Evolving Jurisprudence: Bharatiya Nyaya Sanhita and IPC in the 21st Century

I. Introduction

The Indian Parliament passed three new criminal codes in December 2023: the Bharatiya Nyaya Sanhita (BNS), the Bharatiya Nagrik Suraksha Sanhita (BNSS), and the Bharatiya Sakshya Adhiniyam (BSA). These codes replaced the Indian Penal Code, 1860 (IPC), the Criminal Procedure Code, 1973 (CrPC), and the Indian Evidence Act, 1872 (IEA). On December 25, 2023, the Bills were published in the Official Gazette after receiving presidential approval.²

These three pieces of legislation are aimed at "decolonise" British criminal laws. To support its legal reform initiative, the Union Government has frequently cited the language of decolonisation, fairness, and citizen-centric legislation. We must first define what was colonial about these three laws in order to evaluate if the new laws are successful in achieving this goal.

The BNS, which is intended to replace the IPC, is the subject of this article. It examines how the bill fails to achieve decolonisation, as declared. It is contended that the BNS increases the authority of the state and police, keeps crimes based on outmoded morals, and broadens the scope of the legal system by adding crimes with ambiguous definitions.

It is clear from an obvious textual comparison that the BNS has largely adopted the IPC word for word. Nonetheless, there is much to examine and comprehend in the areas where significant changes have been achieved. There are significant considerations to the addition of new offences, the importation of offences from other laws (with some modifications), and the elimination existing IPC charges that must be considered.

II. Major changes in the bns with respect to ipc

The new criminal laws don't represent much of a challenge to the colonial worldview of an all-powerful authority. Instead, by granting police greater powers and creating laws for vague but harshly punished offences, they reinforce the balance of power between the people and the government. Perhaps the most famous example of colonialism's influence on our criminal code is found in Section 124A of the IPC's "Offences Against the State" chapter, which includes sedition as one of its crimes. Although "sedition" has been replaced with a new offence known as "Act endangering sovereignty, unity and integrity of India," which is detailed in section 152 of the BNS, the chapter of the BNS remains practically the same. This offense varies somewhat from its equivalent in the IPC.³

(A) Key changes in the BNS include:

• Offences against the body: According to the IPC, crimes including murder, aiding and abetting suicide, assault, and causing great harm are all illegal. These clauses are retained in the BNS. It includes new crimes including terrorism, organised crime, and killing someone or causing serious harm to a number of people for specific reasons.
• Sexual assaults against women: The Indian Penal Code makes offences including rape, voyeurism, stalking, and demeaning a woman's modesty illegal. These clauses are retained in the BNS. In the event of gangrape, it raises the age requirement for the victim to be considered a major from 16 to 18. Additionally, it makes it illegal to have sex with a woman while lying to her or making false promises.⁴
• Sedition: The offence of sedition is eliminated by the BNS. Rather, it punishes the following:

(i) inciting or seeking to incite armed insurrection, subversive operations, or secession;

(ii) fostering sentiments of separatist activity; or

(iii) compromising India's sovereignty or unity and integrity. These violations could include using money, exchanging words or signals, or communicating electronically.

• Terrorism: Terrorism includes an act that intends to:

(i) threaten the nation's unity, integrity, security, or economic security; or

(ii) create fear among the Indian population as a whole or any particular group within it is considered terrorism.

If terrorism results in a person's death, the punishment is either (i) death or life imprisonment plus a fine, or (ii) imprisonment for a term ranging from five years to life plus a fine.

