BHARATIYA NYAYA SANHITA, 2023

Background and Timeline

The Indian Penal Code (IPC) has been the principal criminal law in India since it was enacted in 1860
during the British colonial era. Over the decades, the IPC has been amended numerous times to add
new offences, modify existing ones, and change the quantum of punishments. However, the core
structure and many provisions of the IPC have remained largely unchanged since its inception.

In recent years, there have been growing calls to comprehensively overhaul the IPC and bring it in
line with the evolving needs and values of independent India. Several Law Commission reports have
recommended amendments to the IPC on subjects including offences against women, food
adulteration, and the death penalty. Many states have also amended the IPC to provide different
punishments for certain offences.

Against this backdrop, the Government of India introduced the Bharatiya Nyaya Sanhita (BNS) in
Parliament on August 11, 2023 to replace the IPC. The BNS was presented by Home Minister Amit
Shah as a new criminal code that would provide a "modern, comprehensive, and just" legal
framework for India.

The key timeline of events is as follows:

- On August 11, 2023, the Bharatiya Nyaya Sanhita Bill, 2023 was introduced in the Lok Sabha.

- On the same day, the bill was referred to the Parliamentary Standing Committee on Home Affairs
for examination.

- The Standing Committee submitted its report on November 10, 2023.

- On December 12, 2023, the original Bharatiya Nyaya Sanhita Bill, 2023 was withdrawn.

- Also on December 12, 2023, the Bharatiya Nyaya (Second) Sanhita Bill, 2023 (BNS2) was introduced
in the Lok Sabha, incorporating some of the Standing Committee's recommendations.

- The BNS2 was passed by the Lok Sabha on December 20, 2023 and the Rajya Sabha on December
21, 2023.

- On December 25, 2023, the President of India gave assent to the Bharatiya Nyaya (Second) Sanhita,
2023.

- The BNS2 will come into effect on July 1, 2024, replacing the Indian Penal Code.

Key Changes from the Indian Penal Code

The Bharatiya Nyaya Sanhita (BNS) retains most of the offences that were present in the Indian Penal
Code (IPC). However, it also introduces several new offences, drops some existing provisions, and
modifies the punishments for many crimes. Here are the key changes:

New Offences

The BNS adds around 20 new offences that were not present in the IPC, including:

1. *Organised Crime*: The BNS defines "organised crime" as any serious offence committed by a
group of five or more persons acting in concert, such as kidnapping, extortion, and cybercrimes. It
also includes "petty organised crime" involving smaller groups.

2. *Terrorism*: The BNS defines terrorism as any act that intends to threaten the unity, integrity,
security or economic security of India, or to strike terror in the people or any section of the people.

3. *Cybercrime*: The BNS introduces new offences related to cybercrimes, such as hacking, data
theft, and spreading misinformation online.

4. *Financial Fraud*: The BNS adds offences related to financial crimes like fraud, embezzlement, and
money laundering.

5. *Environmental Pollution*: The BNS criminalizes acts that cause substantial environmental
pollution or damage.

6. *Human Trafficking*: The BNS introduces offences related to the trafficking of persons, including
for the purposes of sexual exploitation, forced labor, and organ removal.

Offences Dropped

The BNS drops 19 provisions that were present in the IPC, including:

1. *Sedition*: The offence of sedition, which was used to prosecute individuals for criticizing the
government, has been removed.

2. *Adultery*: The offence of adultery, which was struck down by the Supreme Court in 2018, is no
longer included.
3. *Attempt to Commit Suicide*: The offence of attempting to commit suicide, which was also
decriminalized by the Supreme Court, is not present in the BNS.

4. *Section 377*: The BNS omits Section 377 of the IPC, which criminalized consensual same-sex
relations. This provision was read down by the Supreme Court in 2018.

Changes in Punishments

The BNS has made the following changes to the punishments for various offences:

1. *Increased Imprisonment*: The punishment of imprisonment has been increased for 33 offences,
including murder, rape, and organized crime.

2. *Increased Fines*: The fines have been increased for 83 offences, with some fines going up to ₹10
lakh.

