Bharatıya Nyaya (Second) Sanhita

February 19, 2024

10 Minutes

BNS2

Introduction

• The Indian Penal Code (IPC) functions as the official criminal code for the Republic of India. Commonly known as the IPC, its extended title underscores the necessity for a comprehensive Penal Code in India, and it was formally enacted in 1860.
• The primary criminal code in India is the Indian Penal Code (IPC), which acts as a thorough legal structure for criminal offences. 
• Over time, the IPC has undergone several amendments and is now accompanied by various additional criminal provisions. It is currently organized into 23 chapters with a total of 511 sections.

The Indian Penal Code

• The initial version of the Indian Penal Code was drafted by the First Law Commission, led by Thomas Babington Macaulay, in 1834. This draft was initially submitted to the Governor-General of India Council in 1837.

• However, the first draft underwent additional revisions after its initial presentation in 1837. The finalized version of the Code was later presented to the Legislative Council in 1856. Despite this presentation, it took a generation for the Code to be included in British India's statute book, a change brought about after the Indian Rebellion of 1857.

• The Indian Penal Code officially came into effect on January 1, 1862, marking its formal adoption as a comprehensive legal framework in British India.
•  The Code applied throughout British India at the time, excluding the princely states, which maintained their courts and legal systems until the 1940s

Structure and Provisions of the IPC

Applicable to all Indian citizens or individuals of Indian origin, the IPC is compartmentalized into 23 chapters and encompasses a total of 511 sections. It stands as an indispensable legal document molding the comprehension and execution of criminal law in India.

The Indian Penal Code, or IPC, is organized into 23 chapters, each consisting of sections that specify and penalize specific offenses. The IPC can be broadly categorized into four groups-

• Chapters I to V - General Matters: These chapters cover general aspects such as the extent of the code, definitions, principles of liability, and other foundational concepts.

• Chapters VI to XV - Public Matters: This section deals with matters between individuals and the state. It encompasses offenses that have a public dimension or impact public order.

• Chapters XVI to XXII - Offenses Against Individuals or Entities: These chapters primarily focus on criminal offenses committed by individuals against other individuals or legal entities, excluding the state.

• Chapter XXIII - Residuary Provision: This chapter is residual, establishing principles of punishment for attempting to commit an offense when no specific provision has been made elsewhere in the code.

Significance of Indian Penal Code

The Charter Act of 1833 set up a single law for all of British India, ensuring consistent rules and courts. This law, the Indian Penal Code (IPC), is still in use and holds the record for the world's longest-serving criminal code.

Today, the IPC is thorough, clearly defining each crime and its elements. It precisely describes what actions qualify as offenses and lays out the corresponding penalties. The code covers various areas like religious offenses, and property crimes, and has crucial sections addressing marriage offenses, cruelty, defamation, and more.

Punishments under the IPC fall into five categories (Sections 53 to 75 in Chapter III): death, life imprisonment, general imprisonment, confiscation of property, and fines.

In addition to the IPC of 1860, both Central and State Legislations have added laws addressing specific issues, complementing the IPC.

The IPC serves as a go-to guide for making decisions and determining penalties in cases involving fraud or misconduct. It continues to be a vital reference for maintaining order and justice in India's legal system.

What is Bharatiya Nyaya (Second) Sanhita?

The Bharatiya Nyaya Sanhita is a legal framework designed to modernize India's criminal laws by replacing the Indian Penal Code (IPC), which has been in effect since 1860. This new code seeks to align India's criminal justice system with contemporary values and societal needs, promising a comprehensive overhaul of how criminal offenses are defined and prosecuted in the country.

Earlier, the Government had presented Bharatiya Nyaya Sanhita Bill in the Parliament on 11 August 2023 but it was withdrawn to draft a new bill for the implementation of recommendations of Parliamentary Standing Committee.

The Bharatiya Nyaya (Second) Sanhita Bill was introduced and passed in the Lok Sabha on 20 December 2023. On 25 December, 2023, its received the assent of the President of India.

BNS takes inspiration from the Indian Penal Code but in the BNS, 20 new offenses have been introduced, while 19 provisions from the repealed IPC have been removed.

The Additions in Bharatiya Nyaya (Second) Sanhita 2023

• Mob Lynching and Hate-Crime Murders: The Bharatiya Nyaya Sanhita (BNS) criminalizes offenses related to mob lynching and hate-crime murders. In cases where a 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 entails punishments ranging from life imprisonment to death.

