BHARTIYA NYAYA SANHITA 2023 – AN OVERVIEW

January 29, 2024 By Shalini Rai Advocate

BHARTIYA NYAYA SANHITA 2023 – AN OVERVIEW

INTRODUCTION

The Republic of India's criminal code is called the Bhartiya Nyaya Sanhita. It took the place of the 1860-passed Indian Penal Code. All facets of criminal law, including as offences, penalties, defences, and processes, are covered by BNS.

On December 25, 2023, the Indian Penal Law, 1860 (often known as the "IPC") was repealed and replaced as the nation's new penal code by the Bhartiya Nyaya Sanhita, 2023 (BNS).

KEY FEATURES OF BNS

1. Of offences against property

1.1. Dishonest misappropriation of property (Section 314)

The BNS currently stipulates that dishonest misappropriation of property carries a minimum sentence of six months. Furthermore, the IPC no longer punishes the offence with either a fine or imprisonment, but rather with both. In this setting, the focus has shifted to imprisonment.

1.2. Criminal Breach of Trust (Section 316)

The IPC's Sections 406 through 409 on criminal breach of trust have been combined into Section 316. Furthermore, under the IPC, criminal breach of trust is now punishable by up to five years in jail, as opposed to the previous three years.[1]

1.3. Cheating (Section 318)

Similarly, Sections 417, 418, and 420 of the IPC, which dealt with various forms of cheating, have been combined into Section 318 of the BNS. The Indian Penal Code now penalises cheating with up to three years in prison, instead of just one year[2]. The punishment for the more severe kind of cheating, known as "cheating with knowledge that unjust damage may ensue to person whose interest criminal is required to defend," has been enhanced from three years under the IPC to five years in prison[3].

2. Of offences affecting the human body

2.1. Organised crime

The Maharashtra Control of Organised Crime Act, 1999 ("MCOCA"), the Gujarat Control of Organised Crime Act, 2015 ("GCOC"), and other specialised state laws that aim to combat organised crime are the main sources of inspiration for Section 111 of the BNS, which introduces the offence of "organised crime."

The definition of "organised crime[4]" as stated by the clause is imprecise, ambiguous, and dependent on catch-all language. This allows the investigating agencies to prosecute people without restraint or scrutiny on the basis of these imprecise and arbitrary terminology. Terms like "land grabbing," "contract killing," "cybercrimes," and so forth are used in the description but are not defined in the Sanhita. It also makes use of "economic offence."

Economic crime is defined in ambiguous ways by employing overly general terms like "hawala transaction" and "mass-marketing fraud," which are not further clarified in the BNS or other statutes.

Importantly, although "hawala transactions" as defined by the Foreign Exchange Management Act, 1999 are forbidden, they do not constitute crimes under the same Act. In the same way, the Prize Chits and Money Circulation Schemes (Banning) Act, 1978 similarly addresses "mass-marketing fraud."

Similarly, small organised crime is defined in Section 112[5]. Extremely nebulous and subjective phrases like "trick theft," "pick pocketing," "card skimming," "unauthorised selling of tickets," etc. are also used in the concept of minor organised crime. Additionally, it renders "any other similar criminal act" punishable. As a result, the scope of the offence is still blatantly ambiguous, giving investigating authorities plenty of leeway when it comes to charging individuals.

The inclusion of "organised crime" as a criminal under a federal legislation while it remains illegal under state-specific statutes[6] may lead to issues with jurisdiction between various agencies. Nonetheless, in the event of repugnancy, the BNS will win due to Article 254 of the Constitution.

2.2. Causing death by negligence (Section 106)

Under the BNS, the crime of causing death by carelessness has experienced a substantial modification. The penalty for hasty and careless acts that result in death has been raised to five years in prison plus a fine. In the past, the IPC punished such an offence with a two-year sentence, a fine, or both.[7]

2.3. New specific offences arising out of negligence

Section 106 covers medical professionals who die while carrying out a medical operation due to their hasty or reckless actions. The crime carries a two-year maximum sentence in jail as well as a fine.[8] The Supreme Court's ruling in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1, which established criteria to prevent the offence from being abused against doctors, should be taken into consideration when reading this offence.

According to the Supreme Court, carelessness in civil law does not always equate to carelessness in criminal law. It found, among other things, that the element of mens rea had to be proven in order for negligence to qualify as an offence.

