On August
11, 2023, the Bharatiya Nyaya Sanhita Bill, 2023 (Nyaya Sanhita Bill) and the
Bharatiya Nagarik Suraksha Sanhita Bill, 2023 (Nagarik Suraksha Sanhita Bill)
(collectively, New Codes) were introduced in the Lok Sabha to repeal and
replace the Indian Penal Code, 1860 (IPC) and the Code of Criminal Procedure,
1973. The Bharatiya Nyaya Sanhita, 2023 (“BNS”) was enacted on
December 25, 2023, to repeal and replace the Indian Penal law, 1860
(“IPC”) as the country’s new penal law. the 5th Law Commission,
chaired by Mr. K.V.K. Sundaram, conducted a thorough examination of both the
IPC and the CRPC, 1898, only the latter law was updated and
re-enacted as the Code of Criminal Procedure, 1973.
The IPC
remained a legacy of the pre-independence British era, with antiquated Sections
that did not reflect the emerging modern rights and inclusion debate. The New
Code propose broad changes to the existing criminal law regime, such as
consolidating the existing provisions of the IPC to make them more concise and
streamlined, as well as introducing new offences in provisions dealing with
hate speech, terrorism, and acts threatening the nation’s sovereignty, unity,
or integrity. They also include laws governing investigation and trial
timetables, as well as in absentia trials for absconders. The purpose of the
New Codes was to replace the colonial-era criminal justice system, which was
designed to punish and repress people, with a new one that upholds Indian
citizens’ rights and advances the notion of justice. The present article traces
the several changes introduced by the Bhartiya Nyaya Sanhita to the existing
criminal law regime by repealing the Indian Penal Code, of 1860.
Application of BNS
The BNS’s
repeals and savings Section repeals the IPC while protecting the past operation
of the IPC or anything done or endured under the IPC. The BNS also makes
Section 6 of the General Sections Act of 1897 applicable. Remarkably, while it
saves penalties, punishments, proceedings, investigations, or remedies in
respect of any such penalty or punishment under the IPC, the BNS states that
anything done or action taken under the IPC qualifies to have been done under
the corresponding provision of the BNS. The Constitution’s Article 20, which states
that no one may be found guilty of an offence other than breaking the law in
effect at the time the conduct was committed, is sadly violated by this
provision, raising concerns about the retrospective application of
the new penal code.
An overview of the major changes introduced by BNS and their possible
implications
Key Definitions
Act
Section 2
(1) defined the term “act” as both an act and a series of acts as a
single act; the definition in Section 33 of the IPC clarified that the term
“act” also signified a series of acts. The definition under Section
2(1) of the BNS does not convey the same meaning, perhaps leading to confusion
over whether a “act” refers to a sequence of acts. The existing
definition has no meaning.
Judge
Section 2(15): “Judge” means a person who is officially
designated as a Judge and includes a person-
who is empowered by law to give, in any legal
proceeding, civil or criminal, a definitive judgment, or a judgment which, if
not appealed against, would be definitive, or a judgment which, if confirmed by
some other authority, would be definitive; or
who is one of a body or persons, which body of persons
is empowered by law to give such a judgment.
The change proposed by the definition in the BNS
appears to exclude quasi-judicial authorities. This may make the defence under
section 15, BNS unavailable to quasi-judicial authorities. Under the IPC, the
defence under section 77 was available to quasi-judicial authorities. These
provisions save a Judge from criminal liability when acting judicially in
exercise of their powers.
The
proposed amendment to the definition of the BNS appears to exclude
quasi-judicial authorities. This may render the defence under Section 15, BNS
inaccessible to quasi-judicial authorities. Section 77 of the IPC allowed
quasi-judicial authorities to defend themselves. These provisions protect
judges from criminal culpability when acting judicially in the exercise of
their authority.
