The Bharatiya Nyaya Sanhita,2023 (BNS), which has come in force since July 01,2024 to replace the Indian Penal Code,1860 (IPC), has brought about several significant changes to the Indian criminal justice system.
BNS consists of 358 sections enumerated under 20 chapters as compared to 511 Sections of IPC in 23 Chapters. Further, definitions scattered from section 6 to section 52 of IPC have also been brought under two sections viz. Section 2 on ‘definitions’ and Section 3 on ‘general explanations’ under Chapter I of BNS.
Though the BNS retains most offences from the IPC, the significant changes are as follows:
1. Deletion of Definitions under IPC:
In the BNS, many definitions have been merged and are listed alphabetically under clause 2 of BNS. Gender has been redefined and in addition to male and female gender, transgender has even been transgender has been included in the definition of ‘Gender’ under Section 2(10) of BNS. Changes have been made in definitions for e.g. the word ‘British Calander month or year’ has been changed to ‘Gregorian Calander month or year’ in BNS, the word ‘corporeal’ used in IPC has been deleted in BNS; the word ‘juryman’ has been removed as jury system no longer exists in India. The definition of expressions like – queen, British India, servant of Government, and Government of India as defined in IPC have been deleted from BNS as they are not used anywhere in the IPC. The word ‘document’ mentioned in Section 2(8) of BNS has been newly defined in consonance with the definition of the word ‘document’ in clause 2(c) of the Bharatiya Sakshya Adhiniyam, 2023.
1.1. Deletion of Old Offences under IPC:
- Sedition (Section 124A IPC): Sedition is no longer an offence under the BNS. Instead, there are new offences under Section 152 and Section 197 (1)(d) of BNS for the following acts:
(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.
(iv) false or misleading information which has tendency to jeopardise the sovereignty, unity, integrity or security of India
These offences may involve exchange of words or signs, electronic communication, or use of financial means. Words “or through electronic communication” as the mode of spreading specified activities have been newly added.
- Decriminalizing adultery (Section 497 IPC): Adultery is no longer an offence under the BNS. Earlier, in the judgement of Joseph Shine v. Union of India, 2018 the Supreme Court struck down section 497 of IPC as it violated Articles 14, 15, and 21 of the Constitution.
However, a new offence has been added in BNS by way of Section 84 of the BNS which penalises a man for enticing the wife of another man so that she may have illicit intercourse with any person.
- Unnatural Sexual Offences (Section 377 IPC): Offence dealing with unnatural sexual offences has been deleted under the BNS. In Navtej Singh Johar v. Union of India (2018) case, a five-judge bench of the Supreme Court unanimously held that section 377 of IPC is in violation of Articles 14, 15, 19, and 21 of the Constitution of India. Provisions of section 377, however, remained applicable in cases of non-consensual carnal intercourse with adults, all acts of carnal intercourse with minors, and acts of bestial*ty. However, in the BNS, there is no provision for non-consensual sexual offence against male, female, transgender and for bestial*ty has been made which means that unnatural sexual offences against person (sodomy) or animal (bestial*ty) is no longer offences under BNS.
- Attempt to Commit Suicide (Section 309 IPC): The offense of 'attempt to commit suicide' has been deleted in the BNS. This brings the law in line with the Mental Healthcare Act, 2017, which recognizes that suicide is a mental health issue rather than a criminal offense. However, a new offence has been added under section 226 of BNS, which penalises attempt to commit suicide with the proven intention of compelling or restraining any public servant from performing their official duties.
- Thug (Section 310 IPC) has been deleted in BNS. Under the IPC, whoever shall 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, is a thug.
- Lurking House Trespass by Night (Section 444 IPC) has been deleted in BNS.
- Housebreaking by Night (Section 446 IPC) has been deleted in BNS.
- Section 53A of IPC dealing with construction of reference to transportation has been deleted in BNS.
2. Introduction of New Offences under BNS:
The BNS has also introduced several new offences, including:
- Snatching: Section 304 of BNS states that theft is snatching if, in order to commit theft, the offender suddenly or quickly or forcibly seizes or secures or grabs or takes away from any person or from his possession any movable property.
- Sexual Intercourse by employing deceitful means is a new offence introduced in Section 69 of the BNS. Deceitful means shall include inducement for, or false promise of employment, promotion or marrying by suppressing identity.
- Negligence of a doctor is a new offence under BNS which specifically punishes death caused by negligence of a “registered medical practitioner” while performing a medical procedure. The erstwhile section 304A of IPC generally dealing with negligence did not specifically mention doctor.
