Comparative Analysis of Indian Penal Code (1860) and Bharatiya Nyaya Sanhita (2023)

Written by Manasvi Rastogi, 2^nd year law student at Symbiosis Law School, Pune.

On 11^th August 2023, the parliament proposed the introduction of the Bharatiya Nyaya Sanhita with the aim to replace the Indian Penal Code, 1860 (hereinafter IPC), a legislation from the colonial era. After a few amendments, the Bharatiya Nyaya (Second) Sanhita (hereinafter BNS) was passed in the Lok Sabha on 20^th December 2023 and received the President’s assent on 25^th December 2023 however, the date of enforceability is yet to be declared.

From an overview, where there were 511 sections in IPC, there are only 358 sections in BNS, thus making the legislation compact yet comprehensive. In the BNS, 20 new offences have been added, while 19 provisions from the IPC have been removed.

Some of the overall changes include 33 offences whose punishment of imprisonment has been increased, 83 offences whose punishment of fine has been enhanced, 23 offences wherein a mandatory minimum punishment has been introduced and 6 offences where community service has been introduced as a form of punishment which is a way of moving towards reformative justice.

Various changes have been introduced in the Sanhita. Some of the major ones are briefly discussed below:

Definitions

Where there was no definition clause in IPC, and all interpretation clauses were spread across from Sections 8 to 52A, there is a separate section for definitions given in BNS under Section 2 wherein Sections 8 to 52A of IPC have been compactly grouped in alphabetical order.

A new definition of ‘child’ has been introduced in Section 2(3) of BNS, and that of ‘transgender’ has been introduced in Section 2(10) of BNS. Other than this, changes have been made in definitions of ‘court’ under S.2(5), ‘document’ under S.2(8), where electronics and digital record has been included, ‘movable property’ under S.2(21), etc.

Punishments

Various punishments were given under S.53 of the IPC, which have now been put under Section 4 of BNS, with the addition of community service as a form of punishment. Thus, there are now 6 types of punishments, namely, (a) Death, (b) Imprisonment for life, (c) Imprisonment, which is of two descriptions, namely- 1) Rigorous, 2) Simple, (d) Forfeiture of property, (e) Fine, (f) Community Service.

Although the term community service has not been defined anywhere in the BNS, it has been defined by Explanation to S.23 of Bharatiya Nagarik Suraksha Sanhita, 2023 as the work which the Court may order a convict to perform as a form of punishment that benefits the community, for which he shall not be entitled to any remuneration. However, this is a vague definition, and it would have been better if it had been categorically mentioned what activities would classify as community service. Additionally, S.8(4) and (5) provide for imposing imprisonment in default of community service.

Furthermore, the punishment of life imprisonment has been clearly defined as imprisonment for the remainder of a person’s natural life.

Abetment outside India

Section 48 of BNS is a new provision that has been introduced to provide for the offence of abetment when committed by a person beyond India, which would constitute an offence if committed in India. This allows for the prosecution of a person located in a foreign country.

Rape

Rape, which was earlier defined under S.375 of IPC, has now been shifted to S.63 of BNS. The contentious marital rape exception, denoted as Exception 2, remains in existence. However, there has been a modification in the age criteria, with the age of consent for this exception being raised from 15 years to ensuring that the wife is not below 18 years of age. Und S.64 of BNS, punishment for rape has been mentioned wherein under Clause (i) the words ‘incapable of giving consent’ have been used in place of ‘under 16 years of age’. Section 65 of BNS combines both age categories of under 12 and under 16 in a single section, thus simplifying the legal framework.

However, even after much debate, the laws regarding rape have not been made gender neutral. They still state that only a female can be a victim and only a male can be a perpetrator. Transgenders have been defined in the Sanhita but nothing regarding them has been said under the provisions for rape.

Sexual Intercourse by Employing Deceitful Means, etc.

Under the newly introduced provision (S.69), individuals engaging in sexual intercourse with a woman through deceit or false promises of marriage, without the intention of fulfilling such promises, and where the act does not amount to rape, can be sentenced to imprisonment for up to ten years, along with a fine. Here, “deceitful” means the false promise of employment or promotion, inducement or marring after suppressing identity.

