Reforming Indian Penal Law: An In-Depth Look at Bhartiya Nyaya Sanhita 2023

Introduction

The Indian legal landscape has witnessed a significant transformation with the introduction of the Bhartiya Nyaya Sanhita (BNS) 2023, a comprehensive legal document designed to replace the long-standing Indian Penal Code (IPC) of 1860. The IPC, a colonial-era legislation drafted under the British administration, served as the backbone of India’s criminal justice system for over a century. However, with evolving societal norms, technological advancements, and changing crime dynamics, there was a pressing need for an updated legal framework. The Bhartiya Nyaya Sanhita (BNS) 2023 aims to address these needs by modernizing the legal provisions and making the justice delivery system more efficient and effective.

Historical Context and Necessity for Change

The IPC 1860, drafted by the First Law Commission chaired by Lord Thomas Babington Macaulay, was a remarkable piece of legislation for its time. It codified various offenses and prescribed punishments in a systematic manner, providing a legal framework that brought consistency and predictability to the administration of criminal justice. However, being a product of its time, the IPC was not without its limitations. Its colonial undertones, outdated provisions, and inability to address contemporary issues necessitated a comprehensive review and overhaul.

The BNS 2023 emerges as a response to these needs, aiming to create a legal system that reflects India’s socio-cultural realities and is equipped to handle modern-day challenges. This new code incorporates several changes and additions, reflecting the shift in legislative thinking and priorities.

Key Differences between BNS 2023 and IPC 1860

1. Modernisation of Offences

Cybercrime and Technology-related Offenses:

A. IPC 1860: The IPC did not account for cybercrimes, as it was formulated in an era long before the advent of the internet and digital technologies. While later amendments and separate laws (like the Information Technology Act, 2000) addressed some aspects, the IPC itself lacked comprehensive provisions for such offenses.

B. BNS 2023: The new code includes provisions for cybercrime in the category of organised crime (S. 111) and also includes offence of cyber stalking. It further includes electronic data, electronic communication, means, record, e-signature etc. comprehensively while describing offences and their extent of applicability, thus, reflecting the necessity to combat crimes in the digital age effectively.

Terrorism:

A. IPC 1860: While the IPC included provisions related to waging war against the state and other severe offenses, it did not explicitly categorize terrorism as a separate offense. Subsequent laws like the Unlawful Activities (Prevention) Act (UAPA) had to be enacted to deal with terrorism specifically.

B. BNS 2023: The BNS 2023 includes specific provisions dealing with terrorism, defining terrorist act (S.113) clearly, and prescribing stringent punishments for such offenses. This inclusion signifies an integrated approach to dealing with modern threats within the primary criminal code.

2. Organised Crimes

A. IPC 1860: The IPC did not comprehensively define, describe or provide punishment specifically for organised crimes. Thus, leaving a category of offences in open land.

B. BNS 2023: The BNS comprehensively defines and describes organised crime in section 111, thus, bringing a lot of offences such as vehicle theft, land grabbing, contract killing, economic offence, cyber-crimes, trafficking of persons, drugs, weapons or illicit goods or services, human trafficking for prostitution or ransom etc. under the purview of BNS 2023 which were never clearly included or defined as offence in IPC 1860.

3. Enhanced Victim Rights

A. IPC 1860: Victim rights were not a primary focus in the IPC. Provisions for victim compensation and protection were either absent or not sufficiently robust.

B. BNS 2023: The new code emphasizes victim rights, incorporating mechanisms for victim compensation, protection orders, non-disclosure of identity, and support services. This shift underscores a victim-centric approach, recognizing the importance of supporting victims throughout the legal process and beyond. It further has introduced section for Punishment for non- treatment of victim (S.200), which clearly shows the intent of legislature for protecting victim rights.

4. Simplification and Clarity

A. IPC 1860: The language of the IPC is formal and often archaic, reflecting its colonial origins. This can make the code difficult for laypersons to understand.

B. BNS 2023: The BNS 2023 uses simpler, clearer language, making the law more accessible to the general public. This demystification aims to ensure that citizens can comprehend their rights and obligations without needing specialized legal knowledge.

