File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Will BNS Change Our Criminal Justice System Or It's Just The Same Dish Served In A Different Saucer

Amidst the vibrant deliberations of the winter session, the halls of the Rajya Sabha echoed with historical resonance as three pivotal criminal bills were fervently embraced. The Bharatiya Nyaya (Second) Sanhita, 2023; the Bharatiya Nagarik Suraksha (Second) Sanhita, 2023; and the BharatiyaSakshya (Second) Bill, 2023, stood as heralds of transformation, poised to supplant the venerable bastions of the Indian Penal Code (IPC), the Code of Criminal Procedure (CrPC), and the Evidence Act.

A watershed moment emerged on December 25, 2023, as the Bharatiya Nyaya Sanhita, 2023 ("BNS") assumed its mantle, ushering in a new epoch in the annals of Indian jurisprudence by relegating the archaic IPC to antiquity. The genesis of this epochal shift traces back to the meticulous endeavours of the 5th Law Commission, led by the esteemed Mr. K.V.K. Sundaram. While the Code of Criminal Procedure underwent a metamorphosis in 1973, the IPC languished as a vestige of colonial rule, adorned with provisions incompatible with contemporary notions of justice and equity.

The resounding call for reform reverberated across the hallowed corridors of legal discourse, resonating with the ethos of rights and inclusivity. With a clarion commitment to excise the vestiges of colonial jurisprudence, the BNS embarks on a crusade to recalibrate the scales of justice, affording primacy to the vulnerable segments of society, notably women, children, and the State. Innovations such as introducing community service as a penal recourse for minor transgressions underscore the BNS's progressive ethos.

Presidential imprimatur adorns the BNS, signifying a seminal shift in the legal landscape, yet the dawn of enforcement awaits the clarion call of the Central government. Against the backdrop of parliamentary debate and legislative renewal, the saga of the BNS unfurls, poised to inscribe a new chapter in the annals of legal history.

With the stage set for legislative metamorphosis, the BNS emerges as a harbinger of change, infusing the penal code with renewed Vigor and relevance. As the sun sets on the antiquated provisions of the IPC, the BNS ascends as a beacon of progress, symbolizing the inexorable march towards a more just and equitable society.

Changes In BNS

The advent of the Bharatiya Nyaya Sanhita (BNS) marks a seminal shift in India's legal landscape, ushering in a new era of justice and equity. With its meticulous provisions and progressive ethos, the BNS embodies a paradigmatic departure from the antiquated tenets of the Indian Penal Code (IPC), heralding a host of advantages poised to transform the socio-legal fabric of the nation.

One of the hallmark advancements of the BNS is the consolidation of offences against women and children into a dedicated chapter aptly titled "Of Offences Against Women and Child Of Sexual Offences." This strategic reorganization streamlines legal proceedings, ensuring expedited justice for victims and robust deterrence against perpetrators. By centralizing these offences under a singular umbrella, the BNS facilitates comprehensive adjudication, obviating the need for piecemeal litigation across disparate chapters and sections.

Furthermore, the BNS introduces pivotal amendments to address longstanding lacunae in the realm of sexual offences. Notably, Section 63 of the BNS redefines the parameters of rape, stipulating that sexual intercourse or acts with a wife above the age of eighteen shall not constitute rape. This amendment represents a significant departure from the IPC's provision, which set the age threshold at fifteen years. The BNS's alignment with contemporary jurisprudence, as evidenced by the Supreme Court's interpretation in Independent Thought v. Union of India (2017) 10 SCC 800 underscores its commitment to upholding the rights and dignity of women and minors.

Another landmark reform introduced by the BNS is the deletion of Section 377, thereby decriminalizing consensual carnal intercourse and bestiality. Building upon the Supreme Court's landmark judgment in Navtej Singh Johar v. Union of India , the BNS affirms the principle of individual autonomy and sexual freedom, fostering a more inclusive and tolerant society. By abolishing archaic provisions that impinge upon personal liberty and sexual expression, the BNS heralds a progressive stance towards gender and sexual equality.

Additionally, the BNS dispenses with outdated offences such as adultery, aligning with the apex court's ruling in Joseph Shine v. Union of India . This strategic omission reflects a judicious approach to legal reform, wherein redundant statutes are expunged to streamline legal proceedings and uphold the principles of justice and fairness. By prioritizing substantive justice over moral policing, the BNS reaffirms the sanctity of personal relationships and individual autonomy, fostering a more equitable and harmonious society.

