The Bharatiya Nyaya Sanhita bill is one of the three criminal bills introduced to bring reforms in the archaic and colonial criminal laws of India after recommendations for reforms in current criminal laws were made by the 111th and 128th Parliamentary Report of the Standing Committee. The BNS is aimed to replace the Indian Penal Code which was drafted by Thomas Babington Macaulay in 1860.

The Bharatiya Nyaya Sanhita bill was passed in Lok Sabha on 20th December and in Rajya Sabha on 21st December attaining Presidential assent was given by Draupadi Murmu on 25th December 2023. The Bharatiya Nyaya Sanhita has 20 new offenses, 19 provisions that existed in IPC have been deleted, in 33 offenses the punishment of imprisonment has been increased, in 83 offenses the punishment of fine has been enhanced and in 23 offenses the mandatory minimum punishment has been introduced, whereas in six offenses, the punishment of community service, has also been incorporated.

Major Changes Introduced in Bharatiya Nyaya Sanhita, 2023

Definitions:
Instead of separate sections for definitions as in the Indian Penal Code,1860 the definitions in the Bharatiya Nyaya Sanhita, 2023 are mentioned in a systematic alphabetical order in Section 2 of the act. A new definition of child is also introduced, according to which any person below the age of 18 years is a child. The definition of gender now also includes the term 'transgender' as defined in Section 2 of Transgender Persons (Protection of Rights Act) 2019, other than male and female. The word Court of Justice has been substituted by the word 'Court'.

The definition of the document now also includes 'electronic and digital records' in sub-section 8 of section 2 of the act which were previously mentioned as Electronic records in the Indian Penal Code,1860 in Section 29A. The scope of the definition of the movable property has been extended to include 'property of every description'.

Change Of Age In Kidnapping:

In the previous law, the age specified for the offense of kidnapping against males and females was different being sixteen years for males and eighteen for females. The BNS has removed this separate age for kidnapping and replaced the word minor with the word 'child' instead. Therefore now, any child irrespective of gender under the age of 18 will be covered under the provision of section 137 of BNS.

Furthermore, Section 137 includes Kidnapping from India, Kidnapping from lawful guardianship, and Punishment for kidnapping instead of separate sections as were given in the IPC.

Gender-Neutral Language:

• The Bharatiya Nyaya Sanhita, 2023 has used gender-neutral language in offenses related to Procuration by using the word 'Child' instead of a minor girl. (Section 96 of BNS)
• Gender-neutral language has also been used in offenses related to Outraging the Modesty of Women (Section 74 & 79) and Voyeurism (Section 77) of the new act by using the word 'whoever', which means that now a woman and a transgender person can also be booked under these sections.

Hiring, Employing, Or Engaging A Child To Commit An Offense:

An addition of Section 95 has been made to the Bharatiya Nyaya Sanhita, 2023 which criminalizes hiring, employing, or engaging a child to commit an offense which also includes using or exporting a child for pornography and imposes a punishment of a term extendable to 10 years with fine as if such person himself committed the offense.

Sexual Offenses Against Women:

• Rape: The Bharatiya Nyaya Sanhita, 2023 has changed the age from 15 to 18 in Exception 2 of Section 375 of the Indian Penal Code,1860, which was also held in the case of Independent thought vs U.O.I and Anr. [1]
• Gang Rape: Section 70 sub-section 2 of the BNS has changed the age of victims from 16 to 18 years of age.
• Sexual intercourse by deceitful means: Section 69 has been added to the BNS which imposes a punishment extendable to 10 years for having sexual intercourse with a woman on the false and deceitful pretext of marriage.

Unnatural offenses ( Section 377 of IPC):

In the case of Navtej Singh Johar and Ors. vs. U.O.I[2], the Supreme Court of India repealed Section 377 of the Indian Penal Code to the extent that it criminalized same-sex relations between consenting adults. The BNS has completely removed section 377 and has no provisions related to unnatural offenses without consent or Beastiality.

Terrorist Act ( Section 113 of BNS):

• The provision of 'terrorist act' has been incorporated in the Bhartiya Sahitya, which was not present earlier in the Indian Penal Code of 1860. Under section 113 of the BNS, a terrorist act means any act done to threaten the unity, integrity, sovereignty, security, or economic security of India or any foreign country by striking terror in the people.
• Meanwhile, using explosives, firearms, chemicals or other means to cause death, injury, damage, or disruption. A terrorist act may also involve using force or threats to kill or injure a public functionary, or to compel any government or organization to do or abstain from doing any act.
• Punishment for attempting or committing a terrorist act is:
  • Death or life imprisonment, and fine in case of death of a person.
  • Imprisonment for a term not less than 5 years which may extend to imprisonment for life, and fine in cases not resulting in death of a person.

