The Bharatiya Nyaya Sanhita, 2023, is a proposed legislative Bill currently under consideration in the Lok Sabha (lower House of the Parliament of India). If this Bill becomes law, it will serve as a replacement for the existing Indian Penal Code, 1860. In August 2023, the Hon’ble Home Minister of India presented this Bill for discussion and debate in the Lok Sabha. This represents a significant and far-reaching proposal for reform in the Indian Criminal Justice System, for which there have been some calls for reformation in the past, considering that the substantive criminal law of India has remained the same as enacted by the British whereas the procedural law saw a replacement by the enactment of Criminal Procedure Code, 1970 replacing the Criminal Procedure Code of 1868.
The Bharatiya Nyaya Sanhita Bill aims to bring about several changes in substantive criminal law. The Bill addresses offences of the following categories:
- Against the human body such as assault and murder
- Against property such as extortion and theft
- Against public order such as unlawful assembly and rioting
- Against public health, safety, decency, morality, and religion; defamation, and
- Against the State.
The Bill has incorporated changes brought about in criminal law by judicial decisions, such as the omission of adultery (Joseph Shine v Union of India (2019) 3 SCC 39) and consensual same-sex intercourse (Navtej Johar v Union of India 2018 INSC 790). Aspects such as organized crime and terrorism have been added to the Bill as well. Most of the substantive parts of IPC, including the language and definitions of most offences (such as culpable homicide and murder) have been retained, whereas some changes in conceptual aspects have also been included, such as increased punishment for some offences, and a shift in penology by way of including community service as a punishment, etc.
Some of the key reforms proposed by this Bill include:
- Change in the Sedition Law: The controversial sedition law has been removed, technically, though its effective has been retained through the introduction of a seemingly wider provision. The new Bill instead criminalizes any communication or financial means that excites or attempts to excite secession, armed rebellion, or subversive activities; encourages feelings of separatist activities; or endangering sovereignty or unity and integrity of India.
- Definition of Terrorism: The Bill defines and punishes terrorism as apart from offences such as waging war against the State, and comprises of activities such as causing death, danger to life, or fear using firearms, bombs, etc. The provision also draws a direct link with the Unlawful Activities Prevention Act (UAPA, 1967), by including activities included in the treaties listed in the Second Schedule of the Act to the definition of terrorism in the Bill.
- Offence amounting to mob lynching: Though the Bill does not spell out lynching as an offence, it is subsumed as a separate head under the punishment for murder. That is, the Bill prescribes death penalty, life imprisonment, or imprisonment not less than seven years, if murder is committed by a group of five or more persons acting in concert and on the grounds of race, caste, sex, place of birth, language, or personal belief (Cl. 101 (2) of the Bill).
- Expansion of ambit of offences and punishments: The Bill expands the punishment of death penalty to cases of gang rape of minor women, whereas IPC contained death penalty for gang rape of minors below 12 years of age. Similarly, while IPC criminalized importing of girls below the age of 21 for illicit sexual intercourse, the Bill also criminalizes importing boys under the age of 18 years for illicit intercourse with another person as well.
- ‘Promise to Marry Rape’ cases: Though Courts in India have dealt with numerous cases involving false promises to marry, there was no specific category spelt out in IPC for cases involving men obtaining consent based on deceitful promises to marry. The Supreme Court had evolved its own jurisprudence on such cases, carving out liability for cases where the promise itself was made in bad faith with no intent to marry, while excluding cases where the promise to marry was made genuinely but later could not be followed through. The Bill defines a specific offence of sexual intercourse with a woman (not amounting to rape) through deceitful means or a promise of marriage without intending to fulfil it.
- Change in the definition of life imprisonment: The Bill (Cl. 4 (b)) defines one of the punishments under the Bill as ‘imprisonment for life, that is to say, imprisonment for reminder of a person’s natural life’, whereas IPC under S. 53 mentions ‘imprisonment for life’ as one of the punishments under the Code. This has been read subject to the powers of remission under CrPC (s. 432 and 432), meaning that a sentence of life imprisonment is for the rest of the person’s natural life, but the concerned Govt. May commute the same using the powers vested in them by the CrPC. The Supreme Court has, however, come up with a new category of sentences of life imprisonment without the possibility of release, or imprisonment for terms such as 30 years, 20 years, etc. in particular cases (see Union of India Sriharan alias Murugan (2016) 7 SCC, and Swamy Shraddhananda (II) v. State of Karnataka (2008) 13 SCC 767). This has led to some academic debate since this amounts to the judiciary taking over a power that is statutorily vested in the executive. The new Bill, by specifying life imprisonment as imprisonment for the rest of life, could be interpreted as reiterated as the already existing IPC scheme being spelt out clearly – not changing the existing system – and subject to the Govt.’s powers to release prisoners early. However, interestingly, some offences under the new Bill carry a punishment of ‘imprisonment for life’, (Organized crime, under C. 109 (6)) while some others carry a punishment of ‘imprisonment for life, which shall mean the remainder of that person’s natural life’ (Murder by life convicts under Cl. 102). Operation of these clauses will need to be seen as and when the application arises.
In summary, the Bharatiya Nyaya Sanhita Bill, 2023, represents an attempt to ‘Indianize’ our substantive criminal law that has sometimes been critiques as a colonial vestige. At the same time, several aspects of the language and ambit of offences (such as definition) have been retained in many cases, with the primary change being that the BNS attempts to convert judicial pronouncements into legislative provisions. It is essential to closely monitor the progress of this Bill through the legislative process to fully understand its implications and the changes it may bring to the Indian legal framework.
Authored By: Dr. Aswathy Madhukumar Assistant Professor, IIULER, Goa (Ph.D.- Indian Law Institute, Delhi) Ms. Nidhi Khare Sinha Assistant Professor, IIULER, Goa (Pursuing Ph.D. from NLSIU Bengaluru)