For the first time changes concerning Indianness, Indian Constitution and the people of India have been made in the laws governing 150 year old criminal justice system
After the implementation of these laws, right from the FIR to the court judgement, the entire process will be online
In these laws, provision has also been made to digitize the records of Zero FIR, e-FIR and all cases across the country by 2027
Thegovernment has completely abolished sedition forever from the law of this country, but if anyone does anything against the unity, integrity and sovereignty of India, he will get the harshest punishment
With the use of technology, the process of speedy justice has been carried forward by setting up a deadline for police, lawyer and court
after the full implementation of these laws, the trend of tareekh-pe-tareekh (giving date after date) will be over and a judicial system will be established in the country which will give justice within three years.
in all crimes with punishment of imprisonment of more than 7 years, the visit of forensic science laboratories has been made mandatory, which will increase the conviction ratio. He said that after passing these new laws, there will be only one justice system in the entire country from Kashmir to Kanyakumari and Dwarka to Assam
Home Minister said that sedition has now been changed into treason.
He said that there will be a Director of Prosecution in the district and will decide on the merits of appeal by staying neutral from the process.
Union Home Minister and Minister of Cooperation said that the Bharatiya Nagarik Suraksha Sanhita, which replaces CrPC with 484 sections, will now have 531 sections, 177 sections have been replaced, 9 new sections have been added and 14 sections have been repealed.
In the Bharatiya Nyaya Sanhita, which will replace the IPC, there will now be 358 sections in place of the earlier 511 sections, 20 new crimes have been added, compulsory minimum punishment in 23 crimes has been kept, and a penalty of community service has been kept in 6 crimes. 19 sections have been repealed.
Similarly, the Bharatiya Sakshya Bill, which will replace the Indian Evidence Act, will now have 170 sections in place of 167, 24 sections have been changed, 2 new sections have been added and 6 sections have been repealed.
Shri Shah added that till now the work of computerizing 97% of the country's police stations through ICJS has been completed and 82 percent of police stations have also been digitized. He said that so far, data of 8 crore FIRs has been made online through ICJS, projects of e-court, e-prisons, e-prosecution and e-forensics have started.
He added that through ICJS, Forensic Science University, Police Station, Home Department, Public Prosecutor Office, Jail and Court are going to be online under the same software. The work of integrating all types of databases is also being done, so that the noose on all types of crimes can be tightened. Home Minister added that this is the Narendra Modi government which works with planning and results. He said that a police officer is designated in every district and police station who will make a list of arrested people and inform their relatives.
Shri Shah said that in cases of imprisonment below 3 years, the rules regarding the arrest of persons above 60 years of age have also been framed firmly.
He said that we have enacted victim-centric laws, the purpose is to give justice to the victim, restore her/his self-esteem and dignity. Compulsory provision of video recording has been made in search and seizure and collecting evidence, which will greatly reduce the chances of framing someone.
He said that a provision of life imprisonment and death penalty has been made in the crime of rape of a woman under 18 years of age. He said that in gangrape cases, a provision has been made for imprisonment of 20 years or imprisonment till death.
He said that if any death occurs in incidents like use of dynamite, explosive material, poisonous gas, or nuclear, then those responsible for it will be considered involved in terrorist acts. He said that this definition has no scope for misuse of this law, but those who do terrorist acts should get rigorous punishment.
He said that in the case of culpable homicide not amounting to murder, there is a provision for lesser punishment if the accused goes to police to report the case and takes the victim to the hospital for medical treatment.
Shri Shah said that for the hit and run cases, we have made a provision of 10 years of imprisonment.
Home Minister said that now the police will have to register an FIR within 3 days of the complaint and in cases of punishment of 3 to 7 years, an FIR will have to be registered after preliminary investigation. The report of the investigation will have to be placed in 24 hours and the report of the search will have to be placed before the court in maximum 24 hours.
Home Minister added that now we have made a provision to send the medical examination report of the rape victim directly to the police station and court within 7 days. Now the deadline for filing the charge sheet has also been fixed and kept 90 days and after that investigation can be done only 90 days further.
He said that the magistrate will have to take cognizance of the case in 14 days and then the action will begin. Shri Shah said that the accused will have to file a discharge petition within 60 days.
He said that there are many cases in which trail will be done even in the absence of the accused and punishment will be pronounce in 90 days and the judge will have to give a decision in 45 days of the end of the case.
Under the trial in absentia, criminals will now be punished and their property will also be attached.
Along with this, there will be 7 days between decision and punishment.
A mercy petition can be filed within 30 days of dismissal of the appeal by the Supreme Court.
There needs to be proper parliamentary scrutiny of the new Bills replacing the IPC, the CrPC and the IEA to ensure a fair, just and efficient criminal justice system
The Government has introduced three Bills to replace the core laws, i.e., the Indian Penal Code (IPC), 1860, the Code of Criminal Procedure (CrPC), 1973, and the Indian Evidence Act (IEA), 1872, which form the basis of the criminal justice system. These Bills are being examined by the Parliamentary Standing Committee on Home Affairs. (The Bharatiya Nyaya Sanhita Bill will replace the IPC; the Bharatiya Nagarik Suraksha Sanhita Bill will be in place of the CrPC, and the Bharatiya Sakshya Bill will replace the IEA.)
As these Bills replace the entire Acts — and are not merely Amendment Bills to fix some gaps — they provide an opportunity for an overhaul of the laws underlying the criminal justice system.
