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A New Era of Justice: Deciphering the Bhartiya Nyaya Sanhita, 2023

"Without criminal law, there is no order. Without order, there is no justice. Without justice, there is no society." - Henry M. Robert III.

The dusty books of IPC, 1860 are likely to disappear from the libraries of law. Recently, the Indian Government decided to shed the remnants of India's colonial past by introducing three bills in the Parliament which are poised for discussion in the upcoming winter session. These legislations aspire to metamorphose the manner in which the criminal jurisprudence of India is both sculpted and perceived. They are Bhartiya Nyaya Sanhita, 2023, Bharaitya Sakshya Bill, 2023 and the Bharatiya Nagarik Suraksha Sanhita, 2023 which seek to supplant the IPC, Indian Evidence Act, 1872 and the Criminial Procedure Code respectively.

The primary focus of this article will be to delineate the pivotal alterations brought forth by the Bhartiya Nyaya Sanhita, 2023, juxtaposed with the extant IPC of 1860. Additionally, it will proffer certain recommendations, steering the discourse towards a comprehensive understanding of this monumental legislative transformation.

Background of the Bills
T he Indian Government's motivation for this historic undertaking can be distilled into two fundamental objectives , firstly it endeavors to expunge the shades of colonialism from India's legal corpus that negatively impact India's future and the present and secondly, due to the advent of new cutting-edge technologies in today's globalized milieu which means India needs to be able to meet the pace of these developments by incorporating various provisions that seamlessly align with such advancements .

A committee, led by the venerable vice-chancellor of National Law University, Delhi was constituted and the bills were framed by scrutinizing the existing triad of criminal codes of India. The nomenclature of these bills itself is indicative of India's aspiration to proudly exhibit its rich cultural heritage, linguistic diversity, and multifaceted identity to the world.

Key provisions of the proposed bill
Before delving into the discussion about the usefulness of the proposed legislation, let us first understand the Bill by painting a picture of its provisions and comparing them with the IPC.

Inclusion of False Promise of Marriage as a provision:
A provision for offences relating to false promise of marriage were absent from the archaic IPC, 1860 crafted by Thomas Macaulay. However, now they found a place in newly crafted BNS bill, 2023. The Honorable SC and High Courts had pronounced various judgments in the past relating to the question whether false promise to marry would constitute rape or not in cases such as Deepak Gulati v State of Haryana and State of UP V Naushad.

Section 69 of the BNS Bill reads as "Whoever, by deceitful means or making by promise to marry to a woman without any intention of fulfilling the same, and has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine."

Henceforth, within instances involving the deceptive commitment of matrimonial vows, wherein a female finds herself forsaken by her consort subsequent to the consummation of intimate liaisons, Section 69 of the Bhartiya Nyaya Sanhita (BNS) legislation shall be poised to delineate and classify this transgression.

Death Penalty for Mob lynching:
Mob lynching is one crime which has shaken the social fabric of the country since time immemorial. The bill reads as "When a group of five or more persons acting in concert commits murder on the ground of race, caste or community, sex, place of birth, language, personal belief or any other ground each member of such group shall be punished with death or with imprisonment for life or imprisonment for a term which shall not be less than seven years, and shall also be liable to fine" Owing to the extensive media scrutiny surrounding the escalating incidences of mob lynching within the nation, the novel legislation has delineated the sanctions for such occurrences, elevating the prescribed penalty from a mere seven years of incarceration to the gravest of punitive measures, namely life imprisonment or the ultimate sanction of capital punishment.

Introduction of Terrorism for the first time:
The word "terrorism" has been introduced for the very first time in the new BNS bill. It has been defined as terrorist has been defined as one who commits any act in India or a foreign country with the intention to threaten the unity, integrity and security of India, to intimidate the general public or a segment thereof, or to disturb public orderone who commits any act in India or a foreign country with the intention to threaten the unity, integrity and security of India, to intimidate the general public or a segment thereof, or to disturb public order.

Furthermore, it's important to note that any action delineated within the second schedule of the Unlawful Activities (Prevention) Act as a terrorist act is similarly encompassed by this provision. Individuals whether they are directly or indirectly associated with such activities, shall be regarded as terrorists.

Removal of Adultery:
Finally, after the historic Supreme Court judgment of Joseph Shine v Union of India which struck down article 497 of the Indian Penal Code, 1860 covering the offence of adultery has been removed from the new BNS bill. The provision for adultery was struck down after a series of judgements and challenges that this provision received due to its discriminatory nature.

