The Bharatiya Nyaya Sanhita 2023 is an important legislation introduced with an aim to modernize the criminal justice system of India. The BNS 2023 replaced the 163-year old Indian Penal Code 1860. This new legislation seeks to consider contemporary challenges such as technological advancements and changing societal norms making the criminal law more efficient and relevant in today’s era. Explore other Judiciary notes.

Need for Replacing IPC with BNS

The Indian Penal Code was introduced in 1860 by the British. The IPC over the time has become outdated and insufficient to deal with modern issues.. The creation of Bharatiya Nyaya Sanhita 2023 aims to resolve these issues by -

• Elimination of Outdated Provisions: Many sections of the Indian Penal Code fail to reflect present socio-economic and technological realities.
• End of Colonial Legacy: The Indian Penal Code was initially structured for colonial governance which does not completely align with the needs of sovereign and democratic India.
• Acknowledgement of Complex and Uncertainty: Over the years the IPC has become complex to analyse due to its intricate legal language.
• Spotlight on Victims: The Indian Penal Code which mainly highlights the offender whereas the Bharatiya Nyaya Sanhita shifts towards victim support and rehabilitation.
• Procedural Efficiency: Bharatiya Nyaya Sanhita was enacted with purpose to reduce backlogs of cases and procedural delays.

Community Service as a Punishment

Section 4 of Bharatiya Nyaya Sanhita deals with community service. It is inserted as a form of punishment. It is important to note that law does not specifically states what amounts to community service. The community service can be prescribed along with other fines in offences such as :

• Attempting suicide to coerce or prevent lawful authority
• Defamation
• Public misconduct by a drunken person
• Failure to appear in response to a public proclamation

The Bharatiya Nyaya Sanhita amalgamantes all offences related to women and children under Chapter V. It helps to streamline the sections that were earlier scattered across different sections of Indian Penal Code.

Marital Rape of a Minor Wife Recognized as an Offense

Section 63 of Bharatiya Nyaya Sanhiat states that a sexual intercourse with a wife is not considered rape unless she is under 18 years. It marked a change from Indian Penal Code which set a threshold at 15 years. The change corresponds with the Supreme Court decision in Independent Thought v. Union of India (2017) which interpreted Exception 2 to Section 375 IPC to include sex with a minor wife as rape.

Criminalization of Deceptive Sexual Intercourse

Section 69 of Bharatiya Nyaya Sanhita makes a person liable if he engages in sexual intercourse with a woman under false promises of marriage if he never intended to fulfill the promise. Under this offence, if a person is found guilty he will be liable for 10 years of imprisonment and fine.

Harsher Punishment for Gang Rape of a Minor

According to Section 70 of Bharatiya Nyaya Sanhita, gang rape of a girl below 18 years attracts a sentence of life imprisonment (for the remainder of natural life) or the death penalty. Under the IPC, this enhanced punishment was applicable only for victims below 16 years.

Restriction on Publication of Court Proceedings in Sexual Offense Cases

Section 73 of Bharatiya Nyaya Sanhita states that any publication or print of details related to sexual offence without the approval of the Court is a punishable offence. The perpetrators can be sentenced to 2 years imprisonment and fine. It is to be noted that the publication of Supreme Court or High Court decisions does come within this bar.

Key Legal Changes: Deletion of Section 377 and Adultery Law

The Supreme Court decision in Navtej Singh Johar v Union of India decriminalized consensual same-sex relationships. The Bharatiya Nyaya Sanhita has eliminated Section 377 of Indian Penal Code.
Also, the landmark ruling of the Supreme Court in Joseph Shine v Union of India where adultery was no longer considered as an offence. However, Section 84 (Previously Section 498 IPC) penalizes men for enticing another man's wife for illicit relations.

Section 111 of Bharatiya Nyaya Sanhita defined organized crime which covers :

• Kidnapping
• Robbery
• Extortion
• Cybercrime
• Human trafficking for Prostitution
• Economic offences

If such an offence results in the death of a person the punishment is either capital punishment or life imprisonment and fine of Rs. 10 lakhs.

Petty Organized Crime

Section 112 of Bharatiya Nyaya Sanhita inserted the concept of petty organized crime encompassing :

• Theft
• Snatching
• Cheating

Punishment includes imprisonment of 1 to 7 years and fine.

Terrorist Acts Defined and Penalized

The Bharatiya Nyaya Sanhita defines terrorist acts. The definition include activities such as :

• Threat to the economic security of India
• Involve counterfeit currency smuggling
• Cause damage to monetary stability
• Use bombs, explosives, firearms, lethal chemicals, or biological/radioactive substances to harm national security

The punishment for committing a terrorist act is death or life imprisonment. Conspiring, abetting, or inciting such acts carries a minimum 5-year imprisonment, extendable to life.

Redefining Offenses Against National Unity

Section 152 of Bharatiya Nyaya Sanhita struck down the colonial-era Section 124 IPC sedition law by criminalizing acts that:

• Incite secession, armed rebellion, or subversive activities
• Encourage separatist movements
• Endanger India’s unity, sovereignty or integrity

This shifts the focus from actions against the government to actions against the nation. Wrongdoers can be sentenced to life imprisonment or up to 7 years imprisonment with a fine.

Important Supreme Court Cases on Bharatiya Nyaya Suraksha Sanhita 2023

The Supreme Court considered several petitions regarding Bharatiya Nyaya Sanhita (BNS) 2023. The cases considered constitutional challenges and requests for legislative amendments. Below are key highlights from the Recent judgment of Supreme Court:

• Azad Singh Kataria vs. Union of India: The Supreme Court questioned whether protective safeguards should exist for individuals accused of organized crimes while reviewing a petition challenging the constitutional validity of BNSS and BNS.
• Pooja Sharma vs. Union of India and Anr. (W.P.(Crl.) No. 398/2024): The Supreme Court refused to entertain a PIL seeking the inclusion of sexual offenses against men, transgender persons, and animals under the BNS, clarifying that it cannot direct Parliament to create an offense.
• Dr. SN Kundra vs. Union of India: The Supreme Court dismissed a PIL challenging certain constitutional provisions and Section 149 of the BNS, which penalizes the collection of arms for waging war against the Government of India. The Court imposed a ₹Rs. 10,000 cost on the petitioner.