Sedition (124A of IPC):

• Section 152 of the BNS states that, "whoever, purposely or knowingly, by words either spoken or written, or by signs or by visible representation, or by electronic communication, or by use of financial means or otherwise, excites or attempts to excite secession or armed rebellion or subversive activities or encourages feelings of separatist activities, or endangers sovereignty or unity and integrity of India, or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment, which may extend to seven years, and shall also be liable to fine."
• The word 'Subversive Activities' has been used in section 152 of BNS which means systematic attempts to overthrow or undermine a government or political system from persons working secretly from within.
• In the Indian Penal Code, 1860 sedition was committed against the government by showing disaffection towards the government but in the BNS provisions related to sedition have been mentioned as acts against the nation's sovereignty or unity and integrity. 'Disaffection towards the government established by law in India' has been replaced by 'Sovereignty or Unity and Integrity of India.'

Publishing false or misleading information:

Section 153 B of the IPC related to imputation, assertion prejudicial to national integration did not include publishing of false or misleading information which has now been incorporated under section 197(1) (d) of BNS, which imposes a punishment that can be extended to three years or fine or both for making or publishing false or misleading information, jeopardizing the sovereignty, unity and integrity or security of India.

Organized Crime and Petty organized crime:

• Earlier organized crime was a part of state legislation of Maharashtra in the Maharashtra Control of Organized Crime Act,1999, and other parliamentary legislations including the Prevention of Money Laundering Act,2002, and Narcotic Drugs and Psychotropic Substances Act, 1985.
• Addition of a new provision related to Organized Crime has been introduced under Section 111 of the BNS, which refers to ongoing unlawful activities like kidnapping, robberies, cyber crimes, human trafficking, etc. carried out by individuals or groups to gain material or financial benefits. These activities often involve violence, threats, intimidation or coercion.
• Essentials of organized crime include a group of two or more persons indulging in any continued unlawful activity. The continuing unlawful activity must be a cognizable offense punishable with imprisonment of three years or more done by a person singly or jointly or as part of a crime syndicate.
• Economic offenses under organized crime include crimes like criminal breach of trust, forgery, counterfeiting of currency notes, bank notes, government stamps, hawala transactions, and mass marketing fraud.

Punishment under organized crimes:

• Death or life imprisonment, and fine which shall not be less than 10 lakh rupees, in case of death of a person.
• Imprisonment for a term not less than 5 years which may extend to imprisonment for life, and fine which shall not be less than 5 lakh rupees, in cases not resulting in death of a person.
• Provision related to Petty Organized Crime has been incorporated under Section 112 of the BNS, which refers to any act of theft, snatching, cheating, unauthorized selling of tickets, unauthorized betting or gambling, selling of public examination, question papers, or any other similar similar criminal act committed by a member of a group or gang, either singly or jointly. The term theft includes strict theft, theft from vehicle dwelling, house or business premises, cargo theft, pickpocketing, theft through card skimming, shoplifting and theft of an automated teller machine. Anyone who commits a petty offense shall be punished with imprisonment for a term which will not be less than one year, but which may extend to seven years, and shall also be liable to fine.

 

Snatching:

• The offense of snatching has been introduced under Section 304 of the BNS, according to which theft is snatching if to commit theft, the offender suddenly or quickly, or forcibly seizes or secures or grabs or takes away from any person or from his possession any immovable property.
• A person who commits snatching shall be punishable for a term which may extend to three years and shall also be liable to fine.

Causing death by negligence:

• Subsection 1 of Section 106 of the BNS has enhanced the term of punishment for death caused by rash or negligent act not amounting to culpable homicide from 2 to 5 years.
• Medical Practitioners under Section 106 can be punished for a term which may extend to 2 years for death caused by negligence.
• Subsection 2 of section 106 mentions death caused by rash and negligent driving of a vehicle not amounting to culpable homicide. According to Section 106(2) if a driver escapes without reporting the death to a Police Officer or Magistrate shall be punished with a term which may extend to 10 years and shall also be liable to fine.
• Section 106(2) has two ingredients that add barriers to the protection of drivers, rashness and negligence, and have to be proved beyond a reasonable doubt to hold the driver guilty of negligence. The use of the word 'and' has been done instead of 'or' which was present in the IPC.

