroh’, the new provision adds the following: aiding through financial means, acts of “subversive activities”, and those encouraging “feelings of separatist activities.” 4) Community Service: The BNS also calls for community service as a punishment for petty offences, which will be the part of penal code for the first time. |
What was the need for the Bharatiya Nyaya Sanhita (BNS)?
For a long period, it has been a recognized that a revamp the criminal justice system in India is necessary. The existing laws, stemming from the colonial era, no longer represent the present-day dynamics and aspirations of Indian society. Committees like the Law Commission of India, Bezbaruah Committee, Viswanathan Committee, Malimath Committee, Madhav Menon Committee have also recommended reforms in the past.
1) Attempt to Remove Colonial Hangover: Union Home Minister claimed that it is an attempt to remove the colonial imprint of the IPC, CrPC and the Evidence Act and replace it by a purely Indian legal framework.
2) Incorporating Supreme Court Judgments: For instance, omitting Section 377. Supreme Court had earlier struck down Section 377 that criminalised homosexuality.
3) Gender Neutrality: Introducing gender neutrality in certain provisions was an important step towards updating the IPC to reflect contemporary societal norms and values.
What are the concerns being raised?
1) Ambiguity: For instance, it omits the offence of sedition. However, a new offence has been added that criminalises exciting secession, armed rebellion, subversive activities or encouraging separatist feelings, without defining them. The framing of this provision is very similar to that of sedition and can be misused by the government to curb dissent.
2) No break from colonial legacy: It makes minimal progress in this objective. It continues 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.
3) Lack of 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.
4) Lack of Transformational Changes: Except the reordering of the sections, much of the language and contents of the original laws have been retained. The new codes do not envisage any path-breaking change.
5) Provision on Terrorism: It is being questioned whether ‘terrorism’ should have been included in the general penal law when it is punishable under special legislation. Experts argue that grave charges such as terrorism should not be invoked on a regular basis.
6) Marital Rape not Included as a Criminal Offence: The provision legalising marital rape has been retained.
Way Forward:
1) Modernization and Clarity: Further update the BNS to reflect contemporary societal norms and values. Ensure that laws are clear, concise, and easily understandable by both legal professionals and the general public.
2) Victim-Centric Approach: Strengthen provisions that protect victims’ rights and ensure their access to justice. This includes better support systems, compensation, and participation in legal proceedings.
3) Focus on Rehabilitation: Emphasize rehabilitative justice and ensure reintegration of offenders into society alongside punitive measures. Promote alternative sentencing options, especially for non-violent offenses, to reduce overcrowding in prisons and provide a chance for reform.
4) Technology Integration: Incorporate 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: Conduct public awareness campaigns and educational programs to inform citizens about their rights and responsibilities within the criminal justice system.
6) Consultation and Stakeholder Involvement: 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.