• Organised crime: Crimes committed on behalf of a criminal group, such as abduction, extortion, contract killing, land grabbing, financial frauds, and cybercrime, are classified as organised crime. Attempting or committing organised crime will be punishable with:

(iii) death or life imprisonment and a fine of Rs 10 lakh, if it results in death of a person, or

(iv) imprisonment between five years and life, and a fine of at least five lakh rupees.⁵

• Mob lynching: According to the BNS, it is now illegal to murder or cause great harm to five or more individuals for certain reasons. These grounds can be based on personal beliefs, language, caste, sex, or race. Such murder carries a life sentence in jail or the death penalty.
• Rulings of the Supreme Court: The BNS complies with several rulings made by the Supreme Court. These include making life imprisonment an additional punishment for murder or attempted murder committed by a life sentence prisoner, as well as eliminating adultery as a crime.
• Offences against the State: A defining characteristic of colonialism is the State's ongoing and continuous extension of its law enforcement powers over its people. The colonial mindset of an all-powerful state is not much challenged by the new criminal laws⁶. Rather, they strengthen the balance of power between the state and the citizens by giving police more authority and establishing laws for crimes that are not clearly defined but are punishable severely. Sedition is one of the offences covered by Section 124A of the IPC's "Offences Against the State" chapter, which is arguably the most notable example of colonialism's influence on our criminal code. While the chapter remains largely unchanged in the BNS, ‘sedition’ has been replaced by a new offence, defined in section 152 of the BNS, titled ‘Act endangering sovereignty, unity and integrity of India’ and differs in some ways from its counterpart in the IPC.⁷

Section 124A of the IPC focusses on actions that incite hatred, contempt, or disaffection towards the government. The penal code no longer uses the word "sedition," yet the new clause seems to be just as restricting of rights as the old one. While Section 152 of the BNS punishes actions that incite "subversive activities," "feelings of separatist activities," or jeopardise the "sovereignty or unity and integrity of India."⁸

Moreover, the BNS fails to provide an explanation of what exactly qualifies as stimulating "subversive activities" or "feelings of separatist activities." Courts have had numerous opportunities to interpret Section 124A of the IPC since independence, especially in relation to how it affects the constitutionally protected right to free speech. As a result of these rulings, the provision can now only be used to suppress speech that directly endangers public order. Because of this, it is unclear what Section 152 of the BNS—a wholly new provision with altered standards—means, as the standards that the courts developed in their rulings about Section 124A of the IPC are no longer relevant.⁹

The Union administration claims that the new legal clause addresses "treason" (deshdroh) rather than "sedition" (rajdroh), but this doesn’t mark a significant shift from the Indian Penal Code (IPC). Criticisms of government actions that don’t incite hatred or disaffection remain outside the scope of Section 124A of the IPC, and Section 152 of the Bharatiya Nyaya Sanhita (BNS) offers a similar exclusion. Therefore, the differences between the new and previous provisions are unclear.

The main issue with sedition laws has been their misuse by the state to suppress dissent through arrests and prolonged detentions. Despite many cases not resulting in convictions, the legal process itself serves as a form of punishment. Broadly defined legal provisions have allowed law enforcement to detain individuals extensively. Creating more ambiguity in the standards for these offences will only increase their harmful impact.¹⁰

(B) Other detailed changes in the BNS include

a) Addition and Alteration of Certain Language and Provisions

(1) Commission of Offences through Electronic Means

Based on specific data figures, India is estimated to have 750 million internet users and 460 million users of various social media platforms, making up about 30% of the world's overall user base. Furthermore, there were almost 650 million smartphone users in India, based on recent independent studies. It is clear from these and other research on the topic that a sizable section of the Indian populace communicates, transacts, and functions via digital channels. Naturally, there have been more criminal situations. In reality, the National Crime Records Bureau's publication Crime in India 2022 reports that, in comparison to 2021, there has been a 24.4% increase in the number of cases registered under the category of cybercrime.

For this exact reason, a recent addition to the BNS, known as Section 2(39), makes it very clear that all terms and expressions pertaining to digital media and technology in general will have the same meanings as those found in the Bhartiya Nagarik Suraksha Sanhita, 2023, and the Information Technology Act, 2002. This will make it possible to identify a considerably wider range of behaviours that come inside the definition of an offence, which will aid in the detection and deterrence of criminal activity. Electronic and digital records are now considered documents, according to Section 2(8) of the BNS.