The Bharatiya Nyaya Sanhita (BNS) embodies a progressive stance towards gender inclusivity, recognizing transgender individuals within its definition of gender in Section 10. By extending legal recognition and protection to transgender persons, the BNS fosters greater acceptance and visibility for transgender communities, promoting equality, dignity, and non-discrimination.

This landmark provision signifies a departure from traditional binary notions of gender identity, aligning with inclusivity and social justice principles. Harmonizing with the Transgender Persons (Protection of Rights) Act, 2019, the BNS ensures consistency and coherence in legal treatment, mitigating the risk of discrimination and marginalization in the criminal justice system, thus contributing to a more equitable and inclusive society.

Moreover, the BNS addresses the scourge of mob lynching, a menace that has plagued Indian society for far too long. Through Clause 103, the BNS imposes stringent penalties for murder perpetrated on the basis of race, caste, religion, or any other similar ground. This proactive stance aligns with the Supreme Court's directives in Tahseen S Poonawalla v. Union of India &Ors , wherein the government was urged to enact legislation to combat vigilantism and uphold the rule of law. By deterring acts of communal violence and hate crimes, the BNS serves as a bulwark against impunity and fosters social cohesion and harmony.

In conclusion, the Bharatiya Nyaya Sanhita represents a watershed moment in India's legal evolution, embodying the aspirations and ideals of a progressive and inclusive society. Through its transformative provisions and unwavering commitment to justice, the BNS stands poised to catalyse profound social change, heralding a future where the rule of law reigns supreme and the rights and dignity of every individual are safeguarded.

Overlapping Of BNS With Other Statutes

The overlapping provisions between the Bharatiya Nyaya Sanhita (BNS) and other statutes reflect a complex interplay of legal frameworks, necessitating a thorough analysis to comprehend their implications and potential challenges. Let's examine each overlapping provision in detail:
  1. Adulteration of Food or Drink for Sale:
    Under the BNS, adulteration of food or drink for sale is punishable with imprisonment up to six months, a fine up to Rs 5,000, or both, and the offence is non-cognizable and bailable. This provision aligns with Sections 272 and 273 of the Indian Penal Code (IPC).

    Similarly, the Food Safety and Security Act, 2006, addresses the adulteration of food or drink, albeit with more severe penalties. Offenders may face imprisonment up to life and a fine up to Rs 10 lakh under this Act, with the sentence proportionate to the damage caused (Section 59).
  2. Adulteration of Drugs and Sale of Adulterated Drugs:
    The BNS penalizes adulteration of drugs with imprisonment up to a year, a fine up to Rs 5,000, or both, while the sale of adulterated drugs is punishable with imprisonment up to six months, a fine up to Rs 5,000, or both. These provisions are similar to IPC Sections 274 and 275. Conversely, the Drugs and Cosmetics Act, 1940, prescribes harsher penalties for such offences. Consumption of adulterated drugs resulting in death or grievous hurt may lead to imprisonment between 10 years and life, along with a substantial fine (Section 27).
  3. Unlawful Compulsory Labour:
    The BNS stipulates imprisonment up to one year, a fine, or both for unlawful compulsory labour. This provision echoes IPC Section 374 and is non-cognizable and bailable.

    Similarly, the Bonded Labour System (Abolition) Act, 1976, addresses bonded labour with penalties of imprisonment up to three years and a fine up to Rs 2,000 (Sections 16, 17, 18)
  4. Abandoning a Child:
    Under the BNS, the abandonment of a child under 12 by a parent or guardian is punishable with imprisonment up to 7 years, a fine, or both. This provision resembles IPC Section 317 and is cognizable and bailable.

    Similarly, the Juvenile Justice Act, 2015, penalizes abandoning or procuring a child for abandonment with imprisonment up to 3 years, a fine up to Rs 1 lakh, or both, with certain exemptions for biological parents (Section 75).
  5. Rash Driving:
    The BNS prescribes punishment for rash driving, including imprisonment up to 6 months, a fine up to Rs 1,000, or both, and the offence is cognizable, bailable, and non-compoundable, like IPC Section 279.

    Similarly, the Motor Vehicles Act, 1988, addresses rash driving with penalties of imprisonment up to 6 months and/or a fine up to Rs 5,000 for first-time offenders, and subsequent offences may lead to imprisonment up to 2 years and/or a fine up to Rs 10,000 (Section 184).
  6. Offences Relating to Terrorism:
    In the realm of terrorism-related offences, the Bharatiya Nyaya Sanhita (BNS) introduces a new category termed "terrorist act." Curiously, this offence, although typically associated with threats against the state, is placed within the chapter addressing offences affecting the human body. Strikingly, this mirrors the existing definition of a terrorist act outlined in the Unlawful Activities (Prevention) Act (UAPA). This duplication raises questions regarding the necessity of introducing a parallel offence under the BNS, especially considering the specialized nature of the UAPA in combating terrorism.

