On December 21, 2023, following the retabling of the Criminal Code Bills before Parliament in their revised form, the Bharatiya Nyaya Sanhita (BNS) repealing the Indian Penal Code, 1860, Bharatiya Nagarik Suraksha Sanhita (BNSS) repealing the Criminal Procedure Code, 1973 and the Bharatiya Sakhshya Act (BSA) repealing the Indian Evidence Act, 1872 were scripted into law. “The three new bills seek to establish a justice system based on Indian thinking,” Home Minister Amit Shah said. From the outset, the laws seek to indigenise colonial era legislations, overhauling the criminal justice system and envisaging a new purposeful and equitable weltanschauung. In brevity, I will prospect the crucial substantive developments that the BNS catalyses, and probe the underlying political affirmations.
The Bharatiya Nyaya Sanhita essays manifest changes to the pre-existing legal order in Chapter VI dealing with Offences Affecting the Human Body, introducing mob lynching as an offence through Section 103(2), levying capital punishment or life imprisonment as a penalty. Elucidating this offence as one where murder is committed by five or more people and motivated on grounds of social, cultural of political factors; it makes an unyielding statement against the rise in mob violence against marginalised sections and religious vigilantism, and reflects well on the endeavours of the ruling party, which has been alleged of inciting and previously being benign to chastisers.
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Consequential measures have been taken to combat the spread of misinformation and fake news that has plagued political discourse and exhorted public sentiment considerably in past years. Section 197 (1) (d) of the BNS makes it an offence to create or publish false or misleading information jeopardising the sovereignty, integrity and security of India. False information has induced hysteria and violence over sensitive regions or subjects, and such regulation is in public interest and accountability in the dissemination of information.
Sedition no longer finds itself as offence under the BNS. A necessary dichotomy has been established between disaffection towards the Government ‘rajdroh’ and disaffection toward the State ‘deshdroh’, the latter continues to be subject to prosecution through new offences for acts endangering the sovereignty, unity and integrity of India. The defenestration of sedition law, was the necessary nail on the coffin of the colonial vestige, that has been indiscriminately used to supress dissent and the freedom of expression against the establishment by successive governments.
It is also worthy to note the introduction of Section 69 of the BNS, that criminalises sexual intercourse by employing deceitful means, including the suppression of identity. While criminologically the relevancy of deceit is important in the determination of the validity of consent given, it is ostensible that this provision may act as a safeguard against accusations of love jihad, where attempts to establish relationships on the basis of false identities and manipulate women into conversion has been alleged.
The introduction of the offences of Organised Crime (Section 111), Petty Organised Crime (Section 112), framed on the legislative outline first conceived in the Maharashtra Control of Organised Crime Act of 1999, has been extended nationally, embodying the strongman approach of the Government on matters of law and order and racketeering; particularly the NDA’s claimed prowess in dismantling the ‘mafia raj’ in the Hindi Belt. This imposes a novel criminal liability penalising individuals involved in the syndicated commission of offences. Embracing the administration’s stringent views on national security; a new offence of terrorist acts has been brought into the ordinary criminological remit through Section 113 of the BNS, adopting Section 15 of the Unlawful Activities (Prevention) Act, 1967, defining a terrorist act as an act that threatens the unity, integrity, security or economic security of the country with intent to strike terror or likely to strike terror among the people. Coupled with Section 356 of the BNSS, this allows for the in-absentia trial of proclaimed offenders, ushering expediency in the prosecution of terrorists harboured in adversarial nations.
The BNS removes the offence made out under Section 309 IPC, decriminalising attempted suicide. Previously Section 115 of the Mental Healthcare Act, 2017 stipulated that attempted suicide was to be considered the result of severe stress, prevented criminal prosecution, decriminalising attempted suicide for all practical purposes, Section 309 IPC continued to remain a legal provision previously, resulting in considerable confusion and the possibility of misinterpretation. This approach is in line with scientific and social temperaments rejecting dated notions of culpability, and supporting individuals who have succumbed mentally, rather than penalising them.
Further, respite has been offered to medical practitioners, in that the Home Minister Amit Shah informed Parliament that doctors would be exempt from criminal prosecutions for death caused due to medical negligence. A constitutive requisite in a crime is the existence of criminal intent or mens rea, which manifestly differs from the intent possessed in medical negligence cases.
Invoking criminal liability in medical procedures has resulted in the practice of defensive medicine and an ignoble interpretation of the duty of care that exists in a practitioner-patient relationship. Particularly, after cases of individuals targeting practitioners during the Coronavirus Pandemic, for the regrettable loss of lives, despite all efforts, the State’s approach had been in the interest of the fostering the apposite environment for doctors to discharge their duties with diligence, while respecting the scope and limitations of their expertise and assuring their security.
Keeping in tandem with the ruling in Navtej Singh Johar v. Union of India, wherein the Supreme Court legalised consensual homosexual relationships, the BNS doesn’t retain an equivalent to Section 377 IPC in any character. This is problematic as previously Section 377 was retained insofar as to prosecute non-consensual homosexual activities, such as rape against men. No corresponding offence for sexual assault or rape against men is prescribed in the BNS, leaving male victims of sexual crimes in a position of vulnerability and legal uncertainty.
The offence of rape in Section 63 of the BNS, illustrated in Chapter V deals exclusively with Offences Against Women and Children, with defining criteria stipulating rape to be committed by a man onto a woman. Offences such as sexual assault (Section 74), sexual harassment (Section 75), Stalking (Section 78) are female-victim offences with no equivalent protection for male victims. This lies in departure from the 172nd Law Commission’s proposal to imbibe gender neutrality in rape laws and a detrimental oversight on part of the Government, in
the protection of human rights.
The Bharatiya Nyaya Sanhita encapsulates the vantage of a new epoch in Indian Civilisation, yet in its endeavour towards justice and equity, it has a great degree of refinement to see judicially and legislatively before realising its true potential, but it is critical, in that it is a welcome ridding of the complacent slumber of colonial hangover.
