Bharatiya Nyaya Sanhita Bill: Explained, pointwise

Introduction

The government has introduced three bills- Bharatiya Nyaya Sanhita (BNS) Bill 2023, Bharatiya Nagarik Suraksha Sanhita (BNSS) Bill 2023, and Bharatiya Sakshya (BS) Bill 2023 to replace the Indian Penal Code (IPC) 1860, Criminal Procedure Act 1898, and the Indian Evidence Act 1872 respectively. The Union Home Minister, while introducing these laws, remarked that these laws were made 160 years ago with an aim to create an atmosphere in favour of the British authority in London. Here we take an in depth look Bharatiya Nyaya Sanhita (BNS) Bill 2023 which seeks to replace the IPC.

Brief history of IPC

The 164-year-old IPC, which defines crimes and prescribes their punishment, is at the heart of Indian criminal justice system. The architect of this law was an English lawyer, Thomas Babington Macaulay.

The Charter Act, 1833, established a law commission (1834), and Macaulay was appointed its chairman. It is in this position that he embarked on consolidating and codifying the criminal laws of India.

The codification of criminal laws was needed as a mix of Hindu, Muslim and British laws was applicable across the country.

Then there was the problem of the same crime having a different punishment depending on whether it took place in the presidency of Calcutta, Madras or Bombay.

Also, the British lawmakers had not codified their criminal law, so there was no template to follow.

It is in this context that the IPC was drafted. It was enacted by the British colonial government in 1860 and came into effect in 1862.

What is the need for the Bharatiya Nyaya Sanhita (BNS) Bill?

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 The existing laws, stemming from the colonial era, no longer represent the present-day dynamics and aspirations of Indian society.

The Law Commission of India had recommended reforms to India’s criminal justice system in its various reports.

Committees like the Bezbaruah Committee, Viswanathan Committee, Malimath Committee, Madhav Menon Committee had also recommended reforms.

The Parliamentary Standing Committee on Home Affairs had also recommended reforms in its 111th report in 2005, 128th report in 2006, and 146th report in 2010.

In 2020, the Ministry of Home Affairs (MHA) has constituted a national level committee for reform in criminal law under Ranbir Singh, former Vice Chancellor of National Law University (NLU), Delhi.

The government reviewed the existing criminal laws with an aim to strengthen law and order and also focus on simplifying legal procedure so that ease of living is ensured to the common man.

What are the key provisions of the Bharatiya Nyaya Sanhita (BNS) Bill?

Sedition: With respect to IPC, section 124-A deals with offence of sedition, prescribing sentence of life imprisonment or imprisonment which may extend to three years, to which fine may be added. Meanwhile, the BNS Bill’s provision 150 under the chapter pertaining to offences against the State covers acts endangering sovereignty, unity and integrity of India.

Mob lynching: The BNS Bill has incorporated a specific provision for mob lynching and stipulated punishment ranging from seven years in jail to the death penalty for those convicted of the crime.

Terrorism: Terrorism is listed as separate offence. Terrorist acts have been defined as acts that disturb public order; intimidate the general public; or threaten the unity, integrity and security of India. Commission of such acts, either by use of explosives, or by destroying property or critical infrastructure etc can attract a minimum imprisonment of five years, life imprisonment and even death in some cases.

Organized crime: The bill provides a comprehensive definition for ‘Organised Crime’ – including the offences of kidnapping, robbery, trafficking, and other economic and cyber crimes, when committed by a group of individuals, whether as members of a crime syndicate or for such a syndicate.

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. The introduction of community service makes it a bit similar to the US, where the punishment is given for offences like vandalism, petty theft, and drunk driving.

What are the concerns with Bharatiya Nyaya Sanhita (BNS) Bill?

Ambiguity: The bill omits the offence of sedition by name. However, a new offence has been added that criminalises exciting secession, armed rebellion, subversive activities or encouraging separatist feelings. The framing of this provision has a striking resemblance to that of sedition. It continues to criminalise ambiguous acts of ‘exciting secession’ and ‘encouraging separatist feelings’, without defining subversive, secessionist and separatist activities.

No break from colonial legacy: Presented as a method to distance from the colonial inheritance, the bill, in reality, makes minimal progress in this objective. While Macaulay’s IPC rested on the principle that punishments instill fear, deterring criminal activity, the bill reinforces this principle. It does so by continuing 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.

Conclusion

Asa the Bill is referred to a parliamentary standing committee, one hopes that steps will be taken to minimise vagueness and looseness of definitions, and to bring the bill more fully in step with changes in society and advent of new technologies.

Sources: Times of India, The Hindu, Indian Express