This article has been written by Sanju Jha pursuing Ba. Llb from Rnb Global University, Bikaner.
Introduction
The Bhartiya Nyaya Sahita (BNS) 2023, set to replace the Indian Penal Code (IPC), 1860 was recently passed in parliament and get assest of President on 25th December 2023. It is part of government’s efforts at a complete overhaul of the country’s criminal justice system.
Earlier, the Ministries of Home Affairs in 2020 had constituted a committee headed by Ranbir Singh to review criminal laws. The mandate to the committee was to ‘recommend reform in the criminal laws of the country in a principled, effective and efficient manner; and which priorities the constitutional value of justice, dignity and the inherent worth of the individual.’
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What are keys changes introduced?
New offences:
- Mob lynching: It codifies offences linked to the mob lynching and hate crime murders, for cases when mob of five or more individuals commits murder based on factors such as race, caste, community, language, place of birth, or personal belief. The provision has punishment that extends from life imprisonment to death.
- Organized crime: For the first time, tackling organized crime is brought under the realm of ordinary criminal law. There are special state legislations for organized crime syndicates, such as Maharashtra’s MCOCA, 1999. These special laws prescribe vast power of surveillance and relax standards of evidence and procedure in favor of the state, which is not found in ordinary criminal law.
- Terrorism: The BNS brings terrorism under the ambit of ordinary criminal law.
- Attempt to suicide: The BNS introduced a new provision that criminalizes “whoever attempt to commit suicide with intent to compel or restrain any public servant from discharging his official duty’’. This provision could be invoked to prevent self-immolations and hunger strike during protest.
- Promise to Marry: The BNS introduces clause 69 criminalizing “deceitful” promise to marry. It adds that ‘deceitful means’ shall include the false promise of employment or promotion inducement, or marring after suppressing indentity.
DELETIONS:
- Unnatural Sexual Offence: Section 377, which criminalized homosexuality among other “unnatural” sexual activities, has been repealed under the BNS.
- Adultery: The offence of adultery, which was struck down by the Supreme Court as unconstitutional in 2018, has been omitted under the BNS.
- Thugs: The IPC under section 310 criminalized those who been “habitually associated with committing robbery or child stealing” and labels them a thug. This provision is criticized for attaching colonial notion of criminality for certain tribes. The BNS has fully omitted this provision.
NEW DEVELOPMENT:
- Gender Neutrality: While rape laws continue to operate only for women, the BNS has tweaked some other law, especially those dealing with children, to bring gender neutrality. For adults offences of outraging the modesty of women (354A of IPC) and voyeurism (354C) now has gender neutrality for accused under the BNS, which means that women can also be booked under the law.
- Fake news: The BNS introduces a new provision under IPC section 153B which deals with hate speech, criminalizing publishing false and misleading information.
- Sedition: The BNS introduces the offence of sedition under the new name and with wider definition. Apart from name change from ‘rajdroh’ to deshdroh’, the new provision adds the followings: aiding through financial means, act of “subversive activities” and those encouraging “feelings of separatist activities”.
- Community Service: The BNS also call for the community service as a punishment for petty offences, which will be the part of penal code for the first time.
WHAT ARE THE CONCERNS BEING RAISED?
- Ambiguity: For instance, it omits the offence of sedition. However, a new offence has been added that criminalizes exciting secession, armed rebellion, subversive provision is very similar to that of sedition and can be misused by the government to cub dissent.
- No break from colonial legacy: It makes minimal progress in this objective. It continues to rely on long term imprisonment and the death penalty, by adding and increasing mandatory minimum sentences for certain offences, and by retaining vague definitions for offences against the state as well as for defamation.
- Lack of legislative scrutiny: The three laws that replace the body of criminal law in India were passed by the parliament in its ongoing session where more than 140 MP’s were suspended.
- Lack of transformation changes: Except the recording of the sections, much of the language and contents of the original laws has been retained. The new codes do not envisage any path breaking changes.
- Provision on Terrorism: It is being questioned whether ‘terrorism’ should have been included in the general penal law when it is punishable under the special legislation. Experts argue that grave charges such as terrorism should not be involved on a regular basis.
- Marital Rape not included as a Criminal offence: The provision legalizing marital rape has been retained.
WAY FORWARD:
- Modernization and Clarity: Further update the BNS to reflect contemporary societal norms and values. Ensure that laws are clear, concise, and easily understandable by both legal professionals and general public.
- Victim Centric Approach: Strengthen provisions that protect victim’s rights and ensure their access to justice. This includes better support system, compensation, and participation in legal proceedings.
- Focus on Rehabilitation: Emphasize rehabilitative justice and ensure reintegration of offenders into society alongside punitive measures. Promote alternative sentencing options, especially for non-violent offenses, to reduce overcrowding in prisons and provides chance for reform.
- Technology Integration: Incorporate technology to streamline legal processes, improve investigation technique, and enhance evidence collection. This could include digitalizing of records, use of forensic technology and modernizing court procedure.
- Public Awareness and Education: Conduct public awareness campaigns and educations programs to inform citizens about their rights and responsibilities within the criminal justice system.
- Consultation and Stakeholder Involvement: Encourages active participation from various stakeholders, including legal professionals, law enforcement agencies, NGO’s, and affected communities, in the reform process to ensure inclusivity and diverse perspectives.
