BY WASILA, 1ST YR. BA.LLB. (HONS.) ,SHARDA UNIVERSITY, SCHOOL OF LAW
Abstract
The Bhartiya Nyaya Sanhita (BNS) of 2023 ushers in a new era in the Indian legal world and replaces the archaic Indian Penal Code of 1860. It is guided by the 5th Law Commission headed by K.V.K. Sundaram, this sweeping reform aims to modernize penal laws and prioritize crimes against women, children and the state. Key provisions include tougher penalties for misappropriation of assets, organized crime and recklessness, and decriminalization of urgent matters such as clashes, mob lynching and certain offenses such as Section 377 and attempted suicide. The BNS also deals with issues of jurisdiction and retroactivity, ensuring a balance between legal continuity and progressive reform. This article provides an in-depth analysis of the main changes brought about by the BNS and highlights their impact on India’s legislative framework, social values and protection of human rights.
Introduction
On December 25, 2023, the Bhartiya Nyaya Sanhita, 2023 (“BNS”) came into force, replacing the outdated Indian Penal Code of 1860 (“IPC”) as the country’s new penal code. The 5th legal committee headed by K.V.K. Sundaram carried out a major revision of both the IPC and the Criminal Procedure Code of 1898, implementing an extremely comprehensive reform and reproducing the Criminal Procedure Code of 1973. However, the STK continued to remain a remnant of the STK. Britain’s pre-independence period, when outdated regulations are incompatible with evolving debates about ultramodern rights and improvements. After almost 150 iterations, the IPC was reproduced, clearly ending the repeal of welfare laws and “harmonizing the provisions on offenses and punishments”. BNS prioritizes crimes against women, children and the state. It introduces a new approach by adding community service as a remedy for minor crimes. In addition, the BNS is pushing for changes in the seizure and correction of crimes. This compendium provides a comprehensive overview and analysis of the important changes implemented by the National Prison Act (Bhartiya Nyaya Sanhita, 2023).
Offenses against property
Misappropriation of property (Section 314) One of the important provisions of the Bhartiya Nyaya Sanhita (“BNS”) Act, 2023 deals with the offense of misappropriation of property under Section 314. Several important changes. was introduced in this context.
Minimum sentence:
BNS sets a minimum sentence of six months for those convicted of dishonest embezzlement. It emphasizes stricter discipline than the previous court.
Imprisonment with fine:
Unlike the provisions of the Indian Penal Code, 1860 (“IPC”), where discipline may include imprisonment or fine or both, the BNS now imposes imprisonment with fine. This change shows that precisely because of this crime, the improving side of imprisonment became more visible. The aforementioned changes reflect a conscious effort by the BNS to recalibrate the legal basis of property crimes, with an emphasis on harsher penalties, in particular setting a minimum six-month prison sentence for bona fide misappropriation of property.
Offenses affecting the dead body
Organized Crime (Section 111)
• An important addition to the Bhartiya Nyaya Sanhita (“BNS”) 2023 is Section 111 which introduces the offense of “organized crime”. This provision has been influenced by specific state legislation such as the Maharashtra Control of Organized Crime Act, 1999 (MCOCA) and the Gujarat Control of Organized Crime Act, 2015 (GCOC). However, certain aspects of Section 111 are troubling.
• Vague description Section 111’s description of organized crime has been described as vague and vague with general language that gives investigative agencies considerable discretion. The terms “land grab”, “contract fee” and “cybercrime” are used without specific demarcation, which can lead to private interpretations.
• Undefined Terms The provision includes the term “profit crime” which lacks a precise description and uses supernatural terms similar to the terms “hawala sale” and “marketing fraud”. The lack of clear outlines in the BNS or other regulations can create confusion and arbitrariness in the operation of these regulations
• The vague wording of “Hawala contracts” and the inclusion of terms similar to “solicited fraud” will excite companies as applicants is previously subject to special legislation under the Foreign Exchange Act 1999, whereas if “mass marketing fraud” is covered by the Prohibition and Redress Act of 1978. Section 111 can lead to legal duplication and uncertainty. Petty Organized Crime (Section 112)
• Section 112 of the Bhartiya Nyaya Sanhita (“BNS”) of 2023 also introduces the term “extreme organized crime”. however, certain aspects of this provision raise serious concerns.
• Vague definitions corresponding to Chapter 111 Organized crime enterprises Chapter 112 Organized crime uses very vague and private terms. Crimes such as “larceny”, “theft”, “card forgery” and “bill tampering” are not precise outlines based on private interpretation.
