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Comparative Analysis Between Indian Penal Code, 1860 And Bharatiya Nyaya Sanhita, 2023

In an effort to reform India's criminal justice system, Union Home Minister Amit Shah introduced three bills in the Lok Sabha on August 11, 2023. The previous Indian Penal Code (1860), Indian Evidence Act (1872), and Code of Criminal Procedure (1973), respectively, will be replaced by the Bharatiya Nyaya Sanhita, Bharatiya Saksh Bill, and Bharatiya Nagarik Suraksha Sanhita.

The three proposed statutes have been forwarded to a Parliamentary Standing Committee, which will undertake in-depth deliberations and is anticipated to present its findings by the start of the next session of Parliament.[i]

This article will analyse the statutory changes made to the Indian Penal Code, 1860, which will be renamed as the Bharatiya Nyaya Sanhita, 2023. In the following, the terms IPC and BNS, respectively, will be used.

By conducting a thorough comparison of sections from the IPC and BNS, the article's scope would be constrained to just significant changes made to Indian penal law.

Alteration In The Structure
Inclusive of amendments and additions, IPC is subdivided into 26 chapters that comprise of 576 Sections.

In contrast to the IPC's convoluted structure, the BNS has an improved structure having 19 chapters and 356 Sections.

In addition to proposing revisions to 175 existing provisions and the addition of 8 new sections, BNS also recommends the deletion of 22 IPC provisions.

Positive Changes
The recently introduced BNS has resulted in a number of positive changes. Although there may be overlaps where one provision might be categorised under more than one heading, they are divided into four major headings in this article:
  1. Progressive Changes:
    • Progressive Changes in BNS include:
      • Sexual intercourse by deceitful means or false promise to marry will be considered as Crime under Section 69 of BNS. It will be punishable with simple or rigorous imprisonment up to 10 years, and a fine.
      • Terrorism and Terrorist Act have been defined under law for the first time and also regarded as an offence in Section 111 of BNS.
      • New Provision on 'Snatching' under Section 302. It says that whoever commits snatching shall be punished with imprisonment of up to three years, and shall also be liable to a fine.
      • Section 101(2): A separate provision of mob lynching provided for seven years imprisonment, life imprisonment, and death sentence as a punishment.
    • The BNS has also changed significantly in that archaic and insulting phrases like "lunatic person" and "person of unsound mind" have been replaced. All of these references have been labelled with more delicate language, such as "person with mental illness" or "having intellectual disability." Section 22 of the BNS, which corresponds to Section 84 of the IPC, reflects this modification. A similar modification has been made to Section 28(b) of the BNS, which corresponds to Section 90(b) of the IPC.
    • Earlier, importing girls under the age of 21 years for illicit intercourse with another person is an offence. Now the revised Section 139 of BNS which corresponds to Section 366B of IPC specifies that importing boys under the age of 18 years for illicit intercourse with another person will also be an offence. This could have a positive impact as it is a way towards equality in criminal law.
    • Introduction of Organised crime and petty organised crime or organised in general, i.e., Section 109 and 110 of BNS respectively.
  2. Stricter laws on Sexual Offences
    • Stricter laws on Sexual Offences in BNS include:
      • Punishment for rape has been enhanced from seven years to ten years as given in Section 64 of BNS which corresponds to Section 376 of IPC.
      • Earlier, Section 376 of IPC provides "Whoever commits rape shall be punished with imprisonment of either description". Now, Section 64 of BNS explicitly states that "Whoever commits rape shall be punished with rigorous imprisonment."
      • Death Penalty for gang rape of women below 18 years of age as per Section 70 of BNS, which corresponds to Section 376DB of IPC.
      • Additionally, a new law protecting the identities of sexual assault victims has been introduced which can be seen in Section 72 of BNS.
      • A new provision i.e., Section 69 has been added to BNS in the Chapter governing offences against women and children.
  3. Community Service as a punishment
    • Section 53 of IPC explicitly provides five kinds of punishments to which offenders are liable:
      • Death
      • Imprisonment for life
      • Imprisonment, which is of two descriptions, namely:
        • Rigorous, that is, with hard labour
        • Simple
      • Forfeiture of Property
      • Fine
    • Section 4 of BNS, which corresponds to Section 53 of IPC provides Community service as a punishment in addition to five aforementioned punishments.
    • Community service, to put it simply, is unpaid labour that offenders may be required to perform as a form of punishment rather than being imprisoned.
    • The BNS calls for community service as a punishment for petty offences. Following this, some section-by-section changes include:
      • A public servant who violates their legal obligation to refrain from conducting trade will be subject to simple imprisonment for up to a year, a fine, both, or community service as given in Section 200 of BNS, which corresponds to Section 168 of IPC.
      • Defamation is an offence that carries a simple sentence of up to two years in jail, a fine, both, or community service as per Section 354 of BNS, which corresponds to Section 499 of IPC.
      • Community Service as a punishment in Attempt to Suicide.
      • If not given a 24-hour prison sentence, people accused of making a public nuisance while under the influence of alcohol may be required to perform community service.
  4. Sedition law will be repealed and replaced
    The proposal in the BNS that "Sedition law will be completely repealed" stands out the most. Provisions under the sedition law - proposed to be scrapped � will be retained in Section 150 for acts of endangering the sovereignty, unity and integrity of India.[viii]