This raises the following questions — Do they update the law to reflect the concepts of modern jurisprudence?
How do these Bills relate to various special laws? Do they help unclog the criminal justice system?
Are various definitions and provisions drafted well without ambiguity?
The Bharatiya Nyaya (Second) Sanhita (BNS2) retains most offences from the IPC.
It adds community service as a form of punishment.
Sedition is no longer an offence. Instead, there is a new offence for acts endangering the sovereignty, unity and integrity of India.
The BNS2 adds terrorism as an offence. It is defined as an act that intends to threaten the unity, integrity, security or economic security of the country, or strike terror in the people.
Organised crime has been added as an offence. It includes crimes such as kidnapping, extortion and cyber-crime committed on behalf of a crime syndicate. Petty organised crime is also an offence now.
Murder by a group of five or more persons on grounds of certain identity markers such as caste, language or personal belief will be an offence with penalty life imprisonment or death, and with a fine.
Key Issues and Analysis
Age of criminal responsibility is retained at seven years. It extends to 12 years depending upon the maturity of the accused. This may contravene recommendations of international conventions.
The BNS2 defines a child to mean a person below the age of 18. However, for several offences, the age threshold of the victim for offences against children is not 18. The threshold for minority of the victim of for rape and gangrape is different.
Several offences overlap with special laws. In many cases, both carry different penalties or provide for different procedures. This may lead to multiple regulatory regimes, additional costs of compliance and possibility of levelling multiple charges.
The BNS2 removes sedition as an offence. The provision on endangering the sovereignty, unity and integrity of India may have retained aspects of sedition.
The BNS2 retains the provisions of the IPC on rape and sexual harassment. It does not consider recommendations of the Justice Verma Committee (2013) such as making the offence of rape gender neutral and including marital rape as an offence.
The BNS2 omits S. 377 of IPC which was read down by the Supreme Court. This removes rape of men and bestiality as offences.
Offences against the body: The IPC criminalises acts such as murder, abetment of suicide, assault and causing grievous hurt. The BNS2 retains these provisions. It adds new offences such as organised crime, terrorism, and murder or grievous hurt by a group on certain grounds.
Sexual offences against women: The IPC criminalises acts such as rape, voyeurism, stalking and insulting the modesty of a woman. The BNS2 retains these provisions. It increases the threshold for the victim to be classified as a major, in the case of gangrape, from 16 to 18 years of age. It also criminalises sexual intercourse with a woman by deceitful means or making false promises.
Sedition: The BNS2 removes the offence of sedition. It instead penalises the following: (i) exciting or attempting to excite secession, armed rebellion, or subversive activities, (ii) encouraging feelings of separatist activities, or (iii) endangering the sovereignty or unity and integrity of India. These offences may involve exchange of words or signs, electronic communication, or use of financial means.
Terrorism: Terrorism includes an act that intends to: (i) threaten the unity, integrity, security or economic security of the country, or (ii) strike terror in the people or any section of people in India. Punishment for attempting or committing terrorism includes: (i) death or life imprisonment, and a fine, if it results in death of a person, or (ii) imprisonment between five years and life, and a fine.
Organised crime: Organised crime includes offences such as kidnapping, extortion, contract killing, land grabbing, financial scams, and cybercrime carried out on behalf of a crime syndicate. Attempting or committing organised crime will be punishable with: (i) death or life imprisonment and a fine of Rs 10 lakh, if it results in death of a person, or (ii) imprisonment between five years and life, and a fine of at least five lakh rupees.
Mob lynching: The BNS2 adds murder or grievous hurt by five or more people on specified grounds, as an offence. These grounds include race, caste, sex, language, or personal belief. The punishment for such murder is life imprisonment or death.
Rulings of the Supreme Court: The BNS2 conforms to some decisions of the Supreme Court. These include omitting adultery as an offence and adding life imprisonment as one of the penalties (in addition to the death penalty) for murder or attempt to murder by a life convict.
Minimum age of criminal responsibility higher than several other jurisdictions
Age of criminal responsibility refers to the minimum age at which a child can be prosecuted and punished for an offence. Advances in understanding of how brain biology affects adolescent behaviour has raised questions about how responsible children should be held for their actions.
Under IPC, nothing is considered an offence if committed by a child below the age of seven years. The age of criminal responsibility increases to 12 years, if the child is found to not have attained the ability to understand the nature and consequences of his conduct. The BNS2 retains these provisions.
This age is lower than the age of criminal responsibility in other countries. In 2007, a UN Committee recommended states to set the age of criminal responsibility to above 12 years.
The age of criminal responsibility varies across countries. For instance, in Germany, the age of criminal responsibility is 14 years, whereas in England and Wales, it is 10 years. In Scotland, the age of criminal responsibility is 12 years.
Age threshold of the victim for similar offences against children varies
The BNS2 provides for higher penalties in case of offences against children. In most cases, it provides that a victim below the age of 18 years be treated as a child. The penalty for rape and gang rape of women and children is different. However, the threshold for minority of the victim for different offences of rape and consequently the penalty, varies.
For gang rape, the penalty differs based on whether the victim is above or below 18 years of age. However, for rape, the penalty is different based on whether the victim’s age is below 12 years, between 12 and 16 years, or above. This is inconsistent with the Protection of Children from Sexual Offences Act, 2012, which classifies all individuals below the age of 18 as minors.
