Section 377 of the IPC, which criminalised homosexuality among other unnatural sexual activities, has been repealed under the BNS
Ravindra Ojha
As the Bharatiya Nyaya Sanhita (BNS) will come into effect from July 1, 2024 replacing the colonial era Indian Penal Code (IPC), 1860, which is the principal law on criminal offences in the country till then. The new act adds community service as a form of punishment.
The BNS has made several key changes in the Indian Penal Code it seeks to replace. New Offences Incorporated Under Bhartiya Nyaya Sanhita, 2023
Deceitful Promise to Marry
The BNS introduces Clause 69 that seems to ostensibly tackle the love jihad narrative by criminalising deceitful promise to marry.
The phrase sexual intercourse not amounting to the offence of rape essentially criminalises consensual sexual activity too. According to the new provision, any deceitful means or promising to marry to a woman without any intention of fulfilling the same has been criminalised. Deceitful means shall include the false promise of employment or promotion, inducement, or marring after suppressing identity.
New Provisions on Mob Lynching
The BNS provisions codify offences linked to mob lynching and hate-crime murders, for cases when a mob of five or more individuals commits murder. When the crime is based on factors such as race, caste, community, or personal belief. The provision has punishment that extends from life imprisonment to death.
In its earlier version, the Bill had proposed a minimum sentence of seven years, but this was brought at par with murder. The Supreme Court in 2018 had asked the Centre to consider a separate law for lynching.
New Provisions to Deal with Organised Crime
For the first time, tackling organised crime is brought under the realm of ordinary criminal law.There are several special state legislations for prevention and control of criminal activity by organised crime syndicates or gangs, the most popular being the Maharashtra Control of Organised Crime Act, 1999. These special laws prescribe vast powers of surveillance and relax standards of evidence and procedure in favour of the state, which is not found in ordinary criminal law. In the new legislation, the punishment for attempt to commit organised crime and for committing organised crime is the same.
However, a distinction is drawn based on whether a death is caused or not by the alleged offence.For cases involving death, the punishment ranges from life imprisonment to death. Where there is no death involved, a mandatory minimum sentence of five years is prescribed which may extend to life imprisonment.
Incorporation of a Separate Category of Petty Organised Crime
A separate category of petty organised crime has also been brought in, which criminalises theft, snatching, cheating, unauthorised selling of tickets, unauthorised betting or gambling, selling of public examination question papers.
An earlier version of the Bill used the overbroad words, “any crime that causes general feelings of insecurity among citizens” to describe petty organised crime.
But that has been dropped in the current version. However, while the provision is aimed at tackling small law and order issues in everyday policing, it is unclear how this would be different from ordinary theft, etc.
New Addition on Terrorism
Importing large parts of the language in defining terror activities from the stringent Unlawful Atrocities Prevention Act, the BNS brings terrorism under the ambit of ordinary criminal law.
According to an analysis by National Law School of India University, Bangalore, the definition of terrorist borrows from the Philippines Anti-Terrorism Act, 2020.More importantly, the offence involving terror financing is broader in the BNS than in UAPA.
However, it is unclear how both the UAPA and the BNS will operate concurrently, especially when procedurally the UAPA is more stringent and the cases are heard in special courts.
Provision to Address the Attempt to Suicide
The BNS introduces a new provision that criminalises attempts to commit suicide with the intent to compel or restrain any public servant from discharging his official duty. It prescribes a jail term which may extend to one year with community service. This provision could be invoked to prevent self-immolations and hunger strikes during protests
Provisions Repealed Under Bhartiya Nyaya Sanhita, 2023
Unnatural sexual offences (Article 377)
Section 377 of the IPC, which criminalised homosexuality among other unnatural sexual activities, has been repealed under the BNS.
However, the total omission of Section 377 has raised concerns, since the provision is still helpful to tackle non-consensual sexual acts, especially when rape laws continue to be gendered.
The SC in 2018 struck down the article 377 as unconstitutional only to the extent that it criminalised consensual homosexual relationships.
Adultery: The offence of adultery, which was struck down by the SC as unconstitutional in 2018, has been omitted under the BNS.
Provision on Thugs
The IPC under Section 310 criminalises those who have been habitually associated with any other or others for the purpose of committing robbery or child-stealing by means of or accompanied with murder.
The IPC labels them a thug and this provision is criticised for attaching colonial notions of criminality for certain tribes. The BNS has fully omitted this provision.
Changes Added to the Existing Laws
Gender neutrality
While rape laws continue to operate only for women, the BNS has tweaked some other laws, especially those dealing with children, to bring gender neutrality.
The offences dealing with procuration of a girl (for illicit intercourse 366A of the IPC) has been made gender neutral.
For the offence dealing with kidnapping of minors, the IPC (Section 361) prescribes different age limits: 16 years for male and 18 years for a female. The BNS makes it 18 for both.
Fake news
The IPC currently contains Section 153B which deals with imputations, assertions prejudicial to national integration.
This commonly referred to as the hate speech provision, criminalises, among other aspects, causing disharmony or feelings of enmity or hatred or ill-will between communities.
The BNS introduces a new provision here which criminalises publishing false and misleading information.
Sedition
When the Sanhitas were first introduced in the Lok Sabha in August, Union Home Minister had said that the law on sedition had been repealed.
However, the BNS introduces the offence under a new name and with a wider definition.
Apart from a name change from rajdroh to deshdroh, the new provision brings under its sweep aiding through financial means acts of subversive activities, and those encouraging feelings of separatist activities.
Mandatory Minimum Sentence
Section 303 of the IPC prescribed a mandatory death sentence for murder committed by a life-convict.
In 1983, the SC struck down the provision as unconstitutional since it took away the discretion of judges in awarding a sentence.
The BNS has now tweaked this provision to prescribe a punishment of death or imprisonment for life, which shall mean the remainder of that person’s natural life.
By adopting the Bharatiya Nyaya Sanhita and related reforms, India is not just changing the numbers, it is reclaiming its identity.
It is a paradox of India’s criminal justice system which till today, bore the indelible marks of Lord Thomas Babington Macaulay or colonial legacy in other words.
