[Analysis] Bharatiya Nyaya Sanhita (BNS) 2023 – An Overview

By Prof. (Dr.) Vageshwari Deswal – Professor | Faculty of Law | University of Delhi

Table of Contents

1. Decoding the title
2. Section 1 BNS (Bharatiya Nyaya Sanhita) – Short Title, Commencement and Application
3. Jurisdiction [S. 1(3)(4)(5)]
4. Exceptions to Applicability of BNS
5. Bharatiya Nyaya Sanhita, 2023 –  Scheme of Chapters
6. Section 4: Punishments
7. Offences for which death penalty may be awarded under the BNS, 2023
8. Community Service
9. Changes in Terminology
10. Additions/Changes
11. New Provision
12. Punishment for Murder S. 103
13. S. 106 – Causing Death by Negligence
14. Definition of Organized Crime. S. 111(1)
15. Petty Organised Crime, S. 112
16. S. 113 Terrorist Act
17. S. 117(3) (4): Voluntarily causing grievous hurt
18. Section 152: Act endangering sovereignty, unity and integrity of India
19. Assaulting or obstructing public servant when suppressing riot, etc Section 195 (152 IPC)
20. Section 226: Attempt to commit suicide to compel or restrain exercise of lawful power
21. Section 304: Snatching
22. Additional clauses inserted in Sections 324 and 341; New form of punishment provided for Defamation
23. Section 358 Repeal and savings
24. Changes Introduced
25. Repeals
26. Some Concerns

1. Decoding the title

Indian Penal Code to Bharatiya Nyaya Sanhita

India: S. 18 of IPC defined India as territory of India excluding state of Jammu and  Kashmir.
Penal: Objective of law was to punish
‘Code’: Literal translation is ‘Sanhita’

2. Section 1 BNS (Bharatiya Nyaya Sanhita) – Short Title, Commencement and Application

• This Act may be called the Bharatiya Nyaya Sanhita, 2023.
• It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint, and different dates may be appointed for different provisions of this Sanhita.
• Every person shall be liable to punishment under this Sanhita and not otherwise for every act or omission contrary to the provisions thereof, of which he shall be guilty within India.
• Any person liable, by any law for the time being in force in India, to be tried for an offence committed beyond India shall be dealt with according to the provisions of this Sanhita for any act committed beyond India in the same manner as if such act had been committed within India.
• The provisions of this Sanhita shall also apply to any offence committed by—

(a) any citizen of India in any place without and beyond India;

(b) any person on any ship or aircraft registered in India wherever it may be;

(c) any person in any place without and beyond India committing offence targeting a computer resource located in India.

Explanation.—In this section, the word “offence” includes every act committed outside India which, if committed in India, would be punishable under this Sanhita.

Illustration. A, who is a citizen of India, commits a murder in any place without and beyond India. He can be tried and convicted of murder in any place in India in which he may be found.

• Nothing in this Sanhita shall affect the provisions of any Act for punishing mutiny and desertion of officers, soldiers, sailors or airmen in the service of the Government of India or the provisions of any special or local law.

3. Jurisdiction [S. 1(3)(4)(5)]

• Territorial
• Extra-Territorial
• Admiralty
• Personal

4. Exceptions to Applicability of BNS

Jurisdiction of the BNS does not extend to

• Punishing mutiny and desertion of officers, soldiers, sailors or airmen employed in the service of the Indian Government as they are dealt in accordance with the provisions of the Army Act, 1950; the Navy Act, 1957 and the Indian Air force Act, 1950;
• Special laws i.e. laws dealing with a special subject; and
• Local laws i.e. laws which apply only in a particular part of the country.

5. Bharatiya Nyaya Sanhita, 2023 –  Scheme of Chapters

6. Section 4: Punishments

The punishments to which offenders are liable under the provisions of this Sanhita are

• Death;
• Imprisonment for life;
• Imprisonment, which is of two descriptions, namely:-

1. 1. Rigorous, that is with hard labour;
   2. Simple;

