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The Bharatiya Nyaya (Second) Sanhita, 2023

Highlights of the Bill

  • The Bharatiya Nyaya (Second) Sanhita (BNS2) retains most offences from the IPC.  It adds community service as a form of punishment.

  • Sedition is no longer an offence.  Instead, there is a new offence for acts endangering the sovereignty, unity and integrity of India.   

  • The BNS2 adds terrorism as an offence.  It is defined as an act that intends to threaten the unity, integrity, security or economic security of the country, or strike terror in the people. 

  • Organised crime has been added as an offence.  It includes crimes such as kidnapping, extortion and cyber-crime committed on behalf of a crime syndicate.  Petty organised crime is also an offence now.

  • Murder by a group of five or more persons on grounds of certain identity markers such as caste, language or personal belief will be an offence with penalty life imprisonment or death, and with a fine.

Key Issues and Analysis

  • Age of criminal responsibility is retained at seven years.  It extends to 12 years depending upon the maturity of the accused.  This may contravene recommendations of international conventions. 

  • The BNS2 defines a child to mean a person below the age of 18.  However, for several offences, the age threshold of the victim for offences against children is not 18.  The threshold for minority of the victim of for rape and gangrape is different. 

  • Several offences overlap with special laws.  In many cases, both carry different penalties or provide for different procedures.  This may lead to multiple regulatory regimes, additional costs of compliance and possibility of levelling multiple charges.

  • The BNS2 removes sedition as an offence.  The provision on endangering the sovereignty, unity and integrity of India may have retained aspects of sedition. 

  • The BNS2 retains the provisions of the IPC on rape and sexual harassment.  It does not consider recommendations of the Justice Verma Committee (2013) such as making the offence of rape gender neutral and including marital rape as an offence. 

  • The BNS2 omits S. 377 of IPC which was read down by the Supreme Court.  This removes rape of men and bestiality as offences.

PART A: HIGHLIGHTS OF THE BILL

Context

The Indian Penal Code (IPC), 1860 is the principal law on criminal offences in India.  Offences covered include those affecting: (i) human body such as assault and murder, (ii) property such as extortion and theft, (iii) public order such as unlawful assembly and rioting, (iv) public health, safety, decency, morality, and religion, (iv) defamation, and (v) offences against the state.  Over the years, the IPC has been amended to add new offences, amend existing ones and change the quantum of punishment.[1]   Courts have also de-criminalised certain offences such as consensual intercourse between same-sex adults, adultery and attempt to commit suicide.[2],[3],[4]  Several states have also amended the IPC to provide different punishments for sexual offences, selling minors for prostitution, adulteration of food and drugs and sacrilege of religious texts.[5],[6],[7],[8]  Several Law Commission reports have recommended amendments to the IPC on subjects including offences against women, food adulteration, death penalty.[9], [10]

The Bharatiya Nyaya Sanhita (BNS) was introduced on August 11, 2023 to replace the IPC.  It was examined by the Standing Committee on Home Affairs.[11] The Bharatiya Nyaya (Second) Sanhita, 2023 (BNS2) was introduced on December 12, 2023 after the earlier Bill was withdrawn.  It incorporates certain recommendations of the Standing Committee.  The BNS2 largely retains the provisions of the IPC, adds some new offences, removes offences that have been struck down by courts, and increases penalties for several offences.

Key Features 

Key changes in the BNS2 include:

  • Offences against the body: The IPC criminalises acts such as murder, abetment of suicide, assault and causing grievous hurt.  The BNS2 retains these provisions.  It adds new offences such as organised crime, terrorism, and murder or grievous hurt by a group on certain grounds.  

  • Sexual offences against women: The IPC criminalises acts such as rape, voyeurism, stalking and insulting the modesty of a woman.  The BNS2 retains these provisions.  It increases the threshold for the victim to be classified as a major, in the case of gangrape, from 16 to 18 years of age.  It also criminalises sexual intercourse with a woman by deceitful means or making false promises. 

  • Sedition: The BNS2 removes the offence of sedition.  It instead penalises the following: (i) exciting or attempting to excite secession, armed rebellion, or subversive activities, (ii) encouraging feelings of separatist activities, or (iii) endangering the sovereignty or unity and integrity of India.  These offences may involve exchange of words or signs, electronic communication, or use of financial means.     