On
mental illness
Section 22 of BNS provides that no act is an offence
which is done by a person who, at the time of doing it, because of mental
illness, is incapable of knowing the nature of the act, or that he is doing
what is either wrong or contrary to law. Section 2(s) of the Mental Healthcare Act, 2017 provides a broad yet
limiting definition of mental illness. The term “mental retardation”
refers to a condition where a person’s intellect has not fully developed and is
typified by subnormal IQ. Section 22 of the BNS may not apply to individuals
who lack the ability to form knowledge. However, the broad definition of
section 84, IPC may be overinclusive and include those who would not have
previously benefited from it. The new provision’s test remains unaltered,
therefore the existing conditions for invoking it will still apply. As a
result, stereotypes around Section 84 of the IPC will persist.
On Intoxification
Section 23of BNS provides that nothing is considered an offence if it is committed by
a person at the moment. If someone is intoxicated, they may not realise
they are doing something improper or against the law, “unless that”
intoxicating substance was given to them without their knowledge or consent. Replacing
“provided that” with “unless that” completely changes the meaning of the
intoxication defence. It makes voluntary intoxication a defence.
On offences relating to property
Dishonest
Misappropriation of property
The BNS
under Section 316 prescribes a minimum six-month sentence for dishonest
misappropriation of property. Furthermore, the offence is now penalised by
imprisonment and a fine, rather than imprisonment, a fine, or both under the
IPC.
Criminal Breach of
Trust
Section 316,
BNS, combines criminal breach of trust provisions from Sections 406 – 409 of
the IPC. Furthermore, criminal breach of trust is now punishable by
imprisonment for up to five years, rather than three years under the IPC. In
business, criminal breach of trust often refers to misappropriation and
embezzlement of cash by workers or third parties.
Private settlements are routinely used by companies to resolve disputes and
reduce reputational issues. To comply with reporting obligations to the police,
the corporation may take extra actions to reach settlements and resolve
difficulties, such as submitting a quashing petition if an FIR is made after
reporting. The New Codes provide for a “reasonable excuse” not to
report an infraction. Although investigating a settlement may be an acceptable
justification, it will be judicially assessed after the New Codes are
implemented.
Cheating
All kinds
of cheating under the IPC, including Sections 417, 418, and 420, have been
combined into a single provision, Section 318 of the BNS. The punishment for
cheating has been enhanced to imprisonment for up to three years, rather than
one year under the IPC. For the offence of “cheating with the knowledge
that wrongful loss may ensue to person whose interest offender is bound to
protect” i.e., a more heinous kind of cheating, the sentence has been
enhanced to imprisonment which may exceed to five years as opposed to three
years under the IPC.
On offences relating to the human body
Organized
Crimes
Section 111
of the BNS defines “organised crime,” drawing heavily on specialised
state legislation aimed at combating organised criminal activity, such as the
Maharashtra Control of Organised Crime Act, 1999 (“MCOCA”), the
Gujarat Control of Organised Crime Act, 2015 (“GCOC”), and so on.
The
provision’s definition of organised crime is ambiguous and utilises catch-all
language, allowing investigating authorities to charge anyone arbitrarily based
on these ambiguous and imprecise terms. For example, the definition includes
concepts like land grabbing, contract killing, cybercrime, and so on that are
not mentioned in the Sanhita. It also employs the term “economic
offence”. Economic offences are couched in ambiguous terms using overbroad
concepts such as “hawala transaction” and “mass-marketing
fraud,” which are not defined anywhere in the BNS or other statutes, thus
adding to the confusion.
Death
caused by negligence
The
charge of causing death by negligence has undergone substantial changes under
the BNS, Section 106. The punishment for causing death through a reckless and
irresponsible act has been enhanced to imprisonment for up to five years and a
fine. Previously, under the IPC, such an infraction was penalised by two years
in prison, a fine, or both.
Rash Act by medical practitioners
Section
106 covers death caused by a medical practitioner’s reckless and negligent act
while executing a medical operation. The crime carries a maximum sentence of
two years in jail and a fine. This offence should be construed in light of the
Supreme Court’s decision in Jacob Mathew v. State of Punjab[i],
which established criteria to ensure that the offence is not exploited against
doctors.