• Forfeiture of property;
• Fine;
• Community Service

7. Offences for which death penalty may be awarded under the BNS, 2023

1. Punishment for rape that causes death or results in persistent vegetative state of victim (S.66)
2. Gang rape S. 70(2)
3. Punishment for repeat offenders guilty of rape (S.71)
4. Murder (S. 103)
5. Punishment for murder by life convict (S. 104). Mandatory death penalty was struck down by the Supreme Court in the case of Mithu v. Stage of Punjab (AIR 1983 SC 473) as being unconstitutional and void.
6. Abetment of suicide of a minor, insane; or intoxicated person. (S. 107)
7. Attempt to murder by a person under sentence of imprisonment for life if hurt is caused. (S. 109(2))
8. Terrorist Act S. 113(2)
9. Kidnapping or abducting in order to murder or for ransom etc. (S. 140(2))
10. Waging, or attempting to wage war, or abetting waging of war against the Government of India. (S. 147)
11. Abetting mutiny actually committed (S. 160)
12. Giving or fabricating false evidence upon which an innocent person suffers death. (S. 230(2))
13. Dacoity accompanied with murder. (S. 310(3))

Imprisonment for life, which shall mean the remainder of that person’s natural life

• Rape by person in authority
• 65(1) Rape on a woman under sixteen years of age
• 65(2) Rape on woman under twelve years of age
• 66 Inflicting injury leading to death or persistent vegetative state due to offence of rape
• 70 Gang rape
• 71 Repeat sex offenders
• 104 Murder by life convict
• 109(2) Attempt to murder by life convict if hurt is caused
• 139(2) Maiming a child for purpose of begging
• 143 (6) Person convicted of trafficking a child on more than one occasion
• 143(7)Public servant involved in trafficking of person

8. Community Service

• Community service may be understood as 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 S. 4(F) BNSS, 2023.
• This is a form of non- custodial, restorative justice and an attempt at re-socialising the convict.
• This has been introduced by BNS in the following cases-
• Non-appearance in response to a proclamation under Section 84, BNSS
• Involvement of public servant in illegal trade Section 202 of BNS
• Attempt to commit suicide to compel or restraint exercise of lawful power of public servant, S.226 BNS
• Theft (Proviso to S. 303 BNS)
• Misconduct in public by a drunken person S.355 of BNS
• Defamation S.356 BNS

9. Changes in Terminology

• Minor replaced with child
• Gender- includes transgender
• Movable property- includes property of every description (corporeal and incorporeal)

Concern: phrase retained – outrage modesty of woman – justice Verma had recommended non penetrative sexual assault to replace this old terminology

10. Additions/Changes

Section 48: Abetment outside India for offence in India

A person abets an offence within the meaning of this Sanhita who, without and beyond India, abets the commission of any act in India which would constitute an offence if committed in India.

Illustration

A, in country X, instigates B, to commit a murder in India, A is guilty of abetting murder.

Section 63 Rape

Exception 2.-Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.

Section 69: Sexual intercourse by employing deceitful means, etc

Whoever, by deceitful means or by making promise to marry to a woman without any intention of fulfilling the same, has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.

Explanation. “deceitful means” shall include inducement for, or false promise of employment or promotion, or marrying by suppressing identity

11. New Provision

Section 95: Hiring, employing or engaging a child to commit an offence

Whoever hires, employs or engages any child to commit an offence shall be punished with imprisonment of either description which shall not be less than three years but which may extend to ten years, and with fine; and if the offence be committed shall also be punished with the punishment provided for that offence as if the offence has been committed by such person himself.

Explanation.- Hiring, employing, engaging or using a child for sexual exploitation or pornography is covered within the meaning of this section

12. Punishment for Murder S. 103

103(2) 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.

13. S. 106 – Causing Death by Negligence

• 106. (1) Whoever causes death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; and if such act is done by a registered medical practitioner while performing medical procedure, he shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine.
• Explanation.- For the purposes of this sub-section, “registered medical practitioner” means a medical practitioner who possesses any medical qualification recognised under the National Medical Commission Act, 2019 and whose name has been entered in the National Medical Register or a State Medical Register under that Act.
• (2) Whoever causes death of any person by rash and negligent driving of vehicle not amounting to culpable homicide, and escapes without reporting it to a police officer or a Magistrate soon after the incident, shall be punished with imprisonment of either description of a term which may extend to ten years, and shall also be liable to fine.
• S. 111 of the BNS in relation to ‘organised crime’ borrows heavily from the MCOCA, Maharashtra control of organized crime act which has been extended to New Delhi, (in 2002) and the GujCOCA.
• Andhra Pradesh in 2001,
• Arunachal Pradesh in 2002,
• Karnataka in 2000,
• Telangana in 2001, and
• Uttar Pradesh in 2017 have enacted acts which are identical to MCOCA and GujCOCA.
• Haryana in 2020 and Rajasthan in 2023 have introduced similar bills on organised crimes. Important phrases:

1. 1. Continuing unlawful activity
   2. Organised Crime Syndicate

14. Definition of Organized Crime. S. 111(1)

• Any continuing unlawful activity including kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offence, cyber-crimes, trafficking of persons, drugs, weapons or illicit goods or services, human trafficking for prostitution or ransom, by any person or a group of persons acting in concert, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence, threat of violence, intimidation, coercion, or by any other unlawful means to obtain direct or indirect material benefit including a financial benefit, shall constitute organised crime.
• “organised crime syndicate” means a group of two or more persons who, acting either singly or jointly, as a syndicate or gang indulge in any continuing unlawful activity;
• “continuing unlawful activity” means an activity prohibited by law which is a cognizable offence punishable with imprisonment of three years or more, undertaken by any person, either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before a competent Court within the preceding period of ten years and that Court has taken cognizance of such offence, and includes economic offence.

15. Petty Organised Crime, S. 112

• Whoever, being a member of a group or gang, either singly or jointly, commits any act of theft, snatching, cheating, unauthorised selling of tickets, unauthorised betting or gambling, selling of public examination question papers or any other similar criminal act, is said to commit petty organised crime.
• Explanation.- For the purposes of this sub-section “theft” includes trick theft, theft from vehicle, dwelling house or business premises, cargo theft, pick pocketing, theft through card skimming, shoplifting and theft of Automated Teller Machine.

16. S. 113 Terrorist Act

• The UAPA (and the erstwhile TADA and POTA) is a special legislation. Special legislations work in conditions that are different from ordinary and therefore special laws are created with the objective of addressing special situations. For this a new legal structure is established. Special laws define new offences and also provide special investigative and adjudicatory procedures to be followed in the prosecution of those offences. Therefore provisions of the CrPC, to the extent they are inconsistent with the special provisions of the UAPA, are inapplicable to prosecutions under the statute.
• However explanation clause appended to S. 113 clarifies,

“For the removal of doubts, it is hereby declared that the officer not below the rank of Superintendent of Police shall decide whether to register the case under this section or under the Unlawful Activities (Prevention) Act, 1967”.

17. S. 117(3) (4): Voluntarily causing grievous hurt

• (3) Whoever commits an offence under sub-section (1) and in the course of such commission causes any hurt to a person which causes that person to be in permanent disability or in persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life.
• (4) When a group of five or more persons acting in concert, causes 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, each member of such group shall be guilty of the offence of causing grievous hurt, and shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

18. Section 152: Act endangering sovereignty, unity and integrity of India

152. Whoever, 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 means, 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.- 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. (The explanation retained in view of Kedar Nath Singh v. Bihar, 1962)

19. Assaulting or obstructing public servant when suppressing riot, etc Section 195 (152 IPC)

• 195. (1) Whoever assaults or obstructs any public servant or uses criminal force on any public servant in the discharge of his duty as such public servant in endeavouring to disperse an unlawful assembly, or to suppress a riot or affray, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine which shall not be less than twenty-five thousand rupees, or with both.
• (2) Whoever threatens to assault or attempts to obstruct any public servant or threatens or attempts to use criminal force to any public servant in the discharge of his duty as such public servant in endeavouring to disperse an unlawful assembly, or to suppress a riot or affray, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

20. Section 226: Attempt to commit suicide to compel or restrain exercise of lawful power

226. Whoever attempts to commit suicide with the intent to compel or restrain any public servant from discharging his official duty shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both, or with community service.

• S. 309 IPC repealed
• Mental Health care Act, 2017

21. Section 304: Snatching

304. (1) Theft is snatching if, in order to commit theft, the offender suddenly or quickly or forcibly seizes or secures or grabs or takes away from any person or from his possession any movable property.

(2) Whoever commits snatching, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.

22. Additional clauses inserted in Sections 324 and 341; New form of punishment provided for Defamation

Mischief. Section 324

324(3) Whoever commits mischief and thereby causes loss or damage to any property including the property of Government or Local Authority shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

Section 341: Making or possessing counterfeit seal, etc., with intent to commit forgery punishable under section 338

341(3) Whoever possesses any seal, plate or other instrument knowing the same to be counterfeit, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.

