The Bharatiya Nyaya Sanhita, 2023 (“BNS”): Key Concepts

The Indian Penal Code (IPC) was originally fashioned upon British criminal law, designed more towards the regulation and punitive measures for India rather than its protection or assistance. Over time, substantial societal shifts have rendered certain provisions within this legal framework obsolete and incongruous with contemporary norms. Recognizing the imperative to safeguard the rights of Indian citizens, the Union Government of India has proposed revisions to the antiquated colonial-era criminal laws. In pursuit of this objective, the Minister of Home Affairs has introduced three separate legislative measures in the Lok Sabha aimed at replacing the Indian Evidence Act, IPC, and the Code of Criminal Procedure (CrPC). These legislative endeavors seek to modernize the legal landscape, ensuring its alignment with the evolving societal dynamics and fostering a more just and equitable framework for the Indian populace.

The proposed legislative measures, namely the Bharatiya Nyaya Sanhita Bill 2023, Bharatiya Nagarika Suraksha Sanhita Bill 2023, and Bharatiya Sakshya Bill 2023, aim to replace the Indian Evidence Act of 1872, the Code of Criminal Procedure 1973, and the Indian Penal Code of 1860, respectively. Union Minister Amit Shah, upon introducing these Bills, articulated that the enactments to be supplanted were crafted to bolster and perpetuate British dominion, primarily serving punitive rather than justice-dispensing objectives. The intended modifications center on fundamental alterations within these realms. Specifically, the focus lies on delineating the primary clauses and amendments introduced by the Bharatiya Nyaya Sanhita (BNS) of 2023. This legislative endeavor seeks to rectify historical imbalances, ensuring a legal framework conducive to the preservation of citizen rights and the equitable dispensation of justice within the Indian context.

The Bharatiya Nyaya Sanhita 2023, also referred to as the BNS Bill 2023, constitutes a significant landmark in the progression of India’s legal framework. This encompassing legislation is designed to rationalize and modernize the nation’s criminal law, enhancing its relevance and efficacy within contemporary societal norms.

At the core of India’s criminal jurisprudence lies the Indian Penal Code of 1860 (IPC), addressing offenses against the state, property, bodily integrity, public order, defamation, and public health. Over time, the IPC has undergone numerous amendments to introduce new offenses, amend existing provisions, and adjust penalties.

Furthermore, various reports by the Law Commission have advocated for IPC reforms, particularly concerning offenses related to women, food adulteration, and capital punishment. Distinguished by its 358 provisions compared to the 511 sections of the IPC 1860, the Bharatiya Nyaya Sanhita Bill 2023 seeks to redefine the landscape of criminal justice administration in India.

The Bharatiya Nyaya Sanhita 2023, known as the BNS Bill 2023, is pivotal in India’s legal evolution. This legislation aims to modernize criminal law, adapting it to contemporary society. The Indian Penal Code of 1860 forms the foundation of criminal law, addressing various offenses. Over time, the IPC has been amended to reflect societal changes. Reports by the Law Commission advocate for IPC reforms, especially regarding offenses against women, food adulteration, and capital punishment. With 358 provisions compared to IPC 1860’s 511 sections, the BNS Bill 2023 heralds a transformation in India’s criminal justice system.

The new legislation places emphasis on addressing crimes against women, the state, homicide, and minors. Notably, it enhances clarity and consistency within legal terminology by replacing phrases such as “minor” and “child under the age of eighteen” with the term “child” throughout the statute.

Section 84 of the Bharatiya Nagarik Suraksha Sanhita, 2023 introduces “community service” as a penalty for various offenses, including “public servant unlawfully engaging in trade,” “failure to respond to a proclamation,” “attempting suicide to influence lawful power,” “public misconduct by an intoxicated individual,” and defamation. This provision signifies a shift towards alternative forms of punishment aimed at promoting community involvement and rehabilitation for offenders.

Under Section 314 of the Bharatiya Nyaya Sanhita (BNS), dishonest misappropriation of property mandates a minimum imprisonment term of six months. The current legal framework under BNS prescribes penalties of both fine and imprisonment for this offense, diverging from the previous approach under the Indian Penal Code (IPC). Consequently, emphasis has shifted towards the imposition of imprisonment as the primary punitive measure for such transgressions.

Sections 406 to 409 of the Indian Penal Code (IPC) pertaining to criminal breach of trust have been consolidated into Section 316. The amended provision now prescribes a maximum imprisonment term of five years for criminal breach of trust, representing an increase from the previous three-year penalty under the IPC. This consolidation streamlines the legal framework and enhances the severity of punishment for offenses related to breach of trust, aligning with contemporary legal standards and societal expectations.