Furthermore, the BNS acknowledges the overlapping nature of its provisions with those of the UAPA, stipulating that a Superintendent of Police or higher authority must decide whether to pursue a case under the BNS or the UAPA. However, granting such discretionary powers to investigating authorities raises concerns, as highlighted in the landmark case of State of West Bengal v. Anwar Ali Sarkar . Here, the Supreme Court ruled against unchecked authority in classifying offences, emphasizing the need for clear guidelines to ensure fairness and adherence to constitutional principles.

Contrary to this precedent, the introduction of the terrorist act offence in the BNS appears to circumvent the safeguards established under the UAPA. These safeguards include the requirement for government sanction before court proceedings and provisions for challenging declarations of terrorist organizations, absent in the BNS. Such omissions potentially expose individuals to misuse of the law and undermine fundamental rights.

In essence, while the inclusion of terrorism-related offences in the BNS may aim to streamline legal proceedings, it risks diluting established safeguards and creating ambiguity in enforcement. As such, careful consideration and alignment with existing legal frameworks and robust safeguards are imperative to uphold justice and protect individuals' rights in combating terrorism effectively.

In conclusion, while the overlapping provisions between the BNS and other statutes aim to address similar offences, differences in penalties, procedures, and safeguards underscore the need for clarity, consistency, and adherence to constitutional principles to ensure practical and just legal governance.

Change In Punishment

The Bharatiya Nyaya Sanhita (BNS) represents a paradigm shift in emphasizing increased punishment for various offences compared to existing statutes. This emphasis is evident in several key provisions of the BNS, reflecting a stricter approach towards criminal behavior.

One notable change pertains to dishonest misappropriation of property, addressed under Section 314 of the BNS. Here, the BNS mandates a minimum punishment of six months' imprisonment, representing a departure from the previous provision under the Indian Penal Code (IPC), which allowed for imprisonment or fine or both. By prioritizing imprisonment as the primary mode of punishment, the BNS underscores the severity of this offence and aims to deter potential offenders more effectively.

Furthermore, the consolidation of provisions related to criminal breach of trust, encompassed within Section 316 of the BNS, signifies a concerted effort to streamline legal proceedings and enhance accountability. Previously scattered across Sections 406 to 409 of the IPC, the BNS now prescribes imprisonment of up to five years for criminal breach of trust, a notable increase from the three-year maximum stipulated by the IPC. This heightened punishment underscores the gravity of violations of trust and seeks to ensure justice for victims.

In line with its overarching goal of ensuring public safety and accountability, the BNS introduces significant revisions to penalties for cases of negligence resulting in death. Section 106(1) of the BNS increases the maximum punishment for causing death by negligence from two years to five years. This substantial escalation in punishment underscores the BNS's commitment to holding individuals accountable for their actions, particularly in cases where negligence leads to loss of life.

Moreover, the BNS consolidates various forms of cheating offences, as delineated in Sections 417, 418, and 420 of the IPC, into a single provision under Section 318. This consolidation not only streamlines legal procedures but also enhances the efficacy of enforcement efforts. Significantly, the BNS elevates the punishment for cheating, with imprisonment now extending up to three years, compared to the previous one-year maximum stipulated by the IPC. Additionally, for more egregious forms of cheating, such as cheating with knowledge of resulting wrongful loss, the BNS imposes a maximum imprisonment term of five years, further underscoring the seriousness of such offences.

An innovative inclusion in the BNS is introducing community service as a form of punishment, outlined in Section 4(f). This non-custodial and reformative measure signifies a departure from traditional punitive approaches, particularly for petty offences. Community service, defined in the Bharatiya Nagarik Suraksha Sanhita (BNSS), offers a means of rehabilitation and reintegration into society while benefiting the community at large.

In summary, the BNS's emphasis on increased punishment reflects a concerted effort to bolster legal frameworks, enhance accountability, and ensure justice for victims of various offences. Through stringent penalties and innovative measures such as community service, the BNS seeks to foster a safer and more equitable society, while deterring criminal behaviour and promoting rehabilitation where possible.