Additionally, under BNS2, age threshold of the victim for certain offences against children is not 18 years. For example, kidnapping or abducting a child with the intent to steal from a parent applies only to a child under 10 years.
This implies that the punishment for kidnapping an 11-year-old is the same as that of kidnapping an adult. Further, the BNS2 retains from the IPC the age of 21 years for the offence of importing a foreign woman from another country.
However, for boys, it adds the age threshold of 18 years. The Standing Committee on Home Affairs (2023) has recommended defining a child as a person below the age of 18.
When the IPC was enacted, it encompassed all criminal offences. Over time, special laws have been enacted to address specific subjects and related offences.
Some of these offences have been removed from the BNS2.
For example, offences related to weights and measures were incorporated in the Legal Metrology Act, 2009 and have been removed from the BNS2.
However, several offences continue to be retained (see Table 1 below for some illustrations).
The BNS2 also adds certain new offences such as organised crime and terrorism which are already covered under special laws. Such overlap in laws may cause additional compliance burden and costs.
It may also lead to multiple laws providing varying penalties for the same offences. Deleting such offences could remove duplication, possible inconsistencies, and multiple regulatory regimes.
Currently, organised crime and acts of terrorism are not covered under IPC. Acts of terrorism are covered under the Unlawful Activities (Prevention) Act, 1967 (UAPA).
Organised crime is covered by state laws such as the Maharashtra Control of Organised Crime Act, 1999 (MCOCA), and similar laws enacted by Karnataka, Gujarat, Uttar Pradesh, Haryana and Rajasthan.
Offences related to both organised crime and terrorism have been added in the BNS2. The provision on terrorism in BNS2 is similar to the one in UAPA.
Adding organised crime as an offence in the BNS2 fills a gap as these crimes may occur across all states, including those which have not enacted a special law. However, this also creates duplication of laws in states which already have such special laws.
The Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 (BNSS2) and the Bharatiya Sakshya (Second) Bill, 2023 (BSB2) which replace the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872, respectively, do not provide for a separate criminal procedure for these offences.
The special laws on organised crime and terrorism have several departures from ordinary criminal procedure. They remove some safeguards for the accused, such as the conditions for bail and the admissibility of police confessions.
Cases under UAPA are tried under the National Investigation Agency Act, 2008, which establishes Special Courts to try such cases. Under the BNSS2, cases of terrorism will be tried in Sessions Courts.
This would result in varying investigation and trial procedures for similar offences. The Standing Committee on Home Affairs (2023) had recommended providing special criminal procedures for organised crime in the Bhartiya Nagrik Suraksha Sanhita, 2023 (BNSS).
Penalty for crime by member of a gang differs from that by an individual The BNS2 defines petty organised crime as an offence.
It includes: vehicle theft, pick-pocketing, selling of public examination question papers, any other similar criminal act. To qualify as petty organised crime, such offences must be committed by members of a group or gang.
This offence is penalised with imprisonment of one to seven years, and a fine. This penalty creates a distinction between an offence committed by a member of a gang and a person committing an offence on his own.
For example, the penalty for theft is upto three years imprisonment, whereas if the same act is committed by a gang or group, the penalty is between one and seven years of imprisonment.
Offences against women - The BNS2 retains the provisions of IPC related to rape. It has not addressed several recommendations made by the Justice Verma Committee (2013) and Supreme Court on reforming offences against women.
Rape (IPC s.375) – Rape should not be limited to penetration of the vagina, mouth or anus. Any non-consensual penetration of a sexual nature should be included in the definition of rape. Exception to marital rape should be removed. But in BNS2 Original provision retained in Clause 63.
Words, gesture, or act intended to insult modesty of woman (IPC s.509) - the section should be repealed. The offence of ‘eve-teasing’ can be charged under s.354 of the IPC (s.73). Remove the terminology ‘modesty of women’ from the IPC. But in BNS2 Original provision retained in Clause 79.
Assault or use of criminal force on woman with intent to disrobe (IPC s.354B) - penalty should be increased to imprisonment for at least five years up to 10 years.But in BNS2 Penalty is imprisonment for at least three years up to seven years (Clause 76).
Adultery (IPC s.497) – the section violates Articles 14 and 21. It creates a distinction between men and women based on gender stereotypes, and is arbitrary. Adultery should not be treated as an offence as it violates the right to privacy. But in BNS2 Adultery has been omitted. However, BNS2 retains s.498 of the IPC (Clause 84) which penalises a man for enticing the wife of another man so that she may have intercourse with any person.
The IPC defines sedition as bringing or attempting to bring hatred, contempt, or exciting disaffection towards the government. The Supreme Court has put the offence of sedition on hold until a Constitution bench examines it.
The BNS2 removes this offence. Instead, it adds a provision that penalises: (i) exciting or attempting to excite secession, armed rebellion, or subversive activities, (ii) encouraging feelings of separatist activities, or (iii) endangering sovereignty or unity and integrity of India.
These offences may involve exchange of words or signs, electronic communication, or use of financial means.
It may be argued that the new provision retains certain aspects of the offence of sedition and broadens the range of acts that could be seen as threatening the unity and integrity of India.
Terms like ‘subversive activities’ are also not defined, and it is unclear what activities will meet this qualification.
