Comparison and Analysis of the newly proposed Bill-Bharatiya Nyaya Sanhita, 2023 with Indian Penal code.

Comparison and Analysis of the newly proposed Bill-Bharatiya Nyaya Sanhita, 2023 with Indian Penal code.

Authors:

1. Shaline Samuel
2.  Srujaan K

The last day of the monsoon session, on 11th August 2023, of the parliament, the Union Home Minister Amit Shah introduced three bills to repeal and replace the British Era made criminal laws, namely, Indian Penal Code, the Code of Criminal Procedure, and the Indian Evidence Act. Major changes have been made in the new proposed bills compared to the existing criminal laws. 

Union Home Minister Amit Shah tabled three new measures to revamp Indian criminal laws, proposing penalties for crimes against women and children. “The new laws that will replace the colonial laws will place a citizen’s constitutionally guaranteed rights at the centre and protect them. The aim will be to provide justice, not to punish,” Shah proposed in Lok Sabha. The new proposed laws are in tune with the government’s refrain: ‘need to abandon gulami mindset’. The Union Home Minister Amit Shah introduced three bills to repeal and replace the existing Indian Penal Code, the Code of Criminal Procedure, and the Indian Evidence Act. The three proposed bills are:

Bharatiya Nyaya Sanhita, 2023 – Indian Penal Code (IPC), 1860.  

Bharatiya Nagarik Suraksha Sanhita, 2023 -The Code of Criminal Procedure, 1973.

Bharatiya Sakshya Bill, 2023 – Indian Evidence Act, 1872.

Redefining Offenses for Contemporary Times

One of the cornerstones of this transformative legislation lies in its thorough reclassification and redefinition of offenses. The erstwhile Indian Penal Code often drew criticism for its archaic language and definitions that failed to align with the ever-evolving realities of modern life. The New Bharat Nyaya Sanhita squarely addresses this issue by revisiting and updating the definitions of crimes. This crucial adjustment ensures that the descriptions of offenses accurately mirror the nature of transgressions occurring today. Consequently, the new definitions empower the law enforcement system to hold offenders accountable in ways that resonate with the present era, ensuring justice that is both relevant and appropriate.

 

The BNS Bill contains 19 Chapters 356 provisions as compared to 23 Chapters 511 sections in the IPC. Below mentioned are the major changes it proposes.

1. Abetment outside India for offence in India – Section 48(BNS Bill): This legislation pertains to the concept of abetment beyond India’s borders for offenses occurring within the nation. According to this provision, an individual is considered to have abetted an offense as defined by this legal code when, situated outside the geographical confines of India, they support and facilitate the execution of an act within India that would be categorized as a criminal offense if undertaken within the country’s boundaries.
2. ‘Sedition’ removed: Although sedition seems to be absent in the BNS Bill, “Offenses against the state” were included. Section 124A of the existing IPC deals with the charge of sedition and stipulates a term of life imprisonment or imprisonment for up to three years, with a fine attached. While sedition has been repealed, the BNS bill adds new offenses (under provision 150) such as acts of secession, armed rebellion, subversive activities, separatist activities, or compromising the sovereignty or unity and integrity of India, which carry prison sentences of up to life in prison. The section reads as, “Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial mean, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years and shall also be liable to fine.”
3. Marrying a woman, having sexual intercourse with a woman using “deceitful means”: Section 69 of the BNS Bill, dealing with sexual offences against women and children, says “Whoever, by deceitful means or making by promise to marry to a woman without any intention of fulfilling the same, and has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.” 

The word “Deceitful means” is explained to include the false promise of employment or promotion, inducement or marrying after suppressing identity.

1. Death Sentence for Gang-Rape of Minor: Amit Shah said that the government now proposes “death penalty for rape of a minor.” Section 70(2) of the BNS Bill states, “Where a woman under eighteen years of age is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with 20 years of imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and with fine, or with death.” However, it is crucial to emphasize that any such monetary penalty imposed must be equitable and fair, serving to adequately address the victim’s medical expenditures and rehabilitation necessities. Furthermore, it is mandated that any fine imposed in accordance with this subsection is to be directly disbursed to the victim. Section 376 DA of IPC dictates punishment for gang rape on woman under sixteen years of age, whereas in the current bill it states punishment for gang rape of woman under eighteen years of age in section 70(2).
2. Hiring, employing or engaging a child to commit an offence – Section 93(BNS Bill): This legal statute pertains to the act of recruiting, employing, or involving an individual who is below the age of eighteen to participate in the commission of an offense. In such cases, the individual undertaking such actions shall be subject to penalties, which may involve imprisonment of either nature or the payment of a fine. This penalty is to be imposed as if the person who has been engaged in the offense were personally responsible for its commission.

