In his note of dissent to the parliamentary report on Bharatiya Nyaya Sanhita (BNS), the new criminal law, N. R. Elango, Member of the Parliamentary Committee on Home Affairs wrote:"I find no new clause that imbibe Indian thought process and the Indian soul. This bill is also not having any citizen centric approach. I am of the view that there is no provision introduced, no new definition of the offences is given except adding or deleting some words in the existing provisions, adding new offences, which are already punishable under special enactments, enhancing the punishment of few offences without any rationale."
It is noteworthy that 20 new offences have been added and 19 provisions in the repealed IPC have been dropped. The punishment of imprisonment has been increased for 33 offences, and fines have been increased for 83 offences. A mandatory minimum punishment has been introduced for 23 offences.
In general, like IPC, BNS deals with offences against the body. It has retained the provisions of the IPC on murder, abetment of suicide, assault and causing grievous hurt. It has added new offences such as organised crime, terrorism, and murder or grievous hurt by a group on certain grounds.
Like IPC, it deals with sexual offences against women. It has retained the provisions of the IPC on rape, voyeurism, stalking and insulting the modesty of a woman. It has increased the threshold for the victim to be classified as a major, in the case of gang rape, from 16 to 18 years of age.
Like IPC, it deals with offences against property. It has retained the provisions of the IPC on theft, robbery, burglary and cheating. It has added new offences such as cybercrime and financial fraud. The fact is that it was already incorporated in the IPC through amendment.
Like IPC, it deals with the offences against the state. The BNS creates an impression about removal of sedition as an offence. The fact is that it was been brought in as a new offence for acts endangering India's sovereignty, unity and integrity.
Like IPC, it deals with offences against the public.
The BNS has 19 Chapters and 358 Sections. 174 Sections of IPC have been changed, 8 new Sections added and 22 Sections repealed.
Chapter 1 has Sections 1 to 3 which deal with the Preliminary including definitions (2) and General explanations (3).
Chapter 2 has Sections 4 to 13 which deal with Punishments.
Chapter 3 has Sections 14 to 44 which deal with General Exceptions (14-33) and the Right to Private Defence (34 to 44).
Chapter 4 has Sections 45 to 62 which deal with Abetment, Criminal Conspiracy and Attempt.
Chapter 5 has Sections 63 to 99 which deal with Offences against Women and Children including Sexual Offences (63 to 79), Criminal Force and Assault against Women (74 to 79), Offences relating to Marriage (80 to 92) and Causing of Miscarriage and including offences against child (93-99) like Exposure and abandonment of child under twelve years, of age, by parent or person having care of it Concealment of birth by secret disposal of dead body, Hiring, employing or engaging a child to commit an offence, Procuration of child, Kidnapping or abducting child under ten years of age with intent to steal from its person, Selling child for purposes of prostitution, Buying child for purposes of prostitution.
Chapter 6 has Sections 100 to 146 which deal with Offences Affecting the Human Body including Offences Affecting Life (100 to 113), Hurt (114 to 127), Criminal Force and Assault (128 to 136), Kidnapping, Abduction, Slavery and Forced Labour (137 to 146).
Chapter 7 has Sections 147 to 158 which deal with Offences Against the State.
Chapter 8 has Sections 159 to 168 which deal with Offences Relating to the Army, Navy and Air Force
Chapter 9 has Sections 169 to 177 which deal with Offences Relating to Elections
Chapter 10 has Sections 178 to 188 which deal with Offences Relating to Coins, Bank Notes, Currency Notes and Government Stamps
Chapter 11 has Sections 189 to 197 which deal with Offences Against the Public Tranquility
Chapter 12 has Sections 198 to 205 which deal with Offences by Or Relating to Public Servants
Chapter 13 has Sections 206 to 226 which deal with Contempt of Lawful Authority of Public Servants
Chapter 14 has Sections 227 to 269 which deal with False Evidence and Offences against Public Justice.