Hit and run cases
The BNS
under Section 106(2) currently states that anybody who causes death by hasty or careless
driving and then flees the scene without reporting the occurrence to the police
or a magistrate may face a maximum of 10 years in jail and a fine. The country
has seen an upsurge in careless driving, hit-and-runs, and road rage cases.
According to the National Crime Records Bureau, reckless driving killed more
people than murder in 2021. This rule appears to be expressly designed to deter
hit-and-run incidents.
Decriminalization
of offences
The BNS, in
accordance with the Supreme Court’s decision in Navtej Singh Johar v. Union of
India[ii],
has repealed Section 377 of the IPC. This is a great decision that respects
human dignity. The offence of attempt to commit suicide, as stated under
Section 309 of the IPC, has likewise been omitted in the BNS. This is a
progressive omission since suicide attempts are viewed as a mental health
problem rather than a criminal. The Supreme Court, in Joseph Shine v. Union of
India[iii],
declared the offence of adultery to be outdated, arbitrary, and paternalistic.
Despite the Parliamentary Standing Committee Report’s suggestion to reinstate
adultery as a punishable violation for both men and women, the BNS does not
include it.
Deletion of Sedition
The elimination
of the sedition crime under Section 124A of the IPC is a crucial step. This is
consistent with the Union of India’s statement to the Supreme Court in S.G.
Vombatkere v. Union of India[iv],
that it is re-examining and evaluating the law of sedition.
The crime
of sedition was only a relic of the colonial past used to punish any sort of
insurrection against the British government. It had no place in a democratic
society based on the rule of law. Though the charge of sedition under Section
124A of the IPC has been removed, it appears to have been replaced by Section
152 of the BNS, which deals with activities that jeopardise India’s
sovereignty, unity, and integrity.
On punishments
Section
4(f) of the BNS requires community service as a measure of punishment. The
Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”) (new criminal
process law) defines community service under Section
23, as labour that a convict may be ordered by the Court to complete as a
form of punishment that helps the society and for which he is not entitled to
any remuneration.
It is worth
mentioning that the BNS has implemented a non-custodial and reformative type of
punishment for minor infractions, known as community service, which represents
a major divergence from traditional punitive approaches.
While the
question over whether defamation should be a criminal offence has yet to be
addressed in the BNS, community service has been added as an alternative
punishment for defamation under Section 356(2) of BNS. This is a constructive
measure that makes the crime of slander less punishable. Community service is being used as a form of
punishment for some acts. These are minor infractions, such as misbehaviour by
an inebriated person in public.
While the
BNS still uses “forfeiture of property” as a form of punishment, it
may be superfluous. Section 107 of BNSS providing for attachment and forfeiture of property makes “forfeiture of
property” as a penalty unnecessary. This is because forfeiture under the
BNSS is not restricted to specific acts, but applies to any property earned or
generated from criminal conduct or the commission of an offence, regardless of
the nature of the offence.
Tabular representation of the major changes introduced by the BNS in
contrast to the IPC
The new
code seeking to repeal the IPC, has borrowed, proposed, and inserted entirely
new provisions in the erstwhile Criminal Law. These changes have been depicted
below in the two tables, the first one highlighting the completely new
provisions inserted by the while the second one represent the changes proposed
in the IPC.
Table 1: New Provisions Inserted by the BNS
Section
in the Bill
Title
in the Bill
Section 48
Abetment outside India for offences in India
Section 69
Sexual intercourse by deceitful means or false promises to marry.
Section 70 (2)
Gang rape on women under the age of 18
Section 93
Hiring, employing, or engaging a child to commit an offence
Section 101
Punishment for mob lynching
Section 104 (2)
Punishment for non-reporting of rash or negligent acts causing death
Section 109
Organized crimes
Section 110
Party organized crime of organized in general
Section 111
The offence of a terrorist act
Section 115
Grievous hurt causing permanent disability or persistent vegetative
condition; hurt caused by a mob.
