Indian Penal Code 1860 vs. Bharatiya Nyaya Sanhita 2023

Pallab Bhattacharyya

(Pallab Bhattacharyya is a former director-general of police, Special Branch and erstwhile Chairman, APSC. Views expressed by him is personal. He can be reached at pallab1959@hotmail.com)

The Bharatiya Nyaya Sanhita (BNS) 2023 stands as a proposed replacement for the Indian Penal Code (IPC) 1860, colonial-era legislation long overdue for reform. This study aims to compare the two codes, highlighting the key changes, positives, and negatives of the BNS.

Similarities:

l Nearly 80% of the provisions in IPC and BNS are the same.

l Core Offences: BNS retains most crimes defined in the IPC, such as murder, theft, and assault. This ensures continuity in addressing fundamental criminal activity. For instance, Section 302 of the IPC defines murder, which is essentially mirrored in Section 103 of the BNS. Similarly, offences like theft (Sections 378–382 of the IPC) and assault (Sections 351-358 of the IPC) find their counterparts in Sections 303–307 and 130–136 of the BNS, respectively. This continuity ensures familiarity and consistency in addressing common criminal acts.

l Punishment Structure: The framework of imprisonment terms and fines remains familiar, offering judges familiar scales for sentencing. BNS retains imprisonment terms and fines as major forms of punishment, albeit with adjustments. For example, IPC’s life imprisonment is retained in BNS while extending its use to certain cases, like repeat serious offenses. This familiar structure helps judges navigate sentencing within established benchmarks.

Differences and Positives of the BNS:

l Modernization: BNS addresses contemporary concerns by introducing new offences like terrorism, organized crime, and cybercrime, reflecting the evolving criminal landscape. The creation of offences like “terrorism” (Section 113, BNS) addresses threats like organized violence and extremist networks not explicitly covered in the IPC. S 111 and S 112 deal with Organized & Petty Organized Crimes that are afflicting the present society. Similarly, Section 111 has introduced “cybercrime” in the organised crime category, which is an emerging concern in the digital era.

l Decolonization: Terminology is updated to remove colonial terms and reflect Indian values, enhancing cultural relevance and ensuring equal respect for all communities.Offences like voyeurism (Section 77), stalking (Section 78), etc. specific to women are brought under the head of the criminal force, and assault against women under Chapter V. In offences against the body, the use of more respectful and gender-neutral language is noticed in BNS. This promotes inclusivity and aligns with contemporary perspectives.

l Increased Protection: BNS strengthens vulnerable groups’ rights by raising the age of consent to 18, expanding definitions of sexual assault, and introducing stricter penalties for crimes against women and children. The age of consent raised to 18 in BNS strengthens child protection laws. Expanding “sexual assault” to include acts like voyeurism and stalking (Sections 77 and 78, BNS) provides wider coverage and recognizes forms of abuse beyond conventional definitions.

l Community Service: BNS introduces community service for petty offences for the first time as an alternative punishment option, promoting rehabilitation and fostering a sense of civic responsibility. Introducing community service as an option in specific cases (Section 355, 226 etc.) offers an alternative to imprisonment, particularly for non-violent offenses. This can promote rehabilitation, increase community engagement, and reduce prison overcrowding.

l Removed Controversial Provisions: Sedition is decriminalized, potentially addressing concerns about its misuse against dissent. Decriminalizing sedition (previously Section 124A, IPC) potentially removes a tool for suppressing dissent and facilitates open expression within defined limitations.

Negatives and Challenges of the BNS:

l Implementation Concerns: The sheer size and complexity of the BNS might pose challenges in training law enforcement and judiciary effectively, potentially delaying swift implementation. The BNS’s significant size and complexity compared to the IPC might pose challenges in training law enforcement and judiciary personnel effectively. This could lead to inconsistent applications and delays in smooth implementation. BPR&D has already been tasked by MHA with prior and regular training of police personnel. However, it is felt that this should be institutionalized at the earliest.

l New Definitions: Some new offence definitions, like “acts endangering sovereignty,” lack clarity, raising concerns about potential misuse for suppression of dissent. Terms like “acts endangering sovereignty, unity, and integrity of India” (Section 152, BNS) lack a precise definition, raising concerns about potential misuse for suppressing dissent or curtailing legitimate criticism of the government. Though Sedition has been decriminalized certain sections like the Terrorist Act (Section 113), 148 (waging,  attempting to wage war, or abetting the waging of war) against the Government of India, conspiracy to commit offences punishable by Sections 147, 152 (Act endangering sovereignty, unity, and integrity of India), etc. leave a lurking fear of their misuse.

l Section 106(2) of the BNS says, “Whoever causes the death of any person by rash and negligent driving of vehicle not amounting to culpable homicide, 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.” This controversial provision led to an all-India strike by transporters, and this deserves special debate. Another such provision that deserves public debate is Section 26, which gives protection to doctors immunity.

l Lack of Public Debate: The BNS was drafted with limited public consultation, raising concerns about transparency and public trust in the new code. Limited public consultation during the BNS drafting process raises concerns about transparency and public trust in the new code. This could lead to challenges in gaining public acceptance and legitimacy for the reformed legal framework. However, the Bharatiya Nyaya Sanhita Bill 2023 was introduced in the Lok Sabha on August 11, 2023. The bill was referred to the department-related Parliamentary Standing Committee on Home Affairs for its consideration and report. The Committee, after deliberations, made its recommendations in its report submitted on November 10, 2023. The recommendations made by the committee have been stated to be considered by the government, and it has been decided to withdraw the bill pending in Lok Sabha and introduce the new bill, incorporating therein those recommendations made by the committee that have been accepted by the government.