• Organized Crime: The BNS incorporates the prosecution of organized crime within the framework of ordinary criminal law. Unlike special state legislations such as Maharashtra's MCOCA, 1999, which grants extensive surveillance powers and relaxes standards of evidence, the BNS brings organized crime under the jurisdiction of standard criminal law.
• Terrorism: The BNS extends its purview to include terrorism within the scope of ordinary criminal law.
• Suicide Attempts: A new rule has been introduced in the BNS, making it illegal to try to commit suicide with the purpose of forcing or stopping a government worker from doing their job. This rule aims to stop actions like setting oneself on fire or going on hunger strikes during demonstrations.

• Promise to Marry: The BNS introduces Clause 69, which criminalizes a "deceitful" promise to marry. The clause specifies that "deceitful means" include false promises related to employment, promotion, inducement, or marriage after suppressing one's identity.

The Subtractions in Bharatiya Nyaya (Second) Sanhita 2023

Unnatural Sexual Offenses: The Bharatiya Nyay Sanhita (BNS)  repealed Section 377, which criminalizes homosexuality and other "unnatural" sexual activities.

Adultery: Reflecting the Supreme Court's 2018 ruling that deemed the offense of adultery as unconstitutional, the BNS omits this provision from the criminal code.

Thugs: The Indian Penal Code's Section 310 brands individuals "habitually associated with committing robbery or child-stealing" as thugs. Criticized for perpetuating colonial notions of criminality, particularly against certain tribes, the BNS eliminates this provision.

The Changes in Bharatiya Nyaya (Second) Sanhita 2023

• Gender Neutrality: The Bharatiya Nyay Sanhita (BNS) introduces gender neutrality in certain laws, particularly those related to children. While rape laws remain applicable only to women, the BNS extends gender neutrality to offenses like outraging the modesty of women (Section 354A of the IPC) and voyeurism (Section 354C) for adults.This modification means that both men and women can be charged under these laws.

• Fake News: The BNS incorporates a novel provision within IPC Section 153B, addressing hate speech. It criminalizes the dissemination of false and misleading information, aiming to combat the spread of fake news.

• Sedition: The BNS introduces the offense of sedition under a revised name and broader definition. Renamed from 'rajdroh' to 'deshdroh,' the new provision includes additional elements, such as aiding through financial means, engaging in "subversive activities," and promoting "feelings of separatist activities."

• Community Service: For the first time, the BNS advocates for community service as a punishment for minor offenses, becoming a part of the penal code. This marks a departure from traditional punitive measures for certain offenses.
• Death by Negligence: The BNS increases the punishment for causing death by negligence from two to five years under IPC Section 304A. However, it specifies that convicted doctors will still face a lower punishment of two years imprisonment.
• Damage to Public Property: The BNS introduces graded fines for offenses related to causing damage to public property, aligning the penalty with the extent of damage inflicted.

Need for the Bharatiya Nyaya Sanhita (BNS)

Over an extended period, the need for a significant overhaul of India's criminal justice system has gained widespread recognition. The existing laws, originating from the colonial era, no longer effectively capture the current dynamics and aspirations of Indian society. 

Various committees, including the Law Commission of India, Bezbaruah Committee, Viswanathan Committee, Malimath Committee, and Madhav Menon Committee, have consistently advocated for reforms.

Confronting Colonial Legacy

• The Union Home Minister has underscored the imperative of eliminating the colonial influence deeply embedded in the Indian Penal Code (IPC), Criminal Procedure Code (CrPC), and the Evidence Act. 
• The objective is to replace this historical imprint with a distinctly Indian legal framework that better aligns with contemporary needs and values.

Integrating Judicial Precedents

• A crucial aspect of the reform process involves integrating Supreme Court judgments into the legal framework. An illustrative example is the omission of Section 377, which criminalized homosexuality.

• This move highlights the responsiveness of legal reforms to evolving societal attitudes and judicial interpretations, ensuring that outdated or discriminatory provisions are rectified.

Adopting Gender Neutrality

• Recognizing the significance of adapting to changing societal norms, a pivotal step in updating the IPC involves introducing gender neutrality in specific provisions. 

• This adjustment is crucial for ensuring that the legal system aligns with and promotes contemporary values related to gender equality. By removing gender-specific biases, the aim is to create a legal framework that reflects the diverse and evolving nature of Indian society.

Criticism of Bhartiya Nyaya (Second) Sanhita

• Criminal Responsibility Age Discrepancy: The current age of criminal responsibility is seven, possibly extending to 12 based on maturity, conflicting with international recommendations.

