Indian Penal Code to Nyaya Sanhita: What is New, What is Out, What Has Changed

Why in News?

• Recently, Lok Sabha passed by voice vote the three Bills that aim to overhaul the country’s criminal justice system by replacing colonial-era laws.
• The Bharatiya Nyaya Sanhita Bill 2023 has made several key changes in the Indian Penal Code it seeks to replace.

Key Changes Introduced in the New Bills

• The bills have made changes to the Indian Penal Code (IPC), Code of Criminal Procedure (CrPC) and the Indian Evidence Act, with the aim of transforming criminal justice system.
• The colonial-era laws will be replaced by legislation with an Indian ethos:
  • The Bharatiya Nyaya Sanhita, 2023, to replace the IPC;
  • Bharatiya Nagarik Suraksha Sanhita, 2023, for CrPC; and
  • BharatiyaSakshya Bill, 2023, for the Indian Evidence Act.

New Offences Incorporated Under Bhartiya Nyaya Sanhita, 2023

• Deceitful Promise to Marry
  • The BNS introduces Clause 69 that seems to ostensibly tackle the love jihad narrative by criminalising deceitful promise to marry.
  • The phrase sexual intercourse not amounting to the offence of rape essentially criminalises consensual sexual activity too.
  • According to the new provision, any deceitful means or promising to marry to a woman without any intention of fulfilling the same has been criminalised.
  • Deceitful means shall include the false promise of employment or promotion, inducement, or marring after suppressing identity.
• New Provisions on Mob Lynching
  • The BNS provisions codify offences linked to mob lynching and hate-crime murders, for cases when a mob of five or more individuals commits murder.
  • When the crime is based on factors such as race, caste, community, or personal belief. The provision has punishment that extends from life imprisonment to death.
  • In its earlier version, the Bill had proposed a minimum sentence of seven years, but this was brought at par with murder.
  • The Supreme Court in 2018 had asked the Centre to consider a separate law for lynching.
• New Provisions to Deal with Organised Crime
  • For the first time, tackling organised crime is brought under the realm of ordinary criminal law.
    • There are several special state legislations for prevention and control of criminal activity by organised crime syndicates or gangs, the most popular being the Maharashtra Control of Organised Crime Act, 1999.
    • These special laws prescribe vast powers of surveillance and relax standards of evidence and procedure in favour of the state, which is not found in ordinary criminal law.
  • In the new legislation, the punishment for attempt to commit organised crime and for committing organised crime is the same.
  • However, a distinction is drawn based on whether a death is caused or not by the alleged offence.
  • For cases involving death, the punishment ranges from life imprisonment to death.
  • Where there is no death involved, a mandatory minimum sentence of five years is prescribed which may extend to life imprisonment.
• Incorporation of a Separate Category of Petty Organised Crime
  • A separate category of petty organised crime has also been brought in, which criminalises theft, snatching, cheating, unauthorised selling of tickets, unauthorised betting or gambling, selling of public examination question papers.
  • An earlier version of the Bill used the overbroad words, “any crime that causes general feelings of insecurity among citizens” to describe petty organised crime.
  • But that has been dropped in the current version. However, while the provision is aimed at tackling small law and order issues in everyday policing, it is unclear how this would be different from ordinary theft, etc.
• New Addition on Terrorism
  • Importing large parts of the language in defining terror activities from the stringent Unlawful Atrocities Prevention Act, the BNS brings terrorism under the ambit of ordinary criminal law.
  • According to an analysis by National Law School of India University, Bangalore, the definition of terrorist borrows from the Philippines Anti-Terrorism Act, 2020.
  • More importantly, the offence involving terror financing is broader in the BNS than in UAPA.
  • However, it is unclear how both the UAPA and the BNS will operate concurrently, especially when procedurally the UAPA is more stringent and the cases are heard in special courts.
• Provision to Address the Attempt to Suicide
  • The BNS introduces a new provision that criminalises attempts to commit suicide with the intent to compel or restrain any public servant from discharging his official duty.
  • It prescribes a jail term which may extend to one year with community service. This provision could be invoked to prevent self-immolations and hunger strikes during protests.

