This article has been written by Swagat kumar Tripathy, completed BA LLB from SoA National Institute of Law, Bhubaneswar, Odisha.
Abstract-
The Bharatiya Nyaya Samhita (BNS) is a significant pillar of the criminal justice system, replacing the outdated Indian Penal Code (IPC), which was originally a colonial-era law created by the Britishers. The IPC had become increasingly obsolete, with certain crimes being outdated and lacking a focus on reformative justice. The objective of the BNS is to modernize these colonial-era laws and address contemporary social needs. By introducing reformative forms of punishment, incorporating gender-neutral laws, and removing obsolete provisions such as adultery and Section 377, the BNS represents a substantial advancement as per need of the soceity. However, this replacement is somewhat vague and ambiguous, requiring clear guidelines for the implementation of provisions like community service. The inclusion of mob lynching as an independent crime helps maintain peace and order, preventing religious persecution. Overall, the BNS is necessary for creating an equitable and modern legal framework.
Keywords- Reformative justice, Gender neutrality, Mob Lynching, Sedition, Community Service, Modern criminal jurisprudence
Introduction
In a society, laws and sanctions play an important role in reforming its constituent elements. However, such laws must be flexible to encompass every aspect of a changing society, preventing them from becoming outdated. The eminent jurist of the Supreme Court of the United States, Justice Oliver Wendell Holmes, emphasized the concept of a “living law,” which refers to the dynamic nature of the law to meet the needs of society in the current situation. When laws need replacement to cope with societal development, such replacements and reforms should be made. Similarly, in India, the Parliament passed three bills: the Bharatiya Nyay Sanhita (BNS), 2023, the Bhartiya Nagrik Suraksha Sanhita (BNSS), 2023, and the Bharatiya Sakshya Adhiniyam (BSA), 2023. These were enacted to replace the colonial-era laws that form the basis of the criminal justice system, namely the Indian Penal Code, the Criminal Procedure Code, and the Indian Evidence Act, as there have been dramatic changes in both the nature of criminals and the modes and ends of crimes by ensuring the security, justice and fair trial. These reformations serve as a step forward towards a modern and effective criminal justice system.
Overview of the Colonial Era law-
The IPC was recognized as the most authoritative production of British India[1], which is one of the fundamental and foundational legal documents.[2] The framer of the Penal Code Lord Macaulay, denoted it as the most comprehensive penal code worldwide. Starting from the primitive society until today, the Indian criminal justice system has seen various ups and downs. There were no criminal laws in primitive society, and people were guided by local customs. Later on justice was administered by the kings influenced by the Mohammedan Criminal Law where significant developments were done as to the court system of the kings. First Indian Law commission[3] was created by the East India Company for the formation of Penal Code under the chairmanship of Lord Maculay.[4] The Indian Penal Code, with the objective of providing a comprehensive penal Code for India, came into effect on 1st January 1826, for the uniform and streamlined administration of justice throughout India, flourishing for over 160 years. This comprehensive code includes offenses against human body, starting from the lowest degree i.e. hurt to Murder and rape, Crime against property which includes cheating, theft, extortion, robbery and forgery, and crime against public tranquility i.e. unlawful assembly, rioting, offences against state sedation, wagering war and also includes the general exception and definition.
Why is the Contemporary make over needed in the Penal Code?
Old Colonial Laws become outdated-
In the Canvas of criminal laws, the introduction of various State and Local laws, along with evolving perspective and understanding of crime by the people and wrongdoers has necessitated changes in criminal laws. At the time of enactment, the act was considered ahead of its time and remained progressive for 160 years in tandem with societal changes. But, the act failed in one way or the other as it was initially designed to fulfill needs and objectives of the Britishers. The IPC was based on Bentham’s Idea of “Pannomion” i.e. the comprehensive act includes various rules and codifies it together. Passing of various special and local laws detracted from IPC’s intended nature as a Pannomion. Due to changing economic and technological advancements White collar crimes, economic and technological crimes, and financial crimes were not covered by IPC initially. Various amendments have been introduced over time in response to societal shifts like the amendment of 2013 strengthen and broaden the scope of sexual offenses after the Nirbhaya Incident.[5] But there are amendments only in particular areas. Amendment in quantum punishment of rape of minor girls were increased as per Criminal Amendment of 2018 but it also focouses on one part of the comprehensive act.
Irrelevancy of Provisions-
Same sex physical relationship was a crime under Section 377 which addressed Unnatural sex. However the same faced a nationwide criticism as it was against the basic fundamental rights like right to privacy, equality and dignity which was a real example of reflection of outdated victorian stigma. In 2018 A bench of 5 judges decriminalized the same section.[6] Section377 was deemed outdated due to Global recognition of LGBTQ+ community, its conflict with right to privacy, equality and dignity, social evolution and its lack of practical purpose.
