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Bhartiya Nyaya Sanhita, 2023: An Analysis Of Legal Reforms, Coherence Challenges, And The Quest For A Progressive Penal Code

On December 25, 2023, the Bhartiya Nyaya Sanhita, 2023 ("BNS"), came into effect, replacing the antiquated Indian Penal Code, 1860 ("IPC"), as the new penal code for the nation. The 5th Law Commission, headed by Mr. K.V.K. Sundaram, conducted a thorough review of both the IPC and the Code of Criminal Procedure, 1898[2], resulting in the comprehensive overhaul and re-enactment of the latter as the Code of Criminal Procedure, 1973.

However, the IPC persisted as a relic of the pre-independence British era, housing outdated provisions incongruent with the evolving discourse on modern rights and inclusion. After nearly 150 years, the IPC has been re-enacted with the explicit aim of repealing colonial laws and "streamlining provisions related to offences and penalties." Notably, the BNS prioritizes offences against women, children, and the State. It introduces a novel approach by incorporating community service as a punitive measure for minor offences.

Additionally, the BNS instigates changes to fines and punishments across a spectrum of offences. This article furnishes a comprehensive overview and analysis of the significant modifications implemented in the country's penal code through the enactment of the Bharatiya Nyaya Sanhita, 2023.

Offences Against Property
Dishonest Misappropriation of Property (Section 314) One of the noteworthy provisions within the Bhartiya Nyaya Sanhita, 2023 ("BNS") pertains to the offence of dishonest misappropriation of property, outlined in Section 314.
  98Several key changes have been introduced in this regard:
  • Minimum Punishment:
    BNS mandates a minimum punishment of six months for individuals found guilty of dishonest misappropriation of property. This underscores a heightened severity compared to the previous legal framework.
  • Imprisonment with Fine:
    In a departure from the provisions of the Indian Penal Code, 1860 ("IPC"), where the punishment could involve imprisonment or fine or both, BNS now stipulates imprisonment accompanied by a fine. This shift signals an increased emphasis on the punitive aspect of imprisonment in addressing this specific offence.
These amendments reflect a deliberate effort within the BNS to recalibrate the legal landscape related to property offences, placing a greater emphasis on stringent penalties, particularly through the imposition of a minimum six-month imprisonment term for dishonest misappropriation of property.

Offences Affecting the Human Body

Organised Crime (Section 111)

  • A significant addition to the Bhartiya Nyaya Sanhita, 2023 ("BNS") is Section 111, which introduces the offence of "organised crime." This provision draws inspiration from specialized state legislations like the Maharashtra Control of Organised Crime Act, 1999 ("MCOCA"), and the Gujarat Control of Organised Crime Act, 2015 ("GCOC"), among others. However, certain aspects of Section 111 raise concerns:
  • Vague Definition: The definition of organized crime within Section 111 is characterized as vague and unclear. It employs catch-all phrases, providing investigating agencies with substantial discretion. Terms such as "land grabbing," "contract killing," and "cybercrimes" are used without specific definitions, potentially leading to subjective interpretations.
  • Undefined Terms: The provision includes the term "economic offence," which lacks a precise definition and utilizes overbroad phrases like "hawala transaction" and "mass-marketing fraud." The absence of clear definitions within the BNS or other statutes may contribute to confusion and arbitrariness in applying these provisions.
  • Ambiguous Phrasing: The inclusion of terms such as "hawala transactions" and "mass-marketing fraud" raises concerns, as these activities are already addressed under specific legislation. For instance, "hawala transactions" are regulated under the Foreign Exchange Management Act, 1999, while "mass-marketing fraud" falls under the ambit of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978. The redundancy of these terms in Section 111 could lead to legal overlap and uncertainty.