Provisions Repealed Under Bhartiya Nyaya Sanhita, 2023

• Unnatural sexual offences (Article 377)
  • Section 377 of the IPC, which criminalised homosexuality among other unnatural sexual activities, has been repealed under the BNS.
  • However, the total omission of Section 377 has raised concerns, since the provision is still helpful to tackle non-consensual sexual acts, especially when rape laws continue to be gendered.
  • The SC in 2018 struck down the article 377 as unconstitutional only to the extent that it criminalised consensual homosexual relationships.
• Adultery: The offence of adultery, which was struck down by the SC as unconstitutional in 2018, has been omitted under the BNS.
• Provision on Thugs
  • The IPC under Section 310 criminalises those who have been habitually associated with any other or others for the purpose of committing robbery or child-stealing by means of or accompanied with murder.
  • The IPC labels them a thug and this provision is criticised for attaching colonial notions of criminality for certain tribes. The BNS has fully omitted this provision.

Changes Added to the Existing Laws

• Gender neutrality
  • While rape laws continue to operate only for women, the BNS has tweaked some other laws, especially those dealing with children, to bring gender neutrality.
  • The offences dealing with procuration of a girl (for illicit intercourse 366A of the IPC) has been made gender neutral.
  • For the offence dealing with kidnapping of minors, the IPC (Section 361) prescribes different age limits: 16 years for male and 18 years for a female. The BNS makes it 18 for both.
• Fake news
  • The IPC currently contains Section 153B which deals with imputations, assertions prejudicial to national integration.
  • This commonly referred to as the hate speech provision, criminalises, among other aspects, causing disharmony or feelings of enmity or hatred or ill-will between communities.
  • The BNS introduces a new provision here which criminalises publishing false and misleading information.
• Sedition
  • When the Sanhitas were first introduced in the Lok Sabha in August, Union Home Minister had said that the law on sedition had been repealed.
  • However, the BNS introduces the offence under a new name and with a wider definition.
  • Apart from a name change from rajdroh to deshdroh, the new provision brings under its sweep aiding through financial means acts of subversive activities, and those encouraging feelings of separatist activities.
• Mandatory Minimum Sentence
  • Section 303 of the IPC prescribed a mandatory death sentence for murder committed by a life-convict.
  • In 1983, the SC struck down the provision as unconstitutional since it took away the discretion of judges in awarding a sentence.
  • The BNS has now tweaked this provision to prescribe a punishment of death or imprisonment for life, which shall mean the remainder of that person’s natural life.

Conclusion

• By adopting the Bharatiya Nyaya Sanhita and related reforms, India is not just changing the numbers, it is reclaiming its identity.
• It is a paradox of India’s criminal justice system which till today, bore the indelible marks of Lord Thomas Babington Macaulay or colonial legacy in other words.

Q1) How did Macaulay’s draft on IPC make the British rule more effective?

Macaulay completed the draft of the IPC in 1837, and it finally became law a year after he died in 1860. The impact of his criminal law codification exercise was felt across the British Empire. Crimes from his IPC, like sodomy, became a crime not only in India but in almost all British territories and continued to remain so after their independence. By all accounts, he was racist and contemptuous of Indians and their customs and the criminal code he wrote made the British rule even more effective.

Q2) Why are new bills facing criticism?

Among other criticisms, one criticism about the Bharatiya Nyaya Sanhita (BNS, to replace the Indian Penal Code), the Bharatiya Nagarik Suraksha Sanhita (BNSS, to replace the Code of Criminal Procedure) and the Bharatiya Sakshya Bill (to replace the Indian Evidence Act) is that it is unnecessary to refer to them wholly in their Hindi names. Every law in India has an official translation in the respective official language of every State; so the need for the IPC, CrPC and Evidence Act to be referred to in their Hindi names alone is questionable.

Source: The Indian Express