New Laws! |Comparison between IPC and Bharatiya Nyaya Sanhita

INTRODUCTION

The Bharatiya Nyaya Sanhita (BNS), introduced on the 11^th of August, 2023 and enforceable from the 1^st of July, 2024, is set to replace the Indian Penal Code (IPC) of 1860 with the aim to reform India’s criminal justice system. Along with the Bharatiya Nagarik Suraksha Sanhita and the Bharatiya Sakshya, which replace the Criminal Procedure Code, 1973 and the Indian Evidence Act, 1872 respectively, the BNS is to have been drafted with the tenets of “citizen first, dignity first, and justice first”.

The IPC, inclusive of all modifications and amendments, consists of 23 Chapters comprising of 511 Sections. However, the BNS, in comparison, consists of 20 Chapters comprising of 358 Sections. 

CHAPTER I

The IPC does not possess an exclusive definition clause, however, the interpretation clauses range from Sections 8 to 52A. While the BNS has carried over most of the definitions outlined in the IPC, it has, however, grouped the definitions under Section 2, and has added the definition of ‘child’ in Section 2(3) and ‘transgender’ in Section 2(10).

Furthermore, Section 2(5) rephrases the erstwhile “Court of Justice” to ‘Court’ and Section 2(8) encompasses electronic and digital records within the definition of ‘documents’. Section 3 of the BNS, in line with Section 6 of IPC, further elucidates that when determining the definition of any offence, every penal provision, and every illustration thereof must be interpreted in light of the exceptions outlined in the Chapter titled ‘General Exceptions’.

The scope of ‘Movable Property’ as defined in Section 2(21) of the BNS omits the word ‘corporeal’ thus indicating that movable property of includes property of every description other than immovable property.

CHAPTER II

Chapter II of the BNS coincides with Chapter III of the IPC and primarily deal with punishments. Section 4 of the BNS, corresponding with Section 53 of the IPC, adds ‘community service’ to the existing 5 forms of punishment, to reduce the burden on jails. ‘Community Service’ is not defined in the BNS, however, reference can be made to Section 23 of the Bharatiya Nagarik Suraksha Sanhita, 2023 which states it to be 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. 

In the case of Sunil Batra v. Delhi Administration, the court ruled that even though a person enters prison, their fundamental rights don't disappear entirely; they may, however, be diminished due to confinement. Section 53 of the IPC, which mandates hard labor, should be interpreted in a humane manner.

While Section 376 of IPC clearly provides for ‘imprisonment for life’ to be imprisonment for the remainder of that person's natural life, Section 6 of the BNS provides for 'imprisonment or life' to be for twenty years, unless otherwise provided.

Section 7 of the BNS, in consonance with Section 60 of the IPC, provides that the competent Court shall award sentences which may be (in certain cases of imprisonment), wholly or partly rigorous or simple. Section 8 of BNS, extends imprisonment as a punishment for default of community service, going beyond the IPC only providing for imprisonment for default of fine, as outlined from Sections 63 to 70. 

Sections 9 to 13 of BNS are identical to Sections 71 to 75 of IPC. The principles of prevention of excessive punishment, legal fairness and clarity of Section 71 of IPC are maintained in Section 9 of BNS. The Supreme Court in State of Maharashtra v. Mohammad Yakub clarified the applicability of Section 71 of IPC, holding that the higher punishment prescribed for either of the offense would be applicable. In Sarwan Singh v. State of Punjab, when multiple offences are committed on separate occasions, separate punishments were held to be applicable for each offense.

CHAPTER III

Chapter III, extending from Section 14 - 44 provides for the General Exceptions outlined in Section 3 of the BNS, similar to Chapter IV of the IPC, spread over Sections 76 - 106. Section 14, identical to Section 76 of IPC,  provides for the defence of mistake of fact and mistake of law only when such action/omission is carried out in good faith. Section 15, identical to Section 77 states that no act of Judge when acting judicially shall be an offence. Similarly Sections 16 - 44 of BNS are identical to Sections 78 - 106 of IPC with no change in the provisions. 

Mistake is dealt with under Sections 14 and 17 of the BNS, judicial acts under Sections 15 and 16, accident under Section 18, necessity under Section 30, infancy under Section 20 and 21, insanity under Section 22, drunkenness under Sections 23 and 24, consent from Section 25 to 28, compulsion under Section 32, trifles under Section 33 and Sections 34 – 44 of the BNS exclusively deal with the right of private defence. These exceptions are divided as excusable, when mens rea is completely absent, and justifiable.

In the case of King Emperor v. Timmappa, it was determined that using an unlicensed firearm does not negate the possibility of invoking the defense outlined in Section 81 of the IPC, provided that the necessary criteria are met. In line with Section 83 of IPC, the Patna High Court in the case of Krishna Bhagwan v. State of Bihar, it was established that a child who has reached the age of seven at the time of judgment can be found guilty if they possess sufficient comprehension of the offense they have committed.

CONCLUSION

The BNS does possess certain modifications and additions, which though significant do not remove from the essence of the IPC. Certain changes are dynamic with the changing times and developments and provide provisional clarity for interpretation. Chapters I, II and III do not possess the majority of these changes, however, but the few that were made are markedly vital and in the spirit of the IPC and rehabilitative justice.