Organized Crime Under The BNS And The Previous Laws: Critical Analysis

Introduction

Initially, there was no specific provision for organised crime and terrorist actions under “The Indian Penal Code 1860”. All the terrorist activities are included under the legislative provision of “The Unlawful Activities (Prevention) Act, 1967” and the organised crimes are provided under various state laws namely “The Maharashtra Control of Organised Crime Act 1999” and other states like Karnataka, Uttar Pradesh, Haryana, Rajasthan, and Gujarat have enacted similar provision.

Other Relevant Laws for Organized Crime

Indian Penal Code, 1860

• Section 120A: Defines criminal conspiracy
• Section 120B: Prescribes punishment for conspiracy

While these sections were used to address organized crime, they lacked specificity and effectiveness against large criminal syndicates.

The Maharashtra Control of Organized Crime Act, 1999 (MCOCA)

• Enacted to combat organized crime syndicates and gangs operating in Maharashtra.
• Inspired similar laws in other states.

The Prevention of Money Laundering Act, 2002 (PMLA)

• Focuses on preventing and penalizing money laundering activities.
• Crucial for tackling financial crimes linked to organized crime.

The Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act)

• Regulates the production, possession, sale, and consumption of narcotics.
• Helps counter drug smuggling and trafficking networks.

The Shift to a Uniform Law – The Bharatiya Nyaya Sanhita, 2023

For years, organized crime laws varied across states, allowing criminal gangs to exploit legal loopholes in regions without strict regulations. Even when caught, offenders were often only charged with criminal conspiracy, which was insufficient to address large-scale operations.

The introduction of The Bharatiya Nyaya Sanhita (BNS), 2023, brought a uniform legal framework across all states.

• Section 111 of BNS: Criminalizes organized crime nationwide.

This reform aims to modernize legal definitions, streamline procedures, and impose stricter penalties.

However, there are concerns about overlapping provisions with existing special laws like MCOCA and UAPA.

Despite these challenges, the inclusion of organized crime under BNS is a significant step toward stronger law enforcement and legal clarity across India.

Organized Crime

Organized crime is no longer limited to a single country—it has evolved into a global issue. Crimes such as drug trafficking, money laundering, terrorism, arms smuggling, and human trafficking now operate across borders, making them more complex and difficult to combat. With advancements in technology and communication, criminal organizations can now function with greater efficiency, mobility, and secrecy, further worsening the situation.

What is Organized Crime?

Organized crime refers to well-structured criminal networks involved in activities like drug smuggling, financial fraud, extortion, and acts of terrorism. These groups often transcend national boundaries, making them a serious threat to global security and economic stability. Addressing this challenge requires strong legal measures and international cooperation.

“A network of individuals or groups engaged in ongoing illegal activities, primarily driven by profit, regardless of national boundaries.”

Insights from the U.S. Task Force Report (1967)

The U.S. Task Force Report (1967) provides a detailed view of organized crime, stating:

“Organized crime is an underground society that operates beyond the control of the government and the people. It consists of criminal groups, gangs, and syndicates structured like large corporations, forming long-term conspiracies to establish control over various industries for the sole purpose of maximizing profits.”

This perspective highlights how criminal organizations function much like legitimate businesses—except their operations are rooted in illegal activities, corruption, and violence.

Organized Crimes under The Bharatiya Nyaya Sanhita, 2023

Chapter VI of “The Bharatiya Nyaya Sanhita, 2023” provides the provisions for organised crimes.

Section 111(1): “It should include any unlawful activity which is continuing such as kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offence, cyber-crimes, trafficking of persons, drugs, weapons or illicit goods or services, human trafficking for prostitution or ransom, further that it should be committed by any individual person, or any group of people like gangs who are acting in concert, singly or joint, or committed by member of such gang, syndicate. Such gang or syndicate must use some violence, threat of violence, intimidation, coercion, or by any other unlawful means. The ultimate object is to get direct or indirect some material benefits for instance financial benefit. If all these facts are available it shall constitute offence of organized crime”.

What are the essential ingredients of Organized Crime?

Organized crime consists of several essential components that define its nature and scope. These elements help distinguish it from ordinary criminal activities and determine its legal consequences.

Implication and Challenges

The inclusion of organized crime in The Bharatiya Nagarik Suraksha Sanhita, 2023 is a significant step toward tackling such offenses. However, several challenges and implications arise, necessitating careful measures for effective implementation.

1. Overlapping Legal Frameworks

   Existing laws such as the Unlawful Activities (Prevention) Act, 1967 and the Prevention of Money Laundering Act, 2002 already define specific offenses and outline investigation and trial procedures tailored to their objectives. In contrast, The Bharatiya Nyaya Sanhita, 2023 provides a broad definition of offenses, while The Bharatiya Nagarik Suraksha Sanhita, 2023 and The Bharatiya Sakshya Adhiniyam, 2023 lay down general procedural guidelines.

