163 years after the enactment of our first substantive criminal law, a
proposal is underway to replace the outdated Indian Penal Code of 1860 with a
new legal framework titled "Bharatiya Nyaya Sanhita, 2023." The essence of this
new law, as suggested by its title, aims to shift the focus from mere punishment
to the administration of justice. Unlike its predecessor, which was crafted by
colonial rulers to maintain control and punish dissenters, the Bharatiya Nyaya
Sanhita, 2023, has been drafted by a democratically elected government with the
purported objective of delivering justice to its citizens.
However, the noble ideals of justice implied by the title are contradicted upon
closer examination of the proposed punishments. Except for the introduction of
community service as a formal type of penalty, the law largely maintains archaic
punishments, including solitary confinement and the morally contentious death
penalty. The retention of the death penalty puts us at odds with the global
trend of imposing a moratorium on capital punishment.
One positive aspect of the proposed law is its inclusivity towards transpersons,
acknowledging them as individuals. The definition of gender is broadened to
encompass all individuals, irrespective of their gender identity. Despite this,
the law falls short of adopting a feminist approach, as it retains patriarchal
formulations by including 'he' within the definition of 'she.'
In addressing offences against persons, the removal of Section 377 is a
commendable step. However, under Clause 38 concerning private defence, the law
still permits the use of force, potentially causing harm, in response to an
assault with the intent to gratify unnatural lust. This provision is a cause for
concern, especially considering the Supreme Court's previous decriminalization
of consensual homosexuality in Navtej Singh Johar v. UOI
Chapter 5, focusing on offences against women and children, reveals some
persistent shortcomings. The law continues to define rape as a gender-specific
crime, despite previous efforts, such as the Protection of Children from Sexual
Offences (POCSO) Act, to acknowledge the gender neutrality of sexual assault
against minors. The retention of the marital rape exemption further highlights a
failure to recognize the need for consent in intimate relationships.
In summary, while the Bharatiya Nyaya Sanhita, 2023, strives to emphasize
justice over punishment, its proposed provisions raise concerns regarding
perpetuating outdated and discriminatory elements from the previous legal
framework. Addressing these issues is crucial to ensure that the new law aligns
with the principles of justice, equality, and individual rights in contemporary
One noteworthy advancement in the proposed Bharatiya Nyaya Sanhita, 2023, is the
alignment of the age of marriage and age of consent, as mandated by the court in
Independent Thought v. UOI.
The elimination of the 15�18-year age window
is a commendable step, making the rape of a girl below 18 years of age a crime,
irrespective of her marital status and relationship with the accused.
However, Clause 69, which suggests punishment for a man having sex with a woman
through deceitful means, raises concerns. In contemporary times, societal values
have evolved, and such acts may be better addressed through civil consequences
for breach of promise or, at most, criminal liability for cheating. The
provision should be reevaluated to reflect changing societal norms, especially
when dealing with consenting adults.
The retention of Dowry's death and cruelty against a married woman in the new
law, specifically Section 498 A, is justified. However, making it a compoundable
offence is advisable to reduce the burden on investigating agencies,
prosecution, and courts, as most cases are settled outside court. Providing an
option for compounding with the consent of the court would streamline the
resolution of such cases.
The inclusion of stringent punishments for causing death by rash and negligent
acts, coupled with penalties for non-reporting of accidents and fleeing from the
scene, is a positive step towards ensuring swift response and saving lives
during the critical golden hour.
The introduction of provisions regarding organized crime (Clause 109) and
offences of a terrorist act (Clause 111) is significant. However, the
incorporation of terrorist acts in the Bharatiya Nyaya Sanhita, alongside the
existing Unlawful Activities (Prevention) Act (UAPA), raises concerns about
subjecting special laws to general exceptions. It is crucial to maintain the
specificity and effectiveness of laws dealing with terrorism.
While the proposed law represents a much-awaited reform, its true alignment with
the title, emphasizing justice, requires the incorporation of restorative
justice tenets into the criminal justice system. It is hoped that the upcoming
parliamentary sessions will facilitate informed discussions and necessary
amendments to enhance the effectiveness and fairness of the proposed legal