The Bharatiya Nyaya Sanhita, 2023 (BNS) serves as the official criminal code for the Republic of India, marking a significant update to the country's legal framework. This new code officially took effect on July 1, 2024, following its approval by the Indian Parliament in December 2023. The BNS was introduced to replace the Indian Penal Code (IPC), which had been in place since the era of British colonial rule. By establishing a modern and comprehensive legal framework, the Bharatiya Nyaya Sanhita aims to address contemporary issues in criminal law while reflecting India's evolving societal values and legal principles.

While the Bharatiya Nyaya Sanhita, 2023 (BNS) is an extensive legal framework addressing various aspects, it contains several flaws that may be addressed to improve its significance and effectiveness. Key issues identified during the review are outlined below.

BNS Sections Analysis

1. Section 4(f) BNS: The court has the authority to impose community service on offenders as a form of punishment, requiring them to carry out unpaid tasks that serve the community, in accordance with Section 4(f) of the BNS. However, there are no clear guidelines or criteria to determine how community service should be administered or for how long it should be imposed, leaving it to wild interpretation by the judicial officers. The implementation of community service depends on proper execution and oversight, which may prove difficult in this case. There may be variations in the enforcement and supervision of community service across various jurisdictions in the absence of proper guidelines.
    
2. Sections 63, 75, 76 & 78 BNS: One of the aims of the BNS is to promote gender neutrality. While the offence defined in Section 98 (selling a child for the purposes of prostitution or illicit intercourse, etc.) maintains complete gender neutrality, the offence specified in Section 75 (sexual harassment) is not gender neutral, as the victim is always a woman and the perpetrator is always a man. In the case of Section 76, although the accused can be either a man or a woman, the victim remains exclusively a woman. Additionally, the offences outlined in Section 63 (rape) and Section 78 (stalking) are also gender-specific, with only men serving as perpetrators and women as victims. The broadened definition of rape (Section 63 BNS) now encompasses penetrative actions against any part of a woman's body. Nevertheless, such acts perpetrated by a husband against the will of his wife remain excluded from classification as rape due to the marital rape exemption (Exception 2 to Section 63). Consequently, women who once could file sodomy complaints against their husbands are no longer permitted to do so under the current legal framework.
    
3. Section 69 BNS: Section 69 of the BNS addresses "sexual intercourse achieved through deceitful means," and its explanation specifies that such means encompass inducement through false promises of employment, promotion, or marriage while concealing one's identity. This clarification raises concerns about the potential for "purchasing consent." For instance, if the promise of employment or promotion is fulfilled, it may not be deemed a false promise. However, this raises the question of whether the consent given in such a scenario can truly be considered free, as it resembles a form of consent that is bought.
    
4. Sections 74, 79 & 356 BNS: The BNS aims to update its legal framework, but it needs clearer definitions for terms like defamation (Section 356), obscenity, and "infringement of a woman's modesty" (Sections 74/79 BNS). Vague definitions can lead to different interpretations and inconsistent enforcement of laws. For instance, without a clear definition, defamation could be misused to suppress free speech, targeting people who offer legitimate criticism. Similarly, obscenity is subjective, and without specific guidelines, it could result in false accusation, and unfair censorship of artistic and creative work. This clarity is crucial for protecting individual rights and upholding the legal system's integrity.
    
5. Section 84 BNS: Section 84 of the BNS reveals a significant gender bias in the legal treatment of marital relationships, emphasizing the act of enticing, abducting, or detaining a married woman to facilitate illicit relations. This provision reflects the patriarchal values of the colonial era by allowing husbands to legally pursue individuals who disrupt their marriage, thereby safeguarding the husband's interests and authority. In contrast, wives are not afforded the same rights when their husbands abandon them for another woman, highlighting a legal framework that undermines a woman's consent and autonomy by treating her as chattel or property. Consequently, this law perpetuates outdated and patriarchal notions, failing to promote gender equality and fairness within marital relationships.
    
