Bharatiya Nyaya Sanhita, 2023: New and repealed provisions, drafting errors and more

The Central government on August 11 introduced three new Bills in the Lok Sabha to replace the Indian Penal Code (IPC), the Code of Criminal Procedure (CrPC) and the Indian Evidence Act..These are Bharatiya Nyaya Sanhita, 2023 to replace IPC of 1860, Bharatiya Nagarik Suraksha Sanhita, 2023 to replace CrPC of 1973 and, Bharatiya Sakshya Bill, 2023 to replace the Indian Evidence Act of 1872. The Bills have been referred to a parliamentary standing committee for further examination..The Bharatiya Nyaya Sanhita (BNS) has 356 Sections, with 175 sourced from the IPC having undergone alterations, 22 being repealed and 8 new Sections introduced.In this piece, we explore the prominent changes in the new proposed code..Offences against women and childrenA new chapter dealing with offences against women and children has been added. Under the IPC, these offences are part of the chapter dealing with offences against the human body..Gang rape of victims under 18Under IPC, Section 376DA and 376DB provides punishment for gang raping a girl under 16 years of age and under 12 years of age respectively.If the girl is under 16 years of age, the punishment is life imprisonment. If the girl is under 12 years of age, the punishment could be life imprisonment or the death penalty.However, under the proposed code, Section 70(2) provides that if a group of persons rapes any girl below 18 years of age, they could face life imprisonment of even the death sentence..Community serviceSection 4(f) of the proposed code has introduced community service as a form of punishment for petty offences..Mob lynchingUnion Home Minister Amit Shah said in the Lok Sabha that BNS would punish individuals involved in cases of mob lynching.The offence, though not separately defined, is punishable under the same provision as murder - Section 101. Section 101 of the proposed code provides punishment for murder on the ground of race, caste or community, sex, place of birth, language, personal belief or 'any other ground'.The offence is punishable by death penalty or life imprisonment or a prison term of seven years or more.Under the IPC, mob lynching is dealt with as murder with common intention, and is punished as such. The punishment for murder is death or imprisonment for life. However, Section 101(b) of the Bharatiya Nyaya Sanhita provides imprisonment for seven years or more as one of the punishments that can be handed down besides life imprisonment and death penalty..Organised crimeFor the first time, organised crime will be defined under the penal code.Section 109(1) of BNS defines organised crime as ongoing illegal activities carried out by individuals or groups in a coordinated manner to gain financial or material benefits using violence, threats, intimidation, or other unlawful means..According to Section 109(2), anyone who attempts to commit or commits an organized crime resulting in death will be subject to the punishment of death penalty or life imprisonment, along with a fine of no less than ₹10 lakh. In cases where the act does not result in death, the individual or individuals involved shall be liable for imprisonment for a minimum of five years, which may extend to life imprisonment, in addition to a fine of not less than ₹5 lakh. Sections 109(3) to 109(7) encompass provisions detailing the punishments applicable in cases of aiding, abetting, membership, harboring an offender, or possession of property linked to organized crime..Terrorist actIn another first, a 'terrorist act' has been defined under the code.As per Section 111(1), a person is considered to have committed a terrorist act if they intentionally engage in an action to threaten the unity, integrity and security of India:1. By using lethal means to create fear, cause death, harm individuals, or endanger lives2. By causing damage or disruption to public or private property3. By damaging or destroying critical infrastructure, disrupting vital systems.4. By intimidating the government or its organizations, potentially causing death or injury to public officials, compelling government actions, or destabilizing the country's structures.Acts included within the scope of any of the treaties listed in the Second Schedule to the Unlawful Activities (Prevention) Act, 1967 have also been included..As per Section 111(2), anyone who attempts to commit or commits a terrorist act resulting in death will be subject to the punishment of death or life imprisonment without the benefit of parole, along with a fine of no less than ₹10 lakh.In cases where the act does not result in death, the individual or individuals involved shall be liable for imprisonment for a minimum of five years, which may extend to life imprisonment, in addition to a fine of not less than ₹5 lakh.Sections 111(3) to 111(5) are provisions dealing with punishments