On 21 December 2023, in the midst of the bustling winter session, the Rajya Sabha, the upper house of the Indian Parliament, gave its seal of approval to three significant legislation: the Bharatiya Nyaya (Second) Sanhita, 2023; the Bharatiya Nagarik Suraksha (Second) Sanhita, 2023; and the Bharatiya Sakshya (Second) Bill, 2023. These new laws will effectively replace the existing Indian Penal Code (IPC), Criminal Procedure Code (CrPC), and the Evidence Act, marking a crucial shift in the legal framework of the country.

In the gist of it, the new Bharatiya Nyaya Sanhita will comprise 358 clauses, a decrease from the 511 sections in the erstwhile IPC. Significantly, the legislation includes 20 fresh offences, with stricter imprisonment terms for 33 of them.

Moreover, fines have been raised in 83 cases and 23 offences now carry mandatory minimum sentences. Community service penalties are now an option for six crimes, and the bill also eliminates or modifies 19 existing sections.

The Bharatiya Nyaya Sanhita highlights a crucial addition –  a section dedicated to addressing crimes against women and children, primarily focusing on sexual offences, especially regarding the rape of girls under the age of 18. These changes aim to align with the Protection of Children from Sexual Offences (POCSO) Act and propose severe punishments such as life imprisonment or even the death penalty for offenders. The bill also aims to create a standardized punishment of 20 years imprisonment or life imprisonment for all cases of gang rape. An additional category of gang rape of a woman under 18 years of age has been introduced, with targeted penalties for individuals involved in such heinous acts.

According to the government, the Bharatiya Nyaya Sanhita has taken a significant step in defining terrorism – a much-needed clarification, although legal experts may vary in their considered opinion. The act of engaging in terrorism now attracts the harshest punishments such as death or life imprisonment without parole and the legal system now has been expanded to encompass a wider range of terrorist acts.

The legislation also covers actions that result in widespread damage or destruction of critical infrastructure. A new criminal section has been introduced in the Sanhita, defining organised crime for the first time in Section 111(1). Syndicates involved in illegal activities will now face consequences. The updated provisions now address offences like armed rebellion, subversive activities, and separatist actions.

The government hails the new laws – ‘a watershed moment’

Prime Minister Narendra Modi hailed the new criminal law bills, calling it a ‘watershed moment’ in India’s history and stating that a new era has begun. PM Modi considered these transformative bills a testament to India’s commitment to reform, marking the beginning of a new era with laws centred on public service and welfare.

While presenting the bills in the Rajya Sabha, Union Home Minister Amit Shah emphasized that the essence, substance, and concept of the new criminal laws were distinctly 'Bharatiya' in nature.

Taking a jibe at the Congress, the main opposition party, Shah said that his government stood by its word and finally did away with the law of sedition, a step the former did not take during its long years in governance.

The opposition disparages – ‘copy-paste versions’

For a senior Congress leader and a former home minister, the Bills were nothing but a ‘copy-paste’ of their colonial versions.

“Has the government really dumped the British “colonial” criminal laws? Consider the fact that 90-95% of IPC, 95% of CrPC and 99% of Evidence Act have been cut, copied and pasted in the three Bills: can anyone deny or debate that fact? In fact, the government has immortalised Macaulay and Fitz Stephen [Sir James Fitzjames Stephen] who drafted the original IPC and Evidence Act,” P. Chidambaram asked on X. Chidambaram, who is a Rajya Sabha MP and placed a dissent note on the bills in the Parliamentary Standing Committee, believes that the opportunity to replace and redraft the laws had been wasted.

Senior Congress leader and former law minister Kapil Sibal, on his X-handle, asserted that BNS 2023 sanctions the application of severe police powers for political purposes. He further alleged that the government's motive in introducing such laws is to muzzle opposition.

Another senior Congress MP and prominent lawyer, Abhishek Manu Singhvi, had a more emphatic response. He labelled the move as an 'ego-based naming exercise' that entailed nothing more than 'cosmetic changes. Singhvi affirms that the expanded scope of offences, including those related to terrorism, organized crime, and threats to national sovereignty, without the removal of existing laws pertaining to them, might result in overlapping jurisdiction and an increase in litigation.

Hyderabad MP and Chief of All India Majlis-e-Ittehadul Muslimeen (AIMIM), Asaduddin Owaisi, contended that the bills posed a threat to the civil liberties and rights of the people as they grant sweeping powers to the police to take action against anyone. He also feared that with these unchecked powers, the police would act as “judge, jury and executor.”