In 1962, the Supreme Court limited the application of sedition to acts that carry the intention or tendency to create public disorder or incite violence. Note that the BNSS2 refers to ‘seditious matters’ in BNS2 (clauses 150, 195, 297), despite the word sedition not appearing in BNS2.
Solitary confinement may violate fundamental rights
The IPC permits solitary confinement for offences that are penalised with rigorous imprisonment. Such offences include criminal conspiracy, sexual harassment, kidnapping or abducting to murder.
The BNS2 retains these provisions.
The Prisons Act, 1894, which also permits solitary confinement, has been adopted by many state laws. Provisions on solitary confinement are not in line with Court rulings and expert recommendations.
The Supreme Court (1979) has held that measures such as pushing prisoners into solitary cells deprives them of their right to life and liberty under Article 21.
In 1971, the Law Commission recommended removing solitary confinement from the IPC.
It observed that such confinement is out of tune with modern thinking and should not exist as a punishment for any criminal court to enforce.
In 1978, the Supreme Court recognised the Law Commission’s recommendation and held that solitary confinement must be enforced only in exceptional cases.
The scope of community service is unclear
The BNS2 adds community service as a punishment. It extends this punishment to offences such as: (i) theft of property worth less than Rs. 5,000, (ii) attempt to commit suicide with the intent to restrain a public servant, and (iii) appearing in a public place intoxicated and causing annoyance.
The BNS2 does not define what community service will entail and how it will be administered. The Standing Committee on Home Affairs (2023) recommended defining the term and nature of ‘community service’.
There are several drafting issues in the BNS2. We illustrate a few below:
Missing offences: Section 375 specifies rape of a woman as an offence. Section 377 specifies “intercourse against the order of nature against any man, woman or animal” an offence; the Supreme Court read this down to exclude consensual sex between adults. This meant that forced intercourse with an adult male is an offence, so is intercourse with an animal. Rape of children, regardless of gender is an offence under the POCSO Act, 2012.
The BNS2 does not retain section 377. This implies that rape of an adult man will not be an offence under any law, neither will having intercourse with an animal. The Standing Committee on Home Affairs (2023) has recommended re-introducing this provision.
Obsolete references (may need to be updated with examples from modern life)
Illustrations: (b) Z is riding in a chariot. A lashes Z’s horses, and thereby causes them to quicken their pace. Here A has caused change of motion to Z by inducing the animals to change their motion. A has therefore used force to Z; and if A has done this without Z’s consent, intending or knowing it to be likely that he may thereby injure, frighten or annoy Z, A has used criminal force to Z.
Other illustrations relate to palanquins (illustration c in clause 127) and cannons (illustration d in clause 100).
On 11 August 2023, Amit Shah, Minister of Home Affairs, introduced the Bharatiya Nyaya Sanhita Bill, 2023 in Lok Sabha.
On 12 December 2023, Bharatiya Nyaya Sanhita bill, 2023 was withdrawn.
On 12 December 2023, Bharatiya Nyaya (Second) Sanhita bill, 2023 was introduced in Lok Sabha.
On 20 December 2023, the Bharatiya Nyaya (Second) Sanhita Bill, 2023 was passed in Lok Sabha.
On 21 December 2023, Bharatiya Nyaya (Second) Sanhita bill, 2023 was passed in Rajya Sabha.
On 25 December 2023, the Bharatiya Nyaya (Second) Sanhita Bill 2023 received the assent of the President of India.
Changes The following are some of the features that the Bharatiya Nyaya Sanhita has made to the Indian legal system:
Twenty new offences have been added to the BNS. Nineteen provisions in the repealed IPC have also 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. Punishment of community service has been introduced in six offences
Offences against the body: The BNS retains the provisions of the IPC on murder, abetment of suicide, assault and causing grievous hurt. It adds new offences such as organised crime, terrorism, and murder or grievous hurt by a group on certain grounds.
Sexual offences against women: The BNS retains the provisions of the IPC on rape, voyeurism, stalking and insulting the modesty of a woman. It increases the threshold for the victim to be classified as a major, in the case of gang rape, from 16 to 18 years of age.
Offences against property: The BNS retains the provisions of the IPC on theft, robbery, burglary and cheating. It adds new offences such as cybercrime and financial fraud.
Offences against the state: The BNS removes sedition as an offence. Instead, there is a new offence for acts endangering India's sovereignty, unity and integrity.
Offences against the public: The BNS adds new offences such as environmental pollution and human trafficking.
Structure The Bharatiya Nyaya Sanhita is subdivided into 20 chapters consisting of 358 clauses. The structure of the code is similar to the Indian Penal Code.
Repealing sedition, death for mob lynching, community service as punishment for petty offences, using electronic and digital record as evidence and summons through electronic mode form part of three new Bills introduced in Lok Sabha on Friday, as the Narendra Modi government intends to replace colonial era laws.
The Bharatiya Nyaya Sanhita Bill, 2023 will replace the IPC, while Bharatiya Nagarik Suraksha Sanhita Bill, 2023 will make way for the CrPC and Bharatiya Sakshya Bill, 2023 for the Indian Evidence Act.
The Bharatiya Nyaya Sanhita Bill, which would repeal the IPC, proposes to completely omit the contentious provisions of sedition but has retained the death penalty.
At the same time, it has listed new offences such as acts of secession, armed rebellion, subversive activities, separatist activities or endangering the sovereignty or unity and integrity of India, which attracts a jail term extending up to life. The new penal code also defines terrorist acts.
