Bharatiya Nyaya Sanhita, 2023: Impacts and challenges—Part 1

First part of the two part series in which senior advocate Amit Desai explains how the Bharatiya Nyaya Sanhita misses the opportunity to engage with the principles developed by the Supreme Court of India in the last seven decades and contemporary and future matters such as the Internet. .—.TODAY, as we stand on the precipice of the new Bharatiya Nyaya Sanhita (BNS), it is imperative that we delve into the annals of history to understand the journey that has led us to this pivotal moment..The roots of our legal system, deeply embedded in the history of India, stretch back to the 19th century, a period marked by significant transformations, upheavals and the birth of ideas that would shape the course of our national legal landscape..A history of the criminal code.Between 1833 and 1862, India witnessed a tumultuous era characterised by colonial rule, societal change and the gradual awakening of nationalist sentiments..It was during this time that the penal code, a cornerstone of our legal framework, came into existence. To comprehend the genesis of this monumental legislation, one must first grasp the historical backdrop against which it emerged..The early 19th century saw India under the governance of the British East India Company, a period marred by exploitation, economic policies favouring the colonisers and the erosion of the indigenous systems of governance and justice..“Between 1833 and 1862, India witnessed a tumultuous era characterised by colonial rule, societal change and the gradual awakening of nationalist sentiments..However, it was also a time of intellectual foment, with the seeds of reform and resistance taking root amidst the prevailing turmoil. Penal law and procedure varied from Princely State to Princely State and from Presidency to Presidency, with differences in the punishments for the same offence, acts being classified as offences in some areas but not in others, or ingredients of an offence differing from place to place..Also read: What the surge in criticism of the three new criminal laws is all about.Central to the formulation of the penal code was the establishment of the first Law Commission of India in 1834, tasked with the monumental responsibility of consolidating and codifying the laws of British India. Led by luminaries such as Thomas Babington Macaulay as chairman, the commission had four other members, namely C.H. Cameron, J.M. MacLeod, G.W. Anderson and F. Millett. The first three members represented Madras, Bombay and Calcutta, respectively..The commission was assigned the task of codifying laws. Based on a simplified codification of the law of England at the time, elements of the penal code were derived from the Napoleonic Code and the Louisiana Civil Code of 1825..Lord Macaulay thought the basis for such a code should be "uniformity where you can have it, diversity where you must have it, but in all cases certainty"..He also felt that such a code was the only blessing that an absolute government is better fitted to confer on a nation than a popular government. The members of the commission prepared a draft penal code which was submitted to Lord Auckland, the Governor General on May 2, 1837. It could not be immediately enacted into a code as there was confusion relating to the substantive criminal laws and the laws of procedure along with various other reasons..Multiple governors-general of India felt that reforms were not needed and opposed the new law. The Indian Penal Code (IPC) project was delayed by governmental and legislative inertia, resistance by European residents to having the same legal status as indigenous populations, and the loss of reforming momentum in the metropole..The first final draft of the IPC was submitted to the Governor General in 1837 and was drafted and redrafted until it underwent a careful revision at the hands of Chief Justice Barnes Peacock, who became a member of the Governor General's Council in 1852..The year 1857 stands out as a watershed moment in Indian history, marked by the Sepoy Mutiny, also known as the First War of Independence. The uprising, fuelled by grievances over colonial exploitation and cultural insensitivity, underscored the simmering discontent beneath the surface of British rule..Also read: The unconstitutional trinity— Part 1: Examining the unholy 'ghost' of BNSS.Although the war was eventually quelled, its reverberations echoed across the subcontinent, galvanising the nascent nationalist movement and laying the groundwork for future struggles for independence..With the 1857 revolt as well as other uprisings came brutal reprisals that fundamentally shook the British claim of enlightened rule in its colonies. Following this, when the British crown took over the reins of India from the East India Company in 1858, it felt that such a law was necessary to quell any future rebellions and punish the locals as per British law..“Lord Macaulay thought the basis for such a code should be "uniformity where you can have it, diversity where you must have it, but in all cases certainty"..According to one scholar writing on Macaulay, the English political classes saw the legitimacy of British rule founded on the claims of constitutionalism and the rule of law undermined by such repressive responses..The enactment of the IPC helped to address these concerns. The IPC came to be passed in October 1860, effective 1862, as a reaction to the events referred to above, heralding a new chapter in India's legal history and ushering in an era of codification and consolidation under British colonial rule..With the establishment of the Chartered High Courts on June 26, 1862, the dominion of law and judiciary over the entire territory was extended across the length and breadth of the subcontinent, cementing the authority of the colonial State and paving the way for the enforcement of legal norms..Post-Independence changes.Amidst the tumult of the 19th century, visionary leaders such as Bal Gangadhar Tilak, Mahatma Gandhi, Jawaharlal Nehru, B.R. Ambedkar and various others were born. Their indomitable spirit and unwavering commitment to justice and equality served as beacons of hope in a dark and oppressive era..Now, in contrast to the 19th-century milieu characterised by colonial dominance and traditional modes of justice, the 21st century has witnessed a seismic shift in the legal landscape propelled by technological innovation, globalisation, evolving societal norms and a strong judiciary with visionary judges..Also read: BNSS introduces handcuffs and in-absentia trials, widens preventive detention and police custody.The Supreme Court, in the last 75 years, has infused the penal code with constitutional principles under Article 21 and elevated principles of fair investigation and trials to a fundamental right..Though there have been various amendments from time to time, there has never been a substantial overhaul of the penal code. The law made in the 1860s has stood the test of time, making it the longest surviving code in the common law world, perhaps a testimony to how well thought out it was at the time of its creation..However, alongside these remarkable advancements, the post-Independence 20th century has also witnessed the emergence of new challenges and complexities ranging from crimes against the economy, organised crime and terrorism to gender-based violence and sedition..The need for robust legal frameworks underscored the imperative of legislative reform and innovation in pursuit of justice and security for all, as indicated by several specific legislations that were promulgated to deal with the emerging offences of a certain time..