Bridging the gap between Indian Penal Code, 1860 (IPC) and Bharatiya Nyaya Sanhita Bill, 2023 (BNS)

 

Introduction

The legal landscape of India is a complex and ever-evolving entity. It is governed by a plethora of laws and regulations that have been enacted over the years to address various aspects of societal behavior and governance. Two significant legal frameworks that shape the Indian legal system are the Indian Penal Code (IPC) and the relatively new entrant, the Bharatiya Nay Sanhita (BNS). In this article, we will explore the differences between these two legal codes and discuss the advantages of introducing the Bharatiya Nay Sanhita.

I. Understanding the Indian Penal Code (IPC)

The Indian Penal Code, enacted in 1860 during British rule, serves as the bedrock of criminal law in India. It was drafted by Thomas Babington Macaulay and has undergone several amendments since its inception. The IPC defines various offenses, their punishments, and the procedures to be followed in criminal cases. It is an exhaustive document that covers a wide range of criminal activities, from theft to murder, and provides the legal framework for prosecuting individuals who commit such offenses.

Key features of the IPC:

1.       Historical Significance: The IPC is deeply rooted in India's colonial past and reflects the legal sensibilities of the 19th-century British Empire. While it has been amended to reflect contemporary values and needs, some provisions remain archaic.

2.       Comprehensive Coverage: The IPC is a comprehensive legal code that categorizes offenses and prescribes penalties for each. It provides a solid foundation for addressing criminal conduct in India.

3.       Procedural Guidance: The IPC outlines the procedures to be followed in criminal cases, including the investigation, trial, and sentencing processes.

II. Introducing Bharatiya Nay Sanhita (BNS)

In recent years, India has witnessed significant legal reforms aimed at modernizing and streamlining the legal system. One of the most notable changes has been the introduction of the Bharatiya Nay Sanhita (BNS), a distinct legal code that seeks to address certain shortcomings in the IPC and cater to the evolving needs of society. Here are some critical differences between BNS and IPC:

1.       Indigenous Roots: Unlike the IPC, which has colonial origins, the BNS is rooted in indigenous legal traditions and principles. It draws inspiration from ancient Indian legal texts and aims to align with the cultural and historical context of India.

2.       Simplification and Clarity: One of the primary objectives of the BNS is to simplify legal language and make it more accessible to the general public. It seeks to reduce legal jargon and ensure that the law is easily understandable by ordinary citizens.

3.       Gender Sensitivity: The BNS places a strong emphasis on gender sensitivity and addresses issues such as sexual harassment and violence against women with greater clarity and severity. It recognizes the evolving dynamics of gender relations in India.

4.       Customization for Local Needs: BNS allows for customization at the state and local levels to address specific regional issues and concerns. This flexibility can lead to more effective enforcement of the law.

5.       Inclusion of Restorative Justice: BNS incorporates restorative justice principles, emphasizing reconciliation and mediation as alternatives to punitive measures in certain cases. This approach fosters community involvement and healing.

Key Highlights of the BNS Bill, 2023

Sedition –

Under the IPC, section 124-A deals with the offense of sedition and prescribes a sentence of life imprisonment or imprisonment which may extend to three years, to which a fine may be added.

In the BNS Bill, provision 150 under the chapter about ‘offenses against the State’ talks about acts endangering the sovereignty unity, and integrity of India.

Terrorism –

For the first time, the word terrorism has been defined under the BNS Bill which was not there under the IPC.

A terrorist has been defined as one who commits any act in India or a foreign country to threaten the unity, integrity, and security of India, to intimidate the general public or a segment thereof, or to disturb public order.

Now, in the BNS Bill, the offense of defamation carries a simple imprisonment of up to two years, or with a fine, or with both, or with community service.

Mob Lynching –

Notably, for the first time capital punishment has been introduced for the offense of mob lynching apart from the offense being made punishable with 7 years of imprisonment or life imprisonment.

Sexual exploitation of women on the pretext of marriage, jobs, promotions, or by concealing identity will be considered a crime.

The new Bill omits the provision for the offense of adultery.

This is in line with the Supreme Court’s ruling in 2018 in the case of Joseph Shine v. Union of India[1], where Section 497 of the IPC, which criminalized adultery, was held to be unconstitutional.

The new Bill does not include any punishment for ‘unnatural sexual offenses against men’.

This is in line with the Supreme Court’s unanimous reading of Section 377 of the IPC as far as it criminalized same-sex relations between consenting adults in Navtej Singh Johar v. Union of India (2018)[2].

The provision legalizing marital rape has however been retained.