Petty Organised Crime (Section 112)

  • In a parallel vein, Section 112 of the Bhartiya Nyaya Sanhita, 2023 ("BNS") introduces the concept of "petty organised crime." However, certain aspects of this provision raise noteworthy concerns:
  • Vague Definitions: Similar to the concerns regarding organized crime in Section 111, the definition of petty organized crime in Section 112 employs extremely vague and subjective terms. Offences such as "trick theft," "pickpocketing," "card skimming," and "unauthorized selling of tickets" lack precise definitions, relying on subjective interpretations.
  • Inclusion of Broad Language: The provision goes further by making punishable "any other similar criminal act," contributing to the ambiguity of the offence. This broad language leaves the scope of the offence unclear, providing significant discretionary power to investigating authorities.
  • Potential for Discretionary Prosecution: The ambiguity in the definition of petty organized crime within the BNS allows ample space for investigating authorities to exercise discretion in prosecuting individuals. The lack of specificity in the terms used may lead to inconsistent application and potential misuse.
  • Jurisdictional Concerns: The introduction of "organized crime" as an offence under a central statute, while similar offences exist under separate state statutes, may pose jurisdictional challenges between different law enforcement agencies. While Article 254 of the Constitution addresses conflicts by stipulating that in case of repugnancy, the BNS will prevail, potential jurisdictional issues should be carefully navigated.

Causing Death by Negligence (Section 106)

  • Within the Bhartiya Nyaya Sanhita, 2023 ("BNS"), notable modifications have been made to the offence of causing death by negligence, as outlined in Section 106. The changes signify a substantial shift from the provisions of the Indian Penal Code, 1860 ("IPC"):
  • Enhanced Punishment: BNS revises the punishment for causing death by a rash and negligent act. Offenders, upon conviction, now face imprisonment for a term extending up to five years, coupled with a fine. This represents a significant increase from the previous IPC provisions, which prescribed a punishment of two years or a fine or both for such offences.

New Specific Offences Arising Out of Negligence (Section 106)

Section 106 of the Bhartiya Nyaya Sanhita, 2023 ("BNS"), introduces specific offenses arising out of negligence, with a focus on the actions of medical practitioners during medical procedures.

This provision is crucial in understanding the legal consequences associated with such situations:
  • Death by Rash and Negligent Act of a Medical Practitioner: Section 106 delineates the offence of causing death by a rash and negligent act of a medical practitioner while performing a medical procedure. The punishment prescribed for this offence includes imprisonment for a term extending up to two years, along with a fine.
  • Legal Context: It is imperative to interpret this offence in light of the Supreme Court's judgment in Jacob Mathew v. State of Punjab (2005) 6 SCC 1. The judgment laid down guidelines to prevent the misuse of such offences against medical practitioners. These guidelines likely emphasize the importance of establishing a balance between accountability for negligence and safeguarding medical professionals from unwarranted legal actions.
The inclusion of specific provisions related to medical practitioners in Section 106 recognizes the unique nature of healthcare scenarios where negligence can have severe consequences. The prescribed punishment and the incorporation of judicial guidelines aim to ensure a fair and balanced approach in dealing with cases of negligence involving medical practitioners.

The Supreme Court's stance on negligence under civil and criminal law is pivotal to understanding the legal framework within the Bhartiya Nyaya Sanhita, 2023 ("BNS"). The court emphasized that negligence in civil law may not necessarily translate to criminal negligence. It underscored that to establish an offence based on negligence, the presence of mens rea, or a guilty mind, must be demonstrated.

Hit-and-Run Cases
BNS addresses the pressing issue of hit-and-run cases, introducing a specific provision to penalize individuals responsible for causing death by rash or negligent driving of a vehicle, who subsequently fled the scene without reporting to the authorities. The key points of this provision include:

Penalties: Offenders under this provision may face a maximum of ten years imprisonment and are also liable to pay fines. The severity of the penalties reflects the legislative intent to curb the rising incidents of reckless driving, hit-and-run cases, and road rage.

National Concern: Given the alarming statistics of reckless driving leading to fatalities, this provision appears tailored to deter hit-and-run incidents. The emphasis on reporting to the police or a magistrate underscores the importance of immediate accountability.

Mob Lynching

In response to the escalating cases of mob lynching and hate crimes in the country, BNS introduces a specific provision to address the heinous crime of murder in cases of mob lynching:

Penalties: The provision stipulates that when a group of five or more individuals, acting in concert, commits murder based on grounds such as race, caste, community, sex, place of birth, language, personal belief, or any similar ground, each member of the group shall be punishable with death or life imprisonment. Additionally, they will be liable to pay fines.

The inclusion of this provision reflects a proactive approach to combatting mob lynching and hate crimes, signalling the legislative commitment to sternly penalize those involved in such brutal acts. The penalties underscore the gravity of the offence and aim to serve as a deterrent against mob-driven violence based on prejudice.