“According to one scholar writing on Macaulay, the English political classes saw the legitimacy of British rule founded on the claims of constitutionalism and the rule of law undermined by such repressive responses..It is against this backdrop of historical legacy and contemporary imperatives that we must examine the significance of the new BNS, building upon the foundations laid by our forebears to reconcile it with the exigencies of the modern age..The new sanhita.Coming to the penal code itself, on a simple textual comparison, it is evident that a large portion of the IPC has been retained verbatim in the BNS. The introduction of new offences, the importing of offences from other legislations with some changes and the deletions of IPC offences have important implications that need to be assessed. 511 Sections of the IPC have now become 358 Sections..Also read: Bharatiya Nyaya Sanhita: Problematic Drafting of the New Provisions.Only about 17 new offences have been added, nine of which are by way of sub-Sections to existing Sections. 144 Sections have been amended, largely due to an increase in punishments and about 198 Sections have remained unchanged. The numbers have decreased primarily due to the combining and reorganisation of Section numbers. Further, a total of 14 offences and five definitions have been deleted..It is impossible for us to go through the entire legislation, but we can highlight some of the important changes. One of the new offences introduced in the sanhita is the offence of terrorism. Section 113 of the Bharatiya Nyaya Sanhita has introduced the offence of a terrorist act..Presently, offences relating to terrorism are dealt with under the Unlawful Activities (Prevention) Act, 1967 (UAPA). The offence under the BNS is identical to the offence under the UAPA. The only distinction is that under the UAPA, acts and organisations recognised under international treaties, and which are included in the Act and notified under the UAPA, would be considered terrorist activities, but those classes are not included in the BNS. There is no clarity as to why, and why these parallel provisions are made to coexist as the repeal and saving do not repeal the UAPA..Though the explanation of the Section provides that an officer not below the rank of a superintendent of police shall decide whether to register a case under this Section, that is the BNS, or under UAPA, there is no clear reason as to why it would be decided, and why the power is given to the superintendent of police to decide whether to invoke the BNS or the UAPA..Though the Supreme Court in Hitendra Thakur indicated that terrorism extends beyond the effect of an ordinary crime, which is capable of being punished under the ordinary penal law of the land, its main objective is to overawe the government, or disturb the harmony of society, or terrorise people and society at large, not just those who are directly assaulted..The fallout of the intended activity must exceed the capacity of ordinary law enforcement agencies to tackle it under ordinary penal law. Yet a specialised offence has made its way into the general criminal law, which is the BNS. What distinguishes terrorism from other forms of violence is the deliberate and systematic use of coercive intimidation..Also read: Stop the Damocles' sword of three new criminal laws from falling upon us, Indira Jaising beseeches new Union law minister.Often, a hardened criminal takes advantage of the situation, and by wearing the cloak of terrorism, aims to achieve acceptability and respectability in society. It is, therefore, necessary to treat such criminals differently from an ordinary criminal, capable of being tried by ordinary courts under ordinary penal law of the land..“The Supreme Court, in the last 75 years, has infused the penal code with constitutional principles under Article 21 and elevated principles of fair investigation and trials to a fundamental right..While the crime committed by a terrorist and an ordinary criminal may overlap, it is not the intention of the legislature that every criminal should be tried under special anti-terrorism laws such as the UAPA, where the fallout of their activity does not extend beyond the normal frontiers of ordinary criminal activity..Economic security of the State.By introducing the offence of terrorism under regular law, it would appear that such distinction has been done away with. One wonders why. This offence also brings within its scope economic security..Unlike the UAPA, economic security is not defined under the BNS. Without any definition under the BNS, a wider meaning could be given to economic security. Considering the width of the phrase, any form of financial activity could, at the whim of a police officer, be categorised as financial terrorism and can be included within economic security..This could include recent incidents such as the Hindenburg shorting of shares on the Indian stock exchange, which caused the stock exchange to drop significantly leading to the loss of about a hundred billion dollars in market value..It could include cases such as the attack of George Soros on the Asian and United Kingdom currencies in the mid-90s, which was known as the Asian flu, or the Silver Thursday by the Hunt brothers in 1980..“This is all National Crime Records Bureau (NCRB) data, and the number is now at about a thousand under the Unlawful Activities Prevention Act, 1967 (UAPA)..It could include the Harshad Mehta scam or the Infrastructure Leasing & Financial Services Limited (IL&FS) scandal which may also be considered a threat to the economic security of the country and could be included under the offence of terrorism..Also read: What does 'Indianisation' and 'reform' mean in the context of the three new criminal law Bills?.However, if we want to protect foreign investments and be an open economy, a restricted meaning ought to be given to economic security under this offence to avoid the misuse and abuse of this provision..Although the offence of terrorism under the UAPA is a Scheduled offence under the National Investigation Agency (NIA) Act, 2008 and is investigated by the NIA, investigation of the same offence under the BNS can be conducted by a state or local police..This is an edited version of a speech senior advocate Amit Desai delivered at the Bar Association of India's annual Rule of Law Convention 2024— Tribute to Late Fali S. Nariman on the topic 'Impact of the Bharatiya Nyaya Sanhita, 2023; the Bharatiya Nagarik Suraksha Sanhita, 2023; and the Bharatiya Sakshya Adhiniyam, 2023 on lawyers and citizens'.

Bharatiya Nyaya Sanhita, 2023: Impacts and challenges—Part 1

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