The Bharatiya Nyaya Sanhita (BNS) represents a significant legislative overhaul, aimed at addressing shortcomings in the existing legal framework. While it introduces some positive changes, such as the deletion of sedition as an offence, the inclusion of transgender in the definition of gender, and the introduction of community service as a form of punishment, the overall execution lacks vision and coherence. The BNS seeks to tighten provisions against offences targeting women and children, yet falls short in critical areas, such as failing to recognize marital rape and maintain gender neutrality in rape laws. This inconsistency undermines the stated objective of prioritizing crimes against women and children.

Moreover, the sentencing process under the BNS lacks clarity and coherence, with an emphasis on punishment enhancements without a clear underlying principle. While community service is introduced as a rehabilitative measure, its scope remains limited, and there is continued reliance on custodial punishment. The absence of a coherent sentencing framework, including probation, community service, and non-custodial sanctions, hampers the effectiveness of rehabilitation efforts.

Furthermore, the persistence of solitary confinement as a form of punishment is at odds with evolving human rights standards and constitutional guarantees of dignity and civil liberties. Solitary confinement not only violates fundamental rights but also exacerbates mental health issues among prisoners.

The overlapping of offences between the BNS and special statutes, coupled with vague and undefined terms in the statute, contributes to confusion and increases litigation. This not only burdens the judicial system but also prolongs the resolution of cases, denying justice to victims and prolonging their suffering.

Moreover, the focus on increasing punishment overlooks the importance of deterrence through improved probability of apprehension. Research suggests that increasing the likelihood of detection is more effective in reducing crime than merely enhancing punishment severity. The disproportionate pressure on victims and the potential for escalation of violence due to harsher penalties underscore the need for a balanced approach to crime prevention.

The sentencing procedure is still totally nonsensical despite the new legislation. It's unclear if we use the sentencing principles of vengeance, rehabilitation, or deterrence. The punishments have been lengthened without any underlying concept, and new offences have been added. The legislators must realize that toughening up on penalties alone won't stop crimes from happening. Although community service has been implemented as a reformative penalty, it is only applicable for the first six offenses and has no legal basis; prison punishment is still the most common kind of punishment. As a result, sentencing must be consistent and emphasise non-custodial sanctions, community service, probation, and reformative sentencing procedures as forms of rehabilitation.

Similarly, in the present day, solitary confinement cannot be applied as a kind of punishment. Solitary confinement ought to have been prohibited, especially in view of the expansion of human rights and the rights guaranteed by Article 21 of the Constitution, such as the rights to a life of dignity, civil liberties, the rights of prisoners, and the increasing significance of mental health.

Furthermore, the overlap between the offenses covered by special and BNS statutes and the ambiguous language in the law will only cause further misunderstanding and a rise in litigation. As a result, there will be an increase in the backlog of cases in the courts.

BNS it's just the same dish served in a different saucer. It represents a rebranding of existing laws rather than a genuine overhaul of the legal framework. The BNS fails to address fundamental issues in the Indian Penal Code (IPC) and other statutes, opting instead for cosmetic changes that lack a coherent policy rationale. The decision to replace the IPC with the BNS seems unnecessary, as the former could have been amended to incorporate necessary reforms without the need for a complete overhaul. This raises questions about the necessity and effectiveness of the BNS, especially considering the potential for confusion and increased litigation due to overlapping provisions.

Moreover, introducing the BNS without a clear vision or policy framework behind the changes raises concerns about its effectiveness in addressing contemporary legal challenges. The BNS seems to be more about symbolism than substance, with changes that fail to address systemic issues or significantly improve the legal landscape. This lack of foresight and coherence undermines the potential benefits of the BNS and raises doubts about its long-term impact on the Indian legal system.

In conclusion, while the BNS introduces commendable reforms, its implementation lacks coherence and fails to address systemic issues adequately. A comprehensive approach to criminal justice reform is imperative, encompassing punishment enhancements, rehabilitation, prevention, and protection of fundamental rights. By adopting evidence-based strategies and prioritizing holistic solutions, policymakers can foster a safer and more just society for all.

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers

Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


How To File For Mutual Divorce In Delhi


How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Increased Age For Girls Marriage


It is hoped that the Prohibition of Child Marriage (Amendment) Bill, 2021, which intends to inc...

Facade of Social Media


One may very easily get absorbed in the lives of others as one scrolls through a Facebook news ...

Section 482 CrPc - Quashing Of FIR: Guid...


The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of t...

The Uniform Civil Code (UCC) in India: A...


The Uniform Civil Code (UCC) is a concept that proposes the unification of personal laws across...

Role Of Artificial Intelligence In Legal...


Artificial intelligence (AI) is revolutionizing various sectors of the economy, and the legal i...

Lawyers Registration
Lawyers Membership - Get Clients Online

File caveat In Supreme Court Instantly