  • Terrorism: Terrorism includes an act that intends to: (i) threaten the unity, integrity, security or economic security of the country, or (ii) strike terror in the people or any section of people in India.  Punishment for attempting or committing terrorism includes: (i) death or life imprisonment, and a fine, if it results in death of a person, or (ii) imprisonment between five years and life, and a fine.

  • Organised crime: Organised crime includes offences such as kidnapping, extortion, contract killing, land grabbing, financial scams, and cybercrime carried out on behalf of a crime syndicate.  Attempting or committing organised crime will be punishable with: (i) death or life imprisonment and a fine of Rs 10 lakh, if it results in death of a person, or (ii) imprisonment between five years and life, and a fine of at least five lakh rupees. 

  • Mob lynching:  The BNS2 adds murder or grievous hurt by five or more people on specified grounds, as an offence.  These grounds include race, caste, sex, language, or personal belief.  The punishment for such murder is life imprisonment or death. 

  • Rulings of the Supreme Court:  The BNS2 conforms to some decisions of the Supreme Court.  These include omitting adultery as an offence and adding life imprisonment as one of the penalties (in addition to the death penalty) for murder or attempt to murder by a life convict. 

 

PART B: KEY ISSUES AND ANALYSIS

 Age specifications for offences

Minimum age of criminal responsibility higher than several other jurisdictions

Age of criminal responsibility refers to the minimum age at which a child can be prosecuted and punished for an offence.  Advances in understanding of how brain biology affects adolescent behaviour has raised questions about how responsible children should be held for their actions.[12]  Under IPC, nothing is considered an offence if committed by a child below the age of seven years.  The age of criminal responsibility increases to 12 years, if the child is found to not have attained the ability to understand the nature and consequences of his conduct.  The BNS2 retains these provisions.  This age is lower than the age of criminal responsibility in other countries.  In 2007, a UN Committee recommended states to set the age of criminal responsibility to above 12 years.[13]  

The age of criminal responsibility varies across countries.   For instance, in Germany, the age of criminal responsibility is 14 years, whereas in England and Wales, it is 10 years.[14],[15]  In Scotland, the age of criminal responsibility is 12 years.[16] 

Age threshold of the victim for similar offences against children varies

The BNS2 provides for higher penalties in case of offences against children.  In most cases, it provides that a victim below the age of 18 years be treated as a child.  The penalty for rape and gang rape of women and children is different.  However, the threshold for minority of the victim for different offences of rape and consequently the penalty, varies.  For gang rape, the penalty differs based on whether the victim is above or below 18 years of age.  However, for rape, the penalty is different based on whether the victim’s age is below 12 years, between 12 and 16 years, or above.  This is inconsistent with the Protection of Children from Sexual Offences Act, 2012, which classifies all individuals below the age of 18 as minors.   

Additionally, under BNS2, age threshold of the victim for certain offences against children is not 18 years.  For example, kidnapping or abducting a child with the intent to steal from a parent applies only to a child under 10 years.  This implies that the punishment for kidnapping an 11-year-old is the same as that of kidnapping an adult.  Further, the BNS2 retains from the IPC the age of 21 years for the offence of importing a foreign woman from another country.  However, for boys, it adds the age threshold of 18 years.  The Standing Committee on Home Affairs (2023) has recommended defining a child as a person below the age of 18.11 

Overlap between the BNS2 and special laws 

Duplication of offences with other special laws

When the IPC was enacted, it encompassed all criminal offences.   Over time, special laws have been enacted to address specific subjects and related offences.  Some of these offences have been removed from the BNS2.  For example, offences related to weights and measures were incorporated in the Legal Metrology Act, 2009 and have been removed from the BNS2.  However, several offences continue to be retained (see Table 1 below for some illustrations).  The BNS2 also adds certain new offences such as organised crime and terrorism which are already covered under special laws.  Such overlap in laws may cause additional compliance burden and costs.  It may also lead to multiple laws providing varying penalties for the same offences.  Deleting such offences could remove duplication, possible inconsistencies, and multiple regulatory regimes.



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