3. *Mandatory Minimum Sentences*: The BNS introduces mandatory minimum sentences for 23
offences, such as rape, acid attacks, and human trafficking.

4. *Community Service*: The BNS introduces community service as a new form of punishment for 6
offences, including petty theft and minor assaults.

5. *Death Penalty*: The death penalty has been retained for certain offences like murder, but the
threshold for imposing it has been raised. For instance, the death penalty can now be awarded for
murder by a group of 5 or more persons on certain grounds like caste or religion.

Other Key Changes

1. *Age of Criminal Responsibility*: The age of criminal responsibility remains at 7 years, with the
possibility of extending it to 12 years based on the maturity of the accused. This is despite
recommendations to raise the age to 12 or 14 years.

2. *Definition of "Child"*: The BNS defines a "child" as any person below the age of 18 years.
However, the age threshold for victims in certain offences, such as rape and gang rape, is different.

3. *Offences Against Women*: The BNS retains most of the provisions of the IPC related to sexual
offences against women, such as rape, voyeurism, and stalking. However, it does not incorporate key
recommendations of the Justice Verma Committee, such as making rape gender-neutral and
including marital rape as an offence.

4. *Offences Against the State*: While the BNS removes sedition as an offence, it introduces a new
provision for "acts endangering the sovereignty, unity and integrity of India." This new offence may
retain some aspects of sedition.

Structure and Outline of the BNS

The Bharatiya Nyaya Sanhita (BNS) is structured similarly to the Indian Penal Code (IPC), with 20
chapters and 358 sections. The outline of the BNS is as follows:

Chapter I: Preliminary

This chapter defines key terms used in the BNS, such as "act," "animal," "child," "counterfeit," and
"court."

Chapter II: General Exceptions

This chapter outlines the general exceptions where a person may not be held criminally liable, such
as acts done in the exercise of the right of private defense, and acts of a person of unsound mind.

Chapter III: Punishments

This chapter defines the various punishments that can be imposed under the BNS, including
imprisonment, fine, community service, and the death penalty.

Chapter IV: General Provisions as to Punishments

This chapter covers general provisions related to the imposition and execution of punishments, such
as the commencement of sentences, the limit of punishment of offences made up of several acts,
and the liability of joint offenders.

Chapters V to XX

These chapters cover specific categories of offences, such as:

- Offences against the body (e.g., murder, culpable homicide, assault)

- Sexual offences (e.g., rape, voyeurism, stalking)

- Offences against property (e.g., theft, robbery, cheating)

- Offences against the state (e.g., waging war against the government, endangering the sovereignty
and integrity of India)

- Offences affecting public health, safety, convenience, decency, and morals (e.g., public nuisance,
obscenity, cruelty to animals)

- Offences by or relating to public servants (e.g., corruption, abuse of authority)

- Contempt of lawful authority of public servants

- Offences relating to elections

- Offences relating to documents and to property marks

- Defamation

- Criminal intimidation, insult, and annoyance

- Attempts to commit offences

Key Issues and Analysis

Age of Criminal Responsibility

The BNS retains the age of criminal responsibility at 7 years, with the possibility of extending it to 12
years based on the maturity of the accused. This is despite recommendations from various
international conventions and human rights organizations to raise the age of criminal responsibility
to 12 or 14 years.

Keeping the age of criminal responsibility low raises concerns about the ability of young children to
fully understand the consequences of their actions and participate effectively in criminal
proceedings. It also goes against the principles of juvenile justice, which emphasize rehabilitation and
reintegration over punishment for children in conflict with the law.

Inconsistent Definition of "Child"

The BNS defines a "child" as any person below the age of 18 years. However, the age threshold for
victims in certain offences, such as rape and gang rape, is different. This inconsistency in the
definition of a "child" across various provisions of the BNS may lead to confusion and uneven
application of the law.