Chapter 15 has Sections 270 to 297 which deal with Offences affecting the Public Health, Safety, Convince, Decency and Morals
Chapter 16 has Sections 298 to 302 which deal with Offences Relating to Religion
Chapter 17 has Sections 303 to 334 which deal with Offences against Property including Theft (303), Extortion (304), Theft in a dwelling house, or means of transportation or place of worship (305), Theft by clerk or servant of property in possession of master(306), Theft after preparation made for causing death, hurt or restraint in order to committing of theft (307), Extortion (308), Robbery and Dacoity (309 to 313), Criminal Misappropriation of Property (314 and 315), Criminal Breach of Trust (316), Receiving of Stolen Property (317), Cheating (318 and 319), Fraudulent Deeds and Dispositions of Property (320 to 323), Mischief (324 to 328) and Criminal Trespass (329 to 334).
Chapter 18 has Sections 335 to 350 which deal with Offences Relating to Documents and to Property Marks.
Chapter 19 has Sections 351 to 358 which deal with Criminal Intimidation, Insult, Annoyance, Defamation, etc including Intimidation, Insult and Annoyance (349 to 353), Breach of peace (352) Public Mischief (353) Defamation (356), breach of contract to attend on and supply wants of the helpless person (357) and Repeal and Savings (358).
Section 358 states that IPC is repealed but savings pending proceedings shall continue under the repealed law. IPC has 23 chapters and 511 sections. The 119 page long IPC came into operation on January 1, 1862.
Chapter I of IPC has Sections 1 to 5 which provide Introduction including definitions
Chapter II has Sections 6 to 52 which deal with General Explanations
Chapter III has Sections 53 to 75 which deal with Punishments
Chapter IV has Sections 76 to 106 which deal with General Exceptions and of the Right of Private Defence (Sections 96 to 106)
Chapter V has Sections 107 to 120 which deal with Abetment
Chapter VA has Sections 120A to 120B which deal with Criminal Conspiracy
Chapter VI has Sections 121 to 130 which deal with Offences against the State
Chapter VII has Sections 131 to 140 which deal with Offences relating to the Army, Navy and Air Force
Chapter VIII has Sections 141 to 160 which deal with Offences against the Public Tranquillity
Chapter IX has Sections 161 to 171 which deal with Offences by or relating to Public Servants
Chapter IXA has Sections 171A to 171 which deal with Offences Relating to Elections
Chapter X has Sections 172 to 190 which deal with Contempts of Lawful Authority of Public Servants
Chapter XI has Sections 191 to 229 which deal with False Evidence and Offences against Public Justice
Chapter XII has Sections 230 to 263 which deal with Offences relating to coin and Government Stamps
Chapter XIII has Sections 264 to 267 which deal with Offences relating to Weight and Measures
Chapter
XIV has Sections 268 to 294 which deal with Offences affecting the
Public Health, Safety, Convenience, Decency and Morals.
Chapter XV has Sections 295 to 298 which deal with Offences relating to Religion
Chapter
XVI has Sections 299 to 377 which deal with Offences affecting the
Human Body including Offences Affecting Life including murder, culpable
homicide (Sections 299 to 311), Causing of Miscarriage, of Injuries to
Unborn Children, of the Exposure of Infants, and of the Concealment of
Births (Sections 312 to 318), Hurt (Sections 319 to 338), Wrongful
Restraint and Wrongful Confinement (Sections 339 to 348), Criminal Force
and Assault (Sections 349 to 358), Kidnapping, Abduction, Slavery and
Forced Labour (Sections 359 to 374) and Sexual Offences including rape
and Sodomy (Sections 375 to 377)
Chapter XVII has Sections 378 to
462 which deal with Offences Against Property including Theft (Sections
378 to 382), Extortion (Sections 383 to 389), Robbery and Dacoity
(Sections 390 to 402), Criminal Misappropriation of Property (Sections
403 to 404), Criminal Breach of Trust (Sections 405 to 409), Receiving
of Stolen Property (Sections 410 to 414), Cheating (Section 415 to 420),
Fraudulent Deeds and Disposition of Property (Sections 421 to 424),
Mischief (Sections 425 to 440) and Criminal Trespass (Sections 441 to
462)
Chapter XVIII has Section 463 to 489 -E which deal with
Offences relating to Documents and Property Marks including Offences
relating to Documents (Section 463 to 477-A), Offences relating to
Property and Other Marks (Sections 478 to 489) and Offences relating to
Currency Notes and Bank Notes (Sections 489A to 489E)
Chapter XIX has Sections 490 to 492 which deal with Criminal Breach of Contracts of Service
Chapter XX has Sections 493 to 498 which deal with Offences related to marriage
Chapter XXA has Sections 498A which deal with Cruelty by Husband or Relatives of Husband
Chapter XXI has Sections 499 to 502 which deal with Defamation
Chapter XXII has Sections 503 to 510 which deal with Criminal intimidation, Insult and Annoyance
Chapter XXIII has Section 511 which deals with Attempts to Commit Offences
A joint reading of the provisions of BNS and IPC reveals that both the laws are still in operation. The former is operational with regard to offences committed prior to July 1, 2024 and the latter with regard to offences committed after July 1, 2024.
