Authored By: AKANSHA KUMARI
CHANDIGARH UNIVERSITY
ABSTRACT
This research attempts to dive into the need to reveal the post-existing penal code, IPC1860, while doing a comparative analysis with the new penal code, Bharatiya Nyaya Sanhita 2023. This paper also presents all major and minor changes in the IPC 1860, while preparing a picture of the new act.
The aims and rationale behind the laws so framed have been discussed, and light has been shed on the novelty brought by Bharatiya Nyaya Sanhita, 2023, in this criminal justice system in India. Particularly in the laws regarding terrorism, rape, sedition, and murder have been discussed in length. Reformative theory of punishment has been studied in relation to the provision of community service as a punishment for petty crimes.
The opinion of various scholars has been referred to analyze the effectiveness of the new act. This paper thus makes an attempt to find the pitfalls of IPC1860 filled by Bharatiya Nyaya Sanhita. 2023. The main aim of this article is to see that what the various changes brought up in the Bharatiya Nyaya Sanhita in comparison to the old criminal code, and to see whether the changes that have been brought up in the Bharatiya Nyaya Sanhita Act, 2023, are positive or negative in nature Several sections of the IPC have been altered in the new act, i.e., the BNS Act, and the punishments for the crime committed have also been altered, and various new things have been added to it. Like, earlier in the IPC 1860 concept of terrorism was not there, but it has been added in the new act, i.e., The Bharatiya Nyaya Sanhita Act, 2023.
Keywords: – Law, Murder, Section, Criminal, Justice, Terrorism, India, Offences,
INTRODUCTION
We live in a lawful world where law is everything. Whenever we decide to purchase something, or choose an insurance plan, or whenever we go within the territory or outside the territory of India, we have to follow various rules that are important for us. India follows the principle of the rule of law, that the law is the Supreme Authority in our country. Everyone here is equal in the eyes of the law, whether he/she is a common man or some sort of celebrity. All are governed and then tried with the same law. In such a world, those who understand the law and follow it have more opportunities than others. The following laws should not be considered as a burden on us, but they should be treated as a responsibility to make our country a developed country.
Various laws prevailed in our country, such as the Code of Criminal Procedure, the Civil Procedure Code, the Indian Penal Code, the Evidence Act, the Contract Act, international law, the Extradition Act, etc. So in this research paper, this article is going to talk about the IPC in relation to the Bharatiya. Nyaya Sanhita Act 2023. The Indian Penal Code, or IPC, is the act through which a person is punished for a crime. It is the official criminal code that covers all the substantive aspects of criminal law. But a new act was passed in the Lok Sabha in 2023 for the replacement of the Indian Penal Code with the new Bharatiya Nyaya Sanhita Act, 2023. The main aim of this act is to provide justice to the victims and punishment to the accused for their offences.
When the Indian Penal Code was made, after several amendments, it contained 26 chapters, which are divided into 576 sections. As compared to the IPC, the Bharatiya Nyaya Sanhita Act 2023 comprises 19 chapters containing 356 sections in total. There are various positive changes brought up in the new act as compared to the IPC1860. The main reason behind making the new act is to make the criminal justice system more accurate and concise in nature. As the earlier act, i.e., the IPC, was made during the course of British Rule in India and the code was made by them, to correct their mistakes, the Indian government thought of making a new act, and the act was made, approved, and has been implemented over the past 2 years.