Similarly, Sections 417, 418, and 420 of the IPC, addressing different forms of cheating, have been consolidated into Section 318 of the BNS. The Bharatiya Nyaya Sanhita now imposes a maximum penalty of three years imprisonment for general cheating, an increase from the previous one-year term under the IPC. Furthermore, the penalty for the most severe cheating, involving knowledge of potential wrongful loss to a person whose interests the offender is obligated to protect, has been heightened from three years under the IPC to five years in prison under the new law.

Section 111 of the Bharatiya Nyaya Sanhita (BNS) introduces the offense of “organized crime,” drawing significant inspiration from laws like the Maharashtra Control of Organised Crime Act, 1999 (MCOCA), and the Gujarat Control of Organised Crime Act, 2015 (GCOC), along with other specialized state laws targeting organized crime. However, the definition of “organized crime” in this provision is notably vague and ambiguous, relying heavily on broad and undefined terms. This imprecision grants investigating authorities extensive power and discretion to prosecute individuals based solely on these unclear definitions.

The description of organized crime in Section 111 includes terms such as “land grabbing,” “contract killing,” and “cybercrimes,” none of which are specifically defined within the Sanhita. Additionally, the provision references “economic offences” using general terms like “hawala transaction” and “mass-marketing fraud,” which also lack precise definitions in the BNS or other statutes. This lack of clarity could lead to significant confusion and arbitrary enforcement.

Similarly, Section 112 addresses “small organized crime” using equally nebulous and subjective language. Phrases such as “trick theft,” “pickpocketing,” “card skimming,” and “unauthorized selling of tickets” are included without clear definitions, making the scope of these offenses highly ambiguous. Furthermore, the provision criminalizes “any other similar criminal act,” a phrase that is open to wide interpretation. This broad and undefined scope gives investigating authorities substantial leeway in charging individuals, potentially leading to inconsistent and arbitrary prosecutions. The lack of precise definitions and clear boundaries in both Sections 111 and 112 poses significant challenges for the fair and consistent application of the law.

Under the BNS, the penalty for causing death by carelessness has been significantly increased. Previously, the IPC imposed a maximum sentence of two years, a fine, or both for such offenses. Now, the BNS mandates a harsher punishment of up to five years in prison, along with a fine, for hasty and careless acts resulting in death. This substantial modification reflects a more stringent approach to addressing negligence-related fatalities.

In response to the increase in hate crimes and mob lynchings across the nation, the BNS now explicitly stipulates severe penalties for murder committed during mob lynchings. According to the new provision, if a group of five or more individuals commits murder based on race, caste, community, sex, place of birth, language, personal belief, or any other similar ground, each member of the group faces the possibility of execution or life imprisonment, along with a fine. This measure aims to address and deter such heinous acts by imposing the harshest penalties on those who participate in mob violence, reflecting a zero-tolerance approach towards hate-driven crimes.

Section 106 of the Bharatiya Nyaya Sanhita (BNS) addresses times wherein scientific experts die due to their very own hasty or reckless actions at some point of a medical manner. This offense carries a most sentence of years in jail at the side of a first-class. The splendid court’s landmark ruling in Jacob Mathew v. country of Punjab, (2005) 6 SCC 1, units out standards to prevent misuse of this provision towards doctors. The courtroom emphasised that negligence in civil regulation does no longer robotically translate to crook negligence, stressing the significance of proving mens rea, or crook cause, for negligence to be taken into consideration an offense.

moreover, the BNS now consists of a clause focused on hit-and-run incidents. This clause mandates punishment for those who motive death by using reckless or careless riding after which flee the scene without notifying the authorities. Offenders may face a best and up to ten years in prison. The upward push in hit-and-run injuries, road rage incidents, and reckless riding nationwide has prompted the inclusion of this clause. In 2021, extra fatalities resulted from reckless riding than from homicide, as stated by means of the countrywide Crime facts Bureau. This provision ambitions to deter hit-and-run incidents with the aid of imposing sizeable consequences on offenders, thereby promoting street safety and decreasing the lack of lifestyles because of reckless riding incidents.

The Bharatiya Nyaya Sanhita (BNS) encompasses provisions addressing terrorism, defining a terrorist act as one with the intent to: (i) intimidate the public; (ii) undermine the nation’s unity, integrity, and security; or (iii) disrupt public order. Terrorist activities encompass actions such as spreading terror, causing harm, or posing danger through firearms, explosives, or hazardous materials. Additionally, damaging property or disrupting essential services falls within the purview of terrorism. By extending the definition to include intent to disrupt public order, various offenses, ranging from rioting to armed rebellion, can be categorized as acts of terrorism.

