Bharatiya Nyaya Sanhita-Interesting way Ahead

The three new criminal laws, namely, Bharatiya Sakskshya Adhiniyam, Bharatiya Nyaya Sanhita (“BNS”) and Bharatiya Nagrik Suraksha Sanhita have been notified on 25^th December, 2023 and have repealed The Indian Evidence Act, 1872, The Indian Penal Code, 1860 (“IPC”) and The Code of Criminal Procedure, 1973. This Article aims to capture the changes brought by BNS to the scheme of Criminal Law in India. The article is neither a comprehensive assessment of the BNS, nor a complete analysis of the provisions of the same. The same discusses and assess only the major changes brought by the BNS.

Bharatiya Nyaya Sanhita has done away with the “General Explanation” clauses as contained in Sections 8 to 52A of Chapter II of IPC.  All these Sections contained definitions as there was no definition clause in IPC. Bharatiya Nyaya Sanhita has retained most of the definitions without any change, and the same have now been included in Section 2 of BNS. However, the definitions in Section 2 of BNS are to be interpreted contextually as the definitions are subject to phrase “unless the context otherwise requires”. Term ‘Child’ which was not defined in IPC has now been defined in Section 2 (3) of BNS, whereas term ‘Section’ which was defined under Section 50 of the IPC has been omitted from BNS. Some other important changes pertaining to Section 2 of the BNS are as follows:

• Inclusion of transgenders as one of gender in Section 2(10) of BNS.
• Departure from the usage of term “British Calendar” and in its place using “Gregorian Calendar”.
• Unlike IPC, “Movable Properties” under Section 2 (20) of the BNS is not limited to corporeal property. Therefore, the same shall now include intangible assets such as digital data, patents, copyrights etc as well.

Bharatiya Nyaya Sanhita while retaining and reorganising the provisions pertaining to offences contained in the IPC has specified new offences which were earlier being tried under general provisions and introduced new punishable offences. Chapter V of the Bharatiya Nyaya Sanhita pertains to Offences against women and children, and the purview of these offences has been widened in different aspects. For instance, under Section 70 of the BNS punishment of death penalty has been provided for gang rape of woman under 18 years of age. Earlier death sentence was only for convicts in gang rape cases of woman under 12 years of age. Under the IPC, only men were accused of offences of assault/use of force with intention to disrobe a woman and voyeurism, but in BNS the offences are not gender specific. Further employing, hiring, or engaging a child to commit an offence has been made punishable under Section 95 of BNS. Hiring, employing, or engaging a child for sexual exploitation or pornography is also covered under Section 95. Section 69 of BNS has been introduced which contains provision against offence dealing with having sexual intercourse by employing deceitful means or making promise to marry without the intention of fulfilling the same. The said offence has not been brought within the realm of rape and is punishable with imprisonment for a term up to 10 years and fine.

One of the major changes is the inclusion of Terrorism as a punishable offence. Under Section 113 of the Bharatiya Nyaya Sanhita Terrorism is defined as an act that intends to threaten the unity, integrity, security or economic security of the county, or strike terror in the people. The punishment for attempting or committing terrorism includes: (i) death or life imprisonment, and a fine, if it results in death of a person, or (ii) imprisonment between five years and life, and a fine.

BNS has also included Organised Crime and Petty Organised Crime as an offence. Offences such as extortion, kidnapping, robbery, land-grabbing, economic offence, cyber-crime and cyber-frauds committed by a member of an organised crime syndicate or on behalf of such syndicate are categorised as Organised Crime. Organised Crime Syndicate has been explained as group of two or more persons who act either singly or jointly, as a syndicate or gang and indulges in any continuing unlawful activity. Attempting or committing organised crime will be punishable with: (i) death or life imprisonment and a fine of Rs 10 lakh, if it results in death of a person, or (ii) imprisonment between five years and life, and a fine of at least five lakh rupees.

BNS has introduced the offence of Mob Lynching under the Criminal Code however, the same has been incorporated as an offence by way of illustration under Section 117 which defines voluntary grievous hurt. The said illustration is as follows “When a group of five or more persons acting in concert, causes grievous hurt to a person on the ground of his race, caste or community, sex, place of birth, language, personal belief or any other similar ground, each member of such group shall be guilty of the offence of causing grievous hurt, and shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” Under the IPC, the cases of mob lynching were tried as murder under Section 302, for which the punishment was death or life imprisonment, but with BNS an option for seven years has also been added. That effectively lowers down the sentencing.

Further BNS has deleted Sedition as an offence (Section 124A of IPC) and had put in Section 152 which provides that 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 up to seven years, and shall also be liable to fine.

Amongst other provisions brought by Bharatiya Nyaya Sanhita, Section 106 (2) has caused much upheaval recently. Section 106(2) has been included in the Samhita which provides that whoever causes death of any person by rash and negligent driving of vehicle and escapes without reporting it to a Police Officer or a Magistrate shall be punished with imprisonment up to seven years and shall also be liable to fine. Under IPC the cases of deaths due to negligent driving were registered under Section 304A of IPC with punishment up to two years and fine. Since, in a large number of these cases registration numbers of vehicles and drivers were unknown, cases of “hit and run” were on a rise which also severely impacts the survival of the victim since non reporting causes delay in response by medical professionals. Section 106 (2) has been introduced to ensure reporting of accidents immediately with an aim to save the victims within time.

Conclusion

On a perusal of the Bharatiya Nyaya Sanhita, it impresses upon the reader that this new law is an attempt to let go off the British era criminal laws and streamlining the provisions. However, whether the BNS is a transformative code or an organic evolutionary descendant to the IPC is hard to say and only time will give clarity on this aspect. The Legislature has included necessary changes to definitions and provisions at a high time as the same corresponds to the needs of present but at the same time has failed to gauge the demands of the society with non-inclusion of marital rape, gender neutral adultery, and gender-neutral rape such other acts as an offence. Further there is incoherence with regards to the principle of punishment being followed as the Samhita just as its predecessor fails to subscribe to any particular principle of sentencing. While community service has been introduced as a reformative form of punishment, it is limited to only six offences without any basis or indication as to what would include community service. Moreover, as expected custodial punishment is still the punishment for majority of the offences and it still includes the punishment of solitary confinement. It is important to note that solitary confinement that lasts more than 15 consecutive days is recognized by the United Nations and various human rights organizations as torture, and with the enactment of BNS the provision for solitary confinement has not been deleted yet.

Further the inclusion of organised crimes and terrorism in the scheme of general criminal law overlaps with special laws such as Maharashtra Control of Organised Crime Act, 1999 (MCOCA) and Unlawful Activities (Prevention) Act, 1967 (UAPA) and such overlapping of provisions dealing with same or similar offences will cause confusion amongst the general public and may prove inefficient. Further no reasons have been assigned by the Legislature for including these offences when there were special statutes already enacted to deal with the same.

To conclude, it can be said that enactment of BNS is a progressive step in the right direction, as the new law recognizes a lot of modern-day offences. However, it seems that even more such offences could have been included and certain other offences could have been differently worded or could have been brought in with certain safeguards to address the modern-day situations and also to minimize misuse. Further, it will be interesting how the enforcement agencies and judicial systems perceives and interprets the new law. This is more so because the law which the BNS seeks to replace was one of the oldest criminal codes in commonwealth countries.

[1]Death, Imprisonment for life, Imprisonment (rigorous and simple), forfeiture of property and fine.