6. Section 88 BNS: Section 88 of the BNS addresses the issue of miscarriage, allowing a woman to seek one only in good faith to preserve her own life. This aspect remains unchanged despite the progressive advancements made by the Medical Termination of Pregnancy (MTP) Act and its amendments, which provide women with more freedom and agency to choose to terminate a pregnancy under various conditions. While the MTP Act recognizes a woman's right to make decisions regarding her own body, Section 88 of the BNS continues to impose limitations, permitting miscarriage only in life-threatening circumstances. This disparity underscores a significant divide between modern legal frameworks that aim to empower women and the outdated regulations still found in the BNS. This is not in alignment with the Medical Termination of Pregnancy Act, 1971 and the judgment of X v. State (NCT of Delhi) (2023) 9 SCC 433.
    
7. Section 104 BNS: The Supreme Court's decision in Mithu v. State of Punjab deemed Section 303 of the IPC unconstitutional, effectively abolishing mandatory death sentences in India. The ruling emphasized that the judiciary is required to take into account both aggravating and mitigating factors when determining sentences in capital cases. This provision has now been restructured and reintroduced as Section 104 BNS, which imposes the death penalty or life imprisonment for the duration of natural life if someone serving a life sentence commits murder. To recall, Section 303 IPC originally mandated a death sentence for any murder committed by a prisoner serving a life sentence.
    
8. Section 106 BNS: The enforcement of Section 106(2) of the BNS, which mandates a maximum prison term of 10 years for people involved in fatal accidents who do not report to authorities, has been put on hold. In a press release on January 2, the Ministry of Home Affairs stated that the future of this section will be discussed after talks with the All-India Motor Transport Congress, which called for a strike, claiming the law is too harsh. Reevaluating Section 106(2) BNS is important for two reasons. First, increasing the possible sentence from five to ten years for simply leaving the scene of an accident without reporting it seems excessive and unusual. This rule does not consider the need for providing medical help to seriously injured individuals, as it only applies when there are fatalities. The main benefit appears to be recovering insurance claims if vehicle details are known. Second, this rule may violate the right against self-incrimination under Article 20(3) of the Indian Constitution, which ensures that no one can be forced to testify against themselves in a criminal case. Further, many drivers vanish from the accident scene due to fear of public ire and lynching, a factor often overlooked.
    
9. Section 112 BNS: The provisions of the BNS related to petty organized crime under Section 112 BNS contain several potential gaps that may hinder effective enforcement. One significant concern is the ambiguous definition of "group or gang," which lacks clarity regarding the minimum number of members required or the criteria for being designated as part of a gang. This vagueness could result in inconsistent application in both enforcement and prosecution, leading to confusion about what constitutes a criminal gang. Another issue is the term "any other similar criminal act," which is broadly defined and open to interpretation. This lack of specificity may contribute to uneven application of the law, as it remains uncertain which actions fall under this classification. Furthermore, while the description of theft covers various forms, it may not adequately address emerging types of theft or innovative methods arising from technological advancements.
    
10. Section 113 BNS:Section 113 of the BNS implements stringent anti-terrorism measures aimed at safeguarding national security and public safety. However, legal experts express concern that its vague definitions and harsh penalties could lead to potential abuse by security forces, compromising individual liberties. The BNS recognizes its overlap with the UAPA; therefore, only a Superintendent of Police or higher can determine which law applies to a case. This intersection, along with resemblances to MCOCA etc., complicates prosecutions and increases costs and confusion. The Supreme Court, in the West Bengal v. Anwar Ali Sarkar case, emphasized that investigative authorities should not have indiscriminate power to choose offences for prosecution, deeming such authority unconstitutional. In instances where an act qualifies as terrorism under both the BNS and UAPA, the UAPA should prevail since it's a special law, making the application of the BNS redundant. This overlap may dilute UAPA protections, which are vital due to its broad powers, such as requiring government approval before court proceedings and allowing organizations to contest terrorist designations - safeguards lacking in the BNS, which could result in significant misuse.
     
11. Section 143 BNS:
    Section 143 on trafficking has notable flaws. Its broad definition of "exploitation" may complicate enforcement, and the focus on harsh penalties could discourage reporting, particularly against influential figures like public officials or police. The minimum sentencing limits judicial flexibility in cases with mitigating factors. Additionally, the law prioritizes punishment over victim rehabilitation and preventive strategies, leaving unaddressed root causes of trafficking and failing to capture the complexities of trafficking networks.
     
