Decolonisation of IPC | The Paradigm shift in India’s criminal justice system with idea of ‘Nyaya’ under BNS

Introduction

The three major criminal laws form the structure of Indian criminal justice system and impacts the life of all the Indians. Recently, the Indian criminal justice system underwent a revamp with the implementation of the three new criminal laws, namely the Nyaya Sanhita, 2023; Nagarik Suraksha Sanhita, 2023 and Sakshya Adhiniyam, 2023. These laws intend to replace the colonial era laws- the Penal Code 1860, the Code of Criminal Procedure 1973, and the Evidence Act, 1872. Law has a dynamic nature and in the past 100 years, the nature and the method of crimes and criminals have seen a dramatic and drastic change which became the major push for the Parliamentarians to replace the colonial era criminal laws.

The Bill for the Nyaya Sanhita, 2023 (‘BNS’) which replaces the existing Penal Code, 1860 (‘IPC’) was passed when the second bill for the same was introduced on 12-12-2023, passed by the Lok Sabha on 20-12-2024 and Rajya Sabha on 21-12-2023.¹ The first Bill for the BNS was withdrawn from the Lok Sabha on 12-12-2023 to bring in new drafts, reflecting some of the changes suggested by the Standing Committee². The three Bills for the new criminal laws received the presidential asset 25-12-2023.

The path from Lord Macaulay’s IPC to decolonised BNS

“Indian Penal Code is the most comprehensive Penal Code anywhere in the world.”

-Lord Macaulay

The Indian criminal justice system had its shares of ups and down on the road to evolution and development. From no developed branch of criminal law in the primitive society to king’s administration of justice to application of Mohammedan criminal law with the invasion of Muslims. It was with the entry of Britishers, that India got improvements in the administration of criminal justice system. In 1834, the East India Company established an Indian Law Commission for the creation of a Penal Code. The Commission was headed by Thomas Babington Macaulay, a British colonialist, Member of Parliament.³ After the preparation of the Draft, suggestions were sought and the Bill for the IPC was passed on 06-10-1860. It came into force on 01-01-1862.⁴ The Preamble to the IPC stated that its object was to provide a general penal code for India. The title of the IPC, itself indicated its punitive nature. The word ‘penal’ emphasized punishing those who commits offences.

The Bharatiya Nyaya Sanhita, 2023

The BNS was introduced to repeal the IPC and to consolidate and amend the provisions relating to the offences. The BNS strikes a balance between over- criminalisation and de-criminalisation, some of the general offences, such as offences against the human body and the State, still find their way in the BNS. However, keeping up with the need for change, offences under various provisions, such as the Section 377, Section 124-A, Section 309, of the IPC do not find any place. Offences such as hit and run matters, have been recognised, embarking a positive move under Section 106 of the BNS and the punishment is enhanced to 10 years.

It consists of 358 provisions enumerated under 20 chapters. The Key Highlights of the BNS are as follows:

• Consolidation and Streamlining: The BNS consolidates the scattered provisions from the Indian Penal Code (IPC), reducing the number of Sections from 511 to 358. Such as, offences against women and children have been brought together under Chapter-V, simplifying the legal framework. The issue of complicated and scattered provisions under the IPC has been resolved. For say, Chapter 5 of the BNS consolidates the offences related to women and children at one place, which were previously scattered under 4 separate chapters of the IPC. The present BNS is the Sanhita of a layman, which can be easily understood.

• Modernized Language and Definitions: Outdated and colonial language has been removed, and uniform terms have been adopted. “Minor” has been replaced with “child” and “insane” with “person with unsound mind”.

• Expanded Jurisdiction: Section 48 of the BNS has extended jurisdiction to criminalize abetment outside India, broadening the scope of legal enforcement.

• Revised Offences against Property: The definition of theft has been expanded to include theft of vehicles, government property, etc. “Snatching” has been introduced as a distinct offence under Section 304of the BNS.

• Escaping upon causing rash and Negligent Driving: Section 106(2) address hit and run cases.

• Mob Lynching: Before BNS, mob lynching was not a separate offence. Section 103 of the BNS introduces it as a serious category of culpable homicide.

• New Categories of Offences: BNS introduces ‘organised crime’ and ‘petty organised crime’ as central offences for the first time under Sections 111 and 112. ‘Terrorist act’ has been brought under Section 113. Section 111 of the BNS introduces ‘Organised Crime’ to be 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.