A clause that appears to penalise hit-and-run incidents has also been added to the BNS[9]. As of right now, the BNS stipulates that anyone who kills someone by reckless or careless driving and then flees the scene without notifying the police or a magistrate faces a fine in addition to a potential term of 10 years in jail.. There have been more hit-and-run accidents, road rage events, and reckless driving occurrences across the nation. In 2021, more people died as a result of reckless driving than from murder, according to the National Crime Records Bureau. Thus, it appears that the purpose of this clause is to deter hit-and-run incidents.

2.4. Mob Lynching

Given the rise in hate crimes and mob lynchings around the nation, the BNS now expressly stipulates that murder will be punished in mob lynching instances[10]. According to the provision, each member of a group of five or more people acting together that commits murder on the basis of race, caste, community, sex, place of birth, language, personal belief, or any other similar ground faces the possibility of execution or life in prison, in addition to a fine.

2.5. Deletion of offences

The crime under Section 377 of the IPC has been eliminated by the BNS in accordance with the Supreme Court's ruling in Navtej Singh Johar v. Union of India, (2018) 10 SCC 1. This judgement is commendable as it upholds human dignity.

The BNS likewise omits the offence of attempting suicide, which is defined by Section 309 of the IPC. This is a progressive omission that sees suicide attempts as mental health emergencies rather than criminal offences.

The adultery offence was declared invalid by the Supreme Court in Joseph Shine v. Union of India, (2019) 3 SCC 39, citing its antiquated, capricious, and paternalistic nature. BNS leaves out adultery as a crime, in defiance of the Parliamentary Standing Committee Report's recommendation[11] to reinstate adultery as a crime that applies to both men and women.

3. Interaction with the 1967 Unlawful Activities (Prevention) Act

3.1. Offences Relating to Terrorism

The BNS defines a "terrorist act" as a new offence[12]. It is important to remember that the chapter on crimes affecting the human body now includes the offence related to terrorism. It has typically been located in the chapter that addresses crimes against the state.

The UAPA[13], which already defines and establishes the offence of terrorist act, overlaps with the offence of performing a terrorist act. The UAPA's definition of a terrorist act and the BNS's definition of one are identical. It is unclear, therefore, why the BNS includes a provision for the new crime of terrorist act. This is particularly true given that UAPA is a unique law that was passed in order to provide a more potent means of preventing interalia terrorist activity.

3.2. Offence of sedition

The removal of the sedition offence specified by Section 124A of the IPC is the most welcome modification to the BNS. This is consistent with the Union of India's declaration to the Supreme Court on May 11, 2022, that it is reevaluating and reexamining the sedition clause.[14]

Sedition was merely a holdover from colonial times, created to punish any kind of disobedience against the British government. In a democratic society run according to the rule of law, it has no place.

Although the sedition offence under Section 124A of the IPC has been eliminated, it appears that Section 152 of the BNS, which addresses actions that jeopardise India's sovereignty, unity, and integrity, has taken its place.

4. Of Punishments

Community service as a form of punishment is a crucial component of the BNS, specifically seen in Section 4. (f). Community service is defined as labour that a court may compel a convict to complete as a kind of punishment that serves the community and for which he is not entitled to any compensation under the Bharatiya Nagarik Suraksha Sanhita, 2023 ("BNSS") (new criminal procedural code)[15].

It's important to note that the BNS has significantly changed from traditional punitive methods by introducing community service as a non-custodial and reformative type of punishment for minor offences.

Interestingly, community service has been added as an alternative punishment for defamation, despite the fact that the question of whether defamation should even be considered a criminal offence has not been settled in the BNS[16]. This revision is a good step toward lessening the severity of the defamation offence.

Community service as a form of punishment is now available for a limited number of offences. These are low-level offences such public intoxication misbehaviour[17], illegal public servant trading[18], failing to appear in response to a proclamation[19], and three more offences, including defamation.

It could be beneficial to include community service as a penalty for additional minor infractions. This would represent a more thorough transition from punitive and detentional tactics to a more restorative strategy.

In this particular situation, it might be noteworthy to mention that community service has been offered as an alternative to jail term for theft offences in which the victim has received a first-time conviction and the stolen goods is valued at less than five thousand rupees. However, community service is only recognised when the offender restores the stolen goods or returns the item for its full value[20]. Regretfully, this clause somewhat supersedes community work as a form of punishment. If someone steals $5,000 or less, they most likely won't be able to pay the full amount and will be sentenced to prison time. so compromising community service's original purpose.

Although "forfeiture of property" is still recognised by BNS as a form of punishment, it can be unnecessary. "Forfeiture of property" as a punishment is superfluous because the BNSS[21] provides for the attachment and forfeiture of property. This is due to the fact that forfeiture under the BNSS is applicable to all property acquired or generated from criminal conduct or the commission of an offence, regardless of the nature of the offence, and is not restricted to specified acts.