Section 150
Acts endangering the sovereignty, unity and integrity of India
Section 224
Attempt to commit suicide to compel or restraint exercise of lawful
power
Section 302
Snatching
Section 356
Repeal and Savings
Table 2: Changes Proposed in the IPC
Section
in the Bill
Title
(and Chapter) in the Bill
Relevant
section in IPC
Section 2
Definitions
S. 6-52A
Section 3
General explanations and expressions
S. 6, 7, 27, 32, 34, 35-38
Section 4
Punishments
S. 53
Section 6
Fractions and terms of punishment
S. 57
Section 8
Amount of fine, liability in default etc
S. 63-70
Section 22
Act of a person with mental illness
S. 84
Section 27
Act done in good faith for the benefit of the child or person with
mental illness
S. 89
Section 28
Consent under fear or misconception
S. 90
Section 36
Right of private defence against the person with mental illness
S. 98
Section 41
When the right of private defence of property extends to causing death
S. 103
Section 46
Abettor
S. 108
Section 57
Abetting the commission of the offence by more than ten persons
S. 117
Section 63
Rape
S. 375
Section 64
Punishment for rape
S. 376
Section 72
Disclosure of the identity of the victim
S. 228 A
Section 75
Assault or criminal force with the intent to disrobe
S. 354 B
Section 76
Voyeurism
S. 354 C
Section 83
Enticing or detaining married woman
S. 498
Section
94
Procuration
of child
S.
366A*
Section
96
Selling
child for prostitution
S. 372
Section
97
Buying
child for prostitution
S. 373
Section
102
Punishment
for murder by life-convict
S. 303
Section
103
Punishment
for culpable homicide not amounting to murder
S. 304
Section
104 (1)
Causing
death by negligence
S.
304A
Section
105
Abetment
of suicide of child or person with mental illness
S. 305
Section
107
Attempt
to murder
S. 307
Section
113
Voluntarily
causing hurt
S. 321,
S. 323
Section
114
Grievous
hurt
S. 320
Section
116
Voluntarily
causing hurt or grievous hurt by dangerous weapons or means
S.
324, S. 326
Section
119
Voluntarily
causing hurt or grievous hurt to deter public servant from his duty
S. 332
– 333
Section
120
Voluntarily
causing hurt or grievous hurt on provocation
S. 334
– S.335
Section
122
Voluntarily
causing grievous hurt by use of acid, etc.
S.
326A-S.326B
Section
123
Act
endangering life or personal safety of others
S.
336- S.338
Section
124
Wrongful
restraint
S.
339, S. 341
Section
125
Wrongful
confinement
S.
340, S. 342-S.348
Section
129
Punishment
for assault or criminal force otherwise than on grave provocation
S.352
Section
133
Assault
or criminal force in attempt wrongfully to confine a person
S.357
Section
134
Assault
or criminal force on grave provocation
S.358
Section
135
Kidnapping
S.359-S.361,
S.363
Section
137
Kidnapping
or maiming a child for the purpose of begging
S.
363A
Section
139
Importation
of a girl or boy from a foreign country
S.
366B
Section
141
Trafficking
of person
S. 370
Section
142
Exploitation
of a trafficked person
S.
370A
Section
146
Conspiracy
to commit offences u/s 145
S.
121A
Section
151
Waging
war against a foreign state
S. 125
Section
152
Depredation
on territories of a foreign state
S. 126
Section
157
Abetting
mutiny, or attempting to seduce a soldier, sailor or airman from his duty
S. 131
Section
162
Harbouring
deserter
S. 136
Section
163
Deserter
concealed on board merchant vessel through negligence of master
S. 137
Section
164
Abetment
of act of insubordination by soldier, sailor or airman
S. 138
Section
166
Wearing
garb or carrying tokens used by soldier, sailor or airman
S. 140
Section
174
Illegal
payments in connection with an election
S.
171H
Section
175
Failure
to keep election accounts
S.