    Section 150 of BNS provides, "Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial mean, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years and shall also be liable to fine."[ix]

The major key differences between Section 124A of IPC and Section 150 of BNS are:
  • The expressions used in Section 150 of BNS refers to a wider variety of actions and behaviour while Section 124A of IPC only referred to actions and behaviors "bringing into hatred or contempt" and "exciting disaffection" towards the government.
  • Punishment for sedition has been enhanced from three years to seven years in Section 150 of BNS, which corresponds to Section 124A of IPC.
  • The act of sedition must be committed intentionally or knowingly, according to Section 150 of the BNS while such a thing isn't encompassed by Section 124A of the IPC.
  • Section 150 of BNS clearly acknowledges the use of modern communication techniques to commit sedition while Section 124A of IPC doesn't explicitly mention these aspects.

Negative Changes And Loopholes:
While the majority of the modifications in BNS may be seen as beneficial, some of the reforms have also given rise to serious issues while some are still untouched by the BNS.
  1. No Definition of Community Service
    As abovementioned, one of the positive change in BNS is the introduction of Community service as a punishment. But what the Bill fails to do, though, is define just what community service entails. Without such a prescription, it is impossible to rule out the potential of sentencing disputes.

    In a few isolated instances, strange forms of community service were mandated. For instance, a directive to donate money to a gaushala, distribute copies of the Quran, or do temple service.

    Even though some of these directives were later revoked, it is still possible that there were more directives with similar religious overtones or that promoted patriarchal (or other harmful) standards.

    Thus, a list of possible community service activities or guidelines for conduct may be useful.
  2. No Proper Step toward Gender Neutrality in Rape and Sexual Assault
    Gender neutrality in rape and sexual assault legislation refers to the concept that the criminal code should recognise that men, women, and transgender people can both commit and be victims of rape.

    In 2019, the Criminal law amendment Bill was introduced as private member's bill which suggested major changes, in order to make the Indian criminal laws gender neutral.

    But, BNS like IPC recognises only the women as victim of rape and sexual assault while men as perpetrators in same.
  3. No major Change in Sedition Law
    The proposed Section 150 maintains the criminalization of any act that "excites or attempts to excite" secessionist activities or "encourages feelings of separatist activities" without making incitement to violence or disruption of public order a prerequisite to bringing charges.

    Almost everything that Section 124A of the IPC now classifies as sedition is covered under Section 150, including speeches, newspaper articles, books, and plays.

Concluding Remarks
Without a shadow of a doubt, it can be stated that the substantive criminal law, i.e., the IPC, has undergone various changes in terms of content as well as in the arrangement of the sections of the BNS.

The majority of the modifications are generally well-intentioned and much-needed.
This article classified them in four headings:
  1. Progressive Changes
  2. Stricter laws on Sexual Offences
  3. Community service as a punishment
  4. Sedition law will be repealed and replaced

On the other hand, BNS contains a few flaws.
This article classified them in three headings:
  1. No Definition of Community Services
  2. No Proper Step towards Gender Neutrality in Rape and Sexual Assault
  3. No major change in Sedition law

'Bringing laws is one thing and implementing it is another'. For a proper implementation, better infrastructure should be incorporated in the criminal justice system.

Moreover, the BNS will be a way forward to overhaul the pre-colonial rules but still It appears that the Bill is broadly based on the same principles as the existing Code (which is good as also natural). However, some of the new additions in the Bill require a closer examination� both in terms of phraseology as well as intent.


Award Winning Article Is Written By: Ms.Diya Jain
Awarded certificate of Excellence
Authentication No: SP361829562848-9-0923

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