- Terrorism: This offence is defined as an act that intends to threaten the unity, integrity, and security of the country, intimidate the general public or disturb public order.
- Organised crime: This offence includes crimes such as kidnapping, extortion and cyber-crime committed on behalf of a crime syndicate.
- Petty organised crime : Petty organised crime is also an offence now. It provides that whoever, being a member of a group or gang, either singly or jointly, commits any act of theft, snatching, cheating, unauthorised selling of tickets, unauthorised betting or gambling, selling of public examination question papers or any other similar criminal act, is said to commit petty organised crime.
- Mob lynching: 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 of life imprisonment or death and also fine.
- Printing or publishing trial court proceeding relating to sexual offences without permission of court : Section 73 of BNS provides that printing or publishing any matter in relation to any proceeding before a Court with respect to offence relating to rape, sexual intercourse by husband upon his wife during separation, sexual intercourse by person in authority, Sexual intercourse by employing deceitful means, etc, gang rape, without the previous permission of such Court shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.
- Hiring, employing or engaging a child to commit a crime is a new offence in BNS. Under IPC, there was no provision to prosecute a person who employ or engage a child for the purpose of committing offences. A new section 95 of BNS has been introduced to make hiring, employing, engaging or using a child for committing offences including sexual exploitation or p*rnography offence as if such person himself has committed the offence.
- Abetting commission of an offence in India while being outside India is a new offence in BNS.
- Murder by life convict is a new offence in BNS. The Supreme Court had struck down existing section 303 of IPC pertaining to punishment for murder by life-convict on the ground that it provided for only single punishment of death and the court had no discretion. Now, two alternate punishments of death or imprisonment for life have been provided to remove the said infirmity under Section 104 of BNS.
3. Gender Neutrality under BNS:
The BNS has introduced gender neutral term ‘whoever’ instead of ‘any man who’ used in Sections 354 B and 354C of IPC for offences such as assault or use of criminal force to woman with intent to disrobe her and Voyeurism under Sections 76 and 77 of the BNS respectively. In offences relating to harbouring deserter, the word “wife” is replaced by “spouse” in the exception of this section thereby made gender neutral.
The offence relating to importation of a person from foreign country has been made gender neutral to cover both boys and girls in Section 141 of the BNS as compared to the word ‘importation of girl from foreign country’ as used in Section 366B of IPC.
As both boys and girls are procured for sexual exploitation, the word “minor girl” in section 366A of IPC has been replaced with the word “child” in Sections 93 to 99 of BNS to cover both male and female children below the age of 18 years and the offence of procurement has been made punishable. Uniformity has been introduced in the use of expression ‘child’ throughout the BNS which is achieved by replacing the expression ‘minor’ and ‘child under the age of eighteen years’ with the word ‘child’.
4. Increased Penalties/fines/introduction of mandatory minimum punishment under BNS:
The BNS has also increased punishment of imprisonment in 33 offences, including:
- Murder: As per Section 103 of the BNS, whoever commits murder shall be punished with death or imprisonment for life which means imprisonment for the remainder of a person's natural life and shall also be liable to fine.
- Causing death by rash or negligent act-106 (1) of BNS: The maximum penalty for this offence has been increased from two years to five years imprisonment. However, if such death is caused by a registered doctor, then the punishment is imprisonment up to 2 years.
- Hit and run cases- Under Section 106(2) of BNS, if a driver causes the death of a person by rash and negligent driving and “escapes without reporting it to a police officer or a Magistrate soon after the incident, shall be punished with imprisonment of either description of a term which may extend to ten years, and shall also be liable to fine.” The said section is kept in abeyance at present.
- Grievous Hurt which results in persistent vegetative state or in permanent disability - 117(3) of BNS: A new provision has been introduced in the BNS to provide stringent punishment for such acts of grievous hurt which results in persistent vegetative state or in permanent disability, it will attract higher punishment of rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life (remainder of that person’s natural life) as against up to 7 years imprisonment for grievous hurt earlier in IPC.
The BNS has increased punishment of fine in 83 offences. Fine of 10/-, 100/-, 200/-, 250/-500/- etc. have been enhanced to 1000/-, 2500/-, 5000/-,10,000/- etc.to make the fine contemporaneous.
The BNS has introduced mandatory minimum punishment in 23 offences including buying child for the purpose of prostitution, organised crime, terrorist act, hurt to deter public servant from his duty, personating a public servant, theft etc.