(2) Community Service as a Punishment

Community service has been included as a new penalty to the chapter on punishments that can be imposed on an individual who has been found guilty. It should be emphasised that community service is only permitted as a form of punishment for minor infractions, as stated in the Statement of Object and Reasons. As a result, it is only permitted in the BNS for offences falling within the sixth category.

In addition, a Standing Committee report suggested that the Parliament be provided with a precise definition of community service and guidelines about the extent of this penalty. Though the laws are currently formally in effect, this hasn't been included in the Act's language. The lack of proper clarity with regards to community service could result in massive judicial involvement in aiding the interpretation and setting of the law.¹¹

(3) Use of Inclusive Language

First off, the term "transgender" is used by the BNS in Section 2(10) within the concept of "gender," which is not found in the IPC.¹² Some aspects, like the definition and punishment of voyeurism under Section 77 of the BNS, have generally been rendered gender neutral. It is important to remember that Section 77 and other laws have taken into account the gender neutrality of the offender rather than the victim. Consequently, for instance, a man will never be allowed to file a complaint about voyeuristic behavior—an issue on which the BNS could have passed legislation—even though a woman may now be found guilty of the crime of voyeurism.

Similar to this, many crimes—like rape, for example—remain gendered in that only women are eligible to become victims. As a result, transgender people are only partially included under Section 2(10) and are not eligible for protection from many sexual offences. Gender neutrality in the context of victims, however, cannot be claimed to have been completely ignored, since under Section 96 of the BNS, the word kid is used instead of the words underage females, which were used in the previous Section 366A of the IPC.

(4) Snatching as a Separate Offence

Snatching is now specifically listed as a crime separate from stealing under Section 304 of the BNS. According to independent studies, snatching is a common crime that occurs more than 5000 times a day in Delhi alone. It is distinguished from conventional theft in numerous ways, making it distinct from regular theft in addition to being based on frequency. Snatching is a type of theft in which someone steals movable items from them quickly or with force.¹³

Unlike theft, where the accused may employ deceitful means and take away property even without the knowledge of the person who owns it, snatching always involves the victim taking cognizance of the action at the time of commission itself, and it may even be accompanied with hurt or violence in order to give effect to the snatching. The maximum punishment for snatching has also been set at three years instead of seven years for theft.¹⁴

b) Removal of Certain Language and Provisions

(1) Removal of Adultery

The BNS totally eliminated the clause in accordance with a landmark ruling by the Hon'ble Supreme Court of India, which decriminalised adultery as defined by Section 497 of the IPC. Based on the observation made by the Hon'ble Supreme Court, this ruling was made because it interferes directly with people's private life when adultery is still legally punishable. The Hon'ble Supreme Court has held that government agencies should keep their distance from the decisions that people make on a personal level.

Adultery should once again be considered a crime under the BNS, according to a number of viewpoints, and it should be specific to neither gender. On the other hand, the minority view contends that the idea that marriage is sacrosanct should be out of date and that it is merely a contract between two people, the breach of which gives rise to civil remedies.

(2) Non-Reproduction of Section 377 of the IPC

The Hon'ble Supreme Court of India overturned Section 377, which penalised adults for engaging in consensual sexual activity, in a historic ruling in 2018. The provision in question, according to the Honourable Court, constituted a serious infringement of Article 19(1)(a) of the Constitution, which protects the basic right to freedom of expression for all citizens. The rest of the clause, which dealt with sodomy, bestiality, and other offences that fall under the same section but had nothing to do with the disputed subsection, was left in effect.

All of the provisions of Section 377 of the IPC, including those that haven't been specifically ruled unconstitutional as previously mentioned, have, nevertheless, been entirely eliminated by the BNS.¹⁵