III. APPLICABILITY OF BNS

The BNS's repeals and savings clause does away with the IPC but leaves intact anything done or harmed by the IPC in the past. Additionally, Section 6 of the General Clauses Act of 1897 is relevant under the BNS[22].

It's interesting to note that the BNS stipulates that any action taken or penalty imposed under the IPC will be considered to have been carried out in accordance with the relevant BNS provision, even though it also spares penalties, punishments, proceedings, investigations, and remedies related to any such penalty or punishment under the IPC[23]. Sadly, this clause raises concerns about the new penal code's retroactive application in contravention of Article 20 of the Constitution, which states that no one may be found guilty of an offence other than breaking the law in effect at the time the offence was committed.

IV. CONCLUSION

The BNS implements some beneficial changes (removing sedition from the list of crimes, including transgender people in the definition of gender[24], increasing the severity of crimes against women and children, introducing community service as a form of punishment, etc.), but the changes lack a clear policy goal or coherence.

The implementation of amendments to offences against women and children is a prime illustration of this. BNS aims to enact stricter laws for offences against women and children. Two new offences have been introduced: one addresses sexual activity by an individual in a position of authority[25] and the other addresses sexual activity through dishonest means[26]. Nonetheless, BNS has not succeeded in making rape a gender-neutral offence and still recognises marital rape as an exception to the general rape law. This doesn't seem to be in line with the declared goals of prioritising crimes against women and children.

The sentencing procedure is still totally nonsensical in spite of the new legislation. It's unclear if we use the punishment concepts of retaliation, rehabilitation, or deterrence. Without any underlying concept, the punishments have been lengthened and new offences have been added. The legislators must realise that toughening up on penalties alone won't stop crimes from happening. Although community service has been implemented as a reformative penalty, it is only applicable for the first six offences and has no legal basis; prison punishment is still the most common kind of punishment. As a result, sentencing must be consistent and place a higher emphasis on non-custodial sanctions, community service, probation, and reformative sentencing procedures as forms of rehabilitation.

Similar to this, solitary confinement cannot be used as a form of punishment in the modern world. Particularly in light of the advancement of human rights and the rights protected by Article 21 of the Constitution, such as the right to a dignified life, civil liberties, the rights of prisoners, and the growing importance of mental health, solitary confinement should have been outlawed.

Furthermore, the overlap between the offences covered by special and BNS statutes, as well as the ambiguous language in the statute, will only cause further misunderstanding and a rise in litigation. As a result, there will be an increase in the backlog of cases in the courts.

[1] Section 316(2) of BNS

[2] Section 417 of IPC

[3] Section 418 of IPC

[4] “Any continuing unlawful activity including kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offence, cyber-crimes, trafficking of persons, drugs, weapons or illicit goods or services, human trafficking for prostitution or ransom, by any person or a group of persons acting in concert, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence, threat of violence, intimidation, coercion, or by any other unlawful means to obtain direct or indirect material benefit including a financial benefit, shall constitute organised crime.”

[5] “Whoever, being a member of a group or gang, either singly or jointly, commits any act of theft, snatching, cheating, unauthorised selling of tickets, unauthorised betting or gambling, selling of public examination question papers or any other similar criminal act, is said to commit petty organised crime.

Explanation.—For the purposes of this sub-section “theft” includes trick theft, theft from vehicle, dwelling house or business premises, cargo theft, pick pocketing, theft through card skimming, shoplifting and theft of Automated Teller Machine.”

[6] Maharashtra Control of Organised Crimes Act 1999, Uttar Pradesh Control of Organised Crimes Act, 2017, Gujarat Control of Organised Crime Act, 2015, Karnataka Control of Organised Crime Act, 2000, et al.

[7] Section 304A of IPC.

[8] Section 106(1) of BNS.

[9] Section 106(2) of BNS.

[10] Section 103 of BNS.

[11] See Report No. 246 of the Parliamentary Standing Committee on Home Affairs. Available at https://prsindia.org/files/bills_acts/bills_parliament/2023/SC_Report_Bharatiya_Nyaya_Sanhita_2023.pdf.

[12] Section 113 of the BNS.

[13] Sections 15 and 16 of the UAPA.

[14] Writ Petition (Civil) No. 682 of 2021, S.G. Vombatkere v. Union of India.

[15] Section 23 of BNSS.

[16] Section 356(2) of BNS.

[17] Section 355 of BNS.

[18] Section 202 of BNS