INTRODUCTION

“Indian Penal Code is the most comprehensive Penal Code anywhere in the world.”

-Lord Macaulay

India’s criminal justice system, renowned for its resilience and adaptability, has evolved to suit the needs of different historical eras, including the Vedic age, the Delhi Sultanate, the Mughal Empire, and modern times. The Vedic period introduced a system of punishments and order based on Rig Vedic principles and Dharma. During the Delhi Sultanate, the system incorporated influences from Smriti and Shariat law, further showcasing its capacity to adapt and endure.

Before British rule, India’s penal law was predominantly based on Mohammedan law. The Mughals established the Mahakuma-e-Adalat to handle criminal and civil cases under Islamic law. This system, however, encountered significant challenges, such as the lack of separation between the judiciary and executive branches, inconsistencies in law application, and corruption, underscoring the need for reform.

The Colonial period marked a transformative phase in India’s legal system. The East India Company (EIC) introduced court systems and established the High Court, laying the groundwork for the criminal codes enacted in the 1860s. Initially, the East India Company minimally interfered with India’s criminal law, but under Warren Hastings, the Company began to periodically modify Mohammedan law until 1861. These changes, influenced by British legal principles, paved the way for a more organized and uniform criminal justice system. However, this British influence also led to clashes of legal cultures and systems.

The Indian Penal Code (IPC), drafted in 1860 based on recommendations from the first law commission chaired by Lord Macaulay, serves as India’s primary criminal code. The first draft was presented in 1837, but it took two more decades of revisions before the code was finalized in 1850 and submitted to the Legislative Council in 1856. The Indian Revolt of 1857 delayed the enactment of the code, a significant event that led to a reevaluation of British rule in India and its legal system. The IPC was finally enacted in 1860 and came into effect on January 1, 1862. It replaced various local laws and customs in British India, excluding the Princely states. The drafting and enactment of the IPC faced challenges, including political upheavals and debates over its provisions, reflecting the diverse perspectives and interests that shaped the final code.

With globalization and liberalization transforming crime and criminal behavior through technological advancements, traditional criminal activities became more complex, the IPC struggled to effectively tackle these new dimensions of crime, leading scholars to call for substantial reforms. In response, the Malimath Committee was formed in 2003 to propose changes to the criminal justice system, and the Ranbir Singh Committee was established in 2020 to review and update the three codes of criminal law. After nearly 150 years, the IPC has been re-enacted with the aim of repealing colonial laws and streamlining provisions related to offenses and penalties.While the 5th Law Commission, chaired by Mr. K.V.K. Sundaram, conducted a thorough review of the IPC and the Code of Criminal Procedure, 1898, only the latter was overhauled and re-enacted as the Code of Criminal Procedure, 1973. The IPC remained a relic of the pre-independence British era, containing outdated provisions that did not align with the evolving discourse on modern rights and inclusion.These emerging issues and technological shifts led to the introduction of the Bharatiya Nyaya Sanhita (BNS) on December 25, 2023, marking a significant change in India’s legal framework. The BNS, enacted on December 25, 2023, repealed and replaced the IPC as the country’s new penal code.

Changes brought about by the Bharatiya Nyaya Sanhita

• 1: Crimes Committed via Electronic Means

According to the National Crime Record Bureau’s “Crime in India 2022” report, there was a 24.4% increase in the registration of cybercrime cases as compared to 2021. To address this issue, Section 2(39) of the Bharatiya Nyaya Sanhita (BNS) specifies that all terms related to technology and digital media will align with their definitions in the Information Technology Act, 2002, and the Bharatiya Nagarik Suraksha Sanhita, 2023. This provision expands the scope of recognizing various acts as offenses, aiding in the detection and prevention of crime. Additionally, Section 2(8) of the BNS now includes electronic and digital records within the definition of documents.

1. 2:Community Service as a Punishment

The five types of punishments specified by Section 53 of the Indian Penal Code (IPC) included Death, imprisonment for life, Imprisonment (which could be either rigorous or simple), Forfeiture of property and Fines. The Section 4(f) of the Bharatiya Nagarik Suraksha Sanhita (BNS) introduces a sixth type of punishment in the form of  Community service.To alleviate the burden on jails, community service has been incorporated into the BNS as a recognized form of punishment, marking its legal acceptance for the first time. According to a PIB Press Release dated December 20, 2023, community service is prescribed as a punishment for minor offenses, such as failure to appear in response to a proclamation(Section 209), attempting to commit suicide(Section 226), a public servant unlawfully engaging in trade(Section 202), petty theft with the return of stolen money(Section 303(2)), public misconduct by a drunken person(Section 355), defamation(Section 356), and similar misdemeanors.While the term “community service” is not explicitly defined in the BNS, it is explained in Section 23 of the BNSS. It is described as work that a court may order a convict to perform as a form of punishment benefiting the community, for which the convict will receive no remuneration.