Mob Lynching:

• The Supreme Court in the case of Tehseen S. Poonawalla vs. U.O.I and Ors on 17th July 2018 the three-judge bench of Justice Dipak Mishra, D.Y Chandrachud and Ajay Mnikrao Khanwilkar addressed the issue related to cow vigilantism and lynching, and issued directions to the central and state governments to create a separate offense for lynching and provide adequate punishments.
• Section 103(2) criminalizes murder by a group of five or more people acting in concert on grounds of race, caste or community, sex, place of birth, language, personal belief, or any other similar grounds with a punishment of death or life imprisonment and liability to pay a fine.
• Section 117(4) criminalizes grievous hurt caused by a group of five or more people acting in concert on grounds of race, caste or community, sex, place of birth, language, personal belief or any other similar grounds punishable with a term which may extend up to a term of 7 years and liability to pay a fine.

Abetment Outside India for offense in India:
Section 48 has been added to the Sanhita according to which a person is said to abet an offense who without and beyond India, abets the commission of any act in India which would constitute an offense if committed in India.

Attempt to Suicide:
Attempt to commit suicide as defined in Section 309 of IPC has been removed by BNS and Section 226 has been added, attempt to commit suicide to compel or restrain to exercise of lawful power according to which whoever attempts to commit suicide with the intention to compel or restrain any public servant from discharging his duty shall be punished with imprisonment of up to 1 year or fine or both or community service.

Community Service:
Community service has been introduced as a form of punishment in Section 4(f), in six offenses namely, public servant unlawfully engaging in trade (Section 202), Non appearance in proclamation of Section 84 of BNS(Section 209), attempt to commit suicide to compel or restrain to exercise of lawful power (Section 226), Theft (Section 303), Misconduct in Public by a drunken person (Section 355), Defamation (Section 356).

Grievous Hurt:
The number of days in the definition of voluntarily causing grievous hurt under section 116 of the Bharatiya Nyaya Sanhita,2023 has been reduced from 20 days to 15 days under 116(h) stating, " any hurt which endangers life or causes the sufferer to be during the space of 15 days in severe body pain or unable to follow ordinary pursuits."

Beggary:
Beggary has been added as a form of exploitation in explanation 1 of section 143 of Bharatiya Nyaya Sanhita,2023.

Adultery:
Adultery was struck down in the case of Joseph Shine vs U.O.I,[5] and has also been omitted by the BNS. However, in a recent judgment of the Delhi High Court Justice Swaran Kanta Sharma said that the absence of a law on adultery does not provide "blanket immunity" to spouses in extramarital relationships and leave the victim individuals without any remedy.[6]

Key Changes And Analysis Of Provisions:

• The BNS is arranged in a very systematic and organized manner. Instead of separate sections for definitions and punishment as provided in the Indian Penal Code, 1860, the Bharatiya Nyaya Sanhita has merged sections together.
• As compared to the Indian Penal Code, 1860, the definitions are provided in alphabetical order in the BNS and instead of having separate sections for each definition the definitions in the BNS are present as subsections of section two of the Act.
• The addition of community service has been made in punishments as the 6th punishment whereas the IPC had only five kinds of punishment. However, the scope and nature of the type of community services are not described in the BNS and is left at the discretion of the judge.
• The BNS does not include recommendations of the Justice Verma Committee of 2013, such as gender-neutral laws for rape and criminalization of marital rape. The committee had made recommendations to remove the exception to marital rape in IPC.
• As per the Ms Patten's report on sexual violence in conflict situations there has been a significant increase in cases, with 3,293 UN-verified incidents, out of which in 97% of cases the victims were women and girls. However, there were 83 cases concerned with men and boys, mainly in detention centers. Moreover, the recommendations of the Justice Verma Committee for the need of gender-neutral laws in rape have not been changed in the new act. BNS has omitted Section 377 of the IPC, leaving no provision for men to seek remedy under the offense of rape.
• The BNS retains the minimum age of criminal responsibility from 7 years to 12 years in violation of recommendations of the UN to keep the minimum age of criminal responsibility to be 14 years or above.
• The BNS retains provisions related to solitary confinement that violate fundamental rights. The Supreme court in Sunil Batra vs Delhi Administration ruled that solitary confinement is violative of Article 21 of the Constitution.
• The BNS does not have any special court for trying terrorism cases which shall be tried under sessions court as per provisions of BNSS and under UAPA are tried under National Investigation testing agency which establishes special courts. The Standing Committee in Report 246 has recommended special criminal procedures for organized crime under BNSS.
• The BNS retains the provisions of IPC that states, 'any act performed by a person of unsound mind is not an offense,' but replaces the term 'unsound mind' with 'mental illness' as defined in the Mental Healthcare Act, 2017.
• The BNS does not include the word sedition but the BNSS refers to 'seditious matters' in BNS. The term 'subversive activities' is not defined in BNS.