   This overlap creates legal ambiguity, leading to confusion in investigation and trial processes. Such inconsistencies can pose difficulties for victims, accused individuals, law enforcement agencies, and courts. The general legal principle states that special laws override general laws, raising questions about the necessity of incorporating specific offenses into The Bharatiya Nyaya Sanhita, 2023.

2. Implementation and Coordination

   For the effective enforcement of both special and general laws, seamless coordination between various agencies at the central and state levels is crucial. This requires:

   • Adequate resources for information sharing and collaborative efforts.
   • Specialized training for law enforcement officials.
   • Adoption of technological advancements to enhance investigation and monitoring.

   Without a well-structured mechanism, inconsistencies in enforcement may weaken the impact of the new provisions.

3. Ambiguous Terminology

   The legislation introduces several new and undefined terms, such as criminal organization and general feelings of insecurity, which lack clear legal definitions. Additionally, expressions like gang, anchor points, and mobile organized crime groups are left unexplained, leading to potential misinterpretation and inconsistent application of the law.

   A particularly vague phrase, such other common forms of organized crime, further broadens the scope of the provision without clarity. Moreover, Section 112(2) imposes the same punishment (one to seven years of imprisonment along with a fine) for both committing and attempting petty organized crime, which may lead to disproportionate sentencing.

Call for Legislative Clarity

Recognizing these challenges, the Standing Committee on Home Affairs (2023) has recommended revising the provisions to bring more clarity, prevent misuse, and ensure uniform implementation across the country. Addressing these concerns will be key to balancing national security with fair and effective legal enforcement.

Case Study

1. Advocate Shanmughsundram Case

   The lawyer Mr. Shanmughsundram faced brutal assault in his residential home during May 1995 within a southern Indian state. His personal staff observed the attack happen before them as he lived there. The power politician wanted to stop a High Court petition against his corrupt activities and arranged for the attack on the victim when he was ready to file it. The local police initiated arrests yet these actions failed to assure law professionals. The High Court relocated the matter to CBI.

   During investigation it was revealed that the attacked and politically connected victim was working toward obtaining legal interference. The attack on the petitioner enraged the political figure who ordered it through his subordinates. Local police conducted dubious actions by forcing certain criminals to surrender whom they knew were innocent but let them agree with taking guilt to defend their ally criminal gang.

   The actual perpetrators of the crime were revealed during investigations conducted by CBI. The police captured and prosecuted all defendants who faced court proceedings. Welding Kumar served as the attack organizer even though he did not attend the crime scene because he received a conspiracy charge. Life imprisonment became the sentenced punishment for every suspect and Welding Kumar among them. The investigation remained limited to Welding Kumar because enough evidence failed to develop concerning the third-tier motivators. Organised crime investigations often encounter this type of problem.

2. Terrorist Funding Case

   Delhi Police recently arrested a militant found in possession of foreign currency, suspicious documents, and letters from a high-ranking militant leader based abroad. During interrogation, authorities uncovered links to foreign entities and the transfer of large sums of money into India through the illegal hawala network.

   Given the urgency and gravity of the situation, the case was handed over to the Central Bureau of Investigation (CBI). Another suspect was later arrested, revealing that he had traveled abroad to conspire with terrorist sympathizers to establish a network across India. The funds were funneled through the hawala system, an underground financial channel.

   Further investigations uncovered that a gang member in Delhi had received and distributed funds, which were then converted into bank drafts. These drafts, issued under fictitious names, were used to finance terrorist activities while avoiding detection. As authorities pursued the case, multiple operatives were arrested, leading to the exposure of key masterminds behind the operation.

   The investigation ultimately led to the recovery of ₹1.5 crores in cash and a personal diary detailing payments totaling ₹58 crores to various politicians and bureaucrats in India. This high-profile scandal later became widely known as the Jain Hawala Case.

Conclusion

“The Bharatiya Nyaya Sanhita (BNS), 2023” marks a significant advancement in India’s fight against organized crime. By broadening the definition of these offenses and introducing a more structured legal framework, it aims to provide a stronger and more effective approach to addressing this growing challenge.

However, for the law to be truly effective, it is essential to address certain challenges, such as overlapping provisions with existing laws, unclear definitions, and the need for efficient implementation. A coordinated effort between different government agencies will be crucial in ensuring its success.

Given the evolving nature of organized crime, India has long faced difficulties in tackling these threats. The BNS, 2023 is a forward-thinking reform designed to meet modern criminal challenges while ensuring a stronger and safer legal system. By replacing the Indian Penal Code, 1860, this legislation introduces robust measures aimed at protecting citizens and strengthening law enforcement efforts across the country.

With proper execution, “The Bharatiya Nyaya Sanhita, 2023” has the potential to make India a more secure and just society.