BACKGROUND:
The IPC, or the Indian Penal Code, is the official criminal code of India currently. But it is going to change as the new act, which will take the place of the Indian Penal Code 1860, has already been passed in the Lok Sabha 2023, by our honorable Home Minister Amit Shah, and the act was termed as the Bharatiya Nyaya Sanhita Act, 2023. The main aim of the new act is to fulfill the left-out blocks of the Indian Penal Code and to ensure that proper justice will be provided to the victims of the crimes and to punish the accused for their offences. As defined, IPC is the official criminal code of India. It is a comprehensive code intended to cover all the substantive aspects of the criminal law. The main purpose of the Indian Penal Code, 1860, is to provide justice to the people who have been the victims of any offence and to punish those who have committed some sort of crime. The code embodies the general penal law of the country and is the sole authority in respect to the general conditions of exemptions from criminal liability.[1]
The IPC deals with such crimes that are injurious to society and are against morality and humanity. It deals with such offences which are against the fundamental rights of or principles on which a society is keen to exist. It deals with some crimes which are cognizable, and some are not; some are bailable, and some are not compoundable, and some are not.[2]
Historical background of the Indian Penal Code:
To give shape to the Indian legal system during the British era, a law commission was established, which was termed as “The Indian Law Commission,” and it was established in the year 1834. The president of this commission was the Lord Macaulay, who was the president of this commission and Macleod, Anderson and Millet, they were appointed as the commissioners of this commission. The 1st draft of the commission was given in the year 1837 to obtain the views of the various judges and the legal advisors. In 1845, as the 1st commission expired, the 2nd committee of the law commission was constituted. This committee submitted their report in two parts, as the 1st part was given for review in the year 1846, and the second was given in the year 1847 for review by eminent advisors.
The draft code was later submitted to the law members of the Governor’s council, and it was submitted to the legislative council in the year 1856, which, after several discussions, was passed as it received the consent of the governor-general on Oct 06th, 1860, and it came into force on 01st Jan 1862. Before the coming of the British rule in India, the penal law which prevailed in India was the “Muhammedan Law”; this law replaced the Hindu Law until the enactment of the Indian Penal Code, 1860. For the 1st few years, the Britishers did not interfere in the criminal law of India, but later in 1772, the East India Company altered the Muhammadan law for the 1st time, and later, as the need arose, the law was altered specifically.
The provisions relating to the Indian Penal Code, 1860 have been adopted and implemented in several countries such as South Asia, the Middle East, and Africa etc. The penal code of India has been applied in several countries; they took the help of the Indian Penal Code in framing their own penal code. Such countries are: Somalia, Tanzania, Sri Lanka, Pakistan, Bangladesh, and Nigeria etc. The current IPC consists of 511 sections, which are subdivided into 23 chapters. Chapter 1, i.e., sections 1 to 5, contains the introduction, Chapter 2, i.e., sections 6 to 52, contains General Explanations, Chapter 3, i.e., sections 53 to 75, contains Punishment. Chapter 4 contains General Exceptions of the right to private defense, Chapter 5 i.e., Abetment under section 107 to 120, Chapter 5A, i.e., Criminal Conspiracy from section 120A to 120B, Chapter 6, i.e., the offences against the State from section 121 to 130, Chapter 7, which contains offences relating to the Army, Navy, and Air Force from section 131 to 140.
Chapter 8 of the IPC includes sections 141 to 160, i.e., the offences against the public tranquility, Chapter 9 talks about the offences relating to the public servants from section 161 to 171, Chapter 9A of the said act gives the section regarding the offences relating to elections from section 171A to 171I. Chapter 10 deals with the section 172 to 190 i.e. the contempt of lawful, Chapter 11 deals with the false evidence and offences against public justice i.e. from section 191 to 229, Chapter 12 deals with the offences relating to coin and government stamps, i.e., from sections 230 to 263, Chapter 13 deals with offences relating to the weight and measure, i.e., from sections 264 to 267. Chapter 14 deals with the offences affecting the public health, safety, and convenience, i.e., from sections 268 to 294.
Chapter 15 of the IPC talks about the offences relating to religion from section 295 to 298, Chapter 16 of the IPC deals with the offences affecting the human body, i.e., from section 295 to 377. Chapter 17 talks about the offences against property, i.e., from section 378 to 462. Chapter 18 talks about the offences relating to documents and property marks, i.e., from section 463 to 489E. Chapter 19 of the said Act talks about the criminal breach of contracts of service, i.e., from sections 490 to 492. Chapter 20 of the IPC talks about the offences relating to marriage from sections 493 to 498. Chapter 20A talks about the cruelty by the husband or the relatives of the husband, i.e., the section 498A, Chapter 21 of the said Act talks about defamation, i.e., from section 499 to 502, Chapter 22 of the IPC talks about criminal intimidation, insult, and annoyance from sections 503 to 510, and Chapter 23 talks about attempts to commit offences, i.e., section 511.
Historical background of the Bharatiya Nyaya Sanhita Act, 2023.