In cases like theft of valuables less than Rs 5,000, causing annoyance to the public in an intoxicated condition and defaming the President and those holding Constitutional positions, the offender could be punished by asking him to do community service.
For the first time, the proposed penal code has defined the punishment for mob lynching where the maximum punishment is death. The mob could escape death or life imprisonment but may have to undergo a minimum of seven years in jail, if convicted.
The offences against women and children, murder and offences against the State have been given precedence. The various offences have been made gender neutral, the Statement of Objects and Reasons of the Bill said.
The Bill clearly defines rape and the concept of consent but marital rape is not mentioned in the Bill. One could face minimum of 20 years in jail and a maximum of death penalty if a 12-year-old is raped. Convicts in cases of rape of girls below 16 years may get a minimum of 20 years.
The proposed penal code also defines organised crimes and petty organised crimes. Organised crimes is defined as any “continuing unlawful activity” including kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offences, cyber-crimes having severe consequences, trafficking among others by a group of individuals using violence or threat.
Similarly petty organised crime is defined as any crime that causes general feelings of insecurity among citizens relating to theft of vehicle or theft from vehicle, domestic and business theft, trick theft, cargo crime, theft, organised pick-pocketing, snatching, theft through shoplifting or card skimming and ATM thefts by an organised group.
The Bharatiya Nagarik Suraksha Sanhita Bill provides for trial and judgement of those who are absconding. It also provides for the use of technology and forensic sciences in the investigation of crime and furnishing and lodging of information, service of summons, etc., through electronic communication.
Specific time-lines have been prescribed for time bound investigation, trial and pronouncement of judgements. Citizen centric approach has been adopted for the supply of a copy of first information report to the victim and to inform them about the progress of investigation, including by digital means, according to the Bill.
In cases where the punishment is seven years or more, the victim shall be given an opportunity of being heard before withdrawal of the case by the Government.
Summary trial has been made mandatory for petty and less serious cases. The accused persons may be examined through electronic means, like video conferencing it said.
The Bharatiya Sakshya Bill provides for admissibility of an electronic or digital record as evidence and it shall have the same legal effect, validity and enforceability as paper record.
Bharatiya Nyaya Sanhita Bill proposes three years of imprisonment for spreading fake news
Under section 195 of the new bill, those spreading 'fake news' or 'misleading information' jeopardising India's sovereignty and security shall be punished for up to three years of imprisonment.
The proposed bill, which has been referred to the Standing Committee for review, contains a provision under section 195 that deals with those spreading 'fake news or misleading information' jeopardising the sovereignty and security of India shall be punished for up to three years of imprisonment.
Section 195 (1) reads," makes or publishes false or misleading information jeopardising the sovereignty unity and integrity or security of India, shall be punished with imprisonment which may extend to three years, or with fine, or with both."
The section is contained under Chapter 11 of the newly proposed bill under 'Of Offences against the Public Tranquility' under the subject of 'Imputations, assertions prejudicial to national integration.'
The provisions related to 'Imputations, assertions prejudicial to national integration' were under Section 153B of the Indian Penal Code.
Three Bills that the Central government introduced in the Lok Sabha in the monsoon session to replace the Indian Penal Code, 1860 (IPC), the Indian Evidence Act, 1872, and the Code of Criminal Procedure, 1973 (CrPC), have led to protests throughout the country.
The new Acts will have non-English names.
The Bill to replace the IPC is known as The Bharatiya Nyaya Sanhita 2023 (BNS), the one that replaces the the Indian Evidence Act is The Bharatiya Sakshya Bill 2023, and the Bill to replace the CrPC is called The Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS).
Introducing the Bills, Home Minister Amit Shah claimed that the preparation of these laws involved holding extensive deliberations with various stakeholders over the last four years.
However, after the protests and criticism in the media, the government promptly referred the Bills to the Standing Committee of Parliament for suggestions and modifications. But here too, one of the complaints is that the Speaker has not allotted enough time to the Committee to debate the three Bills.
Members of the Bar Federation of Tamil Nadu and Puducherry staged a demonstration in front of the Madras High Court stating that the Bills were part of the Sanskritisation of criminal law.
The Madras Bar Association, one of the oldest associations of lawyers in the High Court, also raised the banner of revolt against Bills with Hindi names replacing the existing Acts.
Lawyers from Karnataka and Kerala also protested against the Centre’s move.
To this day the Home Minister has not placed in Parliament the full report and reference materials relied upon by the Committee for Reforms in Criminal Laws set up in 2020.
It is learnt that Solicitor General Tushar Mehta and Additional Solicitor General Suryaprakash Raju were unofficially invited when Ministry officials discussed the committee’s report, and that they exerted great influence over the committee.
First, let us see the legality of the name change. Under Article 348(1)(b) of the Constitution, all Bills to be introduced or Amendments thereto to be moved in either House of Parliament or in the House or either House of the Legislature of a State, shall be in the English language. When that is the position, it is surprising that the government should brazenly violate the Constitution by giving the Bills Hindi titles.
When the British took direct control of India during the second half of the 19th century, they found that there was no codified criminal law in the territories under their control and decided to draft a new law for British India.
Lord Macaulay had prepared a draft code during his time in India in the 1830s and it was adopted as the Indian Penal Code, 1860. The draftsmen of the law largely adopted the British criminal law, and that is why the IPC has sections like Section 377 (unnatural offences) and Section 497 (adultery).
