Indian Penal Code to Nyaya Sanhita: What’s new, what is out, what changes
Context- The Bharatiya Nyaya Sanhita Bill, 2023, which aims to replace the Indian Penal Code, introduces several significant changes. These include treating terrorism and organised crime as part of regular criminal law, implementing gender-neutral laws for child-related offences, and abolishing Section 377, which previously made homosexuality a criminal act.
New offences
Promise to marry:
- Clause 69 of the BNS appears to address the “love jihad” issue by making it a crime to falsely promise marriage. The term “sexual intercourse not amounting to the offence of rape” effectively makes consensual sexual activity a criminal act as well.
- The provision states, “Any person who, through deceptive methods or by promising to marry a woman without any intention of fulfilling this promise, engages in sexual intercourse with her, such sexual intercourse not constituting the offence of rape, will be subject to imprisonment of either type for a term that may extend to ten years and may also be fined.”
- The provision further clarifies that “deceptive methods” include false promises of employment or promotion, inducement, or marriage after concealing one’s identity.
Mob lynching:
- The BNS includes provisions that legally define offences related to mob lynching and hate-crime murders. These apply when a group of five or more individuals commit murder based on aspects such as race, caste, community, or personal beliefs. The penalties for these crimes range from life imprisonment to the death penalty.
- Previously, the Bill suggested a minimum sentence of seven years for these offences, but this has been revised to be equivalent to the punishment for murder. This change comes after the Supreme Court’s 2018 request for the Centre to contemplate a distinct law addressing lynching.
Organised crime:
- For the first time, the handling of organised crime is incorporated into regular criminal law. There are numerous special state laws aimed at preventing and controlling criminal activities by organised crime groups or gangs, with the Maharashtra Control of Organised Crime Act, 1999 being one of the most well-known.
- These special laws grant extensive surveillance powers and relax evidence and procedure standards in the state’s favour, which is not the case in regular criminal law.
- Interestingly, the new legislation equates the punishment for attempting to commit organised crime with the punishment for actually committing it. However, it differentiates based on whether the alleged offence resulted in death or not.
- In cases where death occurs, the punishment can range from life imprisonment to the death penalty. But in cases where no death occurs, a mandatory minimum sentence of five years is prescribed, which can be extended to life imprisonment.
- The legislation also introduces a new category called “petty organised crime”, which criminalises actions such as “theft, snatching, cheating, unauthorised selling of tickets, unauthorised betting or gambling, selling of public examination question papers.”
Terrorism:
- The BNS incorporates substantial portions of the language used to define "terror activities" from the stringent Unlawful Atrocities Prevention Act, thereby bringing terrorism within the scope of regular criminal law.
- As per an analysis by the National Law School of India University, Bangalore, the definition of a "terrorist" in the BNS is borrowed from the Philippines Anti-Terrorism Act, 2020. Notably, the offence related to terror financing is more comprehensive in the BNS than in the UAPA.
- However, it remains uncertain how the UAPA and the BNS will function simultaneously, particularly since the UAPA is procedurally more rigorous and its cases are adjudicated in special courts.
Attempt to suicide:
- The BNS introduces a new clause that makes it a crime for anyone to attempt suicide with the intention of forcing or preventing a public servant from performing their official duties.
- This offence carries a potential prison sentence of up to one year, along with community service. This clause could potentially be used to deter acts such as self-immolation and hunger strikes during protests.
Deletions
Unnatural sexual offences:
- Section 377 of the Indian Penal Code, which previously criminalised homosexuality and other “unnatural” sexual activities, has been abolished in the BNS. However, the complete removal of Section 377 has sparked concerns, as it remains a useful tool for addressing non-consensual sexual acts, particularly as rape laws are still gender-specific.
- In 2018, the Supreme Court declared the provision unconstitutional, but only insofar as it criminalised consensual homosexual relationships.
Adultery:
- The BNS has removed the offence of adultery, which the Supreme Court deemed unconstitutional in 2018.
Thugs:
- Under Section 310 of the IPC, individuals who are “habitually associated with any other or others for the purpose of committing robbery or child-stealing by means of or accompanied with murder” are labelled as thugs and criminalised. This provision, criticised for perpetuating colonial stereotypes of criminality among certain tribes, has been entirely removed in the BNS.
Gender neutrality:
- While rape laws still apply exclusively to women, the BNS has modified some other laws, particularly those related to children, to be gender-neutral. The offences related to procuring a girl for “illicit intercourse” (366A of the IPC) have been made gender-neutral.
- For the offence of kidnapping minors, the IPC (Section 361) sets different age limits: 16 years for males and 18 years for females. The BNS standardises this to 18 years for both genders. For adults, the offences of outraging a woman’s modesty (354A of the IPC) and voyeurism (354C) are now gender-neutral under the BNS, meaning that women can also be charged under these laws.
Other tweaks
Fake news:
- The IPC currently includes Section 153B, which addresses “imputations, assertions prejudicial to national integration.” This provision, often referred to as the “hate speech” clause, criminalises actions that cause “disharmony or feelings of enmity or hatred or ill-will” among communities.
- The BNS introduces a new clause that criminalises the publication of false and misleading information.
Sedition:
- When the Sanhitas were initially presented in the Lok Sabha in August, Union Home Minister Amit Shah stated that the sedition law had been repealed. However, the BNS reintroduces the offence under a new name and with an expanded definition.
- In addition to changing the name from ‘rajdroh’ to ‘deshdroh’, the new clause encompasses aiding subversive activities through financial means and promoting separatist sentiments.
Mandatory minimum sentence:
- Section 303 of the IPC mandates a death sentence for a life-convict who commits murder. In 1983, the Supreme Court declared this provision unconstitutional because it removed judges’ sentencing discretion. The BNS has revised this clause to stipulate a punishment of “death or imprisonment for life, which shall mean the remainder of that person’s natural life.”
- In several other clauses, mandatory minimum sentences are stipulated. While prescribing a minimum sentence restricts the potential for judicial discretion and arbitrariness, it is often viewed as unfair to the convict, as mitigating circumstances, such as being a first-time offender or the family’s sole breadwinner, are frequently disregarded.
Conclusion- The Bharatiya Nyaya Sanhita Bill, 2023, represents a significant overhaul of India’s criminal law, introducing numerous changes and new provisions. It addresses a wide range of issues, from organised crime and terrorism to gender neutrality and offences related to children. The bill also tackles contemporary concerns such as fake news and hate crimes.
As the BNS seeks to replace the Indian Penal Code, its implications on the legal landscape and societal norms in India will be closely watched and rigorously debated. It underscores the ongoing evolution of law in response to societal changes and the imperative for a balance between maintaining law and order and upholding individual rights and freedoms.