(3) Other Relevant Additions and Alterations

• To make specific objectives clear, definitions have been changed in a number of places. For example, in Section 43 of the BNS, the term "night" as defined by Section 103 of the IPC has been replaced with "after sunset and before sunrise." Furthermore, mischief caused by fire or any explosive material is now included in the definition of fire under Section 41.
• Conspiracy, attempt, and abetment are all considered inchoate offences and fall under the same chapter. They were provided under the IPC in a number of sections found in various Code Chapters.
• Since it creates a new offence not found in the IPC, Section 69 of the BNS is an important addition. Section 69 has been interpreted to make it illegal to use deception to achieve sexual relations that does not qualify as rape. False inducements and promises are included in this context of deceitful means.
• The BNS has adopted Section 70(2), which is an extension of Section 376DA of the IPC that addressed gang rape. A significant modification is the addition of the phrase "under the age of eighteen," which brings more cases under the jurisdiction of the offence and broadens its definition. While punishments for various offenses have been significantly increased, one of the most notable changes is the enhancement of the punishment for causing death by a rash or negligent act. Previously covered under Section 304A IPC with a maximum sentence of two years, this offense now carries a penalty of up to five years under Section 106(1) of the BNS.¹⁶
• Terrorist acts are now included by Section 113 of the BNS, adding to its existing scope. Section 113, which is primarily based on the Unlawful Activities (Prevention) Act, 1967 (also known as the "UAPA"), includes fines, the maximum amounts of which are described in detail in a number of sub-sections that are not included in the UAPA's framework.
• The BNS also contains Section 353, which makes it illegal to make, publish, or circulate false information supported by dishonest intent. This is an attempt to stop the dissemination of misleading information. Although not specifically stated in the IPC, this provision supports the operation of other legislation with a similar purpose.
• Under Section 337 of the BNS, which has incorporated the erstwhile offence of forgery of a document as given under Section 446 of the IPC, now the forgery of Government issued documents, such as the Aadhar Card, or the Voter Identity Card is also in the ambit, thereby expanding the scope of the offence.¹⁷
• Mischief as an offence has been given specific pecuniary limits in sub-sections (4) and (5) of Section 324 of the BNS, wherein the amount of imprisonment increases as the value of the property destroyed or converted increases.
• The BNS has partially revived Section 309 of the IPC under Section 226. Section 309 of the IPC had become obsolete because of Section 115 of the Mental Healthcare Act, 2017, which exempted anyone who attempted suicide from prosecution because it was assumed they did so under extreme stress. However, coverage is limited to situations in which the suicide victim had a clear purpose to prevent or hinder any public official from carrying out their duties.
• Under Section 137 of the BNS, the term "any child" is now included in the definition of abduction, replacing the previous distinction between minor boys and girls in terms of age. This definition is defined under 2(3) as "any person below the age of eighteen years." Due to this, kidnapping of males between the ages of sixteen and eighteen is now considered a crime under Section 361 of the IPC, rather than it previously was.¹⁸

III. Conclusion

For the most part, the decision to introduce the BNS was a wise one in terms of updating the IPC to reflect the contemporary socioeconomic context. Many important revisions have been made to it, including the elimination of antiquated statutes with colonial roots and other clauses that have no real basis in the current legal system.

The BNS focusses on financial offences and cybercrimes and includes provisions for specialised tribunals and sanctions for altering computer data. Through the use of specialised units for crime prevention and community policing initiatives, the BNSS places a high priority on public safety. The BSA strengthens forensic investigation and evidence collection by granting admissibility to DNA profiling and electronic evidence.¹⁹

It certainly advocates for values such as gender neutrality, but it doesn't seem to fully integrate them. Numerous requests for the decriminalisation of offences have gone unanswered by the BNS, especially those made by the Committee on Draft National Policy on Criminal Justice. Citizens will have a greater understanding of its impact following its implementation and the emergence of new legal questions based on its amended provisions.

Instead of taking advantage of this chance to change the law on these matters, the new Codes have served to legitimise and cement the colonialism that was already present in our criminal laws. The absence of any significant alteration in the way laws are implemented, aside from the specific clauses mentioned above, is perhaps the clearest argument against the logic of decolonisation.