• Broad wording The statute goes further that “all other similar crimes” are punishable by adding vagueness to the crime. equally broad wording leaves the compass of the offense unclear and gives considerable discretion to investigative agencies.
• Optional implementation The vagueness of the BNS description of petty crimes gives investigative agencies a lot of room for individualization. Inaccuracies in the terms used can lead to inconsistent behaviour and indirect abuse.
• Jurisdictional issues. The criminalization of organized crime under civil law can create jurisdictional problems between different law enforcement agencies, if the corresponding crimes are in a separate state budget. Although section 254 of the constitution deals with conflicts by saying that the rules of the BNS are conflicts, the implied jurisdictional issues must be carefully considered. Causing death by negligence (Section 106)
• Bhartiya Nyaya Sanhita 2023 substantially amended the offense of causing death by negligence as described in Section 106. The amendments represent a significant change from the Indian Penal Code 1860 (“IPC”). regulations
• Strengthening of BNS to control the discipline of carelessness and recklessness leading to death. offenders now face more than five times the prison term and forfeiture. This is a significant increase from the earlier provisions of the IPC which imposed double punishment or fine or both for these offences.
New Special Offenses of Negligence (Section 106)
Bhartiya Nyaya Sanhita, 2023 (“BNS”) Section 106 introduces special offenses of negligence and focuses on the conduct of doctors performing medical procedures. This provision is crucial to understand the legal penalties associated with the following situations:
• Death of a doctor due to careless and negligent conduct: Section 106 defines the offense of causing death through negligence in the professional practice of a doctor. . . and reckless behaviour. procedure The maximum penalty for this crime is two years in prison with a fine.
• Legal Context: This offense must be interpreted according to the decision of the Supreme Court: Jacob Mathew v. State of Punjab (2005) 6 SCC 1. The judgment laid down guidelines to prevent abuse of such offenses against doctors. These guidelines are likely to emphasize the importance of striking a balance between liability for negligence and protecting medical professionals from unwarranted legal action. The inclusion of special provisions for physicians in Section 106 recognizes the uniqueness of health care scenarios where negligence can have serious consequences. The addition of prescribed penalties and legal advice is intended to ensure a fair and balanced approach to dealing with medical malpractice.
The Supreme Court’s position on civil and criminal negligence is central to understanding the legal framework of Bhartiya Nyaya Sanhita, 2023 (“BNS”). The court emphasized that civil conduct does not necessarily amount to criminal negligence. It emphasized that to establish the crime of negligence, the existence of malice or recklessness must be shown.
Hit and Run Incidents
The BNS addresses the urgent problem of hit and run incidents and makes special provision to punish those guilty of causing death by vehicle collision or negligence and then fleeing the scene without notification. to the authorities. The main points of this order are as follows:
Penalties: Violators of this order may be punished with imprisonment of up to ten years and a fine. The severity of the penalties reflects the legislative intent to curb the increase in reckless driving, crashes and road rage.
National concern. Given the alarming statistics of fatal reckless driving, this provision appears to be tailored to prevent accidents. Emphasizing reporting to the police or a judge emphasizes the importance of immediate accountability.
Violent lynching
Responding to the increasing number of lynchings and hate crimes in the country, the BNS introduces a special provision for aggravated murder in mob lynching:
Penalties: The provision provides that if a group of five or more acts together. to commit murder, race, caste, community, sex, place of birth, language, personal belief or the like, every member of a community group should be sentenced to death or life imprisonment. In addition, they must pay fines.
The inclusion of this provision reflects a proactive approach to combating mob lynching and hate crimes by expressing a legislative commitment to severely punish those who commit such heinous acts. The penalties emphasize the seriousness of the crime and aim to prevent partisan violence.
Abolition of Crimes
Bhartiya Nyaya Sanhita, 2023 (“BNS”) reflects major legal reforms by abolishing some crimes in line with progressive judicial decisions and social changes:
1. Decriminalization of Section 377 (Navtej Singh). Johar vs. Union of India, 2018)
Background: After the landmark judgment of the Supreme Court in Navtej Singh Johar Vs. Union of India (2018) 10 SCC 1, the BNS decides to strike out the offense under Section 377 of the Indian Penal Code (“IPC”).
Justification: Repeal of section 377 is consistent with the principles of human dignity and individual rights and recognizes the importance of inclusion and decriminalization of consensual adult relationships.