Conclusion:
The Indian Penal Code was drafted by Thomas Babington Macaulay in 1860 under the principles of J.S Mill and the Utilitarian theory of Bentham.[12] Even after amendments the criminal bills of India needed reforms to suit the needs of India as recommended by the Law Commission and Parliamentary Standing Committee Reports 111 and 128. The Bharatiya Nyaya Sanhita, 2023 has made several changes in the previous IPC by adding new provisions and deleting existing provisions in IPC.

New offenses related to terrorist acts, organized crimes, petty organized crime, mob lynching, hit and run, medical negligence, acts endangering sovereignty, unity, and integrity of India, snatching, and fake news have been added to the BNS. Deletion of provisions related to unnatural offenses, thug, adultery, and sedition have been made. The number of sections and chapters has been reduced from 511 to 358 and from 23 to 20 in the new act.

Though a change in the criminal laws was much needed due to the archaic and colonial laws of the British era, the Bharatiya Nyaya Sanhita, 2023 still does not include gender-neutral rape laws and does not criminalize marital rape, 'marriage should not be considered an irrevocable consent to sexual acts.'[13] The scope and administration of community service under BNS has not been mentioned in BNS. There are no provisions for sexual assault, rape, stalking, or bestiality against men. The new Bills will increase the impact on the already overburdened judiciary and would also require advocates to comprehend the sections correctly to give correct legal advice.

A PIL has been filed against the three criminal bills by Adv. Vishal Tiwari for a stay of implementation of the three new criminal laws, as well as a direction for the immediate constitution of an expert committee under the chairmanship of a former judge of the Supreme Court, to examine the practical implementation of the laws. The PIL was filed because there were irregularities and a lack of balance in the enactment of the three laws, in as much as three bills were passed without any parliamentary debate.[14]

References:

1. Truckers' protest against hit-and-run law: Why this reform is much needed | The Indian Express
2. Gazette of THE BHARATIYA NYAYA SANHITA, 2023.pdf
3. ipc_act.pdf (indiacode.nic.in)
4. The Bharatiya Nyaya Sanhita, 2023 (prsindia.org)
5. Lost in translation: UN responses to sexual violence against men and boys in situations of armed conflict (icrc.org)
6. Conflict-Related Sexual Violence: UN Highlights Alarming Trends (unric.org)
7. Justice for children | UNICEF India
8. SCR_Code_of_Criminal_Procedure_Amendment_Bill_2010.pdf (prsindia.org)
9. Committee Reports (prsindia.org)
10. Bharatiya Nyaya Sanhita (BNS) (pmfias.com)
11. Macaulay and the Indian Penal Code of 1862: The Myth of the Inherent Superiority and Modernity of the English Legal System Compared to India's Legal System in the Nineteenth Century on JSTOR

End-Notes:

1. (2017) 10 SCC 800
2. AIR 2018 SC 4321
3. Subversive Definition & Meaning - Merriam-Webster
4. (2018) 9 SCC 501
5. (2018) SC 1676
6. Absence of law criminalising adultery is no license to practise bigamy: Delhi High Court (barandbench.com)
7. Conflict-Related Sexual Violence: UN Highlights Alarming Trends (unric.org)
8. Committee Reports (prsindia.org)
9. PDF Minimum age for criminal responsibility.pdf (unicef.org)
10. 1980 AIR 1579
11. The Bharatiya Nyaya Sanhita, 2023 (prsindia.org)
12. Macaulay and the Indian Penal Code of 1862: The Myth of the Inherent Superiority and Modernity of the English Legal System Compared to India's Legal System in the Nineteenth Century on JSTOR
13. Committee Reports (prsindia.org)
14. Vishal Tiwari vs U.O.I and Ors.