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Bharatiya Nyaya Sanhita: A Comprehensive Overview

1 Jul 2024

The three new criminal laws, Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagrik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA), passed in Parliament last December, came into effect on Monday. These laws aim to modernize India's criminal justice framework, but some new provisions have raised concerns among critics.

Introduction

The three new criminal laws, Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagrik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA), passed in Parliament last December, came into effect on Monday. These laws aim to modernize India's criminal justice framework, but some new provisions have raised concerns among critics.


Overview of New Laws

Replacement of Colonial-Era Laws

  • The BNS, BNSS, and BSA will replace the Indian Penal Code (IPC), 1860, the Criminal Procedure Code (CrPC), 1973, and the Indian Evidence Act, 1872, respectively. Since Independence, these colonial-era laws have seen several revisions. 

  • However, as Union Home Minister Amit Shah emphasized during the passage of the new laws in Parliament, the sanhitas represent laws framed by Indians for Indians.


Consultation and Passage

  • Even leaving aside the government’s ‘decolonisation’ narrative, there has been an overwhelming consensus that India’s criminal laws needed updating. 

  • At the same time, the consultation process during the pandemic for drafting the laws and their hasty passage through Parliament have caused much disquiet. 

  • Some legal experts opine that although the new laws make significant changes, they do not ‘overhaul’ the existing laws.





New Crimes in BNS

Clause 69: Penalising Deceitful Sexual Intercourse

  • Clause 69 penalizes sexual intercourse obtained through "deceitful means." 

  • The provision reads: "Whoever, by deceitful means or by making a promise to marry a woman without any intention of fulfilling the same, has sexual intercourse with her… shall be punished with imprisonment" of up to 10 years and also be liable for a fine. "Deceitful means" includes the false promise of employment or promotion, inducement, or marrying after suppressing identity. Critics argue that this might, in some cases, end up criminalizing consensual relationships and promote the "love jihad" narrative.


Clause 103: Recognizing Hate Crime Murders

  • For the first time, Clause 103 of the BNS recognizes murder on the grounds of race, caste, or community as a separate offense. In 2018, the Supreme Court directed the Centre to consider a separate law for lynching. 

  • This new provision could ensure such crimes, which have been on the rise in recent years, receive legal recognition.


Clause 111(1): Organized Crime and Terrorism

  • The BNS includes offenses such as organized crime and terrorism, previously covered by specific stringent laws like the Unlawful Activities Prevention Act (UAPA) for terrorism and state-specific laws such as the Maharashtra Control of Organized Crime Act for organized crime. 

  • Organized crime is defined broadly, including activities such as kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offenses, severe cyber-crimes, and human trafficking.


Clause 304(1): Snatching

  • Snatching, defined in Clause 304(1), is also a new crime distinct from theft. The definition reads: "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." Both theft and snatching prescribe a punishment of up to three years in jail.


Legislative Intent and Rearrangement of Provisions

  • The rearrangement of provisions in the BNS signals legislative intent. 

  • Unlike the IPC, the BNS places crimes against women before offenses against the state, highlighting the importance of addressing violence against women.


New Timelines and Processes in BNSS

Expansion of Police Custody

  • A significant change in the BNSS is the expansion of detention in police custody from the 15-day limit in the CrPC to up to 90 days. 

  • This change is intended to incentivize the police to complete investigations promptly and reduce the likelihood of custodial torture and forced confessions.


Victim-Centric Approach

  • The BNSS takes a "victim-centric" approach by implementing tighter timelines for completing trials. 

  • It also states that in cases where the punishment is seven years or more, the victim shall be given an opportunity to be heard before the government withdraws the case.




Trials in Absentia

  • Trials in absentia, where a person accused of a crime can be tried and convicted in their absence, are another new introduction in the BNSS. 

  • Critics argue that this provision could allow the state to neglect its duty to properly locate the accused before the trial begins.


Removal of Statutory Bail

  • The BNSS removes the provision for statutory bail if an accused has more than one offense against their name. 

  • This change aims to prevent prolonged trials and continuous incarceration without fault.


Positive Changes

Community Service

  • The introduction of community service as an alternative form of punishment for some offenses is a key positive change. This includes small theft, defamation, and attempted suicide with the intention of preventing a public official from performing their duty. 

  • Community service helps keep first-time convicts and those convicted of minor offenses out of prison.



Sexual Intercourse with Minor Wife

  • Sexual intercourse with a minor wife is now considered rape. The IPC had an exception for marital rape for wives under 15 years. The new law addresses the gray area for 15-18-year-old married girls.



Offenses for Mob-Lynching

  • The inclusion of offenses for mob-lynching is crucial and signals legislative acknowledgment of such hate crimes

  • The emphasis on video-conferencing of trials and prescription of timelines for speedy trials should improve justice delivery.


Remaining Grey Areas

Sedition

  • The BNS reintroduces the offense of sedition with a broader definition while incorporating the Supreme Court guidelines from the 1962 Kedarnath Singh case.

  • This renaming from "rajdroh" (rebellion against the king) to "deshdroh" (rebellion against the nation) raises concerns about the continued existence of the sedition law.


Penalizing Rape of Male Victims

  • The BNS entirely leaves out the contentious Section 377 of the IPC, which criminalizes "carnal intercourse against the order of nature." 

  • While the Supreme Court read down this provision in 2018 to decriminalize consensual sex among adults, Section 377 is still invoked for non-consensual sex, often the only recourse in cases of male rape. 

  • The exclusion of this provision and the lack of gender-neutral rape laws leave little criminal recourse for male victims of sexual assault.


Conclusion

  • The new criminal laws, Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagrik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA), represent a significant shift in India's criminal justice framework. 

  • While they introduce several positive changes, including new crimes, expanded police custody, and a victim-centric approach, they also raise concerns about potential misuse and gaps in addressing male victims of sexual assault.




Importance for UPSC and Other Exams

  • This article is crucial for UPSC CSE, UPSC CAPF, Assistant Commandant, Essay writing, current affairs, NDA, CDS, SSB Interview, AFCAT, IAS, IB ACIO, and other competitive exams. It provides a comprehensive overview of India's new criminal laws, highlighting key changes, new offenses, and remaining grey areas

  • Understanding these laws is essential for aspirants as they are relevant for topics related to the Indian legal system, governance, and societal issues. 

  • The discussion on potential misuse and gaps in the new laws also offers critical insights for essay writing and interviews, helping candidates form well-rounded arguments.

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