• Attempt to commit suicide: The attempt to commit suicide has been deleted from the BNSS, in line with the Mental Health Care Act, 2017.

• Sedition: Section 124-A of the IPC suppressing the constitutional rights has been deleted from the BNS. Secession or armed rebellion or subversive activities, separatist activities or endangering sovereignty or unity and integrity of India have been given a place under Section 152 of the BNS.

• Revised Punishments: ‘Community service’ has been introduced as a punishment for certain offences under Section 4(f), introducing reformative approach, aimed at achieving ‘nyaya’ in the society.

• Sexual intercourse on false promise to marry: Section 69 of the BNS punishes sexual intercourse on false promise of marriage, or by employing deceitful means.

• Gender Neutrality: Assault or use of criminal force to woman with intent to disrobe her and Voyeurism has been made gender neutral under Sections 76 and 77 of the BNS, 2023. The offence relating to importation of a person from foreign country has been made gender neutral to cover both boys and girls in Section 141 of the BNS, 2023.

Dissecting the BNS

New Provisions of The Bharatiya Nyaya Sanhita, 2023

Provisions of Penal Code, 1860 Omitted in Bharatiya Nyaya Sanhita, 2023

The idea of Nyaya and Community Service

The ‘nyaya’ signifies social justice. The present BNS transitions from the idea of punitive to nyaya and restrains deterrence aspect, introducing provisions which focus on providing justice to all stakeholders. The aspect of Nyaya is visible through the transition from the retributive to reformative approach. Several punishments have been balanced, enhancing some of the sentences and posing of minimum statutory sentencing pattern. The introduction of the ‘community service’ as a form of punishment under Section 4 has been a step in the right direction. ⁵

The introduction of community service for minor offences marks a ground-breaking approach in India’s legal system. The Indian criminal justice system is primarily based on the principle of retribution and considers crimes offences against the state, it acknowledges the need for a shift towards prioritizing the rights and concerns of the victims. The Offenders and the victims are the most important stakeholders of any crime, and the introduction of this form of reformative punishment is a form of ‘nyaya’.

Sedition

Chapter VII of the BNS, has a significant addition or change regarding the offence of sedition, which was present in the IPC under Section 124-A. Chapter VII of the BNS provides for offences against the State. The colonial era ‘sedition’ terminology has been removed and Section 152 of the BNS has introduced it in the form of- as acts endangering sovereignty, unity and integrity of India, for which imprisonment for life or up to seven years and fine has been prescribed. The new section increases maximum punishment from seven years to life imprisonment. The Section 124-A of the IPC punished a person who brought or attempted to bring into hatred or contempt or excites disaffection towards the Government established by law in India. The Section 152 expands the scope of the gravity of the offence by including within it the act of also using electronic communication or use of financial means, any ‘subversive activities’, feelings of ‘separatist activities’ or endangers ‘sovereignty or unity and integrity of India.⁶

Sexual Intercourse by Employing Deceitful Means, etc.

The BNS introduces sexual intercourse by employing deceitful means, etc as an offence. It falls under Chapter V of the Sanhita. Section 69⁷ has prescribed of imprisonment extended to ten years and fine for whoever, by deceitful means or by making promise to marry to a woman and has sexual intercourse with her, under the pretext of same. Earlier, it was criminalised as a part of rape but the significant step under the BNS has been taken to segregate and keep it out of rape. The ‘deceit’ in the promise is the point of attention and the false promise to marry cannot be equated with other cases of rape.

Recognition of Hit and Run Cases

Section 106 (2) of BNS⁸ provides for ‘death by negligence’. If death is caused by a driver of a person by rash and negligent driving and does not inform the police officer or a Magistrate soon after the incident and evades, shall be punished with imprisonment extend to ten years, and shall also be liable to fine.

Concluding Remarks

With the introduction of these three new Criminal Acts, India’s legal landscape has undergone transformative changes. With repealing the criminal era laws, it symbolises the commitment to adapt and evolve with ever-changing dynamics of the society and reflect India’s commitment to modernised legal framework and ensuring justice to all. However, in order to adapt these changes and for implementation of the same, positive changes are required. The infrastructure development, capacity building of forensic experts and investigating officers is time bound requirement. This transition from the colonial era law IPC to the present BNS, ‘dand’ to ‘nyaya’ reflects that the world’s largest democracy abides by laws which meet the aspirations of citizens. It aims to prioritise both the accused and the victim.