Major Changes Introduced by Bharatiya Nyaya Sanhita

Recently, the Bharatiya Nyaya (Second) Sanhita (BNS) has received Presidential assent, and it will replace the 163-year-old Indian Penal Code. However, the Central government is yet to notify the date of enforcement.

In Rajya Sabha, the three bills ( Bharatiya Nyaya (Second) Sanhita, the Bharatiya Nagarik Suraksha (Second) Sanhita, to replace the Code of Criminal Procedure, and the Bharatiya Sakshya (Second) Sanhita, which seeks to replace the Indian Evidence Act.) were passed through a voice vote after being moved by Union Home Minister Amit Shah.

On December 12, the Centre reintroduced the three revised criminal bills, including the BNS, in the Indian parliament's lower house, withdrawing the previous versions introduced in August.

In addition to reordering the sequence of section numbers for offences assigned in the IPC, the following significant amendments have been introduced in the penal law by BNS.

Community Service As Form Of Punishment

Community service has been introduced as a form of punishment under Section 4, although it has not been defined what community service entails. For offences such as attempting suicide to compel or restrain the exercise of lawful power, defamation, misconduct in public by a drunken person, and failure to appear at the specified place and time as required by a proclamation published under sub-section (1) of section 84 of the BNS, 2023, community service can be awarded in addition to the prescribed punishment.

Offences Against Woman And Child

The new BNS adds Chapter V naming “Of Offences Against Woman and Child Of Sexual Offences”. All the offences relating to woman and child have been placed under one chapter in the beginning of the Code, which was earlier spread under various chapters and parts.

Marital Rape With Minor Wife Is Offence

As per exception of Rape which is Section 63 of BNS, sexual intercourse or sexual acts by a man with his own wife, where the wife is not under eighteen years of age, would not be rape. However, under IPC, the age of wife to not to constitute rape was “fifteen years”.

In 2017, the Supreme Court in the judgment Independent Thought v. Union of India, (2017) 10 SCC 800 had read 'fifteen years' in Exception 2 to Section 375 IPC as '18 years' so as to bring sex with a minor wife within the ambit of the rape offence.

Sexual Intercourse By Employing Deceitful Means, etc.

BNS introduces sexual intercourse by employing deceitful means, etc as offence. Section 69 states that whoever, by deceitful means or by making promise to marry to a woman without any intention of fulfilling the same, has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.

Enhanced Punishment In Case Of Gangrape Of Victim Of Under 18 Years Of Age

As per Section 70, where a woman under eighteen years of age is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and with fine, or with death.

It is pertinent to note that, under Section 376DA IPC, the enhanced punishment was prescribed for the victim under sixteen years of age.

Printing or Publishing Trial Court Proceeding Relating To Sexual Offences Without Permission Of Court Is An Offence

Section 73 adds that printing or publishing any matter in relation to any proceeding before a Court with respect to offence realting to rape, sexual intercourse by husband upon his wife during separation, sexual intercourse by person in authority, Sexual intercourse by employing deceitful means, etc, gang rape, without the previous permission of such Court shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.

It is also clarified in explanation that the printing or publication of the judgment of any High Court or the Supreme Court does not amount to an offence within the meaning of this section.

Section 377 Deleted, but Unnatural Intercourse Against Men or Bestiality No Longer Offences Under BNS

It is pertinent to note that in landmark ruling of Apex Court in Navtej Singh Johar, where a bench of five judges of the Supreme Court partially struck down Section 377 IPC, which criminalised consensual carnal intercourse, however forced intercourse with an adult male is an offence, and also bestiality.

The BNS has completely deleted the offence, implying that forcible carnal intercourse against a man and bestiality are no longer offences under BNS.

Offence Of Adultery Omitted

In view of Apex Court's judgement in Joseph Shine's case the offence of Adultery has been deleted, however, second BNS retains Section 498 of the IPC (Section 84) which penalises a man for enticing the wife of another man so that she may have intercourse with any person.

Organised Crime

The new law has added organised crime under Section 111, and if the crime results in the death of any person, maximum prescribed punishment is death penalty.

The organised crime is defined as “Any continuing unlawful activity including kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offence, cyber-crimes, trafficking of persons, drugs, weapons or illicit goods or services, human trafficking for prostitution or ransom, by any person or a group of persons acting in concert, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence, threat of violence, intimidation, coercion, or by any other unlawful means to obtain direct or indirect material benefit including a financial benefit, shall constitute organised crime.” It also defines organised crime syndicate, continuing unlawful activity, economic offence.

Punishment Prescribed For Committing Organised Crime.

