Bharatiya Nyaya Sanhita, 2023: Impacts and challenges—Part 2

Second 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.

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Read Part 1 here.

IN the first part of this analysis of the new Bharatiya Nyaya Sanhita (BNS), we traced its roots in the history of India's legal system, both pre- and post-Independence and examined how the new sanhita addresses some specific issues such as terrorism and economic security of the country.

In this part, we will examine other aspects of the sanhita in some detail.

The new sanhita

Organised crime

Another new offence created by the BNS is the offence of organised crime. Section 111 introduces organised crime as an offence under this Union law. Organised crime is penalised in some states through state legislation such as the Maharashtra Control of Organised Crime Act, 1999 (MCOCA).

The definition of organised crime is similar to the definition in the MCOCA. Like offences under state legislations, it includes the continuing unlawful activity carried out by groups of individuals acting in concert either singly or jointly or on behalf of an organised crime syndicate by the use of violence, threat of violence, intimidation, coercion, corruption or other unlawful means.

Filing more than one chargesheet in respect of an activity within a period of 10 years against a group of persons and where the court has taken cognisance would make such individuals part of the continuing unlawful activity group. 

The BNS now specifically includes economic offences within the definition of organised crime.

Economic offences have been defined in the Sections to include criminal breach of trust, forgery, counterfeiting of currency notes, bank notes and government stamps, hawala transactions, mass marketing fraud or running any scheme to defraud several persons or doing any act in any manner with a view to defraud any bank or financial institution or any other institution or organisation for obtaining monetary benefits in any form.

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This has serious implications for the protection of businesses and the growth of a thriving economy. If a group of individuals are charged with cheating a bank and multiple chargesheets are filed, it is likely that such persons could be charged under the organised crime offence.

Take the example of consortium lending by a consortium of banks. If there is a default by the borrower of a consortium loan and each member of the consortium files a case for which separate chargesheets are filed, this may be an unlawful continuing activity and could fall within the scope of organised crime. Other examples include cases involving Ponzi schemes such as chit funds, plantation schemes, home buyer frauds and multilevel marketing schemes.

The MCOCA itself has been used as a weapon on occasions to settle commercial disputes with persons filing false complaints of extortion in property disputes under the MCOCA. To apply the provisions of MCOCA something more in the nature of coercive acts and violence is required to be specified,  to bring the unlawful activity complained of within the definition of an organised crime.

Would this observation be relevant considering the above explanation, which includes economic offences where there is no violence and there is only a fiscal or monetary implication?

Another issue is whether the enactment of these laws be treated as a deemed repeal of the earlier legislations of the MCOCA or the Unlawful Activities (Prevention) Act, 1967 (UAPA). The Supreme Court in Bharat Shah upheld the MCOCA saying that the state's legislature's power to enact the law was based on entries related to both the state and the concurrent list.

The MCOCA was enacted based on the state's power to legislate, which was based on entries relatable both to state and concurrent lists. How will we now address this issue where the definitions are identical in both the legislations; what is going to be given priority?

Also read: The three new criminal law Bills: Missed opportunities and misplaced priorities

It is also possible to argue that a state law being a special legislation the same may have to be given precedence over the general law which is the BNS. Section 26 of the General Clauses Act, 1897 gives the state the option to decide under which law to prosecute.

Petty organised crime

Petty organised crime is a brand new offence, punishable under Section 122, which aims at dealing with gangs or groups involved in lesser crimes. It penalises minor offences such as theft, snatching and similar activities undertaken by a group either individually or collectively. However, the term criminal group or gang has not been defined. The explanation of the clause lists certain types of theft.

The definition includes trick theft, theft from vehicles, dwelling houses or business premises, cargo theft, pickpocketing, theft through card scheming, shoplifting and theft from ATMs. But a pecuniary limit has not been set for these crimes. So how are they classified as petty organised crime offences?

If these offences are part of the petty organised crime, will they be excluded from the organised crime activity offence itself which falls under Section 111 of the BNS? We now have a very peculiar situation where we do not know whether the prosecution will be under Section 111 or Section 112 or both!