• Inconsistencies in Child Offense Definitions: BNS2 defines a child as under 18, but age thresholds for offenses like rape vary, causing inconsistency.

• Sedition Provisions and Sovereignty Concerns: BNS2 removes sedition, but elements endangering India's sovereignty may still be retained.

• Retention of IPC Provisions on Rape and Sexual Harassment: BNS2 keeps IPC provisions on rape and sexual harassment, ignoring recommendations to make rape gender-neutral and include marital rape as an offense by the Justice Verma Committee (2013).

Bharatiya Nagarik Suraksha (Second) Sanhita

The Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 (BNSS2), is a proposed legal framework aimed at replacing the existing Criminal Procedure Code, 1973 (CrPC). The CrPC currently outlines the procedures for arrest, prosecution, and bail in criminal cases. The introduction of BNSS2 is intended to modernize and streamline these procedures, ensuring a more efficient and contemporary approach to criminal justice in India. This change is expected to have significant implications for the legal system, impacting how criminal cases are processed and managed in the country.

Provisions of Bharatiya Nagarik Suraksha (Second) Sanhita

• Undertrial Rules: The Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 (BNSS2) replaces the old Criminal Procedure Code and introduces changes such as restricting the release of personal bonds for severe offenses, including life imprisonment cases.

• Medical Procedures: BNSS2 expands the scope of medical examinations, allowing any police officer to request one, making it more accessible.

• Forensic Investigation Mandate: For crimes punishable by at least seven years' imprisonment, BNSS2 makes forensic investigation mandatory. It requires forensic experts to collect evidence at crime scenes, even if the state lacks forensic facilities.
• Sample Collection Expansion: BNSS2 extends the power to collect finger impressions and voice samples, even from individuals not under arrest.
• Strict Timelines: The new law introduces strict timelines, like medical reports for rape victims within 7 days and judgments within 30 days.
• Court Hierarchy Changes: BNSS2 removes the distinction of Metropolitan Magistrates, organizing criminal courts hierarchically without this division.

Criticism of Bharatiya Nagarik Suraksha (Second) Sanhita

• Property Attachment from Crime Proceeds and Lack of Safeguards: The power to seize property lacks the safeguards of the Prevention of Money Laundering Act in the BNSS2, leading to concerns about potential misuse.
• Restrictions on Bail for Multiple Charges: While the CrPC allows bail based on half the maximum imprisonment, the BNSS2 denies this for individuals facing multiple charges, limiting bail opportunities, especially in cases with multiple sections.
• Handcuff Use and Contradictory Supreme Court Directives: The BNSS2 allows handcuff use, including in organized crime, conflicting with Supreme Court directives.
• Integration of Trial Procedure and Public Order Maintenance: The BNSS2 retains CrPC provisions for public order maintenance, prompting questions about whether trial procedures and public order should be regulated under the same law or separately.

The Major Provisions of Bharatiya Sakshya (Second) Bill, 2023

• Documentary Evidence: The Bharatiya Sakshya (Second) Bill, 2023 (BSB2) replaces the old Indian Evidence Act. It broadens the definition of documents to include electronic records and introduces changes in primary and secondary evidence status.

• Oral Evidence Accessibility: BSB2 allows the electronic provision of oral evidence, enabling witnesses and others to testify through electronic means.

• Admissibility of Electronic Records: Electronic records are granted equivalent legal status as paper records, covering information stored in various digital formats.

• Joint Trials Amendment: BSB2 introduces an explanation to joint trials, categorizing cases where one accused is absent or has not responded to an arrest warrant.

Criticism of Bharatiya Sakshya (Second) Bill, 2023

• Admissibility of Information from Accused in Custody: The BSB2 considers information obtained during police custody as Permissible, but excludes information obtained when the accused was not in custody, maintaining a distinction that the Law Commission recommended eliminating.

• Unincorporated Law Commission Recommendations: Despite their significance, the BSB2 omits several Law Commission recommendations, notably the presumption of police responsibility for injuries sustained by an accused in custody.

• Tampering of Electronic Records: The BSB2 permits the admissibility of electronic records, yet fails to introduce safeguards against tampering or contamination during the investigative process. This oversight remains despite the Supreme Court's acknowledgment of the potential for such issues.

Previous Year's Mains Questions

Question: We are witnessing increasing instances of sexual violence against women in the country. Despite existing legal provisions against it, the number of such incidences is on the rise. Suggest some innovative measures to tackle this menace. (2014)

Question: Mob violence is emerging as a serious law and order problem in India. By giving suitable examples, analyze the causes and consequences of such violence. (2015)