Explanation —Hiring, employing, engaging or using a child for sexual exploitation or pornography is covered within the meaning of this section.

1. Punishment for murder – Section 101(2) [BNS Bill]: In instances where a coordinated assembly comprising five or more individuals commits the act of murder with motives rooted in factors such as race, caste, community, gender, place of origin, linguistic identity, personal convictions, or any other analogous ground, each participant within the group will face legal repercussions. In such cases, every individual involved will be subject to either the imposition of the death penalty, a sentence of life imprisonment, or a minimum prison term of seven years. Moreover, a monetary fine will also be levied upon each member of the group.
2. Causing death by negligence – Section 104(2) [BNS Bill]: An individual who, through reckless or negligent actions not rising to the level of culpable homicide, leads to the demise of another person and subsequently evades the site of the incident or neglects to promptly inform a police officer or a magistrate about the occurrence, will be subject to legal consequences. The prescribed penalty entails potential imprisonment of either nature, the duration of which can stretch to a maximum of ten years, in addition to being held liable for a monetary fine.
3. Organised Crime:  Section 109 of the BNS Bill outlines the framework for organized crime and its various aspects:

1. Engaging in continuing unlawful activities, such as kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killings, economic offenses, cyber-crimes with severe consequences, trafficking in people, drugs, illicit goods or services, and weapons, through the concerted efforts of individuals either as part of an organized crime syndicate or on its behalf, employing violence, threats, intimidation, coercion, corruption, or other illicit means to secure direct or indirect material benefit, constitutes organized crime.
2. Any attempt to commit or actual commission of an organized crime offense leads to different penalties:

   – In cases resulting in death, the offender faces the possibility of the death penalty or life imprisonment, along with a fine of no less than ten lakhs rupees.

   – For other instances, imprisonment not less than five years but potentially extending to life imprisonment, accompanied by a fine of no less than five lakhs rupees.

3. Conspiring, organizing, assisting, facilitating, or engaging in acts preparatory to organized crime results in imprisonment for a minimum of five years, potentially extending to life imprisonment, along with a fine not less than five lakhs rupees.
4. Membership in an organized crime syndicate entails imprisonment for no less than five years, potentially extending to life imprisonment, alongside a fine of not less than five lakhs rupees.
5. Deliberate harboring, concealing, attempting to harbor or conceal individuals who committed organized crime offenses, members of an organized crime syndicate, or any action believed to encourage or assist such crime, results in imprisonment for no less than three years, potentially extending to life imprisonment, and a fine of no less than five lakhs rupees. The provision doesn’t apply to spouses harboring or concealing offenders.
6. Possessing property originating from organized crime, its proceeds, or acquired through organized crime syndicate funds, leads to imprisonment for a minimum of three years, potentially extending to life imprisonment, and a fine of no less than two lakhs rupees.
7. If a person possesses movable or immovable property on behalf of an organized crime syndicate member without satisfactory explanation, imprisonment for a minimum of three years, potentially extending to ten years, and a fine of no less than one lakh rupees applies. Such property is also subject to attachment and forfeiture.

1. Petty organised crime or organised crime in general – Section 110(BNS Bill): Petty organized crimes comprise various offenses causing public insecurity, including theft of vehicles, from vehicles, domestic and business theft, deceitful theft, cargo crime, personal property theft (including attempted theft), organized pickpocketing, snatching, shoplifting, card skimming-related theft, and ATM thefts. Unlawful acquisition of money through public transport misconduct, illegal ticket sales, and distribution of public exam question papers, among other common organized crimes, fall under this category. These acts can involve organized groups or gangs, including mobile ones establishing networks and support. Engaging in or attempting such crimes leads to legal consequences of imprisonment from one to seven years, along with a fine.
2. Terrorism: The BNS Bill defines terrorism, which was not defined in the IPC. Section 111 of the BNS Bill defines terrorism as, “A person is said to have committed a terrorist act if he commits any act in India or in any foreign country with the intention to threaten the unity, integrity and security of India, to intimidate the general public or a segment thereof, or to disturb public order by doing an act.”