5. Sentencing Reforms

A. IPC 1860: The IPC had relatively rigid sentencing structures, with certain crimes carrying fixed punishments. This rigidity sometimes led to disproportionate sentences that did not account for the nuances of individual cases.

B. BNS 2023: The new code introduces more flexible and nuanced sentencing guidelines, allowing judges to consider various factors, including the severity of the offence, the circumstances of the offender, and the impact on the victim.

It further introduced ‘community service’ as punishment for minor offences which was not present in IPC. This approach aims to ensure that punishments are fair and proportional.

It has also provided for enhanced penalty for causing death by way of negligence, while including a new provision for those who leave the scene of an accident without reporting it, which can lead to up to ten years of imprisonment in Section 106).

6. Specific Provisions for Contemporary Issues

A. IPC 1860: Certain contemporary issues such as white-collar crimes, mob lynching, and human trafficking were not adequately addressed in the IPC.

B. BNS 2023: The new code includes provisions to tackle these modern-day issues comprehensively. For instance, it outlines specific penalties for mob lynching, abetment outside india, detailed regulations against human trafficking, and stringent measures against economic offences like money laundering and corruption.

7. Removal of colonial terms/offences and redressal to modern day concerns/means to offences

A. No usage of term ‘Sedition’- After a long debate, the colonial offence of ‘sedition’ has been removed from BNS 2023 and only offences against sovereignty & integrity of nation have been kept in BNS 2023 like section 150 i.e. waging war.

B. Introduction of offence of ‘Sexual Intercourse by Employing Deceitful Means’- The BNS 2023 has introduced a new offence of sexual intercourse by employing deceitful means i.e. section 69 which directly deals with modern day concerns and issues of engaging in sexual intercourse at false promise of marriage. This offence was not directly dealt with or described in IPC.

C. Hiring, Employing, or Engaging a Child to Commit an Offence: This new provision penalises anyone who employs or involves a child in committing a crime in section 95. This resolves modern day practice of manipulating children in committing offence since they came under general exception to IPC.

D. Abetment Outside India: This new provision allows for the prosecution of individuals who abet an offence outside India that would be considered an offence if committed within India in Section 48.

Challenges and Criticisms

Despite its progressive stance, the Bhartiya Nyaya Sanhita (BNS) 2023 has faced criticism and challenges. Legal experts and practitioners have pointed out potential issues in the transition from the IPC to the new code, including the need for extensive training for law enforcement and judicial officers. Additionally, the implementation of new provisions, especially those related to technology and cybercrimes, requires substantial investment in resources and infrastructure.

Based on the aforesaid criticism, Public Interest Litigation (PIL) was filed before Hon’ble Supreme Court of India which was dismissed observing that the enactment of the new laws signified a watershed moment for our society and have transitioned India’s legal framework on criminal justice into the new age.

Conclusion

The Bhartiya Nyaya Sanhita 2023 represents a landmark shift in India’s criminal justice system, aiming to align the legal framework with contemporary needs and realities. While it offers numerous advancements over the IPC 1860, the true measure of its success will lie in its implementation and the ability to adapt to future challenges. As India embarks on this new legal journey, the Bhartiya Nyaya Sanhita (BNS) 2023 holds the promise of a more just, equitable, and efficient criminal justice system.

By Megha Chaturvedi

Senior Associate, H.K. Law Offices

Bibliography

1. Basak, T. (2023). The Bhartiya Nyaya Sanhita: A Modern Legal Framework for India. New Delhi: LexisNexis.
2. Chandrachud, D.Y. (2023). Reforming Criminal Law in India: The Bhartiya Nyaya Sanhita 2023. Journal of Indian Law, 45(2), 234-256.
3. Law Commission of India. (2022). Report on the Revision of the Indian Penal Code 1860. Government of India.
4. Menon, N.R. Madhava. (2023). A Commentary on the Bhartiya Nyaya Sanhita. Mumbai: Thomson Reuters.
5. Verma, K. (2023). From Colonial to Contemporary: The Transition from IPC 1860 to BNS 2023. Indian Journal of Criminal Law, 32(4), 401-418.