Jan 24, 2024Overview of Bharatiya Nyaya Sanhita, 2023
The Bharatiya Nyaya Sanhita, 2023 was enacted on December 25, 2023, repealing, and replacing the Indian Penal Code, 1860 as the new penal code of the country. A summary of the key changes are as under:
i. Of Offences Against Property
(a) Increase in Punishment
| Offence | Punishment under the Indian Penal Code, 1860 (‘IPC’) | Punishment under Bharatiya Nyaya Sanhita, 2023 (‘BNS’) |
| Dishonest Misappropriation | Imprisonment upto two years or fine | Imprisonment upto two years but with minimum imprisonment of six months and fine[1] |
| Criminal Breach of Trust | Imprisonment upto three years | Imprisonment upto five years[2] |
| Cheating | Imprisonment upto one year | Imprisonment upto three years[3] |
| Cheating with knowledge that wrongful loss may ensue to person whose interest offender is bound to protect | Imprisonment upto three years | Imprisonment upto five years[4] |
ii. Of Offences Affecting Human Body
(a) Organised Crime
Section 111 of the BNS introduces the offence of ‘organised crime’, borrowing it largely from specialised State legislations aimed at curbing organised criminal activity, such as the Maharashtra Control of Organised Crime Act, 1999 (‘MCOCA’), the Gujarat Control of Organised Crime Act, 2015 (‘GCOC’) etc.
The definition of organised crime under the provision is quite vague and uses catch-all phrases, which leaves room for unfettered discretion with the investigating agencies to prosecute persons based on these vague and undefined terms. For example, the definition uses terms such as land grabbing, contract killing, cybercrimes etc., which are not defined anywhere in the BNS. It also uses the term ‘economic offence’. Economic offence is couched in vague terms using overbroad phrases such as ‘hawala transaction’ and ‘mass-marketing fraud’ which have not been otherwise defined anywhere in the BNS, potentially adding to further confusion.
(b) Causing Death by Negligence
The offence of causing death by negligence has undergone a significant change under the BNS. The punishment for causing death by rash and negligent act has been increased to imprisonment upto five years and with fine[5]. Earlier, such an offence was punishable with two years or with fine or both under the IPC.[6]
(c) New Specific Offences Arising Out of Negligence
Section 106(1) of the BNS provides that whoever causes death by rash or negligent driving of a vehicle, and thereafter escapes from the scene of incident without reporting to the police or a magistrate, will be punished with a maximum of 10 years’ imprisonment, and will also be liable to fine. This provision has now seemingly been introduced specifically to punish hit-and-run cases.
Section 106(2) introduces causing death by rash and negligent act of a medical practitioner while performing a medical procedure, as an offence. The offence is punishable with imprisonment which may extend to two years and with fine.
(d) Mob Lynching
The BNS now specifically provides for punishment of murder in cases of mob-lynching. The provision states that where a group of five or more acting in concert commit murder on grounds of race, caste or community, sex, place of birth, language, personal belief, or any other similar ground then each member of such group will be punished with death or with imprisonment for life, and will also be liable to fine[7].
(e) Deletion of Offences
The BNS in line with the judgment of the Supreme Court in Navtej Singh Johar v. Union of India[8], has deleted the offence under Section 377 of the IPC.
The offence of attempt to commit suicide[9], and offence punishing adultery[10] has also been omitted in the BNS.
iii. Overlap with Unlawful Activities (Prevention) Act, 1967
(a) Offences Relating to Terrorism
A ‘terrorist act’ is a new offence introduced under the BNS[11]. The definition of a terrorist act under the BNS exactly mirrors the definition of terrorist act under the Unlawful Activities (Prevention) Act, 1967 (‘UAPA’), which already defines and provides for the offence of terrorist act.
Similarly, other offences under the BNS such as Section 113(5) (punishment for being a member of the terrorist organisation) mirrors Section 20 of the UAPA. Section 113(6) of the BNS mirrors Section 19 of the UAPA, both providing for punishment for harbouring of person who has committed a terrorist act.
The introduction of the overlapping offence under the BNS seems to be ostensibly to avoid the safeguards provided under the UAPA like UAPA provides for challenge to notification of declaration of an organisation as a terrorist organization, under Sections 36 and 37 of the Act. The same safeguard has not been provided under the BNS.
(b) Offence of Sedition
The most welcome change in the BNS is the deletion of offence of sedition under Section 124A of IPC. Though offence of sedition under Section 124A of the IPC has been deleted, it seems to have been replaced by Section 152 of the BNS which deals with acts endangering sovereignty, unity, and integrity of India.
Section 152 punishes secession and separatist activities, armed rebellion, subversive activities, or any act which endangers sovereignty or unity and integrity of India. The minimum punishment under Section 152 is enhanced to seven years as opposed to three years under Section 124A. Further, the offence is no longer punishable with only fine as was the offence of sedition but with both fine and imprisonment.
Section 20 of the Telecommunications Act, 2023 which permits interception of telecommunication equipment, could be misused for extensive and continued fishing and roving inquiry into alleged secession and separatist activities even without there being any concrete evidence of it.
In view of the above, regulations are required for regulating power under the Telecommunications Act, 2003 for interception. Unless the legislature lays out detailed procedure to regulate/ monitor the interception of private information and data exchanged between two or more persons, the provision as it exists, is insufficient to take care of the fundamental rights.
iv. Of Punishments
The BNS introduces community service as a form of punishment[12]. Community Service (‘Community Service’) has been defined[13] in the Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’) (new criminal procedure code) as work which the Court may order a convict to perform as a form of punishment that benefits the community and for which he is not entitled to any renumeration.
Punishment in the form of Community Service is presently applicable to limited offences such as misconduct by a drunken person in public[14], public servant unlawfully engaging in trade[15], non-appearance in response to a proclamation[16], defamation and two other offences.
v. Applicability of BNS
Section 358 of the BNS repeals the IPC, however, it protects the previous operation of the IPC, or anything done or suffered under the IPC[17].
At the same time, the BNS provides that any action taken under the IPC will be deemed to have been done under the corresponding provision of the BNS. This provision unfortunately raises issues of retrospective application of the new penal code in violation of Article 20 of the Constitution, which provides that no person will be convicted of any offence except for violation of law in force at the time of commission of act.
A detailed analysis of the BNS can be accessed here.
[1] Section 314 of the BNS.
[2] Section 316(2) of the BNS.
[3] Section 318(2) of the BNS.
[4] Section 318(3) of the BNS.
[5] Section 106 of the BNS.
[6] Section 304A of the IPC.
[7] Section 103 of the BNS.
[8] (2018) 10 SCC 1.
[9] Section 309 of the IPC.
[10] Section 497 of the IPC.
[11] Section 113 of the BNS.
[12] Section 4(f) of the BNS.
[13] Section 23 of the BNSS.
[14] Section 355 of the BNS.
[15] Section 202 of the BNS.
[16] Section 209 of the BNS.
[17] Section 358 of the BNS.