BHARTIYA NYAYA SANHITA BILL
This bill is going to replace the Indian Penal Code, 1860.
The new bill seeks to include issues like Love Jihad, Terrorism, Organised Crime, Mob lynching and such like.
Changes in provisions related to Sedition, Fake News & Mandatory minimum sentence have been done.
PROMISE TO MARRY
The BNS introduces Clause 69 that seems to ostensibly tackle the “love jihad” narrative by criminalising “deceitful” promise to marry. The phrase “sexual intercourse not amounting to the offence of rape” essentially criminalises consensual sexual activity too.
WHAT DOES DECEITFUL MEAN?
“Deceitful means” shall include the false promise of employment or promotion, inducement, or marring after suppressing identity.
MOB LYNCHING
The BNS provisions codify offences linked to mob lynching and hate-crime murders, for cases when a mob of five or more individuals commits murder based on factors such as race, caste, community, or personal belief. The provision has punishment that extends from life imprisonment to death.
In its earlier version, the Bill had proposed a minimum sentence of seven years, but this was brought at par with murder.
The Supreme Court in 2018 had asked the Centre to consider a separate law for lynching.
ORGANISED CRIME
For the first time, organised crime has been brought under the realm of ordinary law. Although there exists legislations in the states, like Maharashtra Control of Organised Crime Act, 1999 (MCOCA) which give excessive surveillance powers & relaxed standards of evidence in favour of the states.
In the new legislation, the punishment for attempt to commit organised crime and for committing organised crime is the same, but a distinction is drawn based on whether a death is caused or not by the alleged offence. For cases involving death, the punishment ranges from life imprisonment to death but where there is no death involved, a mandatory minimum sentence of five years is prescribed which may extend to life imprisonment.
Petty Organised Crime: “theft, snatching, cheating, unauthorised selling of tickets, unauthorised betting or gambling, selling of public examination question papers.” Have been included.
TERRORISM
The BNS adds terrorism as an offence. It is defined as “an act that intends to threaten the unity, integrity, and security of the country, intimidate the general public or disturb public order.”
Importing large parts of the language in defining “terror activities” from the stringent Unlawful Atrocities Prevention Act has been done.
It is unclear how both the UAPA and the BNS will operate concurrently, especially when procedurally the UAPA is more stringent and the cases are heard in special courts.
ATTEMPT TO SUICIDE
The BNS introduces a new provision that criminalises “whoever attempts to commit suicide with the intent to compel or restrain any public servant from discharging his official duty”, and prescribes a jail term which may extend to one year with community service.
This provision could be invoked to prevent self-immolations and hunger strikes during protests.
GENDER NEUTRALITY
The BNS has tweaked certain laws, especially those dealing with children, Gender Neutral.
- The offences dealing with procuration of a girl (for “illicit intercourse”, 366A of the IPC) has been made gender neutral.
- For the offence dealing with kidnapping of minors, the IPC (Section 361) prescribes different age limits: 16 years for male and 18 years for a female. The BNS makes it 18 for both.
- For adults, the offence of outraging the modesty of women (354A of the IPC) and voyeurism (354C) now has gender neutrality for the accused under the BNS, which means that women can also be booked under the law.
FAKE NEWS
The IPC currently contains Section 153B which deals with “imputations, assertions prejudicial to national integration.”
This, commonly referred to as the “hate speech” provision, criminalises, among other aspects, causing “disharmony or feelings of enmity or hatred or ill-will” between communities.
The BNS introduces a new provision here which criminalises publishing false and misleading information.
SEDITION
When the Sanhitas were first introduced in the Lok Sabha in August, Union Home Minister Amit Shah had said that the law on sedition had been repealed.
However, the BNS introduces the offence under a new name and with a wider definition. Apart from a name change from ‘rajdroh’ to ‘deshdroh’, the new provision brings under its sweep aiding through financial means acts of “subversive activities”, and those encouraging “feelings of separatist activities.”
This provision has incorporated the SC guidelines in the 1962 Kedarnath Singh case, which upheld the constitutional validity for the crime of sedition.
MANDATORY MINIMUM SENTENCE
Section 303 of the IPC prescribed a mandatory death sentence for murder committed by a life-convict. In 1983, the Supreme Court struck down the provision as unconstitutional since
it took away the discretion of judges in awarding a sentence. The BNS has now tweaked this provision to prescribe a punishment of “death or imprisonment for life, which shall mean the remainder of that person’s natural life.”
In several other provisions, mandatory minimum sentences are prescribed. While the prescription of a minimum sentence limits the scope for judicial discretion and arbitrariness, it is seen to be unfair to the convict, whose mitigating circumstances, such as if they are a first-time offender or the sole breadwinner in the family, are often overlooked.
DELETIONS FROM IPC
- Unnatural Sexual Offence: Section 377 of IPC which criminalised homosexuality among other “unnatural” sexual activities, has been repealed under the BNS. (struck down by SC in 2018 wrt homosexuality)
- Adultery: The offence of adultery, which was struck down by the Supreme Court as unconstitutional in 2018, has been omitted under the BNS.
- Thugs: The IPC under Section 310 criminalises those who have been “habitually associated with any other or others for the purpose of committing robbery or child-stealing by means of or accompanied with murder,” and labels them a thug. This provision is criticised for attaching colonial notions of criminality for certain tribes. The BNS has fully omitted this provision.
CRITICISM OF THE BILL
- The IPC provides protection from prosecution to a person of unsound mind. The BNS changes this to a person with mental illness.
- The definition of mental illness excludes mental retardation and includes abuse of alcohol and drugs.
- The definition of terrorism includes an act that intends to intimidate public order.
- Several offences overlap with special laws. In many cases, both carry different penalties or provide for different procedures. This may lead to multiple regulatory regimes, additional costs of compliance and possibility of levelling multiple charges.
- The BNS omits S. 377 of IPC which was read down by the Supreme Court. This removes rape of men and bestiality as offences. (Section 377 was still invoked to penalise non-consensual sex, and is often the only recourse in cases of rape of men)
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