- Adultery is dealt with under Section 497 of the Indian Penal Code under which if a sexual relation was established by a man with a woman who is already married without her husband’s consent make the man liable for adultery, whereas the wife is not held liable. But in the Joseph Shine’s[7] case the apex court declared the same section as unconstitutional as against article 14, 15 and 21 of the Indian Constitution. This section treats the women as property of her husband and not making her liable also undervalues the dignity of the women.
- Under Section 309 of IPC, if a person attempts to commit suicide and survived the attempt he will be liable under this section even for imprisonment. Because if a person attempts to commit suicide he is already under mental stress, crying for help and imprisoning the same person is servery an inhumane act for that reason the Mental Healthcare Act, 2017 recognizing this a person attempting to commit suicide is suffering from mental distress and shall not be punished which clearly calls for reformation by prioritizing mental health over punishment.
- Adulteration of food and drink is a crime under IPC. But those sections were lacking as to modern days safety standards relating to foods and meanwhile the Food Safety act 2006 came into force so there was need for reformation in this part also.
- Section 124A of IPC, being the most controversial section, is now outdated on many grounds. First of all, it was introduced by Britishers to suppress the freedom struggle of the Indian freedom fighters and to protect the colonial government. Again, the definition of Sedition is too wide, which makes it more prone to arbitrariness and misuse. It is also against the freedom of speech and right to life and personal liberties guaranteed by fundamental rights.
These are the examples which clearly show that some provisions of IPC have become irrelevant in the present social scenario.
Punishment was in focus by neglecting speedy justice and rehabilitation-
Punitive measures and quantum of punishment were the main focus of the IPC, which includes various types of imprisonment, fine and in rarest to the rarest cases, the death penalty by following deterrence and retributive theory of punishment. However, IPC lags behind in rehabilitation and reformative measures leading to overcrowded prisons.
The Sanhita and Reforms
The BNS is a critical step in the evolution of criminal jurisprudence in India and will remain as a significant milestone in modernizing the Indian Penal Code to meet the contemporary social needs with the objective of creating an equitable, efficient criminal justice system. The same has been implemented since July 1st 2024. The Sanhita contains 20 chapters and 358 sections.
Addition of Community Service
We know the central focus of IPC was punishment, previously which includes 5 types of punishment, but community service[8] is added as a new type of punishment in the Nyaya Sanhita which clearly shows that there is shift from a retributive form of punishment to restorative and reformative justice. By this way the prisoners will feel more integrated into the society which will help them to amend their actions and behaviors by positively contributing to the society. The punishment in the form of community service will be awarded in the cases like attempt to commit suicide, fake complaint loadged under defamation, theft where stolen property is less than worth 5000 rupees, failing in appearance when such person is summoned by the court, if a person is engaged unlawfully in any trade and such person is a public servant also in cases where a person in the state of intoxication is creating nuisance in public places. In various western legal systems this punishment is widely adopted for the offenders who are guilty of petty offenses and of non violent nature. By community service the offender contributes something to the society in a positive way indirectly addressing the issue of overcrowded prisons.
But there is absence of any clear guidelines for the scope of community service, also there is absence of any supervisory system inorder to evaluate the compliance of offenders and whether such community service is impacting the offender’s behavior in a positive way or not. And in order to ensure alleviation of prison overcrowding, large scale implementation is necessary.
Inclusive language used in the BNS
The transgender community has been included in the definition of gender under BNS, which was not previously included in the IPC. The term transgender[9] follows its definition from the Act of 2019. Various provisions have become gender-neutral, such as Section 77 of BNS, which punishes the offense of voyeurism in a gender-neutral manner, including transgender as one of the genders of the perpetrator. However, there is no change in the victim’s gender, so it is still women who will be the victims of the same. Section 96 of the BNS uses the term child instead of minor girl, which was used in IPC under Section 366A. Another problem is that only one section, Section 140(4), addresses kidnapping and abduction and subjects the victim to any type of hurt, slavery, and unnatural lust with knowledge, which shall be punished. This is the only section that is gender-neutral in the case of sexual offenses.
So it can be seen that nothing more has been done except the mere inclusion of transgender in the definition of gender. It has not addressed any provisions relating to the transgender and queer community regarding any form of violence. BNS is completely silent about any type of sexual offenses except for transgender, and in the meantime, Section 377 IPC is completely omitted.
