The Bharatiya Nyaya (Second) Sanhita, 2023

by  Adv. Deepak Pandey  

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Bharatiya Nyaya Sanhita: A Modern Revolution in India's Criminal Justice System

The Indian Penal Code was modelled after British criminal law, controlling and punishing India instead of assisting or shielding it. Since our society has changed in every way, certain sections of this criminal code are no longer applicable. To uphold Indian people’s rights, the Union Government of India recommended amending the criminal laws from the colonial era. To replace the Indian Evidence Act, the Indian Penal Code, and the Code of Criminal Procedure (CrPC), the Minister of Home Affairs filed three legislation in the Lok Sabha. 

The Indian Evidence Act of 1872, the CrPC 1973, and the IPC 1860 were to be replaced, respectively, by the Bharatiya Nyaya Sanhita Bill 2023, Bharatiya Nagarika Suraksha Sanhita Bill 2023, and Bharatiya Sakshya Bill 2023. “These three acts, which will be replaced, were made to strengthen and protect British rule and their purpose was to punish, not to give justice,” Union Minister Amit Shah stated when introducing the Bills.

We intend to implement modifications in these two essential areas. We’ll talk about the main clauses and modifications that the Bharatiya Nyaya Sanhita (BNS) of 2023 introduces in this article.

People Also Read: Difference Between Code of Criminal Procedure (CrPC) and Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 (BNSS2)

Bharatiya Nyaya Sanhita (BNS) 2023

The Bharatiya Nyaya Sanhita 2023, also known as the BNS Bill 2023, marks a significant milestone in the evolution of India’s legal system. This comprehensive legislation aims to streamline and modernize the country’s criminal law, making it more relevant and effective in today’s context

The primary criminal code in India is the IPC 1860, which covers offences against the state, property, human body, public order, defamation, and public health. The long-standing Indian Penal Code has undergone numerous amendments throughout the years to add new offences, modify existing offences, and alter the severity of punishment.

In addition, several Law Commission reports have suggested changes to the IPC on offences against women, food adulteration, and capital punishment. With 358 provisions compared to the 511 sections of the IPC 1860, the Bharatiya Nyaya Sanhita Bill 2023 was intended to change the way criminal justice is delivered in India.

On August 11, 2023, Minister of Home Affairs Amit Shah presented the Bharatiya Nyaya Sanhita Bill to the Lok Sabha. Additionally, on December 12, 2023, the Bharatiya Nyaya (Second) Sanhita Bill, 2023 was introduced in the Lok Sabha, and the BNS Bill was withdrawn. The Lok Sabha and Rajya Sabha, respectively, passed the Bharatiya Nyaya (Second) Sanhita Bill, 2023 on December 20 and 21. Furthermore, on December 25, 2023, India’s President Droupadi Murmu signed the Bharatiya Nyaya (Second) Sanhita Bill, 2023.

People Also Read: Key Changes Proposed in the Bharatiya Sakshya (Second) Bill

Key Provisions and Changes in BNS

The new law prioritizes crimes against women, the state, homicide, and minors. Additionally, it brought consistency and clarity to the legal language by substituting the term “child” for phrases like “minor” and “child under the age of eighteen” throughout the statute. 

Under Section 84 of Bharatiya Nagarik Suraksha Sanhita, 2023, the new BNS law includes “community service” as one of the penalties for several offences, including “public servant unlawfully engaging in trade,” “non-appearance in response to a proclamation,” “attempting to commit suicide to compel or restrain the exercise of lawful power,” “misconduct in public by a drunken person,” and defamation. 

Here is a list of some of the most significant adjustments:

The Ground of Mental Illness Does Not Recognise General Exceptions of Criminal Responsibility

Any conduct carried out by a person of unsound mind is not considered an offence, according to the IPC. This clause is kept in the BNS however, “mental illness” is used in place of the term “unsound mind.” It declares that the Mental Healthcare Act of 2017 (MHA, 2017) defines mental illness. According to the MHA, 2017, a serious thinking, orientation, or memory issue that seriously hinders one’s ability to recognize reality is considered a mental illness. 

Mental retardation or insufficient mental development is expressly excluded from mental disease in the definition. If this concept of mental disease is used to absolve someone of criminal guilt, people with mental retardation may not be granted the right to a fair trial.

2008 saw an amendment to the Code of Criminal Procedure (CrPC), 1972, requiring a clinical examination to determine if the subject was mentally retarded or unsound, both of which could lead to the subject’s acquittal.