5. Community Service as a Punishment under BNS:
The BNS has introduced community service as a form of punishment under section 4(f) of BNS for the first time for the six offences of: (i) Public Servant unlawfully engaging in trade under section 202 of BNS (ii) Non-appearance in response to a proclamation published under sub section (i) of section 84 of BNSS is punishable under section 209 of BNS (iii) Attempt to commit suicide to compel or restrain exercise of lawful power of public servant under section 226 of BNS (iv) Petty theft on return of theft money and a person is convicted for the first time under section 303(2) of BNS (v) Misconduct in public by a drunken person under section 355 of BNS (vi) Defamation under section 356 of BNS. However, the BNS does not offer any explanation or clarification of what constitutes ‘community service’, even though it provides for community service as a penalty for aforesaid six minor offences.
6. Other significant changes under BNS:
The BNS has also made a number of other changes, including:
- Replacement of the words:
- BNS has replaced the expression ‘Night’ used in IPC with ‘after sunset and before sunrise’. Under Section 41 of BNS, fire has been expanded to include mischief by fire or any explosive substance. ‘Wife’ is replaced with ‘spouse’ at several places. Words “Court of justice” are replaced with “Court”. Words “insane person” are replaced with “person of unsound mind”. Word “Goa” is replaced by “country X” in illustration of Abetment in India of offences outside India. Word “military” is replaced with “army”.
- Under Sec 2 (21) of BNS, movable property includes property of every description which means tangible as well as intangible property.
- In offences relating to mischief by injury, inundation, fire or explosive substance, etc., words “light house or other light used as sea marks or any sea mark or buoy” are replaced by “any sign or signal used for navigation of rail, aircraft, or ship,” thus the scope is widened immensely.
- In offences relating to forgery of record of Court or of public register, etc, the words “Court or an identity document issued by the government, including a voter identity card or Aadhaar card,” has been added, and “baptism” is excluded.
- Removal of age based parameters: Age based parameters for differential punishment (for gang rape of a minor girl) has been removed and now Section 70(2) of BNS prescribes life imprisonment (till remainder of that person’s natural life) or death for gang rape of a woman below the age of 18 years.
- Expanding the scope of theft: The scope of the offence of theft has been expanded to cover theft of intangible items, such as intellectual property. Further, Section 380 of IPC relating to ‘theft in dwelling house etc.’ has been expanded in Section 305 of BNS to cover theft of idol or icon, government property, theft of vehicle and theft of any article/goods from the vehicle.
- Replacement of word Unsound Mind with Mental Illness: Section 84 of theIPC provides that any act performed by a person of unsound mind cannot constitute an offence. The BNS while retaining the provision in Section 22 of BNS has replaced the term ‘unsound mind’ with ‘mental illness’ as the definition of mental illness is considered wider compared to unsound mind, as it includes conditions such as mood swings or voluntary intoxication.
- Adoption of technology and digital media: Section 2(39) of the BNS states that all words or expressions with regards to technology and digital media in general, shall have the same meanings as those given in the Information Technology Act, 2002, as well as the Bharatiya Nagarik Suraksha Sanhita, 2023.
- Murder or attempt to murder by a life convict: Section 303 of IPC imposed death penalty as a punishment for the offence of murder committed by a life convict which was held unconstitutional by Supreme Court of India in Mithu v. State of Punjab case (1983). The BNS reintroduced the said provision by adding life imprisonment as one of the penalties (in addition to the death penalty) for murder or attempt to murder by a life convict.
- Clubbing of provisions of Criminal breach and cheating: Criminal breach of trust as provided under Sections 406 – 409 of IPC are clubbed in one provision under Section 316 of BNS. Similarly, all forms of cheating under IPC in Sections 417, 418 and 420 are clubbed in one provision under Section 318 of BNS.
- Transgender: A transgender has been included in the definition of ‘Gender’ under Section 2(10) of BNS to have the meaning assigned to it in clause (k) of section 2 of the Transgender Persons (Protection of Rights) Act, 2019 which means a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta.
- Calander: In clause 2(20) of BNS, the reference to the month and year has been changed from British calendar month or year to Gregorian calendar month or year.
- Imprisonment for life: Imprisonment for life has been elaborated as imprisonment for remainder of a person’s natural life under various Sections of BNS.