171I
Section
176
Counterfeiting
coin, government stamps, currency notes or bank-notes
S. 230
– S. 232, S.246- S.249, S. 255, S. 489A
Section
177
Using
as genuine, forged or counterfeit coin, Government stamp, currency notes or
bank notes
S.
250, S.251, S. 258, S. 260, S.489B
Section
179
Making
or possessing instruments or materials for forging or counterfeiting coin,
Government stamps, currency notes or bank-notes
S.
233, S. 235, S. 256, S. 257, S. 489D
Section
180
Making
or using documents resembling currency notes or bank-notes
S.
489E
Section
189
Rioting
S.
146-148
Section
192
Affray
S.
159- S. 160
Section
193
Assaulting
or obstructing public servant suppressing riot
S. 152
Section
195
Imputations,
assertions prejudicial to national integration
S.
153B
Section
200
Unlawfully
engaging in trade
S. 168
Section
202
Personating
public servant
S. 170
Section
203
Wearing
garb of public servant
S. 171
Section
204
Absconding
to avoid service of summons or other proceeding
S. 172
Section
205
Preventing
service of summons or other proceeding, or preventing publication thereof
S. 173
Section
206
Non-attendance
in obedience to an order from public servant
S. 174
Section
207
Non-appearance
in response to a proclamation under section 82 of BNSS of 2023
S.
174A
Section
208
Omission
to produce a document to public servant by person legally bound to produce it
S. 175
Section
209
Omission
to give notice or information to public servant by person legally bound to
give it
S. 176
Section
210
Furnishing
false information
S. 177
Section
211
Refusing
oath or affirmation when duly required by public servant to make it
S. 178
Section
212
Refusing
to answer public servant authorised to question
S. 179
Section
213
Refusing
to sign a statement
S. 180
Section
265
Intentional
insult in a judicial proceeding
S. 228
Section
266
Personation
of an assessor
S. 229
Section
270
Malignant
acts likely to spread infection or disease dangerous to life
S. 270
Section
271
Disobedience
to quarantine rule
S. 271
Section
272
Adulteration
of food or drink intended for sale
S. 272
Section
273
Sale
of noxious food or drink
S. 273
Section
274
Adulteration
of drugs
S. 274
Section
275
Sale
of adulterated drugs
S. 275
Section
276
Sale
of drug as a different drug or preparation
S. 276
Section
277
Fouling
water from public springs or reservoir
S. 277
Section
278
Making
atmosphere noxious to health
S. 278
Section
322
Mischief
S.
425- S.427, S. 440
Section
323
Mischief
by killing or maiming an animal
S.
428- S. 429
Section
324
Mischief
by injury, fire, explosion etc
S.
430- S. 436
Section
349
Criminal
intimidation
S.
503, S. 506-S. 507
Section
350
Intentional
insult to provoke a breach of peace
S. 504
Section
351
Statement
conducing to public mischief
S. 505
Section
354
Defamation
S.499-
S. 502
Section
355
Breach
of contract to supply wants of a helpless person
S. 491
Conclusion
In conclusion, the comparative
analysis between the Indian Penal Code (IPC) and the Bharatiya Nyaya Sanhita
(BNS) highlights both the continuities and the contrasts within the Indian
legal system. While the IPC represents a legacy of British colonial influence,
the BNS endeavours to encapsulate indigenous legal traditions within a modern
framework. The significant changes and
implications introduced by the BNS, includes:
The BNS
modifies the definition of “act” and “judge,” potentially
leading to confusion and excluding quasi-judicial authorities from certain
defenses.
BNS
introduces a provision similar to IPC’s Section 84 but may have limitations
concerning individuals lacking cognitive abilities.
BNS alters
the defense of intoxication, making voluntary intoxication a possible defense.
BNS imposes
stricter penalties for offences like dishonest misappropriation of property and
criminal breach of trust.
Private
settlements are accommodated, allowing corporations to resolve disputes without
mandatory reporting.
Cheating
provisions are consolidated and penalties enhanced.