Offences Against Property

Dishonest Misappropriation of property (Section 314)

The BNS currently stipulates that dishonest misappropriation of property carries a minimum sentence of six months. Furthermore, the IPC no longer punishes the offence with either a fine or imprisonment, but rather with both. In this setting, the focus has shifted to imprisonment.

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Criminal Breach of Trust (Section 316)

The IPC’s Sections 406 through 409 on criminal breach of trust have been combined into Section 316. Furthermore, under the IPC, criminal breach of trust is now punishable by up to five years in jail, as opposed to the previous three years.

Cheating (Section 318)

Similarly, Sections 417, 418, and 420 of the IPC, which dealt with various forms of cheating, have been combined into Section 318 of the BNS. The Indian Penal Code now penalizes cheating with up to three years in prison, instead of just one year. The penalty for the most severe type of cheating, known as “cheating with the knowledge that wrongful loss may ensue to person whose interest offender is bound to protect,” has been raised from three years under the IPC to five years in jail.

Offences Affecting the Human Body

Organised crime

The Maharashtra Control of Organised Crime Act, 1999 (“MCOCA”), the Gujarat Control of Organised Crime Act, 2015 (“GCOC”), and other specialised state laws that aim to combat organised crime are the main sources of inspiration for Section 111 of the BNS, which introduces the offence of “organised crime.”

The provision’s definition of “organized crime” is imprecise, ambiguous, and dependent on catch-all language, giving investigating authorities unrestricted power and freedom to prosecute people based only on these imprecise and ambiguous terms. Terms like “land grabbing,” “contract killing,” “cybercrimes,” and so forth are used in the description but are not defined in the Sanhita. It also makes use of “economic offence.” The economic offence is described in imprecise terms with overly general expressions like “hawala transaction” and “mass-marketing fraud” which otherwise have not been defined anywhere in the BNS or other statutes, potentially adding to further confusion.

Similarly, small organized crime is defined in Section 112. Extremely nebulous and subjective phrases like “trick theft,” “pickpocketing,” “card skimming,” “unauthorised selling of tickets,” etc. are also used in the concept of minor organised crime. Additionally, it renders “any other similar criminal act” punishable. As a result, the scope of the offence is still blatantly ambiguous, giving investigating authorities plenty of leeway when it comes to charging individuals.

Causing Death by Negligence (Section 106) 

Under the BNS, the crime of causing death by carelessness has experienced a substantial modification. The penalty for hasty and careless acts that result in death has been raised to five years in prison plus a fine. In the past, the IPC punished such an offence with a two-year sentence, a fine, or both.

Mob Lynching

Given the rise in hate crimes and mob lynchings around the nation, the BNS now expressly stipulates that murder will be punished in mob lynching instances. According to the provision, each member of a group of five or more people acting together that murders based on race, caste, community, sex, place of birth, language, personal belief, or any other similar ground faces the possibility of execution or life in prison, in addition to a fine.

Overlap with Unlawful Activities (Prevention) Act, 1967

Terrorism

The BNS includes the crime of terrorism. A terrorist act is defined as one that aims to: (i) intimidate members of the public; (ii) harm the nation’s unity, integrity, and security; or (iii) disrupt public order. Terrorist activities can involve: (i) spreading terror or causing death or danger to others by employing firearms, bombs, or dangerous materials; or (ii) causing property damage or interfering with the provision of critical services. Many other offences can be labelled as acts of terrorism by adding the intent to disrupt public order to the list of terrorist offences. These might include everything from rioting and mob violence to armed rebellion and war against the government.

According to the Supreme Court (1960), public order is the absence of chaos brought on by localized violations of the peace. It distinguished this kind of chaos from national upheavals like war, struggle, and revolution, which run the risk of jeopardizing state security. Terrifying the public is likewise considered a terrorist act under the BNS. A definition of “intimidation” was proposed by the Standing Committee on Home Affairs (2023) to clear up any confusion regarding the classification of terrorist acts.11

Besides the above, there are other overlapping offences between the BNS and UAPA, such as the following:

Offence under BNSOffence under UAPA
Section 113(3)Section 18
Anyone found guilty of plotting, trying to carry out, advocating, aiding, advising, or inciting, directly or intentionally facilitating the commission of a terrorist act, or any act leading up to the commission of a terrorist act, faces a minimum sentence of five years in prison, a maximum sentence of life in prison, and a fine.Anyone found guilty of plotting, trying to carry out, advocating, aiding, advising, or inciting, directly or intentionally facilitating the commission of a terrorist act, or any act leading up to the commission of a terrorist act, faces a minimum sentence of five years in prison, a maximum sentence of life in prison, and a fine.
Section 113(5)Section 20
Any individual who belongs to an organization that engages in terrorist activities faces life in prison as well as harsh penalties.Any individual who participates in terrorist activities as a member of a terrorist organization or gang faces life in prison as well as a fine.
Section 113(6)Section 19
Anyone who willingly harbours, conceals, or attempts to conceal someone who has committed a terrorist act faces a minimum sentence of three years in prison, a maximum sentence of life in prison, and a fine.With the exception that this subsection will not apply in situations where the offender’s spouse is the one harbouring or hiding the evidence.Any individual who willingly provides shelter to, conceals, or seeks to conceal someone they know is a terrorist faces a minimum sentence of three years in jail, a maximum sentence of life in prison, and a fine.With the exception that this section will not apply in any situation where the offender’s spouse is involved in the harbouring or concealing.
Section 113(7)Section 21
Anyone found in possession of property obtained via the commission of terrorist acts or derived from them will be subject to a fine and a term of imprisonment that might last up to life, together with additional penalties.Everyone who possesses property that was obtained through the terrorist fund or that was generated from the commission of terrorist acts is subject to fines and a sentence of imprisonment that might last up to life.

Offence of Sedition

The removal of the sedition offence specified by Section 124A of the IPC is the most welcome modification to the BNS. This is consistent with the Union of India’s declaration to the Supreme Court on May 11, 2022, that it is reevaluating and reexamining the sedition clause.

Sedition was merely a holdover from colonial times, created to punish any kind of disobedience against the British government. In a democratic society run according to the rule of law, it has no place.

Although the sedition offence under Section 124A of the IPC has been eliminated, it appears that Section 152 of the BNS, which addresses actions that jeopardize India’s sovereignty, unity, and integrity, has taken its place. 

Punishments

The BNS’s Section 4(f) provision requiring community service as a form of punishment is a crucial addition. Community service is defined as work that a court may compel a convict to complete as a form of punishment that serves the community and for which he is not entitled to any compensation in the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”) (new criminal procedural law) [23].

It’s important to note that the BNS has significantly changed from traditional punitive methods by introducing community service as a non-custodial and reformative type of punishment for minor offences.

It’s interesting to note that community service has been added to the BNS as an alternate punishment, even though the question of whether defamation should even be considered a criminal offence has not yet been settled for defamation. This is a positive reform in making the offence of defamation less punitive.

Applicability of BNS

The BNS’s repeals and savings clause does away with the IPC but leaves intact anything done or harmed by the IPC in the past. Additionally, Section 6 of the General Clauses Act of 1897 is relevant under the BNS.

It’s interesting to note that the BNS stipulates that any action taken or penalty carried out under the IPC will be considered to have been carried out by the relevant BNS provision, even though it also spares penalties, punishments, proceedings, investigations, and remedies related to any such penalty or punishment under the IPC]. Sadly, this clause raises concerns about the new penal code’s retroactive application in contravention of Article 20 of the Constitution, which states that no one shall be found guilty of any offence except for violation of law in force at the time of commission of the act.

Section 69 of Bharatiya Nyaya Sanhita

According to Section 69 of the Bharatiya Nyaya Sanhita (BNS) of 2023, engaging in sexual relations with a woman through fraudulent means or by promising to marry her but not following through on the commitment is a felony. This carries a maximum 10-year prison sentence as well as a fine. “Deceitful means” include marrying via identity suppression, inducement, and false promises of employment or promotion.

Petty Organized Crime

Petty organized crime is classified as an offence by the BNS. It includes pickpocketing, selling exam questions for public examinations, car theft, and any other organized crime that a gang commits. These must meet two criteria to qualify as such: (i) they must be perpetrated by gangs or organized crime groups (including mobile organized crime organizations) and (ii) they must create a general sense of insecurity among the populace. Such offences include a fee in addition to a one-to-seven-year jail sentence. 

What is meant by “general feelings of insecurity” is not apparent. Furthermore, phrases like “gang,” “anchor points,” and “mobile organized crime groups” are not defined in the BNS. The recommendation to rewrite the clause came from the Standing Committee on Home Affairs (2023).

Age Specifications for Offences 

Minimum age of criminal responsibility

The age of criminal responsibility is the youngest age at which a minor may face legal action and punishment for a crime. Questions concerning how much responsibility youngsters should take for their conduct have been raised by advances in our understanding of how teenage behaviour is influenced by brain biology. Nothing that a child under the age of seven commits is regarded as an offence under the IPC. 