The Supreme Court, in a landmark 1960 ruling, characterized public order as the absence of localized disturbances, distinct from broader upheavals like war or revolution that threaten state security. Furthermore, the BNS deems instilling fear in the public as a terrorist act. To clarify the classification of terrorist acts, the Standing Committee on Home Affairs proposed a definition of “intimidation” in 2023. This clarification aims to ensure consistency in identifying and prosecuting acts of terrorism, enhancing legal clarity and efficacy in combating threats to public safety and national security.

The removal of Section 124A of the Indian Penal Code (IPC), which pertains to sedition, represents a significant and laudable amendment within the framework of the Bharatiya Nyaya Sanhita (BNS). This action resonates with the Union of India’s commitment, as conveyed to the Supreme Court on May 11, 2022, to reassess and review the sedition clause. Sedition, originally instituted during colonial rule, served as a tool to quell any form of dissent against the British administration. However, in a democratic society governed by the principles of the rule of law, such antiquated statutes find no rightful place.

While the specific sedition offense under Section 124A of the IPC has been eradicated, it appears that Section 152 of the BNS, which addresses actions endangering India’s sovereignty, unity, and integrity, has assumed a comparable role. This section aims to safeguard the nation against activities that pose threats to its fundamental principles and national interests. While the removal of the sedition clause is a step towards aligning legal frameworks with democratic ideals, the inclusion of Section 152 underscores the ongoing commitment to preserving national security and cohesion within the legal framework of the BNS.

Community service, delineated in Section 4. (f) of the Bharatiya Nyaya Sanhita (BNS), emerges as a pivotal facet of the legal framework, offering an alternative avenue for punishment. It encompasses labor that convicted individuals may be compelled to undertake, devoid of compensation, as a means of benefiting the community. This innovative approach reflects a departure from conventional punitive measures, highlighting the BNS’s commitment to non-custodial and rehabilitative sentencing for minor transgressions.

Notably, community service is now presented as an alternative penalty for defamation, a contentious area where the criminalization debate remains unresolved within the BNS. This inclusion signifies a progressive stride towards mitigating the severity of defamation offenses.

Presently, community service is prescribed for a select few misdemeanors, encompassing acts such as public intoxication misbehavior, illicit public servant trading, and failure to comply with proclamations, alongside defamation and a few other infractions. However, expanding the scope of community service to encompass additional minor offenses could facilitate a more comprehensive transition towards restorative justice practices.

In a distinct scenario, community service serves as an alternative to imprisonment for theft offenses involving first-time convictions, provided the stolen goods are valued at less than five thousand rupees. Nevertheless, this provision is somewhat undermined by the stipulation that community service is contingent upon the restitution or return of the stolen property at its full value. Consequently, individuals unable to fulfill this requirement may face incarceration, diluting the original intent of community service as a rehabilitative measure.

Furthermore, the inclusion of “forfeiture of property” as a punitive measure appears redundant within the BNS framework. This redundancy stems from the Bharatiya Nagarik Suraksha Sanhita (BNSS), which already provides for the attachment and forfeiture of property acquired through criminal activities, irrespective of the offense’s nature. Thus, the imposition of forfeiture as a punishment seems duplicative, given the overarching provisions of the BNSS.

Also Read: WHO WROTE THE CONSTITUTION OF INDIA?

The Bharatiya Nyaya Sanhita (BNS) consists of a repeals and financial savings clause, abolishing the Indian Penal Code (IPC) whilst preserving any actions or consequences bobbing up from past IPC enactments. moreover, phase 6 of the overall Clauses Act of 1897 remains applicable under the BNS.

apparently, the BNS specifies that movements or consequences achieved under the IPC might be deemed as though achieved beneath the corresponding BNS provision. but, it exempts penalties, punishments, lawsuits, investigations, and remedies associated with such penalties or punishments beneath the IPC. lamentably, this provision increases worries regarding the capacity retroactive software of the brand new penal code, potentially conflicting with Article 20 of the charter. Article 20 safeguards individuals from being convicted of an offense now not recognized by way of regulation on the time of its fee, emphasizing the precept of legality in crook court cases. as a consequence, the plain retroactivity of the BNS may additionally venture this constitutional guard, prompting scrutiny and ability legal challenges concerning its adherence to constitutional standards.

In accordance with segment sixty nine of the Bharatiya Nyaya Sanhita (BNS) enacted in 2023, the act of conducting sexual family members with a lady through fraudulent methods or through falsely promising marriage constitutes a legal offense. This offense incorporates excessive repercussions, inclusive of a most imprisonment term of 10 years at the side of the imposition of a excellent. The time period “deceitful approach” encompasses diverse deceptive practices, together with marrying under fake pretenses of identity, attractive people via inducement, or making fraudulent promises of employment or promoting.