(A) Suggestions

The BNS does not clarify what precisely constitutes inciting "subversive activities" or "feelings of separatist activities." Since independence, courts have had numerous chances to interpret Section 124A of the IPC, particularly in light of how it impacts the right to free expression, which is guaranteed by the constitution. Due to these decisions, the provision is no longer just used to stifle speech that directly threatens public order. Consequently, the meaning of Section 152 of the BNS, a completely new provision with modified criteria, is ambiguous because the standards established by the courts in their decisions regarding Section 124A of the IPC are no longer applicable. The legislature had the opportunity to address that.

Furthermore, the basis of the marital rape exception is the concept of irreversible consent at marriage. This was first said by Matthew Hale, who maintained that a husband could not be held guilty of raping his wife because marriage involves the woman giving her irrevocable consent to participate in sexual intercourse. This concept was deeply embedded in common law in England and later found its way into the Indian Penal Code. The exemption remained in the IPC even after it was removed by the UK House of Lords in 1991. The resulting modification to the IPC did not incorporate the 2013 Justice Verma Committee's recommendation to remove this particular provision.

Although there was an opportunity to delete this exemption, the final text remained unchanged.

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IV. Bibliography

• Admin, Other laws pertaining to sexual harassment at Work Place: IPC and BNS - Legal Vidhiya Legal Vidhiya - (2024), https://legalvidhiya.com/other-laws-pertaining-to-sexual-harassment-at-work-place-ipc-and-bns/ (last visited Aug 5, 2024).
• The Bharatiya Nyaya (second) sanhita, 2023, PRS Legislative Research (2024), https://prsindia.org/billtrack/the-bharatiya-nyaya-second-sanhita-2023 (last visited Aug 6, 2024).
• Bharatiya Nyaya Sanhita: Decolonising or reinforcing colonial ideas?, National Law School of India University (2024), https://www.nls.ac.in/blog/bharatiya-nyaya-sanhita-decolonising-or-reinforcing-colonial-ideas/ (last visited Aug 1, 2024).
• Colonial reality of India’s criminal laws remains despite the new Hindi names, The Wire, https://thewire.in/law/colonial-reality-of-indias-criminal-laws-remains-despite-the-new-hindi-names (last visited Aug 5, 2024).
• Decoding new criminal laws: A comparative analysis with traditional legal frameworks , The Amikus Qriae (2024), https://theamikusqriae.com/decoding-new-criminal-laws-a-comparative-analysis-with-traditional-legal-frameworks/ (last visited Aug 5, 2024).
• Home, Child Human Rights Defenders, https://chrds.childrightsconnect.org/the-rights-of-child-human-rights-defenders/interactive-chrd-implementation-guide/definitions/ (last visited Aug 6, 2024).
• p39a Admin, Bharatiya Nyaya Sanhita bill, 2023: A substantive analysis P39A Criminal Law Blog (2023), https://p39ablog.com/2023/08/bharatiya-nyaya-sanhita-bill-2023-a-substantive-analysis/ (last visited Aug 5, 2024).
• Saurabh Bindal & Pranav Mathur, Changes brought forth by the Bharatiya Nyaya Sanhita, 2023 Lexology (2024), https://www.lexology.com/library/detail.aspx?g=8b6e523a-8ba1-4575-9408-c58a70cd31cc (last visited Aug 6, 2024).
• Section 152: Acts endangering sovereignty unity and integrity of India., Bharatiya Nyaya Sanhita (2024), https://bharatiyanyayasanhita.online/ufaq/section-152-of-bns/ (last visited Aug 4, 2024).
• What is the difference between theft, robbery and burglary?, Sentencing, https://www.sentencingcouncil.org.uk/news/item/what-is-the-difference-between-theft-robbery-and-burglary/ (last visited Aug 3, 2024).

