Snapshot of Changes Proposed to Indian Penal Code, 1860 by Bharatiya Nyaya Sanhita Bill, 2023

The upcoming Bharatiya Nyaya Sanhita Bill represents a modernized approach to criminal legislation, catering to emerging forms of crimes and ensuring a more comprehensive legal framework to combat organized crimes and related activities.

The Government of India has recently introduced three bills in the Lok Sabha to replace laws which form the backbone of criminal jurisprudence in India viz., Indian Penal Code,1860, Indian Evidence Act 1872, and Criminal Procedure Code1973 with “Bharatiya Nyaya Sanhita Bill, 2023 (BNS)”, “Bharatiya Sakshya Bill, 2023 (BS)”, and “Bharatiya Nagarik Suraksha Sanhita Bill, 2023 (BNSS)” respectively.

We understand the object behind replacing aged criminal laws including Indian Evidence Act is to:

(i) Strengthen law and order;

(ii) Simplifying legal procedure so that ease of living is ensured to the common man;

(iii) Address the technological advancement undergone in the country during the last few decades besides achieving transformation in the criminal justice system and ensure delivery of justice within a maximum of three years.

About Bharatiya Nyaya Sanhita Bill, 2023 (BNS):

BNS Bill aims to replace the Indian Penal Code, 1860 proposing total of 356 provisions, replacing certain provisions and has given precedence to offences against women and children, murder, offences against State. For the first time, the offences of terrorist activities and organized crime have been added in the bill. BNS has proposed to delete certain provisions of Indian Penal Code, 1860.

Here are some of the major changes, the BNS Bill proposes:

Newly added provisions:

(i) Abetment outside India for offence in India (Clause 48): BNS provides for punishing a person who abets beyond India for the commission of offence in India which would constitute an offence if committed in India. Proposes 7 years punishment.

(ii) Sexual intercourse by deceitful means of false promise to marry, etc. (Clause 69): 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-Proposes ten years punishment.

(iii) Gang rape (Clause 70 (2): BNS inserted a proviso wherein a woman under eighteen years of age is raped by one or more

persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished. Proposes punishment of imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and with fine, or with death.

(iv) Hiring, employing or engaging a child to commit an offence (Clause 93): BNS provides for punishing a person who hires, employs or engages any person below the age of eighteen years to commit an offence. Proposes punishment of either description or fine provided for that offence as if the offence has been committed by such person himself.

(v) Mob Lynching (Clause 101(2): BNS Bill has incorporated a specific provision for mob lynching and stipulated punishment. 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.

(vi) Causing Death by Negligence (Clause 104): BNS provides for punishing a person who causes death of any person by doing any rash or negligent act not amounting to culpable homicide and escapes from the scene of incident or fails to report the incident to a Police officer or Magistrate soon after the incident. Proposes punishment of either description of a term which may extend to ten years, and shall also be liable to fine.

(vii) Organized Crime (Clause 109): BNS provides a comprehensive definition for Organized Crime to mean kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offences, cybercrimes, trafficking, drugs when committed by a group of individuals, whether as members of a crime syndicate or for such a syndicate. Proposes punishment of death, life, minimum three years and fine depending on commission of offence.

(viii) Petty organized crime or organized in general (Clause 110 (i) and (ii)): BNS provides for punishing a person who 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 (attempt to theft, theft of personal property), organised pick pocketing, snatching, theft through shoplifting or card skimming and Automated Teller Machine thefts or procuring money in unlawful manner in public transport system or illegal selling of tickets and selling of public examination question papers and such other common forms of organised crime committed by organised criminal groups or gangs. Proposes punishment of imprisonment for a term which shall not be less than one year but which may extend to seven years, and shall also be liable to fine.

(ix) Offence of terrorist act (Clause 111): BNS has listed the act of terrorism as a separate offence. Terrorist acts have been defined as acts such as using bombs, dynamite or other explosive substance to cause damage or loss due to damage or destruction of property or to cause extensive interference with, damage or destruction to critical infrastructure, etc., with the intention to threaten the unity, integrity and security of India, to intimidate the general public or a segment thereof, or to disturb public order and which could attract a minimum imprisonment of five years, life imprisonment and even death in some cases besides fine. Proposes punishment of three years to life depending on commission of offence.

(x) Grievous hurt causing permanent disability or persistent vegetative state(Clause 115 (3)): BNS incorporated new provision stating that a person who commits an offence in the course of such commission causes any hurt to a person which causes that person to be in permanent disability or in persistent vegetative state. Proposes punishment of 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.

(xi) Hurt caused by mob (Clause 115 (4): BNS punishes a person who causes grievous hurt of a person by a group of five or more persons on the ground of his, race, caste, sex, place of birth, language, personal belief or any other ground. Proposes punishment of either description for a term which may extend to seven years, and shall also be liable to fine.

(xii) Acts endangering sovereignty unity and integrity of India (Clause 150): BNS has incorporated a specific provision for acts endangering sovereignty unity and integrity of India. 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. Recently, Hon’ble Supreme Court of India has also relooked the provisions of Sedition under Indian Penal Code, 1860. Proposes punishment of imprisonment for life or with imprisonment which may extend to seven years, and shall also be liable to fine.

