ABSTRACT:
Indian parliament has enacted three new criminal laws, Bharatiya Nyaya Sanhita(BNS), Bharatiya Nagarik Suraksha Sanhita(BNSS) and finally Bharatiya Sakshya Adhiniyam(BSA). This research paper critically focuses on bharatiya Nyaya Sanhita which is historically known to be Indian penal code. Before this enactment IPC plays the role as substantive law with 511 sections and contain 23 chapters. The IPC has been successful in large to prosecute and punish individuals who commit crimes and have flourished over the last 162 years. It includes all criminal offences including crimes related to humans, property and crimes that are against
public.
Now this effective criminal code has been enacted by the new law Bharatiya Nyaya Sanhita(BNS). In this research paper I have made analysis regarding the new law, its causes, consequences and the response on part of the people. This research paper also studies about the reason behind the need for the change
KEYWORDS:
Bharatiya Nyaya Sanhita, new enactment, modern era, criticism, punishments, offences.
INTRODUCTION:
On 1st July 2024, there new criminal laws BHARATIYA NYAYA SANHITA(BNS),
BHARATIYA NAGARIK SURAKSHA SANHITA(BNSS) and finally BHARATIYA SAKSHYA ADHINIYAM(BSA) came into effect. This new enactment will subsequently replace the Indian penal code(IPC), 1860, the criminal procedure code(CrPC),1973 and the Indian evidence act,1872 respectively. A few new arrangements have been consolidated in the three new criminal regulations to suit contemporary times and advances stylish.
Various new provisions have been merged in the three new laws to suit modern technology dispute. This would ultimately become a greater advantage to the society. Thus the ultimate aim of these enactments is to modernize the legal framework by highlighting the contemporary issues.
As recommended, these three enactments will have major concentration to establish justice instead on granting punishments by the approach of strengthening the legal and court board framework highlighting ‘admittance to equity by all’. The main aim of these law is to safeguard the rights given to citizens of India. By the supreme law “constitution”
This new act Bharatiya Nyaya Sanhita(BNS) contain 358 sections and 20 chapters. Whereby IPC contains 511 sections. Totally 19 sections have repealed from the bill. The total no of new crimes was about to 20 has been included in this new law. The punishment of imprisonment has been increased for about 33 crimes. The amount payable as fine has been increased for about 83 crimes and the minimum punishment which is mandatory has been established for about 23 crimes. The penalty of community service has been introduced for about 6 crimes.
They come up new title called “Crimes against women and children” in Bharatiya Nyaya Sanhita(BNS) in order to deal with sexual crimes. Sections related to the assault of minor woman, who are below 18 years of age (deals with rape cases) will become a reliable with the protection of children from sexual offences act (POCSO) and provision has been created with the punishment of imprisonment or death penalty. Whereas in case of any gang rape the provision has been made with punishment of imprisonment of 20 years or life imprisonment. This new law Bharatiya Nyaya Sanhita(BNS) critically focus punishment for those people who illegally engage in sexual abuse or those who promise any women to marry but without any true intention to marry and later engage in sexual intercourse.
The new enactment also come up with new concept called “Terrorism” which is first time forever defined and thus it was also a punishable offence.
The new provisions involve in this law are subversive activities, separatist activities, armed rebellion or any act threatening the sovereignty or unity and integrity of India.
HISTORICAL VIEW:
This new enactment was passed in the parliament on December,2023. The Union Home
Minister Amit Shah introduced three revised bills in Lok Sabha. Our president Droupadi Murmu gave her approval on December 25,2023 and thus on the same day it was officially published in the gazette. It was noted that this new bill was passed in order to duplicate those existing British made criminal laws. The union minister Amit shah stated that these three law was made during British era that were governing the Indian judicial system and thus it has been changed by the justice concept. In the old law, it had a resemblance of slavery which is being
passed by the British parliament. But today, by this new enactment we come up with the laws which removed the sighs of slavery. According to the justice concept, the judiciary make attempt in order to render justice instead granting punishments.
The IPC continued as a law from the pre-independence British era which contain outdated provisions which does not coordinate with the modern era.
RESEARCH METHODOLOGY
This paper is based on descriptive in nature and this research paper is based on secondary sources for the better understanding of new enactment Bharatiya Nyaya Sanhita(BNS). The primary objectives are to synthesize, interpret, and draw insights from previously published research works, reports and other relevant sources. Secondary sources of information are also taken from newspaper; websites are used for this research.