- forged or counterfeit currency-notes or bank-notes: Section 489A of IPC has been amended and introduced as Section 180 of BNS to protect the public who are merely in possession of forged or counterfeit currency-notes or bank-notes etc. BNS now qualifies the section with the words “knowing or having reason to believe the same to be forged or counterfeit” and provides that possession of counterfeit currency note has to be accompanied by the intention to use the same as genuine.
- Mischief: The offence of mischief in the relevant sections of IPC has been expanded and causing loss or damage to any property including the property of Government or Local Authority has been made punishable with imprisonment extendable up to one year, or with fine, or with both (as against just 6 months or with fine, or both for offence of mischief presently).
- Age of sexual consent raised for married women: The Supreme Court in the judgment of Independent Thought v. Union of India case (2017) had read down the section 375 of IPC as far as the age of sexual consent for married women is concerned and had also raised the same to 18 years in conformity with Protection of Children from Sexual Offences (POCSO) Act. The BNS has raised the age of sexual consent for married women provided from 15 to 18 years.
- Offences relating to Elections retained: Sections 169 to 177 in Chapter IX of BNS dealing with the offences relating to elections have been retained in BNS despite objections that the special Act i.e Representation of People Act, 1951 (“RP Act”), deals with election offences in detail and should be incorporated suitably in the RP Act. It is possibly on the ground that the RP Act applies only to Parliament and Legislative Assemblies elections whereas the offences listed under Chapter IX of BNS apply to all elections which include Municipal elections and Panchayat elections.
- Fake news: Section 197 of BNS provides that whoever makes or publishes false or misleading information, jeopardising the sovereignty, unity and integrity or security of India shall be punished with imprisonment which may extend to three years or with fine or with both.
Key Issues in BNS:
- Overlapping of offences: Several offences of BNS overlap with special laws such as terrorist acts are dealt under BNS as well as the Unlawful Activities (Prevention) Act, 1967 (UAPA). Organised crime is covered by BNS as well as state laws such as the Maharashtra Control of Organised Crime Act, 1999 (MCOCA), and similar laws enacted by Karnataka, Gujarat, Uttar Pradesh, Haryana and Rajasthan. 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.
- Reintroduction of Adultery: Though Adultery defined under Section 498 of the IPC has been removed from BNS, however Section 84 of BNS reintroduces the offence indirectly by providing punishment to a man for enticing the wife of another man so that she may have intercourse with any person.
- Scope of Community Service unclear: The BNS introduces community service as a punishment, however, the scope and mode of community service has been left unclear.
- Definition too broad: Terrorism has been defined too broadly under BNS.
- Definition lacks clarity: The definition of petty organised crime under BNS lacks clarity. It is unclear what is meant by terms such as “being a member of group or gang”, “unauthorised selling of tickets”, “unauthorised betting or gambling” or “any other similar criminal act”.
- Age threshold varies: Age threshold of the victim for similar offences against children varies in BNS. For gang rape in Section 70 of BNS, the imprisonment differs based on whether the victim is above or below 18 years of age. However, for rape under Section 64 and 65 of BNS, the imprisonment 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 POCSO Act, which classifies all individuals below the age of 18 as child and provides separate punishments for sexual assault, penetrative sexual assault and aggravated sexual assault.
- Duplication of offences: There is duplication of offences under BNS with other special laws such as the Food Safety and Security Act, 2006, the Drugs and Cosmetics Act, 1940, the Bonded Labour System (Abolition) Act, 1976, the Juvenile Justice Act, 2015 and the Motor Vehicles Act, 1988.
- Unnatural Sexual Offences unclear: The BNS does not retain Section 377 of IPC dealing with unnatural sexual offences. This implies that rape/sodomy of an adult man will not be an offence under the BNS, neither will having intercourse with an animal. However, under Section 38 of BNS, the right of private defence of body extending to causing death includes an assault with intention of gratifying unnatural lust, which means though sodomy is no offence but a person being/apprehended being sodomised can cause death of the perpetrator.
- Mob lynching confusion: Mob lynching has been defined to mean offence of murder by a group of five or more persons on grounds of certain identity markers such as caste, language or personal belief. Significantly, the section specifies identity markers such as caste and language but does not specify religion.
Anhad Law’s Perspective
In conclusion, notwithstanding the aforesaid issues, the BNS represents a significant step forward in reforming India's criminal justice system. Despite its progressive provisions, the success of BNS will depend on effective implementation and continuous evaluation to ensure it meets the evolving needs of society. Besides the training and sensitization of law enforcement agencies, judiciary, and legal practitioners, adequate resources and infrastructure are also essential to support the new legal framework.