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Footnotes

1. Author is an Advocate in India.

2. Bharatiya Nyaya Sanhita: Decolonising or reinforcing colonial ideas?, National Law School of India University (2024), https://www.nls.ac.in/blog/bharatiya-nyaya-sanhita-decolonising-or-reinforcing-colonial-ideas/ (last visited Aug 1, 2024). ↩

3. Colonial reality of India’s criminal laws remains despite the new Hindi names, The Wire, https://thewire.in/law/colonial-reality-of-indias-criminal-laws-remains-despite-the-new-hindi-names (last visited Aug 5, 2024). ↩

4. Admin, Other laws pertaining to sexual harassment at Work Place: IPC and BNS - Legal Vidhiya Legal Vidhiya - (2024), https://legalvidhiya.com/other-laws-pertaining-to-sexual-harassment-at-work-place-ipc-and-bns/ (last visited Aug 5, 2024). ↩

5. The Bharatiya Nyaya (second) sanhita, 2023, PRS Legislative Research (2024), https://prsindia.org/billtrack/the-bharatiya-nyaya-second-sanhita-2023 (last visited Aug 6, 2024). ↩

6. Decoding new criminal laws: A comparative analysis with traditional legal frameworks , The Amikus Qriae (2024), https://theamikusqriae.com/decoding-new-criminal-laws-a-comparative-analysis-with-traditional-legal-frameworks/ (last visited Aug 5, 2024). ↩

7. Bharatiya Nyaya Sanhita: Decolonising or reinforcing colonial ideas?, National Law School of India University (2024), https://www.nls.ac.in/blog/bharatiya-nyaya-sanhita-decolonising-or-reinforcing-colonial-ideas/ (last visited Aug 1, 2024). ↩

8. Section 152: Acts endangering sovereignty unity and integrity of India., Bharatiya Nyaya Sanhita (2024), https://bharatiyanyayasanhita.online/ufaq/section-152-of-bns/ (last visited Aug 4, 2024). ↩

9. Decoding new criminal laws: A comparative analysis with traditional legal frameworks , The Amikus Qriae (2024), https://theamikusqriae.com/decoding-new-criminal-laws-a-comparative-analysis-with-traditional-legal-frameworks/ (last visited Aug 5, 2024). ↩

10. Bharatiya Nyaya Sanhita: Decolonising or reinforcing colonial ideas?, National Law School of India University (2024), https://www.nls.ac.in/blog/bharatiya-nyaya-sanhita-decolonising-or-reinforcing-colonial-ideas/ (last visited Aug 1, 2024). ↩

11. Saurabh Bindal & Pranav Mathur, Changes brought forth by the Bharatiya Nyaya Sanhita, 2023 Lexology (2024), https://www.lexology.com/library/detail.aspx?g=8b6e523a-8ba1-4575-9408-c58a70cd31cc (last visited Aug 6, 2024). ↩

12. Id. ↩

13. What is the difference between theft, robbery and burglary?, Sentencing, https://www.sentencingcouncil.org.uk/news/item/what-is-the-difference-between-theft-robbery-and-burglary/ (last visited Aug 3, 2024). ↩

14. Saurabh Bindal & Pranav Mathur, Changes brought forth by the Bharatiya Nyaya Sanhita, 2023 Lexology (2024), https://www.lexology.com/library/detail.aspx?g=8b6e523a-8ba1-4575-9408-c58a70cd31cc (last visited Aug 6, 2024). ↩

15. Colonial reality of India’s criminal laws remains despite the new Hindi names, The Wire, https://thewire.in/law/colonial-reality-of-indias-criminal-laws-remains-despite-the-new-hindi-names (last visited Aug 5, 2024). ↩

16. Saurabh Bindal & Pranav Mathur, Changes brought forth by the Bharatiya Nyaya Sanhita, 2023 Lexology (2024), https://www.lexology.com/library/detail.aspx?g=8b6e523a-8ba1-4575-9408-c58a70cd31cc (last visited Aug 6, 2024). ↩

17. Id. ↩

18. Home, Child Human Rights Defenders, https://chrds.childrightsconnect.org/the-rights-of-child-human-rights-defenders/interactive-chrd-implementation-guide/definitions/ (last visited Aug 6, 2024). ↩

19. p39a Admin, Bharatiya Nyaya Sanhita bill, 2023: A substantive analysis P39A Criminal Law Blog (2023), https://p39ablog.com/2023/08/bharatiya-nyaya-sanhita-bill-2023-a-substantive-analysis/ (last visited Aug 5, 2024). ↩