Traditionally, under the MCOCA, all these offences were treated as part of organised crime activities. Once again, one fails to understand the reason for these distinctions that Parliament has sought to bring in.

Sedition

The offence of sedition has been omitted. However, the BNS now seeks to criminalise acts endangering the sovereignty, unity and integrity of India, punishing them with imprisonment for life or imprisonment of up to seven years.

At first glance, this appears to be an offence similar to Section 124A of the Indian Penal Code (IPC), but with the minimum punishment increased from three years to seven years. However, a closer look at this provision shows that it is essentially a reenactment of the offence of unlawful activity punishable under Section 13 of the UAPA.The offence under the UAPA is broader, dealing with the cessation of a part of the territory of India or a separatist activity, unlike sedition which dealt with disaffection towards the government.

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It criminalises actions that seek to incite or excite secession, armed rebellion, subversive activities or encourage feelings of separatism endangering the sovereignty or unity and integrity of India, rather than merely disaffection towards the government.

However, without a legal definition, terms such as subversive activities remain vague, potentially criminalising legitimate protests and dissent against the government.

This lack of clarity indicates a need for judicial intervention similar to what was done with the offence of sedition to avoid misuse and to avoid its impinging on Article 19 rights.

As is the case with terrorism and organised crime, the purpose of enacting an offence similar to the one defined in Section 13 of the UAPA in the BNS is not clear.

Procedural safeguards

The procedural safeguards provided in the UAPA and the MCOCA are not available under the BNS. These safeguards, such as allowing senior police officers to investigate a terrorist act and requiring mandatory sanctions from the state or Union government before taking cognisance of a terrorist offence, play an important role in checking the abuse of power.

The state legislation provides various checks and balances for invoking the provisions of the statute such as stipulating that a first information report (FIR) cannot be recorded without a senior officer's sanction, the investigation must be done by a senior officer, and there must be sanction prior to taking cognisance.

However, none of these safeguards find themselves in the BNS for the identical offences which have now been introduced. However, parallelly, the deviation from the BNS is that the UAPA and the MCOCA severely restrict the rights of the accused and enlarge the State's powers, particularly regarding anticipatory bail and demand periods during an investigation which are more favourable to the prosecution.

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Evidence collected through interception of wire, electronic or oral communication can be relied upon by the prosecution under the UAPA, along with mandatory presumptions in evidence that are applicable to the offence of terrorism. However,  these provisions are absent in the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) or the BNS. As a result, all these offences are treated like a normal criminal offence with a 15-day custody period and with a maximum of 90 days of police remand, unlike the other provisions.

The twin conditions which have been a source of concern for the country are no longer applicable to terrorist offences under the BNS. I think there is something good that came out of the BNS here.

Rape and assault

The BNS introduced a new chapter titled 'Offences against women and children' to address sexual offences. Similar offences under the IPC were part of the chapter on offences affecting the human body. The implication of such restructuring is that sexual offences are only recognised if committed against a woman and that too only by a man.

In the IPC, rape is a gendered provision where the offender can only be a man and the victim a woman. This is despite the statement of objects and reasons of the BNS mentioning that various offences have been made gender-neutral. However, this does not apply to the offence of rape.

Only two provisions under the category of criminal force and assault against women have been made gender-neutral in terms of the perpetrators: Section 76, which is assault or use of criminal force to women with intent to disrobe and Section 77, which is voyeurism which now opens with the word "whoever" unlike in the IPC where it was "any man".

The BNS, for the first time, includes transgender within the definition of gender to have the same meaning as in the Transgender Persons (Protection of Rights Act), 2019. Therefore, whenever the term "he" has been mentioned, the same is to be considered as including transgender persons as well.

Also read: Explained: The revised criminal law Bills

However, curiously transgender individuals have been excluded from the purview of the definition of woman or man and hence a sexual assault by or against a transgender is not recognised as rape.