Removal of Certain Offenses
As per the previous Supreme Court decision, adultery under Section 497 IPC was decriminalized, and the same has been completely removed under BNS. Section 377 IPC is also removed, and one of the most significant sections, Section 124A of the Indian Penal Code, which talks about sedition, is also removed. But the essence of 124A, in one way or another, has been retained under BNS as per Section 152. However, the new development results in ambiguous interpretations as there is no clear definition of subversive activities under Section 150 of BNS. This vagueness may result in criminalizing protests and free speech made on legitimate grounds, which will again endanger our democracy.
Curbing Rising Chain and Mobile Snatching
Before BNS came into force, snatching cases were registered under theft and robbery in IPC, but now the accused will be booked under Section 304 of BNS, which clearly addresses theft that takes the form of snatching and makes it punishable with a fine and imprisonment of either description for 3 years. Theft was compoundable previously, but now it is non-compoundable.
Addition of Certain Offenses
In the case of Tehseen S. Poonawalla,[10] the rising number of crimes related to mob lynching and violence has been addressed by the Supreme Court. Various guidelines have been issued by the Apex Court, vesting responsibilities on the State Government to prevent such crimes. BNS recognized the same and placed it in Section 103(2), which talks about punishment for murder. If a group of 5 persons or more commits such an act, they shall be punishable with a fine, life imprisonment, and even death. In this way, various types of persecution can be prevented. This gruesome act results mainly when a group of people from a particular religion or community involves themselves in the murder of another religion, community, caste, or class, so it is high time to protect society from any such gruesome murder. The best example of why mob lynching was necessary with such heavy punishment was the situation that occurred in Jammu and Kashmir, where aided terrorist attacks were carried out by the locals. Terrorism is also now being defined under the BNS in alignment with the Unlawful activities prevention act.
Under the Definition part the scope of the term “document” is expanded which now includes all words and expressions in digital and electronic modes of communication through emails, computers and smartphones etc.[11] Various definitions like night have been defined as “after sunset and before sunrise, fire includes mischief by fire and other exclusive substances. After the significant change in the legal landscape sexual intercourse by false promise of marriage and employment has been made punishable under BNS which make the person liable for 10 years of imprisonment with fine although such act shall not fall under the ambit of Rape. [12] A separate chapter for stricter punishment for the vulnerable group of woman and child has been dedicated by BNS to conform with provisions of the POCSO act.
Mandatory and increased punishment
If a person buys a child for prostitution, they shall be liable for imprisonment for 7 to 14 years and a fine under Section 99. In the case of culpable homicide not amounting to murder, a minimum sentence of 5 years imprisonment is now mandatory. For organized crime, offenses resulting in permanent disability, and kidnapping a child for begging purposes, mandatory punishments are now in place, which the court is bound to order. Meanwhile, offenses such as wrongful confinement, preventing and absconding from proceedings, obstructing a public servant in discharging their duty, and causing annoyance in public places have seen an increase in fines under the BNS.
The reason for such increased and mandatory punishments is to deter people from committing such serious crimes, protect vulnerable individuals, maintain public safety and order in society, and ensure judicial efficiency.
Conclusion
Change is the only constant, and this major shift in the criminal law framework was necessary to address social needs. The Bharatiya Nyaya Samhita ensures a forward-thinking, reformative, and socially integrated justice system through community service, gender-neutral provisions, the inclusion of electronic evidence, and more. Emphasizing the relevance of BNS, CJI Chandrachud stated that the law should resonate not only with contemporary situations but also with foreseeable future circumstances and challenges. However, the act has also faced criticism for being ambiguous and vague in certain parts, highlighting the need for clear guidelines to ensure proper implementation, such as in the case of community service. By modernizing the existing colonial era laws, BNS ensures a just and secured society and provides a effective service of the justice in a more efficient and ideal way.
[1] Sir James Fitzjames Stephen
[2] Dr. B.R. Ambedkar
[3] 1834
[4] Thomas Babington Macaulay (a British Colonialist, Member of Parliament).
[5] Mukesh & Anr vs State For Nct Of Delhi & Ors, AIR 2017 (SCC) 2161.
[6] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
[7] Joseph Shine v. Union of India, AIR 2018 SC 4898.
[8] Section 4(f) of The Bharatiya Nyaya Sanhita, 2023.
[9] Section 2(k) of Transgender Persons (protection of right) Act, 2019.
[10] Writ Petition (Civil) No. 754 of 2016 dt.17.07.2018.
[11] S. 2(8) of the Bharatiya Nyaya Sanhita, 2023.
[12] S. 69 of the Bharatiya Nyaya Sanhita, 2023.