REVIEW OF LITERATURE
1.New criminal law may create confusion amid loopholes: what we need to know – Akriti Anand
In this article Akriti Anand analyzed on question will all cases be filled under the new criminal laws after their implementation? And what happens to cases registered before and after july1. In which two senior advocate make a stand. Predeep rai who is the senior advocate of the supreme court said if the offence is committed before the date july1, then in such cases the case must be filed under the old law thought it is registered after july1. The reason behind this is the new law does not prevail when the crime was exactly happened. Whereas, Nipun Saxena, who was also the supreme court advocate stated that when the crime is committed before july1 and the information about that case has been received after july1, then in such cases the registration will be under new law. Rai also said that even small amendments in a section triggers confusion.
2.Enactment of three new criminal laws: “India is changing” – The Chief Justice of India D.Y.Chandrachud
According to the chief justice of India D Y Chandrachud, the new laws have transitioned India’s legal framework on criminal justice into a new age. He states that these three new laws ensure the development of India and India do need it. He also further stated that ‘much-needed improvement’ have been introduced to protest the interest of the victims.
3.Bharatiya Nyaya Sanhita: An Comprehensive overview of India’s new criminal law – adv.Sanjay Sarraf, phD research scholar and prof.(dr.) Deepak kumar Sribastav, kalinga university, Naya Raipur
In this research paper they made a critical analysis on the major changes and the innovations in the new law, Bharatiya Nyaya Sanhita(BNS) where he has explained about key sections and its explanations. He has emphasis the importance of justice over the punishment and the need of, Bharatiya Nyaya Sanhita (BNS), in this modernizing era.
APPLICABILITY OF THE NEW ACT:
The provision of this sanhita shall apply to any offences committed by –
- Any citizen of India in any place without and beyond India:
- Any person on any ship or aircraft registered in India wherever it might be; • Any person in any place without and beyond India committing offence targeting a computer resource located in India
As per explanation of section 1 the word offence include every act committed outside India which, if committed in India, would be punishable under this Sanhita
IMPORTANT CHANGES MADE UNDER THE ACT:
This new enactment in IPC have made several progressive provisions which aimed at raising fairness in the field of law. Here is the list of some changes which plays a drastic role.
1.Section 113: This section deals with definition of the crime “terrorism” which has adopted from the already existing definition under the section 15 of unlawful prevention activities act,1967. It defines terrorism as whoever does any act with the intension of causing hurt to any person or with the knowledge that he is likely to cause hurt to any person and does thereby cause hurt to any person is said “voluntarily to cause hurt” and shall be punished with imprisonment for one year or with fine of about the thousand rupees or with both.
2.Section 86: This section deals with “cruelty” against woman by her husband and his relatives, which is punishable with a jail term of up to three years and shall liable for fine.
This section defines cruelty as (a) a willful conduct is likely to drive the woman to commit suicide or to cause injury or danger to life, limp or health (mentally or physically) of the women; or (b)harassment of a women with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security.
However, such offences against woman has been explained as the same in section 498A of IPC. Therefore, there is no addition in effect in new enactment.
3.Section 73: Sub-section 228A of IPC is treated as individual section in this new enactment. it deals with unauthorized publication of court proceedings. As per the section those who print or publish any matter concerning court proceedings in rape or sexual assault cases without permission would be punished with two-year jail sentence and a fine. The explanation to this provision clarifies that the reports on high court or supreme court judgments would not amount to an offence.
4.Section 106: This section deals with in case of any negligence. As per section sub clause 1, in case of any medical negligence shall be punishable with imprisonment or fine. Section 304A of IPC is treated as separate section for negligence.
5.Section 111: This is a newly added section. There is a specific offence for organized crime. Thus, this section defines organized crime as “any continuous unlawful activity including kidnapping, robbery, vehicle theft, economic offence etc…by any person or a group, by use of violence, threat of violence, coercion, in order to obtain direct or indirect material benefit shall constitute organized crime.
6.Section 112: This is also a newly added section. This section defines petty organized crimes as whoever, being a member of the group or gang, committing any act of theft, snatching, unauthorized selling of tickets, etc… is said to commit petty organized crime. Such offences are punishable with imprisonment between one and seven years and fine.
7.Section 103: Section 302 of IPC is replicated in this section. this section deals with punishment for murder. As per section 103(2) when a group of 5 or more person commits murder on the ground of race, caste, sex, place of birth or any similar ground shall be punished with death or imprisonment for life and shall liable to fine.
8.Section 95: This section deals with hiring, employing or engaging a child to commit an offence. Whoever, does an act shall be punished with imprisonment not less than three years but extended to ten years and with fine. The explanation provided in this section hiring, employing or engaging or using a child for sexual exploitation or pornography is covered with in the meaning of this section.
9.Section 152: This section deals with act endangering sovereignty, unity and integrity of India. this is also a newly added section. This section states whoever purposively 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 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 mat extent to seven years, and shall also be liable to fine.
CONTRIBUTION TO CITIZENS:
- Bharatiya Nyaya Sanhita(BNS) act provides clarity and severe penalties for the offences that has been committed.