If it is determined that the kid is still unable to comprehend the nature of his actions and their consequences, then the age at which he bears criminal responsibility rises to twelve years old. These clauses are still in the BNS. In comparison to other nations, this age is lower for criminal liability. A UN committee suggested in 2007 that states raise the age of criminal liability to above 12 

Offences Against Children 

 Higher penalties are stipulated under the BNS for offences against minors.  It usually stipulates that a victim who is less than eighteen years old must be treated as a minor.  Rape and gang rape of women and children carry distinct penalties.  However, the criterion for the victim’s minority varies depending on the type of rape and, thus, so does the punishment.  

The severity of the punishment varies for gang rape depending on whether the victim is older or less than 18.  But depending on whether the victim of rape is less than 12, older than 16, or older than 16, the punishment varies.  This goes against the Protection of Children from Sexual Offences Act of 2012, which categorizes everyone under the age of 18 as minor

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Offences Against Women      

The IPC’s rape-related provisions are retained by the BNS. The Justice Verma Committee (2013) and the Supreme Court’s suggestions for changing offences against women have not been addressed. 

Missing offences
IPC sections 375 and 377The crime of raping a woman is defined under Section 375. The Supreme Court interpreted Section 377 to exempt consensual adult sex, saying that it is not an offence to engage in “intercourse against the order of nature against any man, woman, or animal.” This implied that having sexual relations with an adult male under duress is wrong, just as having relations with an animal is. The POCSO Act of 2012 makes rape of children, regardless of gender, a criminal offence.Section 377 is not retained by the BNS. This suggests that having sex with an animal or raping an adult man will not be illegal under any circumstances. The recommendation of the Standing Committee on Home Affairs (2022) is to reinstate this particular provision.  
Drafting issues
ClauseIssue
23Acting in a drunken state. If someone is intoxicated and unable to discriminate between right and wrong, they are generally exempt from punishment under the Indian Penal Code (Section 85), provided that their intoxication was caused unintentionally or by force. The BNS substitutes “unless” for “provided that,” implying that someone who voluntarily became intoxicated would be absolved.
150takes the place of Section 124A of the IPC and does away with the word “sedition.” An explanation is an unfinished statement that can clarify what wouldn’t be considered offensive.
Obsolete references (may need to be updated with examples from modern life)
127Examples: (b) Z is seated in a chariot. The horses of Z accelerate in response to A lashing them. Here, A has induced Z to modify their motion by causing the animals to do so. Thus, A has used force against Z. If A has done this without Z’s permission, intending or knowing that he runs the risk of hurting, frightening, or upsetting Z as a result, A has used criminal force against Z.Additional examples concern cannons (illustration d in paragraph 100) and palanquins (illustration c in clause 127).

Background and Timeline For Bharatiya Nyaya Sanhita 2023 Bare Act

  • On 11 August 2023, Amit Shah, Minister of Home Affairs, introduced the Bharatiya Nyaya Sanhita Bill, 2023 in the Lok Sabha.
  • On 12 December 2023, the Bharatiya Nyaya Sanhita Bill, 2023 was withdrawn.
  • On 12 December 2023, the Bharatiya Nyaya (Second) Sanhita Bill, 2023 was introduced in Lok Sabha.
  • On 20 December 2023, the Bharatiya Nyaya (Second) Sanhita Bill, 2023 was passed in Lok Sabha.
  • On 21 December 2023, the Bharatiya Nyaya (Second) Sanhita bill, 2023 was passed in Rajya Shaba.
  • On 25 December 2023, the Bharatiya Nyaya (Second) Sanhita Bill, 2023 received the assent of the President of India.

Detailed Comparison of Old IPC and New Bharatiya Nyaya Sanhita (BNS)