Exception 2 to Section 63 (which defines the offence of rape) reads–’ Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.’

While the punishment for the offense of murder is covered under section 302 of the IPC, it has been covered under provision 101 of the BNS Bill.

The punishment for murder, that is life term or death sentence, remains unchanged.

Speedy Legal Procedure –

According to the proposed Bill, a chargesheet will have to be filed within 90 days, and the court can give permission for another 90 days.

The probe will have to be completed in 180 days and sent for trial. After trial, judgment will have to be given in 30 days.

 

Organized crime: The bill provides a comprehensive definition for ‘Organised Crime’ – including the offenses of kidnapping, robbery, trafficking, and other economic and cybercrimes, when committed by a group of individuals, whether as members of a crime syndicate or for such a syndicate.

Community Service: The BNS also calls for community service as a punishment for petty offenses, which will be the part of penal code for the first time. The introduction of community service makes it a bit similar to the US, where punishment is given for offenses like vandalism, petty theft, and drunk driving.[3]

What are the concerns with the Bharatiya Nyaya Sanhita (BNS) Bill?

Ambiguity: The bill omits the offense of sedition by name. However, a new offense has been added that criminalizes exciting secession, armed rebellion, subversive activities, or encouraging separatist feelings. The framing of this provision has a striking resemblance to that of sedition. It continues to criminalize ambiguous acts of ‘exciting secession’ and ‘encouraging separatist feelings’, without defining subversive, secessionist, and separatist activities.

No break from colonial legacy: Presented as a method to distance from colonial inheritance, the bill, in reality, makes minimal progress in this objective. While Macaulay’s IPC rested on the principle that punishments instill fear, deterring criminal activity, the bill reinforces this principle. It does so by continuing to rely on long-term imprisonments and the death penalty, by adding and increasing mandatory minimum sentences for certain offenses, and by retaining vague definitions for offenses against the state as well as for defamation

Advantages of Introducing Bharatiya Nay Sanhita (BNS)

The introduction of the Bharatiya Nay Sanhita (BNS) brings several advantages to the Indian legal landscape:

1.       Cultural Relevance: BNS reflects India's cultural and historical context, making it more relatable to the people. This can enhance public trust in the legal system.

2.       Gender Equality: BNS's explicit focus on gender sensitivity and the protection of women's rights addresses a pressing issue in Indian society. It sends a strong message that gender-based violence will not be tolerated.

3.       Accessibility: Simplified language and an emphasis on clarity make BNS more accessible to the general public, ensuring that citizens can better understand their legal rights and responsibilities.

4.       Customization: The ability to customize BNS at the state and local levels allows for a more tailored approach to addressing specific regional issues, promoting effective governance.

5.       Restorative Justice: Incorporating restorative justice principles in BNS can lead to more harmonious communities and reduce the burden on an already overburdened criminal justice system.

6.       Legal Modernization: BNS represents a significant step toward modernizing India's legal framework, aligning it with contemporary values and needs.[4]

Conclusion

The Bharatiya Nay Sanhita (BNS) stands as a promising addition to India's legal landscape, offering a more culturally relevant, gender-sensitive, and accessible alternative to the Indian Penal Code (IPC). While the IPC has served India for over a century, it is essential to recognize that societal norms and values have evolved significantly since its enactment. BNS takes these changes into account and aims to provide a legal framework that is better suited to the needs and aspirations of a modern, diverse, and dynamic India.

The introduction of BNS has challenges, including the need for effective implementation, public awareness, and continued refinement. However, its potential to bring about positive change in the Indian legal system is undeniable. As India continues to evolve and progress, it is crucial to have legal codes that reflect the nation's values, culture, and commitment to justice for all. BNS represents a significant step toward achieving this goal and building a more equitable and just society for future generations.[5]

 

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[1] https://blog.ipleaders.in/case-analysis-joseph-shine-v-union-india

[2] https://lawlex.org/lex-bulletin/case-summary-navtej-singh-johar-v-union-of-india-thr-secretary-ministry-of-law-and-justice/25100

[3] https://vajiramandravi.com/upsc-daily-current-affairs/mains-articles/bharatiya-nyaya-sanhita-bill-2023-background-objectives-provisions/

[4] https://blog.forumias.com/bharatiya-nyaya-sanhita-bill-explained-pointwise/#What_is_the_need_for_the_Bharatiya_Nyaya_Sanhita_BNS_Bill

[5] https://www.livelaw.in/articles/ipc-crpc-evidence-act-bharatiya-nyaya-sanhita-code-of-criminal-procedure-bharatiya-nagarik-suraksha-sanhita-mob-lynching-the-official-language-act-236183