There has been a seismic shift in criminal law in India. The Bharatiya Nyaya Sanhita, 2023 (BNS) has replaced the Indian Penal Code (IPC), 1860, the Bharatiya Sakshya Adhiniyam, 2023, has come in the stead of the Indian Evidence Act, 1872 and the Bharatiya Nagarik Suraksha Sanhita, 2023 replaces the Code of Criminal Procedure, 1973.
The three new statutes impact offences that are committed on and after July 1. The BNS, via a saving and repeal clause, specifically provides that it will not affect anything done or suffered under the Indian Penal Code, 1860. This column will address only changes made by the BNS. Subsequent columns will explore the changes made to criminal procedure and evidence law.
This column is divided into three parts. First, we shall briefly discuss what has not changed when one compares the BNS to the Indian Penal Code, 1860. Second, we shall consider provisions that have been minimally revised. And finally, we shall interrogate what has been redefined in general criminal law — this category deserves most attention.
The first part is the simplest to address. Experts suggest that 80 to 90 per cent of the IPC is retained in the BNS, 2023. What has been revised are the provision numbers, but the essence of the provisions have been maintained. This includes provisions pertaining to culpable homicide, murder, assault, forgery, criminal intimidation, defamation and rape. For instance, murder, which was represented by the classic sections 300 and 302 in IPC, is now in sections 101 and 103 of the BNS. I feel a tinge of regret at this change. The easy flair with which we lawyers would reel off the “murder sections”, as we sat gossiping over cups of hot tea in court, in answer to “kya matter hai?” or “kiske liye ruke ho?” with an easy “arey yaar 302”, and then nonchalantly continue our conversation, will now need tweaking.
However, there have been some major changes — which takes me to the second part of the piece. Sedition as an offence has been retained (section 152 BNS), but the definition has been expanded, the nomenclature changed and the punishment for the offence made more severe. One can now attract the offence of “acts endangering sovereignty” by exciting secession, or armed rebellion, or subversive activities or encouraging feelings of separatism or endangering sovereignty. Under the BNS, the punishment is now seven years to life imprisonment, an increase from three years to life.
The BNS also specifically punishes death caused by negligence of a “registered medical practitioner” while performing a medical procedure. The erstwhile section 304A that could be used against doctors, did not specifically mention this. The legislative intent is now to explicitly punish the negligent medical practitioner — this takes us into the domain of what is truly negligent and what is the gap between life, death and medical science.
Another reform has come in the form of the new provision on theft. Section 303 of the BNS provides for community service for offenders who have been convicted for the first time and where the value of the stolen property is under Rs 5,000. Given that most theft is petty theft, this is a welcome provision.
The most dramatic change to criminal law is the incorporation of what I have discussed previously (‘Weakening law’s guardrails’, IE, September 2, 2023). At the risk of repeating myself, BNS is at odds with the established legislative practice of having separate and distinct harsh special statutes with procedural checks and balances. This is the case with Unlawful Activities Prevention Act, 1967 (UAPA) and the Maharashtra Control of Organised Crime, 1999 (MCOCA) used to combat organised crime in Delhi and Maharshatra.
Both statutes are illustrations of special legislation that are intended to combat alleged offences that are elaborate in how they are planned and fulfilled. While the punishments are harsh, special statutes have some procedural safeguards that attempt to balance the rights of the accused and the interest of the prosecution. BNS brings such special statutes into the framework of general criminal law. It includes within the definition of organised crime (section 111) unlawful activities including kidnapping, robbery, vehicle theft, land grabbing, contract killing, and trafficking of human beings, weapons and drugs by two or more persons acting singly or jointly. The punishment ranges from five years to life imprisonment. Petty organised crime, including theft, snatching, pick pocketing, shoplifting and cheating shall be punishable with one to seven years imprisonment.
Similarly, erstwhile UAPA offences have been brought under section 113 “terrorist act” of the BNS. The UAPA definition of who commits a terrorist act has been replicated in the BNS, 2023. A terrorist act in UAPA and in the BNS, 2023 is defined as whoever does any act with the intent to threaten or is likely to threaten the unity, integrity of India by using an array of weapons. If death results from such terrorist acts then the punishment could be life imprisonment or death. And in any other case it will range from five years to life.
The definitional provisions of the UAPA and BNS are similar with the difference that the former special statute has comparatively greater procedural safeguards. Now, the BNS provides that an officer, not below the rank of Superintendent of Police, shall decide whether to register the case under BNS or UAPA. The need for law reform in postcolonial nations is undeniable. However, the contours of that postcolonial law reform must be in consonance with the Constitution’s values. In the context of criminal law, this includes fair trial, a presumption of innocence and procedural justice.
The writer is a Senior Advocate at the Supreme Court
