Haripriya Bharadwaj, 3 rd year student at The Tamilnadu Dr.Ambedkar Law University-School of Excellence in Law
INTRODUCTION
The Bharatiya Nyaya Sanhita abbreviated as the BNS replaced the Indian Penal Code (IPC) of 1860 which was the exhaustive legal provision for the criminal acts and punishments. This is now the principal provision of law for all criminal offences in India. This new act has retained most of the provisions of the IPC with certain new additions and omissions. In this article first the introduction of new offences would be understood and then the variations and omissions. Further the possible issues due to the entire restructuring of offences and punishments would be highlighted.
LEGAL REVIEW
Inclusion of New Offences
First and foremost, terrorism has become a new offence. It is a crime of committed against the unity, integrity and security of India. Intimidate the general public or disturb public order as well.
Another addition is organized crime which includes crimes like kidnapping, extortion and cyber-crime committed on behalf of a group.
In this regard, it also recognizes minor organized crimes as offenses.
Inclusion of New Penalties
With the advent of this new penal code community service can be used as a form of punishment for criminal offences.
Further, any murder by a mob comprising five or more people on grounds that could include caste, language or personal belief shall be an offence punishable by imprisonment not less than seven years to life imprisonment or death.
This above enlistment consists major additions; however, it is not an exhaustive list since there are other changes that have taken place due to reorganizing the provision of law.
CHANGES FROM IPC TO BNS AND THEIR IMPLICATIONS:
➢ Assaults on the body: In the IPC, the BNS maintains punishments for crimes such as murder, causing grievous harm, abetment of suicide and assault.
➢ Sexual Offences against women: The conduct of crimes such as rape, voyeurism, stalking and insulting the modesty of a woman remains unaffected.
o It raises to 18 years from 16 years what age a victim must reach before being considered a major in gangrape case.
o The act makes it illegal to have sexual intercourse with a lady by pretending or giving her false hope.
➢ Mob lynching: For example, mob lynching could be defined under section 3(2) of this bill as “murder or serious bodily harm by five or more persons on specified grounds which include race, caste, sex, language or personal belief.”
o The maximum punishment for this kind of killing is imprisonment for life up to seven years or death sentence.
➢ Life imprisonment: A person convicted by life imprisonment can get additional penalties (including death penalty) if he is found guilty of murder or attempt to murder an inmate serving life imprisonment.
➢ Treason: The law has changed its approach towards sedition and now it only deals with secessionist activities which are described as subversive and threatening Indian sovereignty.
o These offences now include exchange of words or signs, electronic communication, or use of financial means.
➢ Terrorism: The BNS has defined terrorism as any act that that is committed with an intention to: (i) threaten the unity, integrity, and security of the country, (ii) intimidate the general public, or (iii) disturb public order. o Punishment for attempting or committing terrorism is: (i) death or life imprisonment and a fine of Rs 10 lakh, if it results in death of a person, or (ii) imprisonment of five years which may go up to life imprisonment, and a fine of at least five lakh rupees.
➢ Punishment for Organised Crime: The offence of Organised Crime (attempt or commission) is punishable with: (i) death or life imprisonment and a fine of Rs 10 lakh, for consequential death(if applicable), or (ii) ) imprisonment of five years which may go up to life imprisonment and a fine of at least five lakh rupees.
LEGAL IMPACT
Key Legal Issues:-
➢ In the BNS, the defence of insanity has been removed and replaced with mental illness.
o The definition of mental illness here does not include mental retardation and only includes abuse of alcohol and drugs.
o While individuals suffering from mental retardation can be prosecuted while those who are voluntarily intoxicated may be exempted.
➢ The meaning of terrorism refers to an act committed with an intention to intimidate public order.
o This may lead to ambiguity in what actually constitutes terrorism and mere local protests endangering public order such as demonstrations and boycotts by aggrieved citizens would be categorized as terrorism.
o The differentiation between war, strife and mere local disturbance of public order has been blurred.
➢ Murder by a group consisting of at least five persons on grounds of identity attracts a lesser punishment than murder itself.
o The rationale for the difference in penalties is not clearly mentioned. The offense that has the same intent and consequences as murder does have the minimum penalty-death or life imprisonment as that used in latter cases.
Addressing the question of overlap
Duplication of offences with other special laws:-
When Indian Penal Code (hereinafter IPC) was enacted, it was an exhaustive provision for all criminal offences but in course of time special laws have been enacted to address specific subjects and related offences as well.
o Some of these offences have been removed from the BNS- offences related to weights and measures were incorporated in the Legal Metrology Act, 2009 and have been removed from the BNS.
o Certain offenses have overlapped like organized crime and terrorism which are already covered under special laws.
o Imprisonment up to 6 months, fine up to Rs.5,000/- or both & Non-Cognizable, bailable.(IPC Sec 272,273; BNS Clause 272,273). This has overlapped the Food Safety and Security Act, 2006: Imprisonment up to life, and a fine up to Rs.10 lakh for manufacture, storage, sale of unsafe food. Sentence proportionate to damage caused.(Sec.59)
o Punishable with imprisonment of up to 6 months, fine upto Rs.1,000 or both - Cognizable, bailable non-compoundable. (IPC Sec 279; BNS Clause 279). This has overlapped The Motor Vehicles Act,1988: Punishment for first offence: imprisonment up to six months ,and/or fine up to rs.5000.Cognizable,bailable compoundable(Sec.184)
Contravention with International Provisions
Age bounds for offenses:
o Minimum age of criminal responsibility is the age at which a child can be tried and punished for a criminal offence.
o Under IPC, this was set as below seven years. The minimum age of criminal responsibility under IPC is twelve years if the child in question does not have the ability to understand the nature and consequences of the crime committed.
o The BNS has retained these provisions. This is lower than what other countries use as their minimum age of criminal responsibility.
o There are variations across countries in respect to ages for criminal responsibility. For example, in Germany, it is 14 years, while in England and Wales it’s 10 years.[17],[18] In Scotland, however, it’s 12 years.
Child victim’s age threshold varies between crimes against children:-
o The BNS makes provision for stricter punishment when children are victims. With regard to gang rape whether or not victim is above or below 18 years old affects sentence drastically.
o However as regards rape penalty varies with victim’s age i.e., whether he/she was below 12 years; between 12-16 years; above that. This contrasts with Protection of Children from Sexual Offences Act, 2012 which defines any person below eighteen as a minor.
o Under BNS, age limit of the victim for certain offences against children differs from 18 years. For example, kidnapping or abducting a child with the intention of a ransom applies only to children below 10 years. This means that the punishment for kidnapping an 11-year-old is the same as that of kidnapping an adult.
BNS AND CASE LAWS
➢ In Navtej Singh Johar v. UOI (2018), the Supreme court had watered down 377 by decriminalising consensual homosexuality. But sodomy and bestiality continued to be crimes. These crimes have been removed under the BNS.
➢ According to the decree of the Independent Thought v UOI the window of 15-18 years has been removed and the statutory provision is amended to make rape of a girl below 18 years of age a crime, whatever her marital status and relationship with the accused is.
CONCLUSION
The Bharatiya Nyaya Sanhita, 2023 is a step in the direction of inclusivity, broadening the definition of victims in child related offences, such as imposing life imprisonment or death penalty for a case of gang rape of a minor girl. However, concerns regarding the clarity of community service implementation and absolute repeals of certain provisions are still unclear. In spite of all the criticisms, it strives to achieve inclusivity and gender neutrality mark a positive move in modernizing India's legal framework. Effective guidelines are essential for equitable implementation.
REFERENCES
Webliography:-