Author Avatar

JURISEDGE

0

Share post:

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-

  1. 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
  2. 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.


[i] (2005) 6 SCC 1

[ii] (2018) 10 SCC 1

[iii] (2019) 3 SCC 39

[iv] Writ Petition (Civil) No. 682 of 2021

You can access Jurisedge Recent Legal News Archives and our Jurisedge Blog for legal updates from around the globe.

For daily legal updates, follow our official Jurisedge channel on Instagram and LinkedIn and join our Telegram channel

Subscribe to our Law Exams Capsule India’s One and only Comprehensive Law Exam Preparation Journal

Readers may submit his/her blog for publication. Click Here to submit your Manuscript.

Embark on a Transformative Journey: Mastering Law at IIT Kharagpur's RGSOIPL
Comparing Indian Evidence Act and Bharatiya Sakshya Adhiniyam

Leave a Comment

Your email address will not be published. Required fields are marked *