2. Removal of attempted suicide (STC § 309) Progressive negligence: BNS takes a progressive position by removing the crime of suicide previously dealt with in § 309 of the STS instead of the crime of mental health crisis.
Mental health perspective: abolition recognizes the evolving understanding of mental health issues and reflects a compassionate approach that emphasizes help and support for those in need rather than punishment.
3. Abolition of adultery (Joseph Shine v. Union of India, 2019) Legal precedent: After the Supreme Court’s decision in Joseph Shine v. Union of India, 2019 Union of India (2019) 3 SCC 39, which held that adultery is archaic, arbitrary and paternalistic, the BNS excluded adultery as a punishable offence. Progressive position: Despite the recommendations of the report of the parliamentary standing committee to restore adultery as a crime applicable to men and women, BNS supports the decision of the court and recognizes the need for modern legal perspectives in the field of personal relationships.
These removals demonstrate the commitment of BNS to protect human rights, reduce the criminalization of personal choices and adapt the legal framework to evolving social values. The shift toward recognizing mental health challenges and dismantling archaic laws underscores the incremental nature of these legal reforms.
Applicability of BNS
Bhartiya Nyaya Sanhita, 2023 (“BNS”) brings significant changes to the legislative environment and its applicability brings out several notable points:
1. Repeal and Saving Case: The BNS repeals the Indian Penal Code, 1860 . (“STK”), but includes a temporary clause that protects STK’s past results and actions taken based on them. Section 6 of the General Clauses Act 1897 applies, ensuring continuity and continuity of proceedings.
2. Concerns about retroactive application: Although the BNS reserves the penalties, fines and continuation of proceedings under the IPC, it considers that the measures taken under the IPC were taken in accordance with the relevant provisions of the IPC. That provision raises concerns about retroactive application, which may conflict with Article 20 of the Constitution, which prohibits convictions for actions that were not considered crimes at the time they were committed.
Conclusion
• Positive changes and lack of coherence:
BNS introduces positive changes such as decriminalization of rebellion, recognition of transgender people in the definition of gender and introduction of strict crimes against women and children. However, there does not seem to be a unified political vision behind the changes, which leads to inconsistencies in the laws.
• Inconsistencies in crimes against women and children:
Despite the harsh new regulations, the BNS treats marital rape as an exception to rape and does not make rape gender-neutral, which raises questions about consistency of goals.
• Inconsistency in sentencing:
There is ambiguity in the sentencing process because there is no clear reason behind the increase in punishment and increase in crimes. Continuity of punishment is important and further emphasizes restorative punishment, probation, community service and rehabilitation activities.
• Solitary confinement and human rights:
The continuation of solitary confinement as a form of punishment is considered obsolete due to changing standards on human rights and constitutional guarantees, especially under Article 21.
• Overlapping offenses and imprecise terms:
Overlapping offenses with certain statutes and the existence of vague and undefined terms can create confusion and increase litigation, which can burden the courts and increase litigation. In short, it can be said that although the BNS brings about positive changes, there is an urgent need for a unified policy, especially regarding crimes against women and children, principles of punishment and removal of outdated forms of punishment. Addressing these issues will contribute to a more efficient and fairer legal framework.
Frequently Asked Questions
Q1. What is the law of Bhartiya Nyaya Sanhita?
Answer: The main penal law, the Indian Penal Code 1860 (IPC), will be replaced by the Bhartiya Nyaya Sanhita, 2023. One of the punishments for minor offenses is the first requirement of community service. Preference is given to murders, crimes against women and children, and crimes against the state.
Q2. Is Bhartiya Nyaya Sanhita and IPC same?
Answer: No, Bhartiya Nyaya Sanhita is not the same as IPC. Bhartiya Nyaya Sanhita is a new bill to replace the Indian Penal Code (IPC).
Q3. When will Bhartiya Nyaya Sanhita come into effect?
Answer: The Bhartiya Nyaya Sanhita, which replaces the Indian Penal Code, will come into effect on July 1, 2024.
Q4. How many volumes are there in Bhartiya Nyaya Sanhita?
Answer: Bhartiya Nyaya Sanhita consists of 20 chapters and 358 episodes. There is a proposed law to replace the Indian Penal Code (IPC).
Q5. What are the main changes in Bhartiya Nyaya Sanhita?
Answer: Bhartiya Nyaya Sanhita introduces new offences, redefines sedition, strengthens certain provisions and prioritizes crimes against women, children and murder.
References
Bhartiya Nyaya Sanhita, 2023 Bare Act
Indian Penal Code, 1860 Bare Act