To reform India’s criminal justice system, three acts were passed in the Lok Sabha on Aug 11 2023, by our honorable Home Minister Amit Shah. The 3 acts are: The Bharatiya Nyaya Sanhita, which replaces the Indian Penal Code 1860, The Bharatiya Sakshya Adhiniyam, which aims to replace the Indian Evidence Act 1872, and The Bharatiya Nagarik Suraksha Sanhita, which replaces the Code of Criminal Procedure 1973. As the act has already been passed, it still does not have much historical background.
The BJP government wanted to reform the existing criminal law and regarding that an announcement was made for the formation of committee for reform of criminal laws after the reelection in the year 2019 elections. But due to the pandemic that occurred in 2019, i.e., the Covid 19 outbreak, the process was held for that time. In May 2020, the committee suddenly announced the online process of these acts and started working on it. As the work was done in a kind of secretive way, because no reports or any responses were made by the committee, and on the last date of the Parliament Session, this act was introduced.
The main reason behind the introduction of this act was to replace the other one because, in the framing of the IPC, there was no role for the Indians. It was like the law was prepared of the country by the other country. Being an independent country, following the laws made by another country is not complete independence. As we got independent, we are still following the laws and the Acts or the Statutes made by the other country. So, to decolonize the British Criminal Law, this act was passed in the Lok Sabha.
Several new changes have been brought up in the new act as compared to the IPC. Many sections in the new act have been altered or repealed, and the punishments for some sections are repealed as well. In contrast to the IPC, which has 23 chapters and 511 sections, the new act has a total of 19 chapters and contains 356 sections. Various progressive alterations have been made in the Bharatiya Nyaya Sanhita Act 2023, like the inclusion of section 69, a new provision under section 302B “Snatching”, stronger laws addressing “Sexual Misconduct,” etc.
The Bharatiya Nyaya Sanhita Act 121 of 2023 contains 19 chapters, which are divided into 356 sections. They are: Chapter 1 of the BNS Act is the Preliminary section, Chapter 2 of the said act talks about the punishments, i.e., from section 4 to 13, Chapter 3 talks about the General Exceptions, i.e., from section 14 to 44. Chapter 4 of the said act talks about the abetment, conspiracy, and attempt of abetment, i.e., from sections 45 to 62. Chapter 5 of the Act talks about the offences committed against women and children of Sexual Offences, i.e., from sections 63 to 97.
Chapter 6 of the act talks about the Offences affecting the human body of offences against life i.e. from section 98 to 144, Chapter 7 talks about the Offences done against the state i.e. from section 145 to 156, Chapter 8 of the BNS Act talks about the offences relating to the Army, the Navy and the Air Force i.e. from section 157 to 166, Chapter 9 of the act talks about the Offences relating to the elections i.e. from section 167 to 175, Chapter 10 of the act talks about the Offences relating to Coin, Currency- notes or Bank-notes and government stamps i.e. from section 176 to 186.
Chapter 11 of the act talks about the Offences against the public tranquility i.e. from section 187 to 195, Chapter 12 talks about the Offences by or relating to the public servants i.e. from section 196 to 203, Chapter 13 of act talks about the Contempt’s of the lawful authority of public servants i.e. from section 204 to 224, Chapter14 of the BNS talks about the False evidence and offences against public justice i.e. from section 225 to 267. Chapter 15 of the act talks about the offences affecting the public health, safety, i.e., from section 268 to 295, Chapter 16 talks about the offences relating to religion, i.e., from 296 to 300, Chapter 17 talks about t the offences against property, i.e., from section 301 to 332. Chapter 18 talks about the offences relating to documents i.e., from 333 to 348, and Chapter 19 talks about criminal intimidation, insult, annoyance, and defamation. i.e., from section 349 to 356.
LITERATURE REVIEW:
As the new act that has been passed in the Lok Sabha, by the honorable Home Minister Amit Shah for reforming the India’s criminal justice system has resulted in several positive changes. As compared to the Indian Penal Code, the new act is more precise and concise in its manner and has a better improved structure than the IPC. The Indian Penal Code 1860 has certain loopholes which the new act aims to fill, such as the IPC 1860 did not talk about the concept of “Terrorism”, but the new act has the concept of terrorism and the punishment related to it due to the leading cases of such acts.