The IPC enabled the country to have a comprehensive criminal law for over 75 years. It was the law for the entire subcontinent; Pakistan still has a similar law called the Pakistan Penal Code (PPC).
After the enactment of the Constitution of India with effect from January 26, 1950, and through Article 13(1), any provision in force until then that was inconsistent with the provisions of the fundamental rights in the Constitution was declared void to the extent of the inconsistency.
Will merely changing IPC to BNS have any impact on the law itself? There may be a need to revisit old laws in order to consolidate and have a comprehensive code.
Notwithstanding such a constitutional bar, some provisions of the IPC continued to be used to penalise people until the Supreme Court decriminalised them. Apart from a few provisions that were held to be unconstitutional, the penal law provided under the IPC largely continued to be in force. This has led to some jurists claiming that the law has stood the test of time, but such a claim may be a little off the mark.
The IPC underwent several amendments in its 163 years of existence. Several new criminal laws were also introduced, among them the Prevention of Corruption Act, 1973, the Unlawful Activities (Prevention) Act, 1967, and the Prevention of Money Laundering Act, 2002 (PMLA).
Highlights
After protests and criticism in the media, the government referred the Bills to the Standing Committee of Parliament.
Since criminal law comes under the Concurrent List, States can make their own laws and amend the Central law according to their needs.
The new laws will give rise to several difficulties since the laws they replace had over a century of interpretation by different courts.
State powers: Since criminal law comes under the Concurrent List in the Constitution, States can make their own laws and amend the Central law according to their needs, with the approval of the President. Many States have amended the relevant provisions of the IPC taking into account unique local developments.
If the BNS comes into force as it is, it may repeal all those State enactments and States may be deprived of the provision to have their own amendments. It is not clear whether the Committee for Reforms in Criminal Laws took into account the different amendments prevailing in different States with respect to the three Acts.
Although several law commissions have made recommendations, the last being the Committee on Reforms of Criminal Justice System headed by Justice V.S. Malimath in 2003, successive governments have failed to implement them. Instead, certain piecemeal amendments have been brought as knee-jerk reactions.
a complete reallocation of sections will only create utter confusion for the bar and bench. Thana policemen still make mistakes with the old laws; now, they will have to go for a refresher course on the amendments and a comparative analysis of the old and the new.
It is certain that the new laws will give rise to several difficulties since the laws they replace had over a century of interpretation by different courts.
The CrPC was enacted only in 1973. What is the need for a sudden change? Millions of copies of the various forms made under it will now have to be discarded by courts and law enforcement agencies.
Commenting on the new Bills, Justice B.N. Srikrishna (retd) of the Supreme Court reportedly said: I do not know if the new Acts have the same terseness in definitions, which is the hallmark of good legislation. As for their functionality and impact on court proceedings, I am not sure.
Why do we need to shuffle the laws like a pack of cards? Let us not waste time like Tughlaq who changed capitals and whose memory you desperately want to erase in Delhi.
The Home Minister further announced that the sedition law "has been repealed". The proposed law does not have the word "sedition".
It is replaced by Section 150 for acts endangering the sovereignty, unity and integrity of India, Shah said.
Section 150 states: 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 mean, 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.
Amit Shah also announced changes in the punishment for sedition. Under the existing law, sedition is punishable with life imprisonment or with imprisonment which may extend to three years. Provisions under the new bill proposed to change it to three to seven years imprisonment.
Shah also told the Parliament that the Centre will introduce the provision of capital punishment in mob lynching cases.
When a group of five or more persons acting in concert commits murder on the ground of race, caste or community, sex, place of birth, language, personal belief or any other ground each member of such group shall be punished with death or with imprisonment for life or imprisonment for a term which shall not be less than seven years, and shall also be liable to fine the new provision states.
CHANGES IN RAPE LAW - The new bills propose changes in punishment for rape. There will be provisions for the death penalty for the rape of minors, the Minister announced in Lok Sabha.
The term 'life imprisonment' has been defined as 'imprisonment for natural life'.
Shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine, the new law proposes. It also has provisions for punishment for disclosing the identity of rape survivors.
Union Home Minister Amit Shah introduced three bills in Lok Sabha to replace British-era laws and overhaul the criminal justice system in India. One of the bills aims to repeal the offence of sedition completely. The sedition law, drafted in 1837, has been criticized for being a colonial legacy.
The sedition act pertains to criminals offences which ‘endanger sovereignty unity and integrity of India’.
While several draconian British era laws have been critcised over the years including the contentious Article 377, criminalising of indigenous communities, and the Unlawful Activities (Prevention) Act (UAPA), several bills and laws, and Supreme Court verdicts later, changes have been enforced.
The latest in this list are three bills that the Bharatiya Nyaya Sanhita, 2023, the Bharatiya Nagarik Suraksha Sanhita, 2023, and the Bharatiya Sakshya Bill, 2023 that have been introduced by Amit Shah in Lok Sabha.
Among them was the much debated- Sedition Act. The sedition act pertains to criminals offences which ‘endanger sovereignty unity and integrity of India’.
Amit Shah in Lok Sabha mentioned that the Bharatiya Nyaya Sanhita, 2023 will repeal the offence of sedition under Section 124A. This section will be replaced with Section 150 in the new bill.