If such offence has resulted in the death of any person, be punished with death or imprisonment for life, and shall also be liable to fine which shall not be less than ten lakh rupees.

In any other case, be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine which shall not be less than five lakh rupees.

Punishment For Being A Member of an Organised Crime Syndicate

Any person who is a member of an organised crime syndicate will be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and can also be liable to fine which will not be less than five lakh rupees

Petty Organised Crime

BNS has also added Petty Organised Crime under Section 112, which states that whoever, being a member of a group or gang, either singly or jointly, commits any act of theft, snatching, cheating, unauthorised selling of tickets, unauthorised betting or gambling, selling of public examination question papers or any other similar criminal act, is said to commit petty organised crime.

Punishment prescribed for committing any petty organised crime is imprisonment for a term which shall not be less than one year but which may extend to seven years, and shall also be liable to fine.

Terrorist Act

A major development brought about by the criminal law amendment is the addition of the "Terrorist Act," which did not find a place in the IPC.

The wider definition of the offence of "terrorist act" is given, compared to the initial version of the bill introduced in August.

Acts done with the intent of threatening or likely to threaten the "economic security of India", which cause or likely to cause "damage to the monetary stability of India by way of production or smuggling or circulation of counterfeit Indian paper currency, coin or of any other material" are also brought under the ambit of "terrorist act".

Besides, acts threatening or likely to threaten the unity, integrity, sovereignty, security of the country or striking terror in the minds of people are also covered under the offence. These acts include death or damages to properties caused by use of bombs, explosives, firearms, or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substance (whether biological, radioactive, nuclear or otherwise) of a hazardous nature.

The offence is punishable with death, or imprisonment for life. Those who conspire or attempt to abet or incite such action, or knowingly facilitate the commission of a terrorist act, could face imprisonment of not less than five years, extendable to life sentence.

Act Endangering Sovereignty, Unity And Integrity Of India

BNS penalises acts endangering the unity and integrity of India, while sedition criminalised acts against the government, the BNS replaces the "government" with the "country".

Aspects of Sedition have been retained under Section 152 under the new BNS, which states that whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial mean, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years, and shall also be liable to fine.

Comments Expressing disapprobation of the measures, or administrative or other action of the Government, with a view to obtain their alteration by lawful means will not be an offence under this provision.

Mob Lynching

'Mob lynching' has been made a separate offence under the BNS, with a maximum punishment of death penalty.

“When a group of five or more persons acting in concert commits murder on the ground of race, caste or community, sex, place of birth, language, personal belief or any other similar ground each member of such group shall be punished with death or with imprisonment for life, and shall also be liable to fine,” states Section 103.

Lesser Punishments To Doctors For Causing Death By Negligence Vis-A-Vis Other Offenders

The new BNS under Section 106, has carved out a special classification for doctors in relation to the punishment for causing death by medical negligence. While the Sanhita enhances the punishment for causing death by negligence to imprisonment up to 5 years, if such death is caused by a doctor, then the punishment is imprisonment up to 2 years.

Under Section 304A of the IPC, causing death by negligence is punishable with imprisonment up to 2 years, or a fine, or with both. There is no separate classification for doctors in Section 304A IPC.

Stringent Punishment For Hit and Run Cases

It also prescribes stringent punishment for 'hit and run' cases. If a driver causes the death of a person by rash and negligent driving and “escapes without reporting it to a police officer or a Magistrate soon after the incident, shall be punished with imprisonment of either description of a term which may extend to ten years, and shall also be liable to fine.”

Introduced Snatching As A Distinct Offence

Section 304 of BNS states that theft is snatching if, in order to commit theft, the offender suddenly or quickly or forcibly seizes or secures or grabs or takes away from any person or from his possession any movable property.

Snatching is punishable with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.

Attempt To Suicide Is No Longer An Offence

Section 309 of the IPC enforced punishment for an attempt to commit suicide, this stringent provision did not find a place under BNS and has been completely deleted. However, Section 226 of BNS criminalises the attempt to commit suicide to compel or restrain the exercise of lawful power, punishable with simple imprisonment for a term that may extend to one year, or with a fine, or with both, or with community service.

Significant Increase in Fine: Negligent Omission of Measures with Animals Now Up to Five Thousand Rupees

The fine for negligently omitting to take measure with an animal in possession has been enhanced, from one thousand under IPC to five thousand rupees ( Section 291).

Transgender Included In Definition Of Gender

Section 10 of BNS defines “gender” which states that the pronoun “he” and its derivatives are used of any person, whether male, female or transgender.It explains that “transgender” shall have the meaning assigned to it in clause (k) of section 2 of the Transgender Persons (Protection of Rights) Act, 2019.