List of Editorials

Source: The Hindu

Introduction

The new proposed legislation Bhartiya Nyaya Sanhita, 2023 (BNS) which aims to replace the existing Indian Penal Code, 1860 (IPC) needs to be looked at for clear definition of offences.

A clear understanding of the specific violation of law is of utmost importance so as to prevent any arbitrary or biased enforcement. Vague terminologies may give rise to challenges that will further need a reevaluation by the courts as done earlier in the case of Shreya Singhal v. Union of India (2015) in which the Supreme Court held Section 66A of the Information Technology Act, 2000 as unconstitutional.

Proposed Key Changes

The BNS aims to make alterations in the present IPC in many ways but some of the significant changes are made in offences:

• Sedition:
  • The IPC currently defines sedition under Section 124A as an act that involves promoting hatred, contempt, or disaffection towards the government, with penalties ranging from three-year imprisonment to life imprisonment, along with fine.
  • The proposed BNS Bill seeks to eliminate this specific offence and introduces the following punishable acts under Section 150:
    • Inciting or attempting to incite secession, armed rebellion, or subversive activities.
    • Promoting sentiments of separatist activities.
    • Jeopardizing the sovereignty and unity of India.
• Terrorist Act: The Terrorist Act was not a part of the IPC rather it was incorporated under the Unlawful Activities (Prevention) Act, 1967. The Bill provides terrorism as an act intended to jeopardize the nation's unity, integrity, and security, as well as to instill fear among the public or disrupt public order. It includes:
  • Using firearms, bombs, or hazardous substances (biological or chemical) to cause death, danger to life, or spread a message of fear.
  • Destroying property or disrupting essential services.
  • Activities listed in the Second Schedule of the Unlawful Activities (Prevention) Act, 1967, such as unlawful seizure of aircraft or taking of hostages.
• Organized Crimes: Introduced by the proposed BNS bill, it provides for:
  • An ongoing illegal activity, including but not limited to kidnapping, extortion, contract killings, land seizures, financial fraud, and cybercrimes.
  • Conducted through the use of violence, intimidation, or other unlawful methods.
  • With the aim of gaining material or financial advantages.
  • Carried out by individuals, whether acting independently or collectively, as members of or on behalf of a criminal syndicate.
• Petty Organized Crimes: The offence has been introduced by the BNS bill. Petty organized crimes are defined as those activities perpetrated by organized criminal groups or gangs, such as coordinated pickpocketing, snatch-and-grab theft, and similar offences, which generate a sense of insecurity among the public.
• Murder by a Group of Persons on Grounds of Caste or Race: The Bill introduces distinct penalties for murder cases where five or more individuals are involved, motivated by factors such as race, caste, gender, place of birth, language, or personal beliefs.
• Sexual Intercourse by Deceitful Means: The Bill introduces the offence and imposes penalties for engaging in sexual intercourse with a woman, under deceitful circumstances or by making a false promise of marriage with no intention to fulfill that promise, provided that it does not constitute rape.

Positive Changes Incorporated in BNS

• Community Service: Introduction of Community Service as a form of punishment is a welcome step in the Criminal System.
  • Community service involves individuals or groups carrying out unpaid tasks or activities aimed at improving and benefiting the community, and they do so without receiving any form of compensation.
  • The proposed law aims to provide community service in addition to the sentence as a form of punishment for offences like defamation, public servants unlawfully engaging in trade, non-appearance in response to a proclamation, attempt to commit suicide, etc.
  • Community service is a frequently awarded penalty within the Western legal system, especially in the United States.
• Creation of a distinct offence with a reduced penalty for "sexual intercourse through deceptive means" is considered as a welcome step.

Points for Reconsideration in BNS Bill

The BNS needs a relook at certain provisions and few of which are enlisted below:

• The definition of a 'terrorist act' in the Sanhita has largely been borrowed from the Unlawful Activities (Prevention) Act (UAPA) 1967. The phrase 'to strike terror in the people' has been substituted with 'to intimidate the general public,' which though less intense does not alter the core essence of the section.
  • The phrase 'such as to destroy the political, economic, or social structure of the country' remains vague and needs re-evaluation.
• A different offence has been introduced, in place of sedition namely acts that endanger the sovereignty, unity, and integrity of India.
  • The explanation appended to the section needs modification as it appears incomplete.

• A new offence of organized crimes has been added to BNS which has been largely borrowed from Maharashtra Control of Organized Crime Act, 1999. Inclusion of ‘cyber­crimes having severe consequences under this head seems vague, also what will constitute an organized crime or gang is not specified.
• Snatching, which has been made a separate offence though punished equivalently to theft, has been made a non-cognizable offence.
  • A non–cognizable offence is an offense for which the police have no authority to arrest without a warrant.
• Gravity of the offence of murder based on factors such as caste, community, race etc. has been diluted as the minimum punishment attached to it is a minimum of 7 years whereas under the IPC the offence of murder attracts a minimum punishment of Life Imprisonment.
  • At the same time punishment attached to Fatal accident where the accused runs away or does not report the crime is 10 years.

Conclusion

Given the extensive implications of BNS on the criminal justice system, it requires thorough deliberation. The Parliamentary Standing Committee should take the necessary steps to ensure that inconsistencies are addressed, and vague terminologies are clarified or removed. Also, it demands affixing suitable explanations to provisions wherever necessary for their better understanding and alienation of drafting errors.