FeatureOld Indian Penal Code (IPC)New Bharatiya Nyaya Sanhita (BNS)
Year of Enactment18602023
Overall ApproachColonial-era code, may not reflect modern societal needsAims to be more contemporary and address emerging crimes
OffencesCovers a wide range of offences against the state, person, property, reputation, and religionRetains most offences from IPC, categorized and reorganized for better clarity
New Offences (Examples)Limited– Organized crime- Terrorist act- Petty organized crime- Hit and run- Mob lynching- Hiring a child to commit offence – Sexual exploitation of woman by deceitful means- Acts endangering sovereignty, integrity and unity of India- Publication of false or fake news
PunishmentsPrimarily relies on imprisonment and fines– Retains imprisonment and fines – Introduces community service as an alternative punishment for certain offences – May have increased severity of punishment for some offences
SeditionSection 124A criminalizes acts intended to disaffection towards the governmentReplaced with a new offence focusing on acts endangering national security, sovereignty, and unity
Definition of ChildNot explicitly definedProvides a clear definition of a child
Gender RecognitionDoes not recognize transgender individualsRecognizes transgender individuals and includes “gender” in the definition
Electronic RecordsLimited recognition as secondary evidenceRecognized as primary evidence, with provisions for ensuring authenticity through proper chain of custody and examiner involvement
AbetmentSimilar provisions for abetment of offencesMay have modifications in specific sections, providing more clarity on different forms of abetment (incitement, instigation, conspiracy)
Police ConfessionsConfessions made to police officers are generally inadmissible, except if recorded by a MagistrateSimilar provisions, but stricter requirements for admissibility. May allow exceptions for confessions leading to discovery of facts.
DefinitionsUses some outdated terminologyModernizes some outdated terminology (e.g., “lunatic” replaced with “mentally ill”)

Conclusion

The Bharatiya Nyaya Sanhita 2023, which is expected to introduce revisions to Indian criminal law, represents a move in the right direction toward a more contemporary legal system. Along with amending the current IPC statute, it also adds several new measures that could enhance the justice system’s effectiveness, equity, and openness. 

However, thorough implementation and ongoing monitoring will be just as important in protecting Indian individuals’ rights as mere enforcement of this law. The BNS of 2023 as a whole is a thorough legal framework that is sensitive to the changing requirements of society and dedicated to justice.

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Accessing Bharatiya Nyaya Sanhita 2023 PDF

For those interested in a more detailed understanding of the Bharatiya Nyaya Sanhita 2023, they can download the official pdf. This comprehensive document provides an in-depth look at the various provisions and amendments introduced by the BNS Bill 2023.

Frequently Asked Questions about Bharatiya Nyaya Sanhita (BNS)

Q1.  What is the Bharatiya Nyaya Sanhita Act?

Ans1. The primary criminal legislation, the Indian Penal Code, 1860 (IPC), is replaced with the Bharatiya Nyaya Sanhita, 2023. One of the penalties for minor infractions is the first-time community service requirement. Priority has been given to murder, offences against women and children, and offences against the state.

Q2.  Is Bhartiya Nyaya Sanhita the same as IPC?

Ans2. No, Bharatiya Nyaya Sanhita is not the same as IPC. It’s a proposed law to replace the Indian Penal Code (IPC).

Q3.  What is the 69a Bharatiya Nyaya Sanhita?

Ans3.  Section 69 of Bharatiya Nyaya Sanhita criminalizes sexual intercourse under deceitful means or false promises of marriage, punishable by up to ten years imprisonment and a fine

Q4.  Has Bharatiya Nyaya Sanhita started?

Ans4. Yes, the Bharatiya Nyaya Sanhita, which replaces the Indian Penal Code, is set to come into force from July 1, 2024

Q5. How many sections are there in Bharatiya Nyaya Sanhita?

Ans5. The Bharatiya Nyaya Sanhita comprises 20 chapters and 358 sections. It is a proposed law set to replace the Indian Penal Code (IPC)

Q6. What are the 3 new criminal laws?

Ans6. The three new criminal laws are Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya Adhiniyam, replacing colonial-era codes

Q7. What are the major changes introduced by Bharatiya Nyaya Sanhita?

Ans7. Bharatiya Nyaya Sanhita introduces new offences, redefines sedition, consolidates certain provisions, and prioritizes offences against women, children, and murder

Q8. What is bharatiya nyaya sanhita 106/2

Ans8. Section 106(2) of Bharatiya Nyaya Sanhita penalizes rash driving causing death and fleeing the accident spot, with up to 10 years imprisonment and a fine

Q9. What is hate speech according to Bharatiya Nyaya Sanhita?

Ans9. Bharatiya Nyaya Sanhita defines hate speech as an act that threatens the unity, integrity, and security of the country or disturbs public order 

Q10. What is the Second Amendment of Bharatiya Nyaya Sanhita 2023?

Ans10. The Second Amendment of Bharatiya Nyaya Sanhita 2023 retains most IPC offences, adds community service as punishment, removes sedition, and introduces offences endangering India’s sovereignty

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Adv. Deepak Pandey

Adv. Deepak Pandey

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Deepak Pandey offers legal consultancy and advisory services with a keen emphasis on ethical and professional conduct to achieve favourable results. He has 5 years of experience in handling legal cases. As a result of his strong communication skills, Deepak is able to present his clients' cases with clarity and persuasion.

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