This provision underscores the BNS’s dedication to protective individuals from exploitation and deception in intimate relationships. by criminalizing moves that take advantage of trust and lie to individuals into conducting sexual family members under false pretenses, the law pursuits to discourage such reprehensible conduct and uphold the honour and rights of individuals. additionally, the inclusion of fraudulent promises of marriage in the scope of this offense displays an acknowledgment of the extreme outcomes of reneging on commitments made to companions.

furthermore, the imposition of giant consequences, which include imprisonment and fines, underscores the gravity of the offense and serves as a deterrent in opposition to perpetrating such acts of deceit. It also signifies society’s condemnation of conduct that undermines the autonomy and consent of people in intimate relationships. average, segment 69 of the BNS stands as a essential prison provision in safeguarding the rights and dignity of individuals, specifically susceptible ladies, from exploitation and manipulation in topics of intimacy and relationships.

The age of criminal duty delineates the youngest age at which minors may be held legally accountable and face punishment for crook acts. Advances in our understanding of adolescent mind biology have brought on discussions on the perfect degree of responsibility for juvenile behavior. under the Indian Penal Code (IPC), moves of kids underneath seven years old are not considered offenses. however, if a infant is deemed incapable of comprehending the character and results in their actions, the age of crook duty is raised to twelve years old, as stipulated within the Bharatiya Nyaya Sanhita (BNS). extensively, this age threshold is relatively lower than in many different nations. In 2007, a UN committee encouraged that states boom the age of criminal obligation to above 12, highlighting international efforts to make sure a more developmentally appropriate method to juvenile justice.

The Bharatiya Nyaya Sanhita (BNS) imposes heightened consequences for crimes dedicated towards minors, usually defining people under the age of eighteen as minors. distinct consequences are prescribed for offenses which include rape and gang rape related to women and kids. but, the dedication of the victim’s minority reputation varies depending on the precise form of rape, consequently impacting the severity of the punishment.

In instances of gang rape, the severity of the punishment is motivated through whether or not the sufferer is above or underneath eighteen years antique. similarly, the punishment for rape varies relying on whether or not the sufferer is below twelve years old, between twelve and 16 years vintage, or above sixteen years old. This technique diverges from the protection of children from Sexual Offences Act of 2012, which categorizes all people beneath the age of eighteen as minors. The inconsistency in defining the age threshold for minors beneath the BNS highlights a capacity discrepancy with existing prison frameworks and underscores the want for clarity and alignment in addressing offenses in opposition to minors.

Let’s compare the old Indian Penal Code (IPC) with the new Bharatiya Nyaya Sanhita (BNS) point by point:

Overall, the transition from the old IPC to the new BNS represents a comprehensive reform effort aimed at modernizing Indian criminal law, enhancing legal clarity, and addressing emerging challenges in the realm of crime and justice.

The Bharatiya Nyaya Sanhita (BNS) introduces several positive changes, such as removing sedition as a crime, recognizing transgender individuals in gender definitions, and enhancing penalties for crimes against women and children, alongside introducing community service as a punitive measure. However, these changes lack a cohesive policy objective.

Notably, the amendments targeting offenses against women and children illustrate this lack of coherence. While the BNS aims for stricter laws in this regard, it introduces new offenses like sexual activity by individuals in positions of authority and sexual activity through deceitful means. Yet, the failure to make rape a gender-neutral offense and the continued recognition of marital rape exceptions contradict the stated goal of prioritizing the protection of women and children.

Moreover, the sentencing procedures remain ambiguous, lacking clarity on whether the approach emphasizes retaliation, rehabilitation, or deterrence. Despite lengthening penalties and adding new offenses, there’s a realization that merely toughening punishments won’t effectively deter crime. While community service is introduced as a rehabilitative measure, its applicability is limited, with prison sentences remaining predominant. Thus, there’s a need for consistency in sentencing, with greater emphasis on non-custodial sanctions, probation, and rehabilitation-focused procedures.

Additionally, the continued use of solitary confinement as a punishment is outdated and inconsistent with modern human rights standards, including the right to a dignified life protected by Article 21 of the Constitution. The overlap between offenses covered by special statutes and the BNS, coupled with ambiguous language, may lead to confusion and increased litigation, exacerbating the backlog of cases in courts. Therefore, there’s a pressing need for clearer policy objectives and coherent implementation to ensure the effectiveness and fairness of the BNS in addressing crime and justice issues.