The new act has brought several new changes, such as a new provision, i.e., “Snatching” has been added under section 302, i.e., whoever commits snatching shall be punished with imprisonment of up to 3 years and shall be liable to fine as well. A separate provision for “Mob Lynching” has been added to the act. The new act has brought various positive changes to the laws relating to women. The new act has tried to fulfill all the gaps relating to the laws for women. The Indian Penal Code did not give much concern regarding the laws related to women, but if we talk about the new act, the new act has given primary concern to women. There are several positive changes brought up in the new act, which I will be discussing one by one in detail.
Provision regarding Sedition-
Section 121A of the IPC was inserted by the Amendment Act 27 of 1870, which says that, if a person tries to wage war against and overawe by criminal force the central government or any government or state, then the person shall be punishable with imprisonment for life or imprisonment which may extend to 10 years and fine. The provision of this section is based upon the Treason Felony Act, 1848.[3] In the case of SH Jhabwala V. Emperor, ILR (1935) All 1040[4], the accused formed unions along the lines of Soviet Russia. The accused were charged and convicted by the Session Court under Section 121A, IPC, for the conspiracy to wage war against the government. The accused appealed to the High Court. The High Court of Allahabad held that the conspiracy to change the government may amount to some offence under any other section, but it is not an offence under Section 121A of the IPC, as it talks about the conspiracy to overawe such government by criminal force. The Bharatiya Nyaya Sanhita 2023 has repealed the provision regarding sedition. As the new act does not require the need of this provision, the provision has been repealed from the BNS Act, 2023.
Provision regarding the Community Service:
Section 53 of the IPC talks about the 6 types of punishments, which are: Death, Imprisonment for life, ***, Imprisonment which is of two descriptions- Rigorous and Simple, Forfeiture of Property, and Fine. Whereas the new act talks about the 6 types of punishments, such as:
Death, Imprisonment for life, Imprisonment which is of two descriptions- Rigorous and Simple, Forfeiture of Property, Fine, and Community Service. There are various sections where the community service as a punishment has been given, they are: –
Section 499 of IPC says that, “whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person contending to harm, or knowing or having reason to believe such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected to defame that person.”[5] The punishment prescribed for the offence is imprisonment for a term which may extend to 2 years, or a fine, or both. The new Act defines “Defamation” under section 354 and says that if a person commits the offence of Defamation, then he shall be liable to imprisonment for 2 years or a fine, or both, or with “Community Service.” This term has been added in the new act.
Section 309 of the IPC talks about the Attempt to commit suicide and says that if a person tries to commit suicide, he/she will be liable with a fine or imprisonment for 1 year or both[6]. Whereas section 106 of the BNS act says that if a person tries to commit suicide, he/she will be liable with fine or imprisonment of 1 year or can be both or he/she can be given community service as a punishment.[7]
There are several more cases where the community service as a punishment is given, such as: in case if people make a nuisance after drinking alcohol or in cases where public servant violate their legal obligations.
Provision regarding Mob Lynching:
Mob lynching is not defined under the IPC. There is no provision of Mob Lynching given under the IPC. The new act defines the concept of Mob Lynching, and the maximum punishment for it is death. Mob lynching is a form of collective violence in which a group of people attacks and kills a person or a group of people, often based on their identity, beliefs, or actions. The major reasons behind the mob lynching in India are: religious intolerance, caste discrimination, rumors, lack of law and order, rise of cow vigilantes, etc. Several measures have been taken by the Supreme Court against mob lynching.
In July 2017, in the case of Tahseen S. Poonawala V. Union of India[8], the SC laid down several preventive, remedial, and punitive measures to deal with the lynching and the mob violence. The SC in this case aptly referred to mob lynching as a ‘Horrendous act of mobocracy.’
In the case of the Jhankar Saikia mob lynching case[9], it happened in Diphu town, Assam, where the student Jhankar and his father refused to pay a fare of Rs. 30 to the auto rickshaw driver, as the regular fee was only Rs. 20. As a result, they both were attacked by the mobs. As per the witnesses, the policemen were present there on duty, but they did not even try to stop the mobs. Due to severe injuries, Jhankar died in the hospital. As the trial was held in 2018, the charge sheet was filed against 12 out of 19 people. They were convicted to imprisonment, to life, from which 2 of them absconded, 1 was tried in the juvenile court, and the other 4 were acquitted.