applicable in cases of aiding, abetting, membership or harboring an offender linked to a terrorist act..Abetment outside India for offence in IndiaUnder Section 108A of IPC, an individual within India who aids or encourages the commission of an act that would qualify as an offence if carried out within the country is categorized as an abettor. Under the revised proposed framework, this provision has been preserved under the label of Section 47.However, under Section 48 of the new law, an individual located outside India, yet actively abetting an offence within India, is also recognized as an abettor..Sexual intercourse by employing deceitful meansThis is one of the significant additions in the new law. Under Section 69 of the proposed code, an individual who engages in sexual intercourse not amounting to rape with a woman through deceitful means or by providing false assurances of marriage will face a potential punishment of up to ten years of imprisonment, in addition to being liable for a fine. Earlier, sexual intercourse on the promise of marriage used to be punished for the offence of rape under Section 375 IPC though the said provision did not list it out as an offence. .SeditionUnion Home Minister Amit Shah in Parliament had said that the proposed new code will completely repeal the offence of Sedition under Section 124A of the IPC.However, the new Bill contains Section 150 which punishes "acts endangering sovereignty, unity and integrity of India"..Section 150 penalises:- exciting or attempting to excite secession or armed rebellion or subversive activities;- encouraging feelings of separatist activities;- endanging sovereignty or unity and integrity of India;- actually indulging in or committing any of the above acts..Moreover, while Sedition was punishable with imprisonment for life or imprisonment for upto 3 years, Section 150 of the proposed code punishes the offence with life imprisonment of imprisonment for upto 7 years..Unnatural sexual offencesSection 377 of the IPC, which criminalised "unnatural" carnal intercourse against the order of nature with any man, woman or animal, was struck down by the Supreme Court in the case of Navtej Singh Johar v. Union of India.The proposed code does not feature unnatural offences..AdulterySection 497 of IPC, which criminalised Adultery, was struck down by the Supreme Court for being arbitrary and violating Articles 14 and 15 of the Constitution.Adultery is no longer an offence under the proposed code..Attempt to die by suicideThe IPC prescribes punishment for attempting to die by suicide, which could result in imprisonment for up to a year, a fine, or both.Although the BNS seems to have removed the provision, the act of attempting to die by suicide has not been completely decriminalised.Under Section 224 of the proposed code, attempting to die by suicide still could result in imprisonment for up to a year, a fine, or both. This, provided that the act is done with the intention to compel or restrain a public servant from discharging their official duty..ExtortionThe punishment for extortion has been enhanced.Under Section 384 of IPC, extortion is punishable with imprisonment for upto three years. Under Section 306 of the proposed code, it is punishable with imprisonment for upto seven years..Criminal breach of trustUnder Section 406 of IPC, criminal breach of trust is punishable with imprisonment for upto three years.Under section 315 of the proposed code, it is punishable with imprisonment for upto five years..Disobedience to order duly promulgated by public servantUnder Section 188 of IPC, disobeying orders of a public servant is punishable with imprisonment for upto a month or upto six months, depending on whether or not the act causes danger to human life, health or safety or causes a riot.However, under Section 221 of the BNS, the same is punishable with imprisonment ranging from upto six months to a year..Punishment for false evidenceIPC punishes fabrication of false evidence in a judicial proceeding with imprisonment for upto seven years.Under the proposed code, the punishment for the same is imprisonment for upto ten years. .Section 23 Section 23 is meant to replace Section 85 of the IPC, which states that provided an individual has been involuntarily administered an intoxicant, any act committed by them while under the influence shall not be deemed as an offence.However, Section 23 of the proposed code says that unless an individual has been involuntarily administered an intoxicant, any act committed by them while under the influence shall not be deemed as an offence..Section 150The explanation to Section 150, which punishes "acts endangering sovereignty, unity and integrity of India", remains incomplete and lacks coherence."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" the explanation reads..[Read chart comparing existing Act and proposed Bill].[Read Bill]