(xiii) Attempt to commit suicide to compel or restraint exercise of lawful power (Clause 224): BNS provides for punishing a person who attempts to commit suicide with the intent to compel or restrain any public servant from discharging his official duty. Proposes punishment of simple imprisonment for a term which may extend to one year or with fine or with both or with community service.

(xiv) Snatching (Clause 302(i)): BNS proposes that theft is “snatching” if, in order 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 moveable property. Proposes punishment of either description for a term which may extend to three years, and shall also be liable to fine.

(xv) Inclusion of Community Service under the Punishment: BNS calls for community service for the first time as a punishment for petty offences, where the punishment is given for offences like public servant unlawfully engaging in trade, attempt to commit suicide to compel or restraint exercise of lawful power, petty theft, misconduct in public by a drunken person and defamation.

(xvi) Enhancement of fines, imprisonment and community service: The BNS also proposes to increase in the punishment, fines as well as community services for various offences such as causing death by negligence, buying child for prostitution, rioting with deadly weapons, defamation, breach of contract to attend on and supply wants of helpless person, misconduct in public by a drunken person, criminal trespass, cheating by personation, etc.

(xvii) ‘Transgender’ has been defined in accordance with the Transgender Persons(Protection of Rights) Act, 2019 under clause 2(9) of the proposed Sanhita

(xviii) Certain offences deleted: The BNS proposes to delete certain offences such as (i) Sedition (Section 124A I.P.C.),(ii) Weights and measures(Sections 264 to 267 of I.P.C.), (iii) Attempt to commit suicide (Section 309 I.P.C.), (iv) Thug and punishment for thug (Sections 310 and 311 I.P.C.),(v) Gangrape of woman under the age of 16 and 12 years, respectively (Sections 376DA, 376DB I.P.C.), (vi) Sexual intercourse against the order of nature (Section 377 I.P.C.),(vii) Lurking house trespass at night (Section 444 I.P.C.),(viii) House breaking at night (Section 446 I.P.C.) and (viii) Adultery (Section 497 I.P.C).

The upcoming BNS represents a modernized approach to criminal legislation, catering to emerging forms of crime and ensuring a more comprehensive legal framework to combat organized crime and related activities. The Bill has been referred to the Parliamentary Standing Committee on Home Affairs and the Committee has three months’ time to carry out consultations and submit its report. The Committee has provided its report on 06.11.2023 and suggested certain recommendations which are outlined in brief hereunder:

a) Offences removed by the BNS: The BNS removes offences related to adultery and same-sex sexual activities (Section 377 of the IPC). The Committee noted that in 2018, the Supreme Court struck down the section on adultery in the IPC. The Committee felt that institution of marriage is considered sacred in Indian Society and there is a need to safeguard its sanctity. It recommended insertion of Section 377 in the proposed law.

b) Mental illness: Under the IPC, any act performed by a person of unsound mind cannot constitute an offence. The BNS retained this provision but replaces the term ‘unsound mind’ with ‘mental illness’. The Committee recommended revisiting to the term ‘unsound mind’ instead of ‘mental illness’.

c) Organised crime: The BNS defines organised crime as a continuing unlawful activity carried out by three or more people acting alone or jointly as members of a crime syndicate or on its behalf. Attempting or committing organised crime will be punishable by death or life imprisonment and a fine of at least Rs 10 lakh, if it causes the death of any person. The Committee viewed that there was no distinction between committing an offence and attempting to commit it and recommended separating the two for clarity. It also proposed replacing ‘group of three or more persons’ with ‘two or more persons’ to widen its scope.The Committee advised redrafting the provision.

d) Petty organised crime: The BNS defines and penalises petty organised crime. These include: (i) forms of theft such as vehicle theft and pickpocketing, (ii) illegal selling of tickets, and (iii) any other form of organised crimes committed by a gang. These crimes cause general feelings of insecurity amongst citizens. Experts informed the Committee that the term ‘general feelings of insecurity’ is vague. The Committee advised redrafting the provision.

e) Terrorism: The BNS adds terrorism as an offence and defines it as an act that includes threatening the Unity, Integrity, and Security of the Country or intimidating the public. The Committee suggested defining ‘intimidation’ to resolve the ambiguities in categorizing an act as a terrorist act.It also suggested that the expression ‘foreign country’ should be replaced with ‘anywhere outside India’ to widen the scope of clause to cover all offenders located outside India.

f) Community service: BNS introduces community service as a form of punishment. The Committee recommended defining the term suitably along with the nature of Community Service. It also proposed that a provision may also be made with regard to making a person responsible to supervise the punishment given in the form of community service.

g) Causing death by negligence: Anyone who causes death by negligence and fails to report the incident may face imprisonment up to 10 years and a fine. The Committee noted that this may violate the fundamental right against self-incrimination. If the provision is to be retained, it recommended limiting it to only motor-vehicle accidents.

h) Murder by a group: BNS adds a separate penatly for murder committed by five or more persons on certain grounds. The same is punishable with at least seven (7) years imprisonment to life imprisonment, or death. The Committee recommended deleting the imprisonment of seven (7) years after consulting the Attorney General and Solicitor General of India.

We are of the view that Government would take into consideration the recommendations suggested by Parliamentary Committee and make the proposed law relevant to the contemporary situation and provide speedy justice to common man.

Disclaimer – The views expressed in this article are the personal views of the authors and are purely informative in nature.