• Committing a terrorist act involves intentionally performing an action within India or a foreign country with the aim to jeopardize India’s unity, integrity, and security, intimidate the public, disrupt public order, or engage in specific acts like using explosives, firearms, harmful substances, or lethal weapons to induce fear, cause harm, or damage property. It also includes influencing the government, causing damage to critical infrastructure, or aligning with specific treaties listed in the Second Schedule of the Unlawful Activities (Prevention) Act, 1967.
• Engaging in or attempting a terrorist act leads to penalties, depending on the outcome:
• If the act causes death, punishment is death or life imprisonment without parole, along with a fine of no less than ten lakhs rupees.
• In other cases, imprisonment for not less than five years up to life imprisonment, along with a fine of no less than five lakhs rupees applies.
• Conspiring, organizing, or assisting organizations, associations, or groups for terrorist acts, or preparing for such acts, results in imprisonment for not less than five years, potentially up to life imprisonment, accompanied by a fine of no less than five lakhs rupees.
• Being a member of a terrorist organization engaged in a terrorist act leads to imprisonment up to life, and a fine of no less than five lakhs rupees.
• Intentionally harboring, concealing, or aiding someone who committed a terrorist act result in imprisonment from three years to life, along with a fine of no less than five lakhs rupees, except if the concealment is by the offender’s spouse.
• Possessing or using property derived from terrorist acts, terrorism proceeds, or terrorist funds, or aiding their use, leads to imprisonment up to life, a fine of no less than five lakhs rupees, and the potential forfeiture of the property.

1.  Suicide: Section 309 of IPC spoke about an attempt to die by suicide, however, the new bill is silent on this. Section 224 of the BNS  Bill states, “whoever attempts to commit suicide with the intent to compel or restrain any public servant from discharging his official duty shall be punished with simple imprisonment for a term which may extend to one year or with fine or with both or with community service.” Here, there is a twist to section 309 provision in the new bill, which is, an attempt to commit suicide remains a punishable offence only if it is made to stop a public servant from acting. For example, it could be applied to a protester who attempts self-immolation to stop police from arresting other protesters. One interesting addition is the community service in form punishment.
2. Snatching – Section 302: Theft is categorized as “snatching” when an individual swiftly, forcefully, or abruptly seizes or takes movable property from a person or their possession with the intent to commit theft. Engaging in snatching leads to imprisonment of potentially up to three years, along with the imposition of a fine.
3. Affray: Punishment for affray as mentioned in section 160 of IPC has gone through alterations. Section 192(2) of the BNS Bill states, “Whoever commits an affray, shall be punished with imprisonment of either description for a term which may extend to one month, or with fine which may extend to one thousand rupees, or with both.” Whereas the IPC provision states the fine up to one hundred rupees.
4. Obstructing public servant in discharge of public functions: Fine for obstructing public servant in discharge of public functions has been increased in the new bill from 500 Rupees to 2500 Rupees. (Section 219 of the BNS Bill and section 186 of IPC)
5. Repeal and savings – Section 356: 

• The Indian Penal Code is revoked.
• Despite the revocation, the previous operation, rights, obligations, penalties, investigations, and remedies under the revoked Code remain intact. All proceedings and remedies can continue as if the Code were still in effect.
• Actions taken under the revoked Code are treated as having been taken under equivalent provisions of this new law.
• The specific matters mentioned in subsection (2) do not affect the application of section 6 of the General Clauses Act, 1897, concerning the effect of repeals.

1. Mischief: Section 425 deals with Mischief which defines the said term, its ingredients and punishment, which remains the same in section 322 of the BNS Bill. However, there have been alterations done in the subject matter. Section 426 of IPC states punishment for mischief, with imprisonment of either description for a term which may extend to three months, or with fine, or with both. Whereas section 322(2) proposes imprisonment for a term which may extend to six months, or with fine, or with both.

New additions have been made with reference to section 427 of IPC; section 322 of BNS Bill states that:

(3) Whoever commits mischief and thereby causes loss or damage to any property including the property of Government or Local Authority shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

 (4) Whoever commits mischief and thereby causes loss or damage to the amount of twenty thousand rupees and more but less than one lakh rupees shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Which is in contrast with section 427 of IPC- Mischief causing damage to the amount of fifty rupees. —Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. 

(5) Whoever commits mischief and thereby causes loss or damage to the amount of one lakh rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both.

 

Sections 428 and 429 of IPC which deals with Mischief by killing or maiming animal of the value of ten rupees and Mischief by killing or maiming cattle, etc., of any value or any animal of the value of fifty rupees, is now replaced and reads in section 323 of the BNS Bill which states, “Whoever commits mischief by killing, poisoning, maiming or rendering useless any animal shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both.”