BNS defines
organized crime broadly, potentially leading to arbitrary charges.
Penalties
for causing death by negligence are increased.
Rash acts
by medical practitioners and hit-and-run cases are addressed with stricter
penalties.
Decriminalization
occurs for offences like Section 377 (homosexuality) and suicide attempts,
aligning with progressive legal trends.
Sedition
under IPC Section 124A is removed, but replaced by BNS Section 152, addressing
activities threatening national sovereignty, unity, or integrity.
Overall, the BNS aims to modernize and streamline India’s penal law, addressing contemporary issues and aligning with progressive legal principles. However, concerns arise regarding clarity in definitions, potential loopholes, and the retrospective application of certain provisions. Additionally, the replacement of sedition laws raises questions about the balance between national security and individual rights.
JURISEDGE
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On August 11, 2023, the Bharatiya Nyaya Sanhita Bill, 2023 (Nyaya Sanhita Bill) and the Bharatiya Nagarik Suraksha Sanhita Bill, 2023 (Nagarik Suraksha Sanhita Bill) (collectively, New Codes) were introduced in the Lok Sabha to repeal and replace the Indian Penal Code, 1860 (IPC) and the Code of Criminal Procedure, 1973. The Bharatiya Nyaya Sanhita, 2023 (“BNS”) was enacted on December 25, 2023, to repeal and replace the Indian Penal law, 1860 (“IPC”) as the country’s new penal law. the 5th Law Commission, chaired by Mr. K.V.K. Sundaram, conducted a thorough examination of both the IPC and the CRPC, 1898, only the latter law was updated and re-enacted as the Code of Criminal Procedure, 1973.
The IPC remained a legacy of the pre-independence British era, with antiquated Sections that did not reflect the emerging modern rights and inclusion debate. The New Code propose broad changes to the existing criminal law regime, such as consolidating the existing provisions of the IPC to make them more concise and streamlined, as well as introducing new offences in provisions dealing with hate speech, terrorism, and acts threatening the nation’s sovereignty, unity, or integrity. They also include laws governing investigation and trial timetables, as well as in absentia trials for absconders. The purpose of the New Codes was to replace the colonial-era criminal justice system, which was designed to punish and repress people, with a new one that upholds Indian citizens’ rights and advances the notion of justice. The present article traces the several changes introduced by the Bhartiya Nyaya Sanhita to the existing criminal law regime by repealing the Indian Penal Code, of 1860.
Application of BNS
The BNS’s repeals and savings Section repeals the IPC while protecting the past operation of the IPC or anything done or endured under the IPC. The BNS also makes Section 6 of the General Sections Act of 1897 applicable. Remarkably, while it saves penalties, punishments, proceedings, investigations, or remedies in respect of any such penalty or punishment under the IPC, the BNS states that anything done or action taken under the IPC qualifies to have been done under the corresponding provision of the BNS. The Constitution’s Article 20, which states that no one may be found guilty of an offence other than breaking the law in effect at the time the conduct was committed, is sadly violated by this provision, raising concerns about the retrospective application of the new penal code.
An overview of the major changes introduced by BNS and their possible implications
Section 2 (1) defined the term “act” as both an act and a series of acts as a single act; the definition in Section 33 of the IPC clarified that the term “act” also signified a series of acts. The definition under Section 2(1) of the BNS does not convey the same meaning, perhaps leading to confusion over whether a “act” refers to a sequence of acts. The existing definition has no meaning.
Section 2(15): “Judge” means a person who is officially designated as a Judge and includes a person-
The change proposed by the definition in the BNS appears to exclude quasi-judicial authorities. This may make the defence under section 15, BNS unavailable to quasi-judicial authorities. Under the IPC, the defence under section 77 was available to quasi-judicial authorities. These provisions save a Judge from criminal liability when acting judicially in exercise of their powers.
The proposed amendment to the definition of the BNS appears to exclude quasi-judicial authorities. This may render the defence under Section 15, BNS inaccessible to quasi-judicial authorities. Section 77 of the IPC allowed quasi-judicial authorities to defend themselves. These provisions protect judges from criminal culpability when acting judicially in the exercise of their authority.