Sedition Law in India: The sedition law was drafted by Thomas Macaulay in 1837 and was added to the Indian Penal Code (IPC) in 1870 by James Stephen as Section 124A.
According to Section 124A, the sedition law states that, Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law shall be punished with imprisonment for life, to which fine may be added.
This means that if any citizen of Indian sub-continent uses their words, whether that is written or verbal, or by visible representation that is through posters, movies, images etc attempts to incite hatred for India will be punished under the sedition law.
In present scenario, the Sedition law is invoked as a crime under Section 124A of the Indian Penal Code (IPC).
Stay on Sedition: The Supreme Court in 11 May 2022, stayed Section 124A. The bench led by the then-CJI N V Ramana stated that the sedition law, enacted to prosecute freedom fighters and maintain colonial rule over the nation, has since been misused owing to its broad interpretation and it shall not be used until further orders were issued by the court.
Bill introduced in Lok Sabha: A new bill to replace the Indian Penal Code (IPC) will repeal the offence of sedition completely, Union Home Minister Amit Shah told Lok Sabha on Friday. The IPC, which was framed by the British in the year 1860, has been the core of the criminal justice system of the country for more than 160 years.
‘Subversive activities’ replaces ‘Sedition’ in new bill by Amit Shah According to the new bill introduced by Amit Shah, Section 150 states, “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 mean, 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 Sedition means- a conduct or speech that incites people to rebel against the authority of a state or monarch.
The word subversive means- tending or intending to overthrow, destroy, or undermine an established or existing system, especially a legally constituted government or a set of beliefs.
Additionally, the Bharatiya Nyaya Sanhita asks for community work as a penalty for minor transgressions, which will be included for the first time in the penal code.
The addition of community service brings it closer to the US, where acts like vandalism, petit theft, and drunk driving are punished.
The new bill does not specify whether criticising the government without inciting or seeking to incite the activities listed in Section 150 will be considered an infraction under the regulations, despite the elimination of the sedition clause.
Additionally, unless the phrase "acts endangering sovereignty, unity, and integrity of India" is defined in legalese, it can wind up being used as justification to sue anybody who disagree with any governmental policies.
The Bharatiya Nyaya Sanhita, 2023, the Bharatiya Nagarik Suraksha Sanhita, 2023 and the Bharatiya Sakshya Adhiniyam, 2023 which seek to repeal and replace the Indian Penal Code, 1806, Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872 respectively were passed by the Lok Sabha on 20th December, Rajya Sabha on 21st December and the same attained the President's assent on 25th of December. These act aim to
1. Replace the Colonial-era laws,
2. Transform India's Criminal Justice System,
3. Protect the Rights of Citizens focusing on Justice over Punishment.
Community Service: A key change that has been brought in this act is the addition of community service as a form of punishment. This change offers three significant benefits: reducing prison overcrowding, allowing the community to benefit from tasks performed by those charged, and facilitating the rehabilitation of perpetrators by holding them accountable for their actions within the community.
Death caused by Negligence: Death caused by negligence was earlier punishable by imprisonment upto 2 years and fine, the same has been enhanced to be upto 5 years and upto 10 years, in case the person having caused such death escapes the scene and/ or fails to report to the police officer or magistrate within reasonable time. Moreover, section 106 of the BNS also provides for separate punishment for death cause by negligence by a registered medical practitioner while performing medical procedure as imprisonment upto 2 years and fine, which its predecessor failed to account for.
Organised crime: Section 111 of the BNS comprehensively defines Organized Crime as kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offences, cybercrimes, trafficking, drugs etc. when committed by a group of individuals, whether as members of a crime syndicate or for such a syndicate. For this, the act proposes punishment of death, life, minimum three years and fine depending on offence so committed. Section 112 of the BNS further goes on to define petty organised crimes.
Terrorism: Terrorism has been recognised as an offence under section 113 of this act, having been done in India or in any other foreign country, with the intention to threaten the unity, integrity and security of India, to intimidate the general public or to disrupt the public order by the commission of such an act.
Sexual Intercourse with Deceit or False promise to marry: Section 69 of the BNS provides for punishing a person who by deceitful means or making by promise to marry to a woman without any intention of fulfilling the same, and has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape. The act proposes punishment for 10 years for the same.
Mob lynching: Section 103(2) of BNS Act has included a specific provision for mob lynching. The provision nowhere expressly states the term mob lynching, rather, it states that when a group of five or more persons acting in concert commits murder on the ground of race, caste or community, sex, place of birth, language, personal belief or any other ground each member of such group shall be punished with death or with imprisonment for life or imprisonment for a term which shall not be less than seven years, and shall also be liable to fine.
Sedition: Another important change introduced is the repeal of sedition as an offence. Sedition was constituted as an offence to curb protests against the colonial government and later against the government of post independent India. On the other hand, acts that endanger the integrity, unity and sovereignty of India have been added to the list of offences under Section 150 of the BNS.
Removal of provision for 'Unnatural offences': The provision for 'Unnatural Offences' provided under section 377 of the Indian Penal Code, 1860 has been deleted while formulating the BNS in view of the Hon'ble Supreme Court's judgement in the case of Navtej Singh Johar v. Union of India which decriminalised consensual sex among adults, including homosexual sex.
Removal of provision for 'Adultery': The decriminalisation of 'Adultery' by the Hon'ble Apex Court though its ruling in the case of Joseph Shine vs. Union of India, has resulted in the complete omission of the said provision in the BNS.