341(4) Whoever fraudulently or dishonestly uses as genuine any seal, plate or other instrument knowing or having reason to believe the same to be counterfeit, shall be punished in the same manner as if he had made or counterfeited such seal, plate or other instrument. Section.

356 Defamation

(2) Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both, or with community service.

23. Section 358 Repeal and savings

358. (1) The Indian Penal Code is hereby repealed.

(2) Notwithstanding the repeal of the Code referred to in sub-section (1), it shall not affect,-

(a) the previous operation of the Code so repealed or anything duly done or suffered thereunder; or

(b) any right, privilege, obligation or liability acquired, accrued or incurred under the Code so repealed; or

(c) any penalty, or punishment incurred in respect of any offences committed against the Code so repealed; or

(d) any investigation or remedy in respect of any such penalty, or punishment; or

(e) any proceeding, investigation or remedy in respect of any such penalty or punishment as aforesaid, and any such proceeding or remedy may be instituted, continued or enforced, and any such penalty may be imposed as if that Code had not been repealed.

(3) Notwithstanding such repeal, anything done or any action taken under the said Code shall be deemed to have been done or taken under the corresponding provisions of this Sanhita.

(4) The mention of particular matters in sub-section (2) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 with regard to the effect of the repeal.

24. Changes Introduced

• Definition of child S. 2(3)
• S. 48: Abetment outside India for offence in India
• S. 69: Sexual intercourse by employing deceitful means etc.
• S. 86: Definition of cruelty
• S. 95: Hiring, employing or engaging a child to commit an offence
• S. 103(2): punishment for murder (mob lynching, honour killing, hate crime)
• S. 106 (2): Causing death by negligence
• S. 111: Organised Crime
• S. 112: Petty organized crime
• S. 113: Terrorist Act
• S. 117(3) (4): voluntarily causing grievous hurt
• S. 152: Act endangering sovereignty, unity and integrity of India(Replaced Sedition)
• S. 195(2) Assaulting or obstructing public servant when suppressing riot, etc.
• S. 226: Attempt to commit suicide to compel or restrain exercise of lawful power. (S. 309 attempt to commit suicide replaced)
• S. 304: Snatching
• S. 324(3): Mischief
• In property offences (dishonest misappropriation of property 314; criminal breach of trust 316; and cheating) punishment has been increased.
• S. 341(3)(4): Making or possessing counterfeit seal etc. with intent to commit forgery punishable under section 338
• S. 356: Defamation- community service may be imposed as punishment
• S. 358: Repeal and Savings

25. Repeals

• S. 2(18) Definition of India omitted
• S. 124A: Sedition
• S. 236-238: Abetting in India the counterfeiting out of Indian coin; import or export of counterfeit coin or counterfeits of Indian coin
•  S. 264-267: Making or selling; Possessing; fraudulent use; of false weight or measure
• S. 310: Thug
• S. 377: Unnatural offences
• S. 444 and 446: Lurking house trespass and house breaking by night
•  S. 497: Adultery

26. Some Concerns

• S. 84 Enticing or taking away or detaining with criminal intent a married woman with intent that she may have illicit intercourse with any person –this is colonial, husband has power to prosecute. Wife doesn’t have any such powers where her husband runs away with another woman. Woman’s consent is no significance. This reinforces patriarchal notions as to woman being the property of her husband.
• S. 88 causing miscarriage – Under this law woman can cause miscarriage only in good faith for the purpose of saving the life of the woman. The old provision continues irrespective of the MTP act with its latest amendments that provides agency to mother to abort child
• Deletion of 377: It should’ve been retained in watered down form to protect consensual homosexual acts among consenting adults, while criminalizing those without consent.
• Moreover the expanded definition of rape says- sexual acts include penetrative actions against any part of woman’s body. And such sexual acts when committed by husband upon their wives are protected under marital rape exemption (Exception 2 to S. 63). Earlier women could complain of sodomy against their husbands, but now they cannot.
• Assault with intent to gratify unnatural lust is a ground for private defence in full measure. But, once sodomy takes place against any wife or man or transperson, the law turns a blind eye.
• More clarity in defining what constitutes Defamation, obscenity, outraging the modesty of woman etc.