Ardra R.
‘The Bharatiya Nyaya (Second) Sanhita or BNS2’, is something that demands serious attention, but has been greatly ignored by the media and the general public. It is set to replace the Indian Penal Code, 1860 (IPC), serving as the principal legal code for the country.
The BNS was initially introduced in the Lok Sabha on August 11, 2023, and later reintroduced under the name Bharatiya Nyaya (Second) Sanhita. The bill got passed by Lok Sabha on 20 December 2023 and by the Rajya Sabha on 21 December, and will now officially be the new penal code for the country.
While the BNS2 has retained several provisions as the IPC such as those dealing with murder, assault, abetment of suicide, or causing hurt, it has incorporated new offenses such as organised crime, terrorism, and murder or grievous hurt by a group on certain grounds. A fruitful change is the inclusion of transgender people in the definition of gender. However, there are many reasons why the BNS2 is problematic and should be widely discussed and criticised.
The first is regarding the irregularity in deciding the age threshold for the victim in offenses towards children. According to the Act, the penalty for gang rape is decided according to whether the victim is below 18 years of age. Whereas, the penalty for rape differs based on whether the victim is under 12 years, between 12 to 16 years, or above 16 years. Further, as per the BNS2 act, in offences like abduction or kidnapping, a 10 year old is considered a child, while a 11 year old an adult.
We know that the legal age of adulthood in India is 18 years, which demands all the citizens under the age of 18 to be considered as children. Also, these irregularities are inconsistent with the ‘Protection of Children from Sexual Offences, Act’/POCSO (2012), which recognises every individual below the age of 18 as a minor.
Another concern is with regards to the definition of terrorism in the Act. While the Act recognizes terrorism as an offense, it defines terrorism as an act with the intention to (i) threaten the unity, integrity, and security of the country, (ii) intimidate the general public, or (iii) disturb public order.
As it includes ‘intimidating the general public’ or ‘disturbing public order’ as acts of terrorism, it might come out as troublesome; because, even acts of democratic protest such as marches or agitations by political parties or groups can be termed ‘terrorism’. And this surely can be synonymous to curtailing the freedom of speech and expression of the citizens.
Another concern arises with the lack of clarity regarding the offense of sedition, which existed in IPC but is absent in BNS2. While BNS2 removes the offense of sedition, it penalizes actions such as (i) exciting or attempting to excite secession, armed rebellion, or subversive activities, (ii) encouraging feelings of separatist activities, or (iii) endangering the sovereignty, unity, and integrity of India. These might be through exchange of words or signs, electronic communication, or via financial means. Even here, there is no clear definition of terms like ‘subversive activities’, which can create confusion and further serious complications in cases.
Another issue is about irregularities in the penalty for crimes committed by individuals and those conducted by groups. There is ambiguity in the penalty for murder, where the minimum penalty is lower for ‘murder by a group on certain grounds of identity’ compared to individual murder. Similarly, the penalty for theft is a maximum of three years imprisonment, but if committed by a gang, the penalty is between one and seven years of imprisonment.
Similarly, the penalty for theft is given as a maximum of three years imprisonment, whereas if the same act is committed by a gang, the penalty is between one and seven years of imprisonment.
Another major concern is the complete omission of Section 377 of IPC, leading to the absence of gender-neutral protection against rape and penalties for unnatural sex towards animals.
Now, as per the bill, bestiality and rape against men are not offences, which is a serious concern. Rape is a serious criminal offence, which violates the dignity and mental, physical, and emotional state of a human being, regardless of gender. And bestiality is also something that should be condemned and criminalised.
The BNS2 fails to address several recommendations made by the Justice Verma Committee (2013) and the Supreme Court on reforming offenses against women. For instance, the provision that ‘Rape should not be limited to penetration of the vagina, mouth, or anus. Any non-consensual penetration of a sexual nature should be included in the definition of rape. Exception to marital rape should be removed’ (Committee Reports, n.d.) has not been incorporated into the BNS2.
Certain new offenses in the BNS2, such as organized crime and terrorism, are already covered under various special laws, creating potential duplication and inconsistency with multiple laws providing varying penalties for the same offenses, resulting in additional compliance costs.
While the BNS2 adds community service as a form of punishment, it lacks a clear definition of what is meant by ‘community service’ and how it would be administered. The Standing Committee on Home Affairs (2023) recommended defining the term and nature of ‘community service.
While the BNS2 Act presents several dilemmas, the highlighted issues are particularly problematic. Upon implementation, the act could significantly jeopardize fundamental rights, potentially infringing upon the basic human rights of our citizens. In the current Indian context, where Hindutva politics holds considerable influence and minority groups face persistent discrimination and targeting, the enactment of a penal code like BNS2 might aggravate the existing turmoil.
References
Committee Reports. (n.d.). PRS Legislative Research. https://prsindia.org/policy/report-summaries/justice-verma-committee-report-summary
Deswal, V. (2023, October 31). Bharatiya Nyaya Sanhita: A critical analysis of the proposed law. Times of India Blog. https://www.google.com/amp/s/timesofindia.indiatimes.com/blogs/legally-speaking/bharatiya-nyaya-sanhita-a-critical-analysis-of-the-proposed-law/
Gopal, G. M. (2023, December 15). Second avatar of the criminal law bills: the key changes. The Wire. https://m.thewire.in/article/government/second-avatar-criminal-law-bills-has-anything-changed
Indian Penal Code, 1860. (1860, October 6). Retrieved from https://www.indiacode.nic.in/handle/123456789/2263?sam_handle=123456789/1362
Khan, K. (2023, August 16). Section 377 is gone, but some fear the proposed Bharatiya Nyaya Sanhita does not protect men against rape. This is why. The Indian Express. https://indianexpress.com/article/explained/explained-law/section-377-bharatiya-nyaya-sanhita-men-rape-8890847/lite/
Legislative Research. (2023). The Bharatiya Nyaya (Second) Sanhita. PRS Legislative Research. Retrieved from https://prsindia.org/billtrack/the-bharatiya-nyaya-second-sanhita-2023
Vij, R. (2023, September 13). The Bharatiya Nyaya Sanhita needs a relook. The Hindu. https://www.google.com/amp/s/www.thehindu.com/opinion/op-ed/the-bharatiya-nyaya-sanhita-needs-a-relook/article67299625.ece/amp/
Ardra R. is studying at the School of International Relations and Politics, Mahatma Gandhi University, Kerala.