Stricter Laws on Sexual Offences:
Several laws on sexual offences have been amended, and the punishment for the offences has been altered. As per section 376 of the IPC, the punishment for rape is imprisonment not less than 10 years, and it may extend to imprisonment for life with a fine. Whereas section 64 of the BNS Act says that the punishment for rape must be a rigorous punishment which shall not be less than 10 years, and can be imprisonment for life with a fine.
Another offence is that under sections 376DA and 376DB, it says that the punishment for gang rape under the age of 16 years and under the age of 12 years, the person is liable for imprisonment for not less than 20 years or life imprisonment with a fine. If it is committed below the age of 12 years, then the punishment for the offence is imprisonment not less than 20 years or imprisonment for life with a fine or death. Whereas section 70 of the BNS Act says that whoever commits an offence of gang rape with a woman under the age of 18 years, then the punishment for that will be imprisonment for life with fine or with death.
In the case of the Kathua Rape Case 2018[10], a minor girl of 8 years was abducted, gang-raped, and killed by 8 men in a temple in Jammu and Kashmir. The case was transferred by the SC to the Punjab High Court for a fair trial from the J&K High Court. Out of the 8 men, 3 of them got life imprisonment, those who were the masterminds of the case. They were: a priest of the temple who was a retired government official, a special police officer, and the priest’s nephew. The other 5 were a Special police officer, a sub-inspector, and a head constable. They were given imprisonment for 5 years, and the other was the priest’s son, who was acquitted by the court. Out of the 8 men, one was a juvenile regarding whom the petition is yet to be heard by the J&K High Court. This was the punishment given under the IPC, but this punishment is kind of vague in nature. The punishment given under the BNS Act is more accurate than the punishment given under the IPC.
A new provision has been added under the BNS Act under section 72 of the said Act. It says that whoever prints or publishes the name or any matter of the victims against whom the offence has been done under section 63, 64, 66, 67, or 68 shall be punished with imprisonment which may extend to 2 years with a fine.
Another provision, which is “Sexual exploitation of women”, has not been defined under the IPC. The new act under section 69 defines it. As per section 69 of the BNS Act, whoever, by deceitful means or by making a false promise of marriage, has intercourse with her, then that person shall be punished with imprisonment which may extend to 10 years with a fine.[11]
In the case of Yedla Srinivasa Rao Vs State of A.P, 2006[12] the accused had sexual intercourse with a girl on the promise that he would marry her. But as the girl got pregnant, the accused refused to marry the girl, claiming that the parents of the accused are against the marriage. The SC observed that the girl had sexual intercourse with the accused on the false pretext of marriage. If the promise was not given, the girl should not have been permitted to have sexual intercourse with the accused, and it falls under the offence of rape. The accused was convicted of 7 years of imprisonment with a fine. As the provision is not given under the IPC about sexual exploitation, the case was dealt under the provision of Section 376 of the IPC. But the new act has a provision for the sexual exploitation of women, and it talks about rigorous punishment, which is 10 years of imprisonment with a fine.
Other provisions, such as ‘Adultery’ and ‘Unnatural sexual offence against men’, have been omitted by the new act. With respect to the strict laws on sexual offences, the new act has created bias. Gender neutrality in rape and sexual assault is missing in the new act. It talks only about the offences committed against a woman.
Provision regarding terrorism:
As under the IPC, there is no such provision of terrorism in the previous act. Whereas in the new act, “Terrorism” and the “Terrorist Act” have been defined under section 111 of the BNS Act. It states that whoever performs any terrorist act under the provisions of this section shall be liable to punishment for imprisonment for life or death, without parole, and shall also be liable to a fine.[13]
Provision regarding Snatching:
The Indian Penal Code 1860 does not define “Snatching” in the specific act. Whereas the new act, i.e., the BNS Act 2023, defines the provision “Snatching” under section 302 of the said act. Section 302 (2) of the act says that whoever commits snatching shall be punished with imprisonment of either description for a term which may extend to 3 years, and shall also be liable to fine.[14]
Other than these provisions, there are several provisions that have been added in the new act, such as cybercrime, environmental pollution, hate speech, etc.