• 3: Inclusive Language in the BNS

For the first time, the Bharatiya Nyaya Sanhita (BNS) includes the term “transgender” in its definition of “gender” under Section 2(10), a term absent from the Indian Penal Code (IPC). The BNS has made various provisions gender-neutral, such as the offense of voyeurism, now defined and punished under Section 77. However, it’s important to note that while the BNS incorporates gender neutrality for the perpetrator, it does not do the same for the victim. For example, although a woman can now be convicted for voyeurism, a man cannot complain about being a victim of voyeuristic behavior, highlighting a missed opportunity for more comprehensive legislation. Additionally, several offenses, such as rape, remain gender-specific, recognizing only women as victims. This exclusion means that transgender individuals are not adequately protected under certain sexual offense provisions, making their inclusion under Section 2(10) largely superficial. However, some steps towards gender-neutral language concerning victims have been taken. For instance, Section 96 of the BNS uses the term “child” instead of “minor girls,” replacing the language in the former Section 366A of the IPC.

1. 4: Snatching as a Separate Offense

For the first time, Section 304 of the BNS distinguishes snatching as a unique offense separate from theft. This distinction is justified due to the nature of the crime, which differs significantly from regular theft. Snatching involves the forcible or swift taking of movable property directly from a person, unlike theft, where property may be taken through deceit without the owner’s immediate awareness. Snatching always involves the victim’s recognition of the act and may include harm or violence. The maximum punishment for snatching has been set at three years, compared to seven years for theft.

• 5: Mere Possession of Counterfeit Currency Notes No Longer Punishable

Section 242 of the IPC has been revised and incorporated as Section 178 in the BNS to safeguard individuals who are found in possession of counterfeit or forged currency notes. Under the updated legislation, simply holding such fake currency notes is no longer considered a crime. According to Section 178 of the BNS, possession of counterfeit currency notes must be coupled with the intent to use them as genuine in order to be classified as an offense.

• 6: Sedition Abolished and Treason Introduced in BNS

The Bharatiya Nyaya Sanhita (BNS) has removed Section 124A of the Indian Penal Code (IPC), which previously criminalized sedition. This section had made it an offense to use words, signs, or other means to incite hatred or contempt against the government, with penalties including life imprisonment or up to three years in prison, along with fines.The removal of sedition from the law acknowledges the historical injustices faced by freedom fighters imprisoned under these charges during British rule. Instead, the BNS introduces a new offense under Section 152, which addresses treason. This section criminalizes actions that threaten India’s sovereignty, unity, or integrity, such as inciting secession, armed rebellion, or separatist activities. Unlike the IPC, which had sedition as an offense, the BNS focuses on treason as defined in Section 152.Offenders may face life imprisonment or up to seven years in prison, along with fines. However, the explanation to Section 152 clarifies that merely criticizing government policies or actions with the intent to seek lawful changes, without inciting secession, rebellion, or other disruptive activities, is not considered an offense.

• 7:Negligent acts not amounting to Culpable homicide

Section 106(1) of the BNS addresses deaths resulting from negligent actions not amounting to culpable homicide. It stipulates that such negligence may lead to imprisonment for up to five years, compared to the two-year maximum under Section 304A of the IPC. This adjustment signifies a tougher stance on cases where negligence results in death.

1. 8: Offender Fleeing or Failing to Report Section 106(2) introduces a significant new provision addressing situations where offenders leave the scene of an incident without reporting it to authorities. If an offender flees and fails to notify a police officer or Magistrate, they face severe penalties, including up to ten years in prison and a fine. This update aims to address the rise in hit-and-run cases. The Supreme Court has criticized the existing legal framework for its inadequacy in dealing with vehicular accidents, leading to the introduction of this new provision. Section 106(2) is designed to address hit-and-run accidents and ensure prompt reporting, particularly within the critical ‘Golden Hour,’ a term defined in the Motor Vehicles Act of 2019. However, punishment under this section applies only if the escape from the scene is coupled with failure to report the incident to authorities, not merely for fleeing to avoid bystanders.

• 9: Negligent act by a Medical practitioner 

For registered medical practitioners, Section 106(3) introduces penalties for negligent acts performed during medical procedures. Such practitioners, defined under the National Medical Commission Act, 2019, may face imprisonment for up to two years and a fine if found negligent. This provision aims to hold medical professionals accountable for their actions while ensuring that their qualifications are recognized under the National Medical Register or State Medical Register.

• 10: Death Penalty for Gang Rape of Minors Under 18

Previously, Section 376DB of the IPC mandated the death penalty for the gang rape of girls under 12 years old. Section 376DA covered gang rape of females between 12 and 16 years of age but did not include a death sentence. The new Section 70(2) of the BNS now extends the death penalty to cases of gang rape involving any woman under 18 years of age.

CONCLUSION

The BNS introduces several progressive changes, such as removing sedition from the list of crimes, recognizing transgender people in the definition of gender, increasing penalties for crimes against women and children, and introducing community service as a form of punishment. However, these amendments lack a unified policy goal or coherence.The changes to offenses against women and children highlight this inconsistency. While BNS aims to enforce stricter laws for these offenses by introducing new crimes like sexual activity by someone in authority and sexual activity through deceitful means, it fails to make rape a gender-neutral offense and continues to exempt marital rape from the general rape law. This contradicts the stated objective of prioritizing crimes against women and children.

Written by- Harsh Shukla, 3rd Year BALLB, DES’s Shri Navalmal Firodia Law College, Pune