Gender Neutrality

S.70 of BNS now specifies that the punishment for gang rape, previously death penalty applicable to the gang rape of a woman under 12 years of age as per S.376DB of IPC, has been modified. The amended provision now mandates the death penalty for gang rape offenses involving a woman under the age of 18 years. S.96 of BNS which deals with procuration of child uses the words “any child below the age of 18 years” rather than “minor girl” as was used in S.366A of IPC.

Hiring, Employing or Engaging Child to Commit an Offence

BNS Section 95 introduces a new offense in the Indian Criminal Justice System. It imposes a penalty on anyone who employs or involves a child in committing a crime. The punishment ranges from three to ten years of imprisonment, coupled with a fine. If the crime is committed, the individual will face consequences as if they personally committed the offense. Hiring, employing, engaging, or using a child for sexual exploitation or pornography is covered within this section's meaning.

Mob Lynching

A new provision has been introduced in the BNS which deals with the offence of mob lynching where under S.103(2) it is provided that when a group of five or more persons acting in concert commits murder on the ground of race, caste or community, sex, place of birth, language, personal belief or any other similar ground each member of such group shall be punished with death or with imprisonment for life, and shall also be liable to fine.

Causing Death by Negligence

S.106 of BNS provides for negligent acts not amounting to culpable homicide, and the new law increases the punishment from a maximum of 2 years to 5 years. Further, S.106(2) introduces a new provision which addresses situations where the offender escapes from the scene of the incident without reporting it to a police officer or magistrate after the incident, and the punishment for it is very severe, with a maximum term of imprisonment of ten years with fine.

Considering the high frequency of hit-and-run cases in the country, S.106(2) covers hit-and- run accidents and ensures its reporting immediately. This has been introduced with the aim of saving the victim within the critical ‘Golden Hour’.

Another addition is that in the case of a registered medical practitioner who acts negligently while performing a medical procedure shall be punished with imprisonment of either description for a term that may extend to two years and shall also be liable to a fine.

Attempt to Murder

Where under IPC S.307, the punishment for an attempt to murder by a life convict was only the death penalty, has now been changed to punishment for death or with imprisonment for life under S.109 of BNS.

Organized Crime

A new provision under S.111 of BNS has been introduced, which deals with organized crimes, and S.112 deals with petty organized crimes.

Terrorist Act

S.113 of BNS introduces a new provision which defines a terrorist act and lays down the punishments for the commission of the same, for conspiring/ attempting to commit/advocating/abetting/advising/inciting or knowingly facilitating the commission, for organizing camp to train terrorist or recruiting persons for committing such acts, for being a member of an organization involved, for harbouring or concealing a terrorist, for possessing proceeds of such acts.

Grievous Hurt

Under the provision relating to voluntarily causing grievous hurt, a new provision has been added in BNS under S.117(3) which mentions causing permanent disability. Other than this, under S.117(4) of BNS the offence for when a group of five or more persons acting in concert, cause grievous hurt to a person on the ground of his race, caste or community, sex, place of birth, language, personal belief or any other similar ground has been mentioned wherein each member of such group shall be guilty of the offence of causing grievous hurt.

Sedition

Under the new law, the erstwhile S.124A of the IPC of sedition has been repealed, however, a new provision has been introduced under which sedition is punishable under the offence of ‘treason.’ It relates to the act of endangering the sovereignty, unity and integrity of India under S.152 of BNS wherein, purposely 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 encourages feelings of separatist 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 may extend to seven years, and shall also be liable to fine.

Explanation to this section clarifies that comments expressing disapprobation of the measures, or administrative or other action of the Government with a view to obtain their alteration by lawful means without exciting or attempting to excite the activities referred to in this section do not constitute an offence under this section.

In conclusion, it can be observed that even though this Sanhita aimed to get rid of the colonial era laws, in some instances, it has not been able to achieve the same in its entirety as some of the draconian provisions are still included. However, at the same time, many positive changes have been introduced like making some provisions gender neutral and inclusion of new definitions and offences, yet some of the things that have been in discussion for decades, recommendations of Law Commissions, etc., have not been implemented which was much expected from a new criminal law.