Absolute Repeal of Section 377: Although decriminalisation of unnatural offences concerning consenting adults was necessary in light of Article 21 and further a commendable measure taken by the Hon'ble Supreme Court of India back in 2017, but section 377 also included criminalization of offences such as bestiality and rape of men. The Bharatiya Nyaya Sanhita, 2023 falls silent in the last two aspects, the re-institution of which has been proposed by the Standing Committee on Home Affairs, 2023.
Ambiguity Regarding Community Service: The absence of an explanation regarding the nature of community service in the new act may result in a somewhat arbitrary application of the punishment. Without clear guidelines on what community service entails, there is a potential for inconsistency and lack of uniformity in its implementation. Clarity and specificity in defining the scope and nature of community service would be essential to ensure a fair and standardized application of this form of punishment under the new act.
The Bharatiya Nyaya Sanhita, 2023 is a step in the right direction, with the initiative taken for inclusivity, broadening the definition of victims in child related offences, such as imposing life imprisonment or death penalty in case of gang rape of a minor woman and making offences such as stalking and outraging the modesty of a woman gender neutral with respect to the perpetrators. However, concerns regarding the clarity of community service implementation and absolute repeals of certain provisions linger. Despite criticisms, its strides toward inclusivity and gender neutrality mark a positive move in modernizing India's legal framework. Refinements and clearer guidelines will be crucial for its effective and equitable implementation.
Mental illness: A person of unsound mind is shielded from prosecution under the IPC. This is changed to a person with mental illness by the BNS. Mental retardation is not included in the concept of mental illness, which also covers drug and alcohol abuse. The defence of mental illness can be taken in case of an offence done in an intoxicated offence. This runs counter to the IPC's general defence of intoxication, which only absolves crimes committed when involuntarily intoxicated. The use of the term 'mental illness' instead of unsound mind has been extracted from clause (a) of Section 2 of the Mental Healthcare Act, 2017.
Terrorism: The act of disturbing the public order is included in the definition of terrorism. This could result in localised breaches of peace being labelled as acts of terrorism. According to the BNS, terrorism is defined as an act that aims to spread terror among the people, by doing uncertain and violent acts disturbing public peace order. It also includes dangerous activities to cause nuisance.
Perhaps terrorism is defined too broadly:
The BNS includes the crime of terrorism. Many other offences can be labelled as acts of terrorism by adding the intent to disrupt public order to the list of terrorist offences. These might include everything from rioting and mob violence to armed rebellion and war against the government.
Age of Criminal Liability: The limitation on criminal liability is seven years. Depending on the accused's level of maturity, it can last up to 12 years. This might go against what international conventions advise.
Several offences are overlapped by specific legislation. Both frequently have distinct punishments or offer distinct processes. This could result in several regulatory frameworks, increased compliance expenses, and the potential to impose multiple fees.
Murder: Murder committed by five or more individuals based solely on identity is punishable from seven years to life imprisonment or death.
BNS omits Section 377 of IPC: Section 377 of the IPC, is not included in the BNS. This eliminates bestiality and the rape of males as crimes.
Sexual offences against women: According to the IPC, crimes against women include rape, voyeurism, stalking, and demeaning a woman's modesty. These clauses are still in the BNS. In the event of gang rape, it raises the age requirement for the victim to be considered a major from 16 to 18. Additionally, it makes it illegal to have sex with a woman while lying to her or making false promises.
Attempt to Suicide: No Longer an Offence: IPC contained Section 309 that punishes an attempt to commit suicide. But this has been removed from the Bharatiya Nyaya Sanhita.
To create distinct penalties for sexual offences, selling kids for prostitution, adulterating food and narcotics, and desecrating holy texts, have led to the modification in the provisions of the Indian Penal Code. The IPC has been suggested to be amended on several occasions by Law Commission reports, covering topics such as food adulteration, crimes against women, and capital punishment.
Sedition was defined by the IPC as seeking to incite hatred, disdain, or discontent with the government. Sedition has been placed on hold by the Supreme Court while the Constitution bench reviews the case [S G Vombatkere v. Union of India, (Writ Petition (Civil) No 682 of 2021)]. This offence is removed by the BNS. As an alternative, it includes a clause that makes it illegal to (i) incite or seek to incite secession, armed revolt, or subversive operations; (ii) foster sentiments of separatist activity; or (iii) jeopardise India's sovereignty or unity and integrity. These offences could include using money, exchanging words or signals, or communicating electronically.
Community Service: Lacks Clarification
The BNS increases the penalty for community service. This punishment is now applicable to offences like (i) stealing property valued at less than Rs. 5,000; (ii) attempting suicide to put a public official in restraint; and (iii) showing up intoxicated and causing disturbance in a public place. The BNS neither mentions the nature nor procedures of community service. It has not given any clear aspect on the definition of what community service entails. It was suggested by the Standing Committee on Home Affairs (2023) to define the concept and parameters of "community service.”
Conclusion
As of now, there are both merits and demerits in the new legislation. But with time the government will surely take cognizance of some ignorant issues like, laws related to men, strong punishments for severe crimes, an increase in fines for petty offences, etc. It will take time for the people of India and the legal professionals to get familiar with these acts rather it will be very challenging for not only law students but also judges, lawyers, and legal professionals to adopt these changes thoroughly. Nevertheless, the outcome will likely surpass expectations and prove to be more advantageous.