12. Section 144 BNS:
    Section 144 addresses the exploitation of trafficked individuals, but the requirement in Sub-section (2) that perpetrators "knowingly" or "have reason to believe" a person has been trafficked may create a potential loophole, allowing them to claim ignorance, complicating the task of proving the accused's mental state. Furthermore, the disparity in sentencing - ranging from five to ten years for exploiting trafficked children and only three to seven years for adults - might not adequately reflect the severity of the exploitation, as particularly egregious cases involving adults could deserve more stringent penalties.
    
    Additionally, while the emphasis on sexual exploitation is important, it risks neglecting other significant forms of exploitation like forced labour and domestic servitude, suggesting that broadening the scope to encompass these other forms would enhance protective measures. Finally, it is crucial to ensure consistency in the definitions and terminology applied in Sections 143 and 144 BNS, as any ambiguity could lead to difficulties in enforcement and interpretation.
     
13. Section 152 BNS:
    During the parliamentary introduction of the bills, it was revealed that the new Code (Sanhita) would eliminate the sedition offence defined under Section 124A of the IPC. However, critics argue that Section 152 of the BNS introduces a revised form of sedition, targeting actions that "threaten the sovereignty, unity, and integrity of India." This Section allows for severe penalties, including life imprisonment, for inciting secession or rebellion, and broadens prosecution grounds to include financial support. Legal experts caution that its ambiguous language (like "any such act") may lead to various interpretations, potentially leading to its misuse.
     
14. BNS Contradicts United Nations Guidelines:
    The BNS establishes the minimum age of criminal responsibility at seven years, or twelve years if it is determined that the child lacks the capacity to understand the nature and consequences of their actions. This minimum age is considerably lower than that in many other jurisdictions and contradicts the guidelines set forth in the Report of the Committee on the Rights of the Child by the United Nations, which recommends a minimum age of twelve years for criminal responsibility.
     
15. No Provision in BNS for Necrophilia:
    Necrophilia, defined as engaging in sexual acts with a dead individual, is conspicuously missing as a specified crime in the BNS. The nonexistence of explicit legal measures addressing necrophilia creates a significant gap within the criminal justice framework, potentially allowing offenders to evade prosecution and denying justice to victims and their families. Graveyards and Cemeteries are particularly vulnerable to such types of crimes.
     
16. Silent on Non-consensual Homosexual Act and Bestiality:
    The removal of Section 377 from the BNS, which initially made consensual homosexual acts illegal, could have been handled differently. Rather than eliminating the provision altogether, it might have been more effective to modify it in a way that safeguards consensual homosexual activities between consenting adults while still criminalizing non-consensual acts. Additionally, after the removal of Section 377 from the BNS, there are no remaining provisions addressing the crime of bestiality.
     
17. Range of Imprisonment in BNS Too Wide:
    The current imprisonment range of one to seven years in the BNS might be too wide, which could lead to unfair sentences and inconsistent penalties since there aren't clear rules for deciding how long someone should be imprisoned. Likewise, the rules about fines do not specify minimum or maximum amounts, which could lead to random fines that don't match the seriousness of the crime or the offender's circumstances. To fix these issues, we need clearer definitions, improved sentencing guidelines, more specific criteria for fines, and a flexible system that can adjust to new types of crime.
     
18. BNS Missed Remarks of Union Home Minister in the Lok Sabha:
    According to the Home Minister's remarks in the Lok Sabha on December 20, 2023, as referenced in PIB's press release dated the same day, individuals charged with culpable homicide may receive a reduced sentence if they voluntarily report the incident to the police and transport the victim to the hospital for medical care. Nonetheless, the BNS does not include any similar provision.
     
19. BNS Overlooked Decriminalizing Various Offences:
    The BNS missed an opportunity to decriminalize various offences that could be addressed as civil matters. This recommendation was made by the Ministry of Home Affairs in 2007 in their Report of the Committee on Draft National Policy on Criminal Justice. For instance, the defamation offence outlined in Section 356 of the BNS could have been excluded to allow the affected parties to resolve it as a civil dispute.
     
20. Missed Non-trial Resolutions:
    The BNS missed the chance to utilize non-trial resolutions (alternative dispute resolutions), which could save resources usually spent on trials and often lead to significant financial settlements. This practice is common in Western countries like the U.S. and U.K. BNS could have made certain offences eligible for non-trial resolutions through various means such as negotiation, mediation, arbitration, settlement conferences, collaborative law, restorative justice, and mini-trials, tailored to specific disputes.

Written By: Md.Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565