Source: The Indian Express 

Introduction 

In recent years, India has undergone significant technological and economic changes, prompting the need for legislative advancements to benefit and protect its citizens. The government has introduced new criminal laws to replace colonial-era criminal codes, aiming to modernize the legal system. However, these new laws have faced criticism for not adequately addressing the challenges of the digital age and for introducing potentially problematic provisions.  

What is Bhartiya Nayaya Sanhita in India? 

The Parliamentary Committee has reviewed the Bharatiya Nyaya Sanhita (BNS) 2023, proposing significant changes to India's Criminal Justice System, with recommendations including a gender-neutral provision criminalizing adultery. 

• The BNS, introduced by the Ministry of Home Affairs, seeks to replace the colonial-era IPC (Indian Penal Code). 
• BNS is subdivided into 20 Chapters consisting of 358 Section and 23 chapters. 
• The legislation enhances punishments for certain offenses, particularly those against women and children. 
• It introduces provisions for community service as a form of punishment for minor offenses. 

Why are the Key Changes made by the BNS?  

• Section 69 of Bhartiya Nyaya Sanhita,2023 BNS provides for provision against false promise of marriage.  
• There are also provisions regarding gang rape of minors and mob lynching.  
• Death or life imprisonment in case of offence of rape against the minor.  
• ‘Sedition’ has been replaced with ‘secession’ or ‘act against the country’s sovereignty, unity and integrity.’  
• The new law may soon include a section on sexual crimes against men and transgender persons.  
  • The police officers are being asked to invoke the provisions under BNS that relate to wrongful confinement and physical hurt till this anomaly is cured.    

What are the Drawbacks of New Criminal Laws? 

• Ambiguity in definitions:  
  • Several new offenses and legal terms lack clear definitions, potentially leading to subjective interpretation and inconsistent application of the law. 
• Overbroad terrorism provisions:  
  • The inclusion of terrorism offenses in general criminal law, with vague terms like "economic security," may lead to misuse and overreach. 
• Poorly defined community service:  
  • The Act fails to specify what constitutes community service, potentially leading to controversial or problematic sentencing decisions. 
• Vague organized crime provisions:  
  • The definition of organized crime is overly broad and includes undefined terms, leaving room for potential abuse. 
• Problematic "petty organized crime" concept:  
  • Basing punishment on "general feelings of insecurity" rather than the act itself may lead to discriminatory application of the law. 
• Parallel provisions: 
  • The coexistence of terrorism offenses in both the Bharatiya Nyaya Sanhita and UAPA without clear differentiation may lead to confusion and arbitrary application. 
• Discretionary power to law enforcement: 
  • Provisions like allowing police officers to decide between applying BNS or UAPA may lead to inconsistent enforcement.

What are the changes still Needed in Criminal Law in India ? 

• Comprehensive cybercrime provisions:  
  • Introduce new sections addressing modern cyber offenses such as cyberbullying, online stalking, phishing, email hacking, and social media crimes, as recognized by the National Cyber Crime Reporting Portal of the Government of India. 
• Data protection offenses:  
  • Amend the definition of "property" under the Bharatiya Nyaya Sanhita (BNS) to explicitly include "data," making data theft a punishable offense. 
• Virtual world crimes:  
  • Introduce new sections to account for offenses committed in virtual environments, including metaverses and through avatars. 
• AI-related offenses:  
  • Draft provisions to address crimes involving artificial intelligence, such as deepfakes and AI-generated content misuse, which are currently not covered under the BNS. 
• Technology-neutral language:  
  • Revise the language throughout the BNS to include terms like "cyber," "virtual," "digital," "electronic," and "data" to ensure applicability to both physical and digital crimes. 
• Clear definitions:  
  • Provide precise definitions for terms such as "economic security" and "economic offenses" in Section 111 of the BNS to prevent misuse and ensure consistent application. 
• Safeguards against misuse:  
  • Introduce checks and balances in sections related to terrorism and organized crime, particularly regarding the discretionary power given to Superintendents of Police invoking terrorism charges under the BNS. 
• Gender neutrality:  
  • Revise Section 63 (rape) of the BNS to make it gender-neutral, considering the non-reenactment of Section 377 of the Indian Penal Code. 
• Addressing emerging financial crimes:  
  • Introduce new sections to address sophisticated technological frauds, such as cross-border cyber heists and cryptocurrency-related offenses. 
• Balancing political dissent:  
  • Amend Section 172(2) of the BNS (attempting to commit suicide to compel or restrain from applying lawful power) to ensure protection of legitimate forms of political agitation and protest. 
• Regular updates: 
  • Introduce a provision mandating periodic review and updates of the BNS to keep pace with rapidly evolving technology and societal changes. 
• Addressing bestiality:  
  • Reintroduce provisions criminalizing bestiality, which were present in the Indian Penal Code but omitted in the BNS. 
• Cybercrime hub provisions:  
  • Introduce sections to address the phenomenon of cybercrime hubs, to enable effective law enforcement in such areas. 

Conclusion  

As we move forward with India's new criminal laws, it's clear that while change is necessary, it must be carefully considered and implemented. The Bharatiya Nyaya Sanhita and related laws have taken steps towards modernization, but they fall short in addressing the complexities of our digital age. To truly serve justice in the 21st century, these laws need further refinement to include comprehensive cybercrime provisions, clearer definitions, and stronger safeguards against misuse. Ultimately, our legal system must evolve continuously to keep pace with technological advancements and societal changes, ensuring it remains relevant, fair, and effective in protecting all citizens.