The Bharatiya Nyaya (Second) Sanhita, which has been passed by the Lok Sabha, seeks to replace the 164-year-old Indian Penal Code (IPC) and is being considered for passage in the Rajya Sabha along with two other bills – Bharatiya Nagarik Suraksha bill, 2023, which would replace the Code of Criminal Procedure (CrPC) and the Bharatiya Sakshya Bill, 2023, which would replace the Indian Evidence Act.
For the longest period, it has been recognised that a revamp of the criminal justice system in India is necessary. The existing laws, stemming from the colonial era, no longer represent the present-day dynamics and aspirations of Indian society.
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While the chatter is widely around the removal of sedition charges (Section 124A) and the introduction of similar provisions in the new Bharatiya Nyaya Sanhita Bill, a deep dive into the Bill suggests that the discussion has only scratched the surface and there’s more to it.
The key issues:
Minimum age of criminal responsibility higher than several other jurisdictions:
The age of criminal responsibility denotes the minimum age at which a child can be charged and penalized for an offense. Advances in our understanding of how brain biology influences adolescent behaviour have prompted inquiries into the level of accountability children should bear for their actions. According to the Indian Penal Code (IPC), actions committed by a child below the age of seven are not considered offences. If a child, due to an inability to comprehend the nature and consequences of their conduct, is found to lack criminal responsibility, this age threshold is extended to 12 years. The provisions of the new bill uphold these criteria. This age is lower than the age of criminal responsibility in other countries.
The age of criminal responsibility varies globally. For example, Germany sets it at 14 years, while in England and Wales, the threshold is 10 years. In Scotland, the age of criminal responsibility is established at 12 years. Meanwhile, in 2007, a United Nations Committee recommended that states establish the age of criminal responsibility at no less than 12 years.
The age threshold of victims for similar offences against children varies:
The Bharatiya Nyaya Sanhita introduces heightened penalties for offenses against children, generally considering individuals below the age of 18 as children. Distinctions in penalties exist between rape and gang rape of women and children. However, the criteria for determining the minority of the victim and, consequently, the applicable penalty vary across different offenses of rape.
In cases of gangrape, the penalty diverges based on whether the victim is above or below 18 years of age. Conversely, for rape, the penalty hinges on whether the victim’s age is below 12 years, between 12 and 16 years, or above. This approach contrasts with the Protection of Children from Sexual Offences Act, 2012, which designates all individuals below the age of 18 as minors.
Furthermore, the bill establishes an age threshold for certain offenses against children that is not uniformly set at 18 years. For instance, the act of kidnapping or abducting a child with the intent to steal from a parent applies exclusively to a child under 10 years old. Consequently, the punishment for kidnapping an 11-year-old is equivalent to that for kidnapping an adult.
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The overlap with special laws:
When the IPC was initially enacted, it encompassed all criminal offenses. However, as time progressed, special laws were introduced to address specific subjects and their related offenses. In the case of the new bill, certain offenses have been excluded. For instance, offenses related to weights and measures were integrated into the Legal Metrology Act, 2009, resulting in their removal from the bill. However, several offenses that overlap with special laws like in the case of abandonment of a child and rash driving have been retained.
Notably, the bill has also introduced new offenses, such as organised crime and terrorism, which are already covered under existing special laws. This redundancy in legal coverage may impose an additional compliance burden and incur costs. Moreover, it has the potential to create a scenario where multiple laws prescribe varying penalties for the same offenses. Eliminating such offenses could remove duplication, address potential inconsistencies, and streamline the regulatory landscape.
Aspects of sedition retained
The IPC characterizes sedition as the act of fostering or attempting to foster hatred, contempt, or the incitement of disaffection towards the government. The Supreme Court has temporarily suspended the offense of sedition pending examination by a Constitution bench. The new bill eliminates this particular offense and introduces a provision that penalises the following actions: (i) inciting or attempting to incite secession, armed rebellion, or subversive activities, (ii) promoting sentiments of separatist activities, or (iii) jeopardising the sovereignty, unity, and integrity of India. These offenses may involve verbal or symbolic expressions, electronic communication, or the use of financial resources. One could argue that the new provision retains certain elements of the offense of sedition while expanding the spectrum of actions that could be perceived as posing a threat to the unity and integrity of India. Additionally, terms like ‘subversive activities’ remain undefined, leaving uncertainty regarding what activities would fall under this classification.
In 1962, the Supreme Court restricted the scope of sedition to acts demonstrating the intention or propensity to cause public disorder or provoke violence. It is noteworthy that the new bill refers to ‘seditious matters’ in clauses 150, 195, 297, even though the term ‘sedition’ itself does not explicitly appear in the new bill.
Offences against women
The bill preserves the IPC provisions concerning rape but has not addressed numerous recommendations put forth by the Justice Verma Committee (2013) and the Supreme Court regarding the reform of offenses against women. Some of these recommendations included:
The Supreme Court recommended that rape should not be limited to penetration of the vagina, mouth or anus. Any non-consensual penetration of a sexual nature should be included in the definition of rape. The exception to marital rape should be removed. However, this has not been included in the bill.
Assault or use of criminal force on woman with intent to disrobe – penalty should be increased to imprisonment for at least five years up to 10 years. In the new bill, the penalty is imprisonment for at least three years up to seven years.
Drafting issues:
Several drafting issues in the bill have been pointed out. One such drafting issue is:
Section 375 defines the offense of rape against a woman, while Section 377 designates “intercourse against the order of nature with any man, woman, or animal” as an offense. The Supreme Court read this down to exclude consensual sex between adults. This meant that forced intercourse with an adult male is an offence, so is intercourse with an animal. Rape of children, regardless of gender is an offence under the POCSO Act, 2012. Notably, the new bill omits Section 377. This means that, under the new law, the rape of an adult man and engaging in intercourse with an animal will not be offenses. The Standing Committee on Home Affairs (2023) has recommended the reintroduction of this provision.
Key provisions of the Bill are:
Twenty new offences have been added to the Bharatiya Nyaya Sanhita (BNS)
Nineteen provisions that existed in IPC have been deleted
In 33 offences the punishment of imprisonment has been increased
In 83 offences the punishment of fine has been enhanced
In 23 offences the mandatory minimum punishment has been introduced
In six offences the punishment of ‘community service’ has been introduced
(With inputs from PRS Legislative)