Section 22 of BNS provides that no act is an offence which is done by a person who, at the time of doing it, because of mental illness, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law. Section 2(s) of the Mental Healthcare Act, 2017 provides a broad yet limiting definition of mental illness. The term “mental retardation” refers to a condition where a person’s intellect has not fully developed and is typified by subnormal IQ. Section 22 of the BNS may not apply to individuals who lack the ability to form knowledge. However, the broad definition of section 84, IPC may be overinclusive and include those who would not have previously benefited from it. The new provision’s test remains unaltered, therefore the existing conditions for invoking it will still apply. As a result, stereotypes around Section 84 of the IPC will persist.
Section 23of BNS provides that nothing is considered an offence if it is committed by a person at the moment. If someone is intoxicated, they may not realise they are doing something improper or against the law, “unless that” intoxicating substance was given to them without their knowledge or consent. Replacing “provided that” with “unless that” completely changes the meaning of the intoxication defence. It makes voluntary intoxication a defence.
The BNS under Section 316 prescribes a minimum six-month sentence for dishonest misappropriation of property. Furthermore, the offence is now penalised by imprisonment and a fine, rather than imprisonment, a fine, or both under the IPC.
Section 316, BNS, combines criminal breach of trust provisions from Sections 406 – 409 of the IPC. Furthermore, criminal breach of trust is now punishable by imprisonment for up to five years, rather than three years under the IPC. In business, criminal breach of trust often refers to misappropriation and embezzlement of cash by workers or third parties.
Private settlements are routinely used by companies to resolve disputes and reduce reputational issues. To comply with reporting obligations to the police, the corporation may take extra actions to reach settlements and resolve difficulties, such as submitting a quashing petition if an FIR is made after reporting. The New Codes provide for a “reasonable excuse” not to report an infraction. Although investigating a settlement may be an acceptable justification, it will be judicially assessed after the New Codes are implemented.
All kinds of cheating under the IPC, including Sections 417, 418, and 420, have been combined into a single provision, Section 318 of the BNS. The punishment for cheating has been enhanced to imprisonment for up to three years, rather than one year under the IPC. For the offence of “cheating with the knowledge that wrongful loss may ensue to person whose interest offender is bound to protect” i.e., a more heinous kind of cheating, the sentence has been enhanced to imprisonment which may exceed to five years as opposed to three years under the IPC.
Section 111 of the BNS defines “organised crime,” drawing heavily on specialised state legislation aimed at combating organised criminal activity, such as the Maharashtra Control of Organised Crime Act, 1999 (“MCOCA”), the Gujarat Control of Organised Crime Act, 2015 (“GCOC”), and so on.
The provision’s definition of organised crime is ambiguous and utilises catch-all language, allowing investigating authorities to charge anyone arbitrarily based on these ambiguous and imprecise terms. For example, the definition includes concepts like land grabbing, contract killing, cybercrime, and so on that are not mentioned in the Sanhita. It also employs the term “economic offence”. Economic offences are couched in ambiguous terms using overbroad concepts such as “hawala transaction” and “mass-marketing fraud,” which are not defined anywhere in the BNS or other statutes, thus adding to the confusion.
The charge of causing death by negligence has undergone substantial changes under the BNS, Section 106. The punishment for causing death through a reckless and irresponsible act has been enhanced to imprisonment for up to five years and a fine. Previously, under the IPC, such an infraction was penalised by two years in prison, a fine, or both.
Rash Act by medical practitioners
Section 106 covers death caused by a medical practitioner’s reckless and negligent act while executing a medical operation. The crime carries a maximum sentence of two years in jail and a fine. This offence should be construed in light of the Supreme Court’s decision in Jacob Mathew v. State of Punjab[i], which established criteria to ensure that the offence is not exploited against doctors.