It is also evident that four Sections 499, 500, 501 and 502 for "defamation" under IPC have been clubbed under Section 356 of BNS.
The the nine Sections 141, 142, 143, 144, 145, 150, 151, 157 and 158 of IPC for "Unlawful Assembly" under IPC have been clubbed under Section 189 of BNS.
The six Sections 233, 234, 235, 256, 257 and 489 D of IPC that dealt with "making or selling instruments or materials for forging or counterfeiting coin, Government stamp, currency-notes or bank-notes" have been clubbed under one Section 181 of BNS.
The six Sections 242, 243, 252, 253, 259 and 489C of IPC that dealt with "possession forged counterfeit coin, Government stamp, currency-notes or bank-notes" have been clubbed under one Section 180 of BNS.
The nine Sections 239, 240, 241, 250, 251, 254, 258, 260 and 489B of IPC that dealt with "using as genuine, forged counterfeit coin, Government stamp, currency-notes or bank-notes" have been clubbed under one Section 179 of BNS.
The nine Sections 230, 231, 232, 246, 247, 248, 249, 255 and 489A of IPC that dealt with "counterfeit coin, Government stamp, currency-notes or bank-notes" have been clubbed under one Section 178 of BNS.
Notably, 124-A of IPC which dealt with "sedition" has been deleted but Section 152 of the BNS deals with and "act endangering sovereignty, unity and integrity of India". There are decisions of the Supreme Court in Kedarnath Singh vs. State of Bihar (1962) to S.G Vombatkare vs. Union of India (2022) on the constitutionality of the Section 124-A of the IPC. In 2022, the Court directed the governments to restrain from filing any FIR under Section 124-A of the IPC. On September 12, 2023, it has referred the matter to a Constitution Bench of the Court.
With reference to the provision in the BNS on "Sedition law", it is noteworthy that the parliamentary committee's report acknowledges the fact that the Sedition law has just been paraphrased and retained. The 22nd Law Commission had suggested that sedition should be well defined. The Union government has decided to do the opposite of that. The provision in the new bill gives it such a broad definition that it can encompass any act in the name of endangering the unity and integrity of India. It leaves a lot of room for discretion which is the opposite of what was advised by the law commission. It talks about Acts endangering sovereignty, unity and integrity of India. Sedition gets a sinister backfoot entry in the proposed legal regime. This broad definition could potentially infringe on individuals' rights to free expression and peaceful dissent. The broad and vaguely worded sedition provisions can create a chilling effect on free speech and peaceful protest. Individuals may self-censor their opinions and criticisms, fearing legal consequences, which can undermine democratic values and civil liberties. The potential for misuse and abuse under the redefined sedition law has increased. Such broad and discretionary provisions can be employed to stifle legitimate dissent and criticism, limiting freedom of expression and potentially infringing on individuals' rights.
The three Sections 364, 364A and 365 of IPC which dealt with "Kidnapping for murder, ransom, etc." have been clubbed under one Section 140 under BNS.
The eight Sections 340, 342, 343, 344, 345, 346, 347 and 348 of IPC which dealt with "wrongful confinement" have been clubbed under one Section 127 under BNS.
Certain offences defined under BNS are already defined and punishable under Unlawful Activities Prevention Act, 1967. UAPA, 1967 is a Special Enactment, it is having a special procedure with regard to investigation, bail etc. The incorporation of same provisions in the BNS will cause lot of confusion in the matter of registration of a case, investigation, inquiry and trial of a particular offence. The offenders who fall under both the enactments will attempt to escape the rigor of UAPA, 1967. There is an overlapping between UAPA and BNS and such overlapping will cause confusions. How a Police officer, though he is a senior officer can decide under which enactment a person is to be prosecuted. This is to be decided by the Court.