The 2017 judgement held the provision to be unconstitutional. Section 497 stipulated that solely a male individual could face legal consequences for engaging in adultery, while the female party involved in the extramarital affair remained exempt from such repercussions. This arrangement was perceived as prejudicial and incongruent with the gender equality principles enshrined within the Indian Constitution.

Removal of "Unnatural sexual intercourse" as an Offense:
The fresh legislation does not encompass any penalties for 'unnatural acts of a sexual nature involving men.' This aligns with the unanimous decision of the Supreme Court in the case of Navtej Singh Johar v. Union of India (2018), where it rendered Section 377 of the IPC obsolete insofar as it criminalized consensual same-sex relationships among adults. Section 377 made "unnatural" intimate activities, encompassing same-sex relationships, even when engaged in by consenting adults in private, subject to criminalization. This was regarded as an infringement upon an individual's entitlement to personal privacy and self-determination concerning their own body and decisions.

The section faced widespread censure for upholding bias and disparity against the LGBTQ+ community. It relegated and stigmatized individuals due to their sexual orientation, depriving them of equitable legal rights and safeguarding. Recently, the question whether same -sex marriages must be recognized legally under the Hindu Marriage Act and Special Marriage Act was also posed before the Supreme Court of India . The judgement in this matter is yet to be delivered which will definitely have a bearing on this code also.

Is Sedition removed from the new BNS bill?
Now, this is a tricky question which has sparked discussions and claims that the offense of Sedition covered under section 124A of the Indian Penal Code, 1860 has been completely struck down in the freshly crafted BNS bill. However, this is not the absolute truth. Although, Section 124A does not find a place in the new BNS bill as a separate provision for Sedition which was actively used by the incumbent governments to put a tape on the mouths of opinionated people and active organizations it has found shelter in the Section 150 of the new BNS bill as a hidden provision under the chapter pertaining to 'offences against the State' talks about acts endangering sovereignty unity and integrity of India. So most likely, voices can be curbed by dragging people to the courts by putting them on trials under this section.

In Kedar Nath Singh v. State of Bihar (1962): The Supreme Court held that Section 124A (sedition) of the IPC is constitutional and valid, but it limited its scope to acts involving incitement to violence or public disorder. Mere criticism of the government's policies would not invite a conviction under this section.

In SG Vombatkere vs Union of India (2022), the honorable supreme court along with a slew of observations held that the impugned provision of sedition under section 124 A of the IPC be put to abeyance since it has been extensively used in a disproportionate manner to curb the innocent voices of dissent in the country.

In short, the Supreme Court noted that the provision has been used to curb the echoes of freedom of speech and expression in the country. However, now with the new bill in place, the impact of these judgements remains to be seen and whether there is a scope of misuse of Section 150 of the BNS bill.

Comprehensive Suggestions:
  • Addressing Concerns and Garnering Support:
    The introduction of these bills is likely to raise valid concerns among a wide array of stakeholders who may perceive them as encroaching upon their rights, interests, or autonomy. To foster an atmosphere conducive to progress, it is imperative to actively engage with these apprehensions. This involves promoting open dialogues, articulating the bills' objectives clearly, and building consensus through constructive interactions. By addressing these concerns and highlighting the advantages of the proposed changes, we can lay the groundwork for garnering widespread support.
  • Ensuring Strong Legislative Approval:
    To secure the success of these bills, a multifaceted strategy is essential. It is crucial to obtain support and consensus from both houses of Parliament. This necessitates a comprehensive outreach effort directed at lawmakers, emphasizing the merits of the bills, and seeking bipartisan endorsement. Furthermore, it is of utmost importance to safeguard the integrity and purpose of the bills throughout the legislative process.

Concluding Thoughts:
In a momentous stride towards the modernization of India's Criminal Justice System, the Bhartiya Nyaya Sanhita (BNS) Bill of 2023 vows to supplant antiquated laws dating back to the colonial era. Formulated with an unwavering focus on the plight of victims, the BNS Bill comprehensively tackles a wide spectrum of issues, ranging from crimes against women to the menacing specter of terrorism. Through the meticulous simplification and elucidation of legal provisions, this legislation is poised to augment the efficiency and efficacy of the criminal justice machinery significantly.

List of References:
Written By: Diya Saraswat, 3rd Year BA-LLB (Hons) Student at Vivekananda Institute of Professional Studies, Pitampura

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