Deletion of Offences

The Bhartiya Nyaya Sanhita, 2023 ("BNS") reflects significant legal reforms through the deletion of certain offences, aligning with progressive judicial pronouncements and societal shifts:
  1. Decriminalization of Section 377 (Navtej Singh Johar v. Union of India, 2018)
    Background: Following the landmark judgment of the Supreme Court in Navtej Singh Johar v. Union of India (2018) 10 SCC 1, the BNS acts by the decision by removing the offence under Section 377 of the Indian Penal Code ("IPC").

    Rationale: The removal of Section 377 is in harmony with the principles of human dignity and individual rights, recognizing the importance of inclusivity and decriminalization of consensual adult relationships.
  2. Removal of Attempt to Commit Suicide (Section 309 IPC)
    Progressive Omission: BNS takes a progressive stance by omitting the offence of attempting to commit suicide, previously covered under Section 309 of the IPC. This move reframes the perception of suicide attempts as a mental health crisis rather than a criminal act.

    Mental Health Perspective: The deletion acknowledges the evolving understanding of mental health issues and reflects a compassionate approach, emphasizing treatment and support rather than punitive measures for individuals in distress.
  3. Elimination of Adultery Offense (Joseph Shine v. Union of India, 2019)
    Judicial Precedent: In line with the Supreme Court's judgment in Joseph Shine v. Union of India (2019) 3 SCC 39, which deemed the offence of adultery as archaic, arbitrary, and paternalistic, BNS omits adultery as a punishable offence. Progressive Stand: Despite recommendations from the Parliamentary Standing Committee Report to reintroduce adultery as an offence applicable to both men and women, BNS upholds the court's decision, recognizing the need for contemporary legal perspectives on personal relationships.

    These deletions signify a commitment within BNS to uphold human rights, reduce the criminalization of personal choices, and align the legal framework with evolving societal values. The move towards recognizing mental health challenges and eliminating archaic laws underscores the progressive nature of these legal reforms.

Applicability Of BNS
The Bhartiya Nyaya Sanhita, 2023 ("BNS"), introduces significant changes in the legal landscape, and its applicability raises several noteworthy points:
  1. Repeals and Savings Clause: The BNS repeals the Indian Penal Code, 1860 ("IPC"), but includes a savings clause protecting the previous operation of the IPC and actions taken under it. Section 6 of the General Clauses Act, of 1897, is made applicable, ensuring continuity and coherence in legal proceedings.
  2. Retrospective Application Concerns: While BNS saves penalties, punishments, and ongoing proceedings under the IPC, it deems actions taken under the IPC to have been done under the corresponding provision of the BNS. This provision raises concerns about the retrospective application, potentially conflicting with Article 20 of the Constitution, which prohibits conviction for acts not considered offences under the law at the time of commission.

  • Positive Changes and Lack of Coherence:
    BNS introduces positive changes such as deleting sedition as an offence, recognizing transgender in the definition of gender, and introducing stringent offences against women and children. However, there appears to be a lack of a coherent policy vision behind the changes, leading to inconsistencies in the law.
  • Inconsistencies in Offenses Against Women and Children:
    Despite introducing new stringent provisions, BNS maintains marital rape as an exception to rape and fails to make rape gender-neutral, raising questions about the coherence of objectives.
  • Lack of Coherence in Sentencing:
    The sentencing process lacks clarity, with an absence of a clear principle behind the enhanced sentences and the addition of offences. There is a need for coherence in sentencing, with a greater emphasis on reformative sentencing, probation, community service, and non-custodial sanctions for rehabilitation.
  • Solitary Confinement and Human Rights:
    The continuation of solitary confinement as a form of punishment is deemed outdated in light of evolving human rights standards and constitutional guarantees, particularly under Article 21.
  • Overlapping Offenses and Vague Terms:
    The overlapping of offences with special statutes and the presence of vague and undefined terms may lead to confusion and increased litigation, potentially burdening the courts and causing a rise in pending cases. In conclusion, while the BNS brings positive changes, there is a pressing need for a coherent policy vision, especially in the areas of offences against women and children, sentencing principles, and the abolition of outdated forms of punishment. Addressing these concerns will contribute to a more effective and just legal framework.

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