BNS lacks the suppleness to allow judges to bend it towards justice, underline Justice Mukta Gupta and Rebecca John at Delhi event

Former judge of the Delhi High Court, Justice Mukta Gupta and senior advocate Rebecca John raise concerns over the proposed criminal law bills at an event organised by Guild of Service in partnership with Justice Sunanda Bhandare Foundation. 

SPEAKING at the event at the India International Centre, New Delhi on Saturday, Justice Mukta Gupta, former judge of the Delhi High Court, termed the lack of discretion to be exercised by courts under the Bharatiya Nyaya Sanhita (Second) (BNS) Bill, 2023 as a “game changer”.

On August 11, 2023, the Union government tabled three new Bills in the Parliament to overhaul the criminal justice system of the country. The three Bills were: the Bharatiya Nyaya Sanhita Bill, 2023 (BNS), the Bharatiya Nagarik Suraksha Sanhita Bill, 2023 (BNSS), and the Bharatiya Sakshya Bill, 2023 (BSB), to replace the Indian Penal Code, 1860 (IPC), the Code of Criminal Procedure, 1973 (CrPC), and the Indian Evidence Act, 1872 respectively.

The event, titled Navigating the Legal Landscape: India’s New Penal Codes and Their Impact, was organised by the Guild of Service in partnership with Justice Sunanda Bhandare Foundation.

She explained that under the Indian Penal Code (IPC), 1860, sentencing provisions include terms such as ‘to the extent’. However, the proposed penal code omits such phrases. It simply specifies the term of punishment.

Justice Gupta stated that the court exercised discretion in certain cases based on considerations such as the possibility of reformation of the accused. The discretion could be significant in cases involving coming-of-age couples.

This was one example Justice Gupta referred to assert that a well-meaning enactment could be badly abused and a badly drafted legislation could be successful depending on how it is enacted.

Another issue she pointed out is that in the new penal code, if an offence is committed in one state, it could be investigated and tried in another state.

Justice Gupta explained that earlier, the most the law provided was a registration of zero first information report (FIR) as recommended by Justice J.S. Verma committee in 2013.

This provision has both pros and cons, she pointed out.

Justice Gupta added that on the positive side, it would be helpful in cases of matrimonial offences where women may be reluctant to register FIRs in their marital jurisdiction. The new provision would allow women to register FIR in their parental jurisdiction.

However, she cautioned that the larger picture that needs to be looked at is that traditional wisdom of registering FIRs within the jurisdiction of the police station where the offence was committed, since it is an issue of law and order.

The event was presided over by senior advocate Rebecca John.

Other developments in the new criminal law Bills

Justice Gupta told the audience that once the new laws come into force, certain gender-based developments will become significant.

For instance, transgender persons get recognised as a separate gender. Similarly, offences such as voyeurism and stalking has become gender-neutral.

However, the distinction between a minor and a child in the existing criminal law has been deleted in the new laws.

Practical concerns: John

John shed light on the practical consequences of the new Bills. She clarified that the argument is not that laws should not be amended or new laws should not replace old laws because laws are always evolving.

John pointed out that the concern is the manner in which these new laws have been drafted. She stated that in the IPC, there is some neatness in how the provisions are drafted. For instance, she pointed out that Section 354 of the IPC contains definitions for two other offences succeeding it, Sections 354A (sexual harrashment and punishment for sexual harrassment)and 354B (assault or use of criminal force to woman with intent to disrobe) of the IPC.

However, under the new penal code the provisions are randomly placed, she argued.

She pointed out that the recognition of transgender persons as a separate gender under Section 2(10) of BNS does nothing because it accrues no consequent benefits to them. Sexual offences continue to be women-specific.

Another example is that the provisions use the term “acting in concert”. However, there is no parallel definition on it.

Overall, she pointed out that the BNS basically amalgatates different provisions of the IPC, however it makes the law longer and more difficult to interpret.

John further referred to Section 69 of the BNS. She stated that the provision is concerning because it provides no agency to women. On the contrary, when the offence takes place under it, the burden would be on women to prove it.

She wondered why there is a specific chapter on offences against women. She stated that it is patronising.

On adultery, she added that it was recommended by the standing committee to be brought back. However, the final draft does not include it keeping in mind the Joseph Shine mandate of the Supreme Court.

On removal of the offence under Section 377 of the IPC, John said that courts have read down consensual sex between same-sex adults. It does not mean that non-consensual intercourse between same-sex adults should not be criminalised.

Further, John briefly talked about the inclusion of sedition under Section 152 (act endangering sovereignty, unity and integrity of India) of the BNS. She clarified that the law still exists in an equally problematic manner despite the news that it has been omitted.

Further, she pointed out the BNS provides a timeline to the judiciary.

John stated that although the time prescribed for the judiciary looks wonderful on paper, it is very difficult to adhere to a timeline when the courts are overburdened. She pointed out that district courts nearly get more than 100 cases each per day.

Summarising her comments, she pointed out that the proposed laws are old wine in a new bottle.

She recommended that laws need to be pro-citizens taking into consideration the mandate of Article 21 (protection of life and personal liberty) of the Indian Constitution.