The provision in the BNS on the "Commutation of a sentence" is problematic. It gives the executive the powers to commute an offender’s sentence punishment for any other punishment. Allowing the executive to commute sentences can blur the separation of powers in a government. It gives the executive branch, which is responsible for enforcing the law, a role in altering or mitigating the legal punishments determined by the judiciary. This could potentially lead to an imbalance of power and an infringement on the judiciary's independence. Executive decisions might be swayed by electoral or popularity concerns rather than solely focusing on justice and the merits of individual cases. Commutations can be seen as undermining the authority and decisions of the judiciary. It may give the impression that the executive branch can override or second-guess the judiciary's determinations, eroding trust in the legal system.
With regard to the provision in the BNS on the "Solitary Confinement", it is noteworthy that solitary confinement is inhumane. There is research which shows that solitary confinement is not an effective tool for deterrence or rehabilitation. It does not reduce recidivism or promote positive behaviour change; instead, it can increase aggression and antisocial behaviour. It has been shown to have serious detrimental effects on individuals' mental and physical well-being, and it raises ethical and human rights concerns. The characterization of solitary confinement as a brutal type of incarceration by the Supreme Court of India in the case of Kishore Singh Ravinder Dev v. State of Rajasthan highlights the court's recognition of the severe and adverse effects of solitary confinement on individuals.
With regard to the provision in the BNS on the "Promise to Marry", it must be noted that relationships and decisions about marriage are deeply personal matters that should be left to the individuals involved, subject to only some basic safeguards that may be consensually instituted by the society Criminalizing a Promise to Marry can be seen as an undue intrusion into individuals' Right to Privacy and autonomy. Determining whether a promise to marry has been made can be subjective and challenging to prove. Intentions can change over time, and proving that a promise was genuinely made with the intention to marry can be difficult. Defining what constitutes a legally binding Promise to Marry can be vague and open to interpretation. This lack of clarity can lead to inconsistencies in enforcement and judgments. Criminalizing a Promise to Marry can be viewed as an unwarranted intrusion into the fundamental Right to Privacy and personal autonomy, which are cherished principles in a democratic society. In this context, a more nuanced and rights-based approach to addressing matters related to promises to marry would be both pragmatic and respectful of individual freedoms and choices.
With regard to the provision in the BNS on "Kidnapping and begging", fails to exclude the exception of lawful guardian of such child. Even guardians who wrongfully push children into begging should be rigorously punished. Excluding the exception of lawful guardians in a clause punishing those who wrongfully push children into begging is essential to safeguard the rights and well-being of vulnerable children. It sends a strong message that all individuals, regardless of their legal relationship with the child, will be held accountable for such harmful actions, acting as a powerful deterrent against child exploitation. This approach prioritizes the child's best interests, prevents potential legal loopholes, and aligns with international human rights standards, fostering a child-centered and protective legal framework that leaves no room for evading responsibility in cases of child exploitation.
The current definition of "imprisonment for life" within the BNS is not explicitly clear. It appears to be using the term "imprisonment for the remainder of a person's natural life." However, in the IPC, Section 53, the term "imprisonment for life" is used without specifying whether it means "imprisonment for the remainder of a person's natural life" or if it is equivalent to a "whole life sentence." There needs to be clarity about whether the convicts are expected to remain in prison for the entirety of their natural life or are eligible for release. The proposed definition of "imprisonment for life" in the BNS is not explicitly clear, and it differs from how "imprisonment for life" is generally understood in the context of the IPC. To avoid confusion and ensure legal clarity, the definition in the BNS be aligned with the understanding that "imprisonment for life" means a "whole life sentence" unless otherwise specified. This would help in harmonizing the definitions and interpretations across different legal contexts in India.