 

Reforms in the Indian Penal Code (IPC) 1860: A Closer Look at Deleted Provisions

 

The Indian Penal Code of 1860, a cornerstone of India’s legal framework, has undergone significant amendments over the years to adapt to changing societal values, technological advancements, and the evolving understanding of justice. In a recent development, several provisions from the IPC have been deleted, reflecting the country’s continuous efforts to streamline its legal system and ensure alignment with contemporary sensibilities. Let’s delve into the details of these deleted provisions and their implications.

 

The ongoing process of legal reforms has prompted the removal of a range of sections from the IPC. These changes are part of a larger effort to modernize the legal system and create a more just and equitable society. The provisions that have been removed include:

1. Section 14 ‘Servant of Government’: This section defined the term “servant of government” and outlined specific rules for government servants. Its removal suggests a shift towards a more comprehensive approach to defining roles within the government structure.
2. Section 18 ‘India’: The removal of this section might signify a need to revisit the definition of the country itself, possibly reflecting changing territorial boundaries or a more inclusive understanding of the nation.

3.Section 29A ‘Electronic record’: As technology has evolved significantly since 1860, the deletion of this section likely reflects the necessity for more comprehensive and up-to-date laws regulating electronic records and digital transactions.

5. Section 53A ‘Construction of reference to transportation’: The removal of this section might be due to changes in the transportation industry and modes of mobility, which could require a more adaptable legal framework.
6. Section 124A ‘Sedition’: The deletion of this highly controversial section is a significant step towards safeguarding freedom of speech and expression. The removal of this provision acknowledges the importance of open dialogue and dissent in a democratic society.
7. Section 153AA ‘Punishment for knowingly carrying arms in any procession’: This deletion could indicate a broader reassessment of laws related to carrying arms in public spaces, reflecting efforts to enhance public safety while respecting individual rights.
8. Section 254 ‘Delivery of coin as genuine, which when first possessed, deliverer did not know to be altered’: This deletion could stem from changes in currency and counterfeiting practices, requiring a fresh perspective on counterfeit-related offenses.
9. Sections 264 to 267 ‘Offences relating to weights and measures’: These sections, which dealt with offenses related to weights and measurements, might have been deemed redundant or could be replaced with more comprehensive consumer protection laws.
10. Section 309 ‘Attempt to commit suicide’: The removal of this provision highlights a more compassionate approach towards individuals struggling with mental health issues, shifting the focus from punitive measures to support and rehabilitation.
11. Sections 310 to 311 ‘Thug and Punishment for Thug’: The deletion of these sections might be part of a broader overhaul of laws relating to organized crime and criminal syndicates.
12. Sections 376DA & 376DB ‘Gang rape on woman under the age of 16 and 12 respectively’: The removal of these sections suggests a desire to reevaluate and strengthen laws against heinous crimes, especially those involving sexual violence.
13. Section 377 ‘Sexual intercourse against the order of nature’: One of the most high-profile deletions, this reflects a significant societal shift towards recognizing LGBTQ+ rights and affirming individual autonomy over consensual sexual activities.
14. Section 444 ‘Lurking house trespass at night’ and Section 446 ‘Housebreaking at night’: These deletions could indicate a comprehensive review of laws related to trespassing and burglary, considering the evolving nature of property-related offenses.
15. Section 497 – Adultery: The deletion of this section marks a progressive step towards acknowledging the equality of spouses within marriages and respecting their individual agency.

 

Conclusion:

The parliament’s decision to revamp these laws reflects the need of the hour. The existing laws, introduced during the British colonial era in the 19th century, have become outdated and often fail to address contemporary legal challenges. Many sections have either lost relevance or required substantial amendments. The introduction of new sections is necessary to address emerging issues such as digitization, cybercrime, outdated value of fines imposed, and evolving criminal techniques designed to exploit legal loopholes. The abovementioned deletions represent a profound reimagining of India’s legal landscape, underlining the country’s commitment to adapt its laws to contemporary realities while promoting justice, equality, and human rights. As society continues to evolve, legal systems must adapt in tandem to ensure that they remain just, relevant, and effective in upholding the principles of justice and fairness. However, this Bill has been made in haste which have resulted in its drawbacks, for example, no representation or provisions for the protection of the LGBTQ community, no protection for men and, vague definitions of some terms and provisions. Several Amendments could have been made to the already existing criminal substantial law instead of proposing a ‘haste-made’ bill with indefinite vagueness, lack of brevity and untouched issues.

Disclaimer: The article is only a view and cannot be considered as legal opinion.