Another aspect of the new Act is that it completely misses out on assault and rape between persons of the same sex. Earlier, such offences were brought within the purview of Section 377 of the IPC. Consensual sex amongst persons of the same sex was also decriminalised under the Section in Navtej Johar.

The Supreme Court was careful at the time of the judgment and held any act of the description covered under Section 377 of the IPC done between two individuals without consent of any one of them would continue to invite penal liability under Section 377 of the IPC. Any act done between two individuals without consent would be covered under Section 377, which is effectively rape.

Similarly, the Supreme Court held that if anyone, by which we mean both a man and a woman, engages in any kind of sexual activity with an animal, the said aspect of Section 377 is constitutional and it shall remain a penal offence under Section 377. The BNS, however, excludes both sexual offences between persons of the same sex and also excludes bestiality as Section 377 has been completely omitted from the Act.

Another significant change is that the age of consent for a married woman under the definition of rape is increased from 15 to 18. This change seeks to implement the Supreme Court judgment in Independent Thought where the Supreme Court struck down Exception 2 to Section 376 of the IPC which provided immunity to a husband if he had sex with a wife who was above 15 years of age as discriminatory and violative of Article 14. However, the Supreme Court refrained from making comments on marital rape!

There was a need to consider the marital rape exception which the legislature has chosen not to address. The legislature also missed addressing the archaic provision under Section 98 Explanation 2 which permits sexual intercourse with a minor wife.

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While dealing with punishments, all these offences provide for a minimum of 10 years. Considering societal evolution, there is a need to discuss the issue of session judges' power to impose punishments lower than the statutory minimum when circumstances warrant, especially in cases involving sexual offences.

Sexual intercourse by employing deceitful means

The BNS also criminalises sexual intercourse based on deceitful means such as a false promise of employment or marriage. Sexual intercourse based on a false promise to marry, which was previously considered rape, has now been categorised as a separate offence under Section 69.

Sexual intercourse based on deceitful means includes the inducement through a false promise of employment or promotion; or marrying by suppressing identity; or on a promise to marry a woman without having an intention to do so.

Previously, sexual intercourse on a false promise to marry was within the domain of rape, based on the absence of consent, as interpreted by the Supreme Court.

The provision of rape is focused on the absence of consent. However, since there is an inducement, this is now categorised as a separate category of an offence because there is implied lack of consent.

In tune with the times?

In recent years, we have embarked on a transformative journey in our legal landscape, prominently featuring the decriminalisation of various offences through legislative means, such as the Companies Act, 2013 and the Jan Vishwas Act, 2023.

By aligning our legal framework with contemporary societal needs, we ought to embrace a more progressive, pragmatic and humane approach, reflecting a nuanced understanding of justice and social change.

However, the BNS failed to seize the opportunity to decriminalise many offences. In addition, there is one major and serious lapse in my view in the BNS as there are no provisions dealing with offences relating to the Internet.

Also read: The thoughtless Section 377 IPC oversight in the BNS

The Information Technology Act, 2000 is limited in its creation and application to offences. However, given this opportunity, the BNS should have included a Bharatiya Abashi Digital Dandasanita.

In conclusion, the penal code introduced by Lord Macaulay in the 19th century has undeniably stood the test of time, emerging as one of the longest-surviving codes in the common law world.

Despite the passage of decades and numerous societal shifts, many of the offences outlined in the original code remain relevant today, a testament to its enduring wisdom and foresight.

The fact that a substantial overhaul of the penal code has never been deemed necessary speaks volumes about its efficacy and adaptability to changing circumstances. Its resilience in the face of changing times is a tribute to the meticulous craftsmanship of its architects and the enduring relevance of its principles.

More than seven decades after Independence, the drafting of the BNS provided an opportunity to create a law that included the principles developed by the Supreme Court over these years and also engaged with the present and future issues, such as the Internet. There have been gross inadequacies in these aspects.

There will be chaos and confusion because Lord Macaulay's adage of having certainty in criminal law has certainly not been heeded. However,  this is also a great opportunity for young lawyers to interpret the new law, which will keep us going for the next hundred years.

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'.