Apart from the positive changes, there are several changes which are negative in nature. As the changes are progressive, but it has negative aspects as well. Although the new act is precise and concise in nature, it needs some amendments too. For example, if we talk about the sexual offences, the whole section is related to the woman. No gender neutrality is there in the rape section and in the section on sexual assault. Instead of that, the act should talk about gender neutrality and should recognize that men, women, and transgender people can all commit rape and can be victims of rape or sexual assault.
As the Act introduced the new type of punishment, i.e., the “Community Service”, there is no such definition of it given under the Act. Without the definition, it is kind of hard to know the aim of this punishment. Community service can be anything; for example, it can be donating money to poor people, it can be offering service in the temple or gurudwara, it can be distributing copies of Ramayana or the Quran, etc. Without a proper definition, it is hard to know what exactly the word means.
As the act has become a code, it still needs to go under amendments. As the act was just passed in 2023 and after the approval, when it became a codified law, it can go under various amendments, which will make the act more accurate. As compared to the Indian Penal Code, this act is better in its true sense. Although we are still in a dilemma that whether this act will stand out or not, there is nothing we can do about that. But holding a majority of opinion India has got a better code as compared to the previous one, a new law, and as the act has been approved and is currently in force, it holds the power to change whole criminal justice system of India and is helping people in the best way it can.
As compared to the IPC, the new act is more accurate. As several new concepts have been adopted under the new act, there was no concept in the IPC. Every coin has two sides, just as the new act has both positive and negative aspects. With carrying the progressive changes with it, the act is carrying the negative changes as well. But as soon as it gets approved and becomes a codified law, the act will change the whole criminal justice system of India.
CONCLUSION
There is going to be a major shift in India’s criminal Justice System, because of the new act which has been proposed as well as passed in the parliament by our honorable Home Minister Amit Shah. The new act is more effective, equitable, and responsive than the old code.
i.e., The Indian Penal Code, 1860. As India is a developing country, it is getting modernized day by day; it needs modernization in the law, too. The main will power currently in India is the power of the youth, who know how their country should be. So, to keep pace with the youth and the world, there is a need to change the old laws of India. The three acts passed in the parliament, which may take the place of the other three codes, i.e., The Indian Penal Code, 1860, The Code of Criminal Procedure, 1973, and The Indian Evidence Act, 1872.
As compared to the IPC, the new act has new provisions that were not in the old code. The new code still needs to be implemented, and has also been approved. The new act, i.e., The Bharatiya Nyaya Sanhita, 2023, is made to meet the current needs and issues better in society as compared to the old code. As the act has just been passed, the act may undergo various changes as suggested by several law experts or people related to it. As if the act has become a new code, it will have many problems in the beginning, but over time and after certain amendments, it will be ready to meet the needs of the people.
The new act is based on the principle of natural justice, the same as the old code. As the old code was based on the pre-colonial rules, the new act has tried to evolve from those rules. The old code was made by the British before the independence of India, that’s why there was a need to decolonize the British laws in India.
REFERENCE(S):
[1] K.D Gaur, The Indian Penal Code 09(7th ed.2020).
[2] The Code of Criminal Procedure, 1973, section 2 (a) (c) &(l).
[3] The Treason Felony Act, 1848.
[4] SH Jhabwala V. Emperor, ILR (1935) All 1040
[5] The Indian Penal Code, 1860, s 499.
[6] The Indian Penal code, 1860, s 309.
[7] The Bharatiya Nyaya Sanhita, 2023, s 106.
[8] Tahseen S Poonawala V Union of India, (2018) 9 SCC 501
[9] Jhankar Saikia Case
[10] The State of Jammu & Kashmir (Now U.T. of Jammu & Kashmir) & Ors. vs. Shubam Sangra (2022) SCC OnLine SC 1592
[11] The Bharatiya Nyaya Sanhita Act, 2023, s 69
[12] Yedla Srinivasa Rao v. State of Andhra Pradesh (2006) 11 SCC 615
[13] The Bharatiya Nyaya Sanhita Act, 2023, s 111.
[14] The Bharatiya Nyaya Samhita Act, 2023, s 302 (2).