With regard to "Offences Relating to Elections", it has been noted in the report that "One of the general patterns in contemporary India’s criminal law is that offences that are particularly difficult to regulate and especially elaborate in their organisation internally while having a large-scale impact on society are addressed by ‘special statutes’. These special statutes while being harsh in punishment are rigorous in the procedural safeguards, they offer the accused. The emphasis being that there are checks and balances present in the quest of the state to prosecute and the efforts of the accused to defend herself. Any detraction from the procedural protections that general criminal law offers, will have checks in place in these special statutes. Offences related to elections should be on Representation of People Act. Similarly with UAPA, the special legislation should remain and amended if need be. But it should not be subsumed in the IPC."
With
regard to clause on "Defamation", there is no limitation on filing cases for defamation. Imposing a time limitation on
defamation claims helps protect the fundamental principle of free
speech. Without such limitations, individuals or organizations could
potentially bring defamation claims many years after an alleged
defamatory statement was made. This could have a chilling effect on free
expression and public discourse, as people may become reluctant to
express their opinions or engage in critical discussions for fear of
facing legal action at any time in the future.
A new Section 69 in the BNS deals with "sexual intercourse by employing deceitful means". It penalizes sexual intercourse by employing deceitful means (false promise of employment or promotion, inducement or marrying after suppressing identity) or by making promise to marry without intention of fulfilling the same.
A
sentence of community service has been introduced for six offences.
This is reserved for minor offences, non-violent crimes, and first-time
offenders. These are:
- Non-appearance in response to a proclamation under Section 84 BNSS (Section 209 BNS).
- Public servant unlawfully engaging in trade (Section 202 BNS).
- Attempt to commit suicide to compel or restrain exercise of lawful power (Section 226 BNS).
- Petty theft (involving property worth less than INR 5,000) by first-time offenders upon returning the stolen property (Proviso to Section 303 BNS).
- Misconduct in public by a drunken person (Section 355 BNS).
- Defamation (Section 356 BNS).
Notably, under section 18(c) of the Juvenile Justice (Care and Protection of Children) Act, 2015 a juvenile may be directed to undertake Community Service as a penalty.
Community service has been defined as ‘Court ordered work that benefits the community, and which is not entitled to any remuneration’ (Explanation to section 23 of the Bharatiya Nagarik Suraksha Sanhita). In State through PS Lodha Colony, New Delhi v. Sanjeev Nanda (BMW Hit and Run case), Supreme Court directed community service under Article 142 of the Constitution of India as a reformative measure along with payment of compensation instead of enhancing the sentence.
BNS misses the opportunity to the menace of ‘hate speeches’. It has not been defined in any law including the new law. Section 196 of the BNS deals with the offence of promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony. It includes electronic communication in its ambit but does not define it. It ignores Law Commission’s 267th Report on Hate Speech and the decision of the Supreme Court in Pravasi Bhalai Sangathan vs. Union of India (2014).
BNS fails to include Section 153AA of IPC, which deals with punishment for knowingly carrying arms in any procession or organizing, or holding or taking part in any mass drill or mass training with arms. It was enacted in 2005 by Parliament but it was not notified.
Section 104(2) of the BNS violates Article 20(3) of the Indian Constitution which says “no person accused of an offence shall be compelled to be a witness against himself”.
The new criminal laws enhances the time for which a person can be kept in police custody, there exists no protective measures to provide safety to the accused persons under police custody which is bound to adversely affect the safety of detainees.
There
are several provisions in these laws which consolidate powers
introduced by the colonial powers. For instance, Section 113 (terrorist
acts) of the BNS unmindful of the fact that the Unlawful Activities
(Prevention) Act (UAPA), 1967 already deals with it. It is intriguing as
to why create a general law provision when UAPA, a special law already
exists in this regard.
The judgement of the Supreme Court in Mithu Vs. State of Punjab underlined that there is no intelligible differentia in sentencing a person only with death sentence under section 303 of IPC. The BNS attempts an alternate sentence to the death, namely imprisonment for life which means imprisonment for the remainder of the person’s life. This falls foul of the Court's judgement.
The
National Judicial Data Grid reveals that 34,180,141 criminal cases at
the district and taluka courts are pending in India. 1,755,946 criminal
cases are pending in the high courts. At the Supreme Court 18,049 (less
than one year old) cases are pending. The new criminal laws will result
30 percent increase in criminal litigation. It is all set to create two
parallel sets of laws since the criminal justice system is a combination
of both substantive and procedural laws.
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