- It also strengthens public safety and addresses vicious crime more effectively. • It is the wellbeing of the society and citizen which must be most closely guarded • Courts have to
issue degree within 45 days of completion of arguments, whereas in earlier there is no such time period has been defined which would likely leads to prolonging of cases in court.
- This order will probably get justice to the innocents and also to the people who have
suffered loses sooner.
CONSEQUENCES OF NEW ENACTMENT:
Indian legal system has faced some criticism from some lawyers and activists. The following are some of the impact.
1.DUBIOUSLY DEFINED OFFENCE: The new law gives ambiguity in words related to offence such as terrorism, acts that are endanger to sovereignty and organized crime. Such vague definition will probably violate the rights of the supreme law (i.e.) fundamental rights like personal liberty, freedom of speech etc.
2.CLAUSE 69: This clause of BNS clearly defines, 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 which may extent to ten years and shall be liable to fine. The critics argue that it may accidentally criminalize consensual relationship.
3.EXTENTION OF POLICE CUSTODY: The maximum duration of police custody under the new laws is expanded from 15 days to 60 to 90 days. This extension in days is likely to rise the risk of police excesses and coerced confessions and thus probably undermining fair legal proceedings.
4.DISCRETION TO POLICE OFFCIALS: Police officials are provided with discretion to choose prosecution under new laws or existing statutes like unlawful activities prevention act(UAPA) without any proper guidelines. This amounts in conflict with application and hence increases queries related to fairness and accountability.
5.REMOVAL OF LEGAL AID PROVISION: This new law has eliminated the provision related to legal aid from the point of arrest, which leads to create a problem of safeguarding the rights of the accused. This removal would likely to hinder access of justice and fair legal representation especially for individuals at risk.
6.LACK OF CONFUSION: It has been analyzed that these new laws will create confusion in the minds of the practitioners in legal field and also in the judicial process. For example, In the definition of the petty organized crime it is unclear what is meant by general feeling of
insecurity.
7.LACK OF PROPER TRAINING TO LAWYERS AND POLICE: There has been no proper mechanism of training program for lawyers and officials by which they learn.
8.VAGUE DEFINITION: This Bharatiya Nyaya Sanhita(BNS) act does not define the terms such as gang, anchor points and mobile organized crime groups. It also does not define what community service will entail and how it will be administered.
9.OFFENCES AGAINST WOMEN: This Bharatiya Nyaya Sanhita(BNS) act retains the provision of IPC related to rape but this does not address several recommendations made by the justice Verma committee (2013) and supreme court on reforming offences against women.
Despite, there are advancement in the new enactment Bharatiya Nyaya Sanhita(BNS), there are still grey areas which need to be noticed and taken into consideration. These drawbacks will definitely impact on legal and social landscapes.
SUGGESTIONS:
- SHRI AMIT SHAH, UNION HOME MINISTER:
He said that by replacing the old laws it will definitely create a new India. He said that these three bills introduced are in the way fulfilling one of the five vows taken by our prime minister Shri Narendra Modi. He assured the Lok Sabha that these enactments will bring big change in our criminal justice system. He also stated that it was reviewed in accordance to the present times and in the interest of the Indian society.
- N S NAPPINAI, SENIOR ADVOCATE, SUPREME COURT:
She said that resistance to change is natural but it can only be assuaged through transparency and effective implementation. She stated that the timeline proposed for implementation acting too quick. The changes to the procedural aspect need more time for effective adaptation.
- DELHI POLICE ACADEMY:
This academy being the training institute adopted such changes in the act. As an evidence they commenced a focused training program in order to adopt new criminal law. This act clearly defines that these group of people don’t have any controversial points.
LIMITATIONS:
This research paper does not cover the major provisions which have been changed from IPC to Bharatiya Nyaya Sanhita (BNS). By this act they come up with totally 31 new provisions.
But this research paper covers only the important provisions.
CONCLUSIONS:
Bharatiya Nyaya Sanhita(BNS), enlightens the Indian criminal regulation, equity and advancement. Its complete changes are supposed to have a broad effect, making the overall set of laws more receptive the necessity and the real factors of contemporary society. These three laws made an India a great change towards the criminal justice system.
FOOTNOTES:
- Adv.Sanjay Sarraf, phD research scholar and prof.(dr.) Deepak kumar Sribastav, kalinga university, Naya Raipur, Bharatiya Nyaya Sanhita: An Comprehensive overview of India’s new criminal law.
- The Chief Justice of India D.Y.Chandrachud, Enactment of three new criminal laws:
“India is changing”
- Akriti Anand, New criminal law may create confusion amid loopholes: what we need to know.
AUTHOR
BRINDHA T from Dr. Ambedkar Law University (School Of Excellence In Law),Chennai