Hit and run cases
The BNS under Section 106(2) currently states that anybody who causes death by hasty or careless driving and then flees the scene without reporting the occurrence to the police or a magistrate may face a maximum of 10 years in jail and a fine. The country has seen an upsurge in careless driving, hit-and-runs, and road rage cases. According to the National Crime Records Bureau, reckless driving killed more people than murder in 2021. This rule appears to be expressly designed to deter hit-and-run incidents.
The BNS, in accordance with the Supreme Court’s decision in Navtej Singh Johar v. Union of India[ii], has repealed Section 377 of the IPC. This is a great decision that respects human dignity. The offence of attempt to commit suicide, as stated under Section 309 of the IPC, has likewise been omitted in the BNS. This is a progressive omission since suicide attempts are viewed as a mental health problem rather than a criminal. The Supreme Court, in Joseph Shine v. Union of India[iii], declared the offence of adultery to be outdated, arbitrary, and paternalistic. Despite the Parliamentary Standing Committee Report’s suggestion to reinstate adultery as a punishable violation for both men and women, the BNS does not include it.
The elimination of the sedition crime under Section 124A of the IPC is a crucial step. This is consistent with the Union of India’s statement to the Supreme Court in S.G. Vombatkere v. Union of India[iv], that it is re-examining and evaluating the law of sedition.
The crime of sedition was only a relic of the colonial past used to punish any sort of insurrection against the British government. It had no place in a democratic society based on the rule of law. Though the charge of sedition under Section 124A of the IPC has been removed, it appears to have been replaced by Section 152 of the BNS, which deals with activities that jeopardise India’s sovereignty, unity, and integrity.
Section 4(f) of the BNS requires community service as a measure of punishment. The Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”) (new criminal process law) defines community service under Section 23, as labour that a convict may be ordered by the Court to complete as a form of punishment that helps the society and for which he is not entitled to any remuneration.
It is worth mentioning that the BNS has implemented a non-custodial and reformative type of punishment for minor infractions, known as community service, which represents a major divergence from traditional punitive approaches.
While the question over whether defamation should be a criminal offence has yet to be addressed in the BNS, community service has been added as an alternative punishment for defamation under Section 356(2) of BNS. This is a constructive measure that makes the crime of slander less punishable. Community service is being used as a form of punishment for some acts. These are minor infractions, such as misbehaviour by an inebriated person in public.
While the BNS still uses “forfeiture of property” as a form of punishment, it may be superfluous. Section 107 of BNSS providing for attachment and forfeiture of property makes “forfeiture of property” as a penalty unnecessary. This is because forfeiture under the BNSS is not restricted to specific acts, but applies to any property earned or generated from criminal conduct or the commission of an offence, regardless of the nature of the offence.
Tabular representation of the major changes introduced by the BNS in contrast to the IPC
The new code seeking to repeal the IPC, has borrowed, proposed, and inserted entirely new provisions in the erstwhile Criminal Law. These changes have been depicted below in the two tables, the first one highlighting the completely new provisions inserted by the while the second one represent the changes proposed in the IPC.
Table 1: New Provisions Inserted by the BNS
Table 2: Changes Proposed in the IPC
Conclusion
In conclusion, the comparative analysis between the Indian Penal Code (IPC) and the Bharatiya Nyaya Sanhita (BNS) highlights both the continuities and the contrasts within the Indian legal system. While the IPC represents a legacy of British colonial influence, the BNS endeavours to encapsulate indigenous legal traditions within a modern framework. The significant changes and implications introduced by the BNS, includes:
Overall, the BNS aims to modernize and streamline India’s penal law, addressing contemporary issues and aligning with progressive legal principles. However, concerns arise regarding clarity in definitions, potential loopholes, and the retrospective application of certain provisions. Additionally, the replacement of sedition laws raises questions about the balance between national security and individual rights.
[i] (2005) 6 SCC 1
[ii] (2018) 10 SCC 1
[iii] (2019) 3 SCC 39
[iv] Writ Petition (Civil) No. 682 of 2021
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