Overlap with Special Laws

The BNS retains several offences that are also covered under special laws, such as the Narcotic Drugs
and Psychotropic Substances Act, the Protection of Children from Sexual Offences Act, and the
Unlawful Activities (Prevention) Act. In many cases, these special laws carry different penalties or
provide for different procedures compared to the BNS.
This overlap between the BNS and special laws may lead to multiple regulatory regimes, additional
compliance costs, and the possibility of leveling multiple charges against an accused person for the
same act. It may also create uncertainty about which law should take precedence in a given
situation.

Removal of Sedition and the New Offence of "Endangering Sovereignty"

The BNS removes the offence of sedition, which was often criticized for being used to suppress
legitimate criticism of the government. However, the BNS introduces a new offence of "acts
endangering the sovereignty, unity and integrity of India."

While the removal of sedition is a positive step, the new offence of "endangering sovereignty" may
retain some aspects of sedition and could potentially be misused to target dissent and free speech.
The broad and subjective nature of this offence raises concerns about its potential for abuse and the
chilling effect it may have on the exercise of fundamental rights.

Provisions on Sexual Offences Against Women

The BNS retains most of the provisions of the IPC related to sexual offences against women, such as
rape, voyeurism, and stalking. However, it does not incorporate key recommendations of the Justice
Verma Committee, such as making rape gender-neutral and including marital rape as an offence.

The exclusion of these recommendations means that the BNS continues to treat sexual offences as
crimes against the "modesty" of women, rather than recognizing them as violations of bodily
autonomy and consent. This approach fails to address the gender-neutral nature of sexual violence
and the issue of marital rape, which remains a significant problem in India.

Omission of Section 377 and Offences Related to LGBTQ+ Individuals

The BNS omits Section 377 of the IPC, which criminalized consensual same-sex relations. This is a
positive development, as the Supreme Court had read down this provision in 2018, decriminalizing
homosexuality.

However, the BNS also does not include any specific provisions to protect LGBTQ+ individuals from
discrimination or hate crimes. The absence of such protections is a missed opportunity to address
the vulnerabilities faced by sexual and gender minorities in India.

Mandatory Minimum Sentences and the Death Penalty

The BNS introduces mandatory minimum sentences for 23 offences, including rape, acid attacks, and
human trafficking. While mandatory minimums can serve as a deterrent, they also raise concerns
about the loss of judicial discretion and the potential for disproportionate punishments.

The BNS also retains the death penalty for certain offences, such as murder. While the threshold for
imposing the death penalty has been raised, the continued use of capital punishment is controversial
and raises human rights concerns.

Overlap and Inconsistencies in Definitions

The BNS contains several instances of overlap and inconsistencies in the definitions of key terms and
concepts. For example, the definition of "mental illness" excludes "mental retardation," which may
lead to individuals with intellectual disabilities being prosecuted, while those who are voluntarily
intoxicated may be exonerated.

Similarly, the definition of "terrorism" includes acts that "intend to intimidate public order," which
could potentially lead to minor breaches of peace being classified as terrorism.

These definitional issues and inconsistencies may create ambiguity and uncertainty in the application
of the law, leading to uneven and potentially unjust outcomes.

Conclusion

The Bharatiya Nyaya Sanhita (BNS) represents a significant overhaul of India's criminal justice system,
replacing the colonial-era Indian Penal Code (IPC) with a new criminal code. While the BNS retains
the core structure and many provisions of the IPC, it also introduces several new offences, modifies
punishments, and drops some existing provisions.

The BNS addresses some longstanding issues, such as the removal of sedition and the
decriminalization of consensual same-sex relations. However, it also raises concerns about the age of
criminal responsibility, the inconsistent definition of "child," the overlap with special laws, the
potential for misuse of the "endangering sovereignty" offence, the lack of gender-neutral provisions
on sexual offences, and the continued use of mandatory minimum sentences and the death penalty.

Overall, the BNS represents a mixed bag of reforms, with both positive and concerning elements. As
the new criminal code prepares to come into effect in July 2024, it will be crucial for the government,
the judiciary, and civil society to closely monitor its implementation and address any issues that may
arise to ensure a fair and effective criminal justice system in India.