The Wire reported that eight opposition MPs from the Congress, TMC, and DMK, in their dissent notes submitted to the report approved by the parliamentary standing committee on home affairs, highlighted that the new Bills were predominantly duplicative of existing laws. They opposed the Hindi names assigned to the bills and raised concerns about the lack of consultation, diversity in domain expert opinions, and questioned the apparent haste with which the statutes are being introduced.

Flaws aplenty

In terms of quality, many legal experts feel that the modifications primarily involve a comprehensive and entirely unnecessary rearrangement and renumbering of the provisions, creating an illusion of streamlined laws. They feel that the amendments that are made to streamline electronic proceedings are inconspicuous, accompanied by a series of mostly inconsequential adjustments in nomenclature. They also feel that the current legislative attempt to impose timeliness on court proceedings is entirely impractical. 

Unchecked powers to the government: Some of the experts fear that the government could wield the modifications made to the previous laws as powerful tools to stifle dissent, crush opposition and suppress public discourse, giving rise to an ominous sense of a police state.

Put simply, this would mean that the enactment will result in an enormous leap in the power of the ruling government to use criminal law, if and when it so wishes, silencing any sources that may speak anything against it.

A senior lawyer with the Supreme Court, who did not want to be named, told The Polity that Home Minister Amit Shah’s claim of abrogation of sedition was factually not correct.

"The government is essentially broadening the scope of the law through the new legislation. Therefore, what transpired amounts to a mere renaming endeavour. The ambiguity inherent in the intentionally crafted clauses is likely to have broader implications than those stipulated in the preceding version." the lawyer said.

Ambiguities galore: The five criminal activities covered by Clause 150 of the BNS—namely, subversive activities; secession; separatist activities; endangering the sovereignty, unity, and integrity of India; and armed rebellion—lacked clear definitions, thereby leaving their interpretation at the discretion of the police and political bosses.   

Again, activities such as ‘exciting’ individuals in endorsement of these activities; ‘creation of excitement amongst people’ in a positive manner towards these activities; and ‘encouragement of feelings amongst people’ in support of these activities were vaguely defined that the state was at its discretion to charge anyone anything.

“So, in effect, although Section 124-A, which would define sedition stands annulled in the new legislation, Clause 150 in the new legislation sneaks in the essence of all of it, or even more, expanding the spectrum of activities,” the lawyer added.

A vague definition of terrorism: The statutes allow the government excessive authority to categorise even a non-violent act, related to the promotion of democracy, equality in society, or fair treatment in political and economic arenas, as well as any non-violent expression of dissent, protest, opposition, or even public discourse that contradicts the official government stance, as ‘terrorism.’ This gives them unchecked powers to use the full extent of anti-terrorism legislation to suppress and silence these actions.

A non-violent act too can fall within the scope of the definition of terrorism: Under the existing UAPA, an act must be violent to be considered a terrorist act. In contrast, under the new legislation, even a non-violent act or a mere expression through speech or writing will fall within the ambit of terrorism when it includes the phrase 'disturbance of public order.' More so when the power to interpret the same is left to the imagination and convenience of a police officer or a prosecutor.

In addition, the new legislation introduces an additional criterion to the definition of terrorism, expanding its scope. Specifically, an act is deemed terrorism if it destabilises or destroys the political, economic, or social structure. Experts note that the inclusion of the phrase 'social structure' contradicts the mandate of the Constitution.

Under Article 38, the Constitution directs the State to strive to minimise inequalities in income and endeavour to eliminate disparities in status, facilities, and opportunities, not only among individuals but also among groups of people residing in different areas or engaged in different vocations. Hence, they believe that a peaceful movement advocating for social, political, and economic changes or one against patriarchy or gender inequalities can fall well within the definition of terrorism if the state so desires, as has been widely seen to be the case in India.

Redundancy to cost dearly: Further, the BNS introduces new offences, including organized crime and terrorism, which are already addressed by existing specialized laws. This redundancy in legislation could impose an extra compliance burden and additional costs. Furthermore, it may result in multiple laws prescribing different penalties for identical offences.

A worrisome explanation of mental illness: Another pertinent grey area the BNS has is the definition of mental illness. While the legislation almost retains the definition of the IPC, it replaces the term ‘unsound mind’ with ‘mental illness.’ Under the interpretation of the IPC, any act performed by a person of unsound mind does not constitute any offence.

Now, the BNS will derive the definition of ‘mental illness’ from the Mental Health Act, 2017, which also includes abuse of alcohol and drug abuse within its confines. Thus, an alcoholic person can safely claim the defence of mental illness for any offence committed by him/her. This contradicts the typical legal defence of intoxication under the IPC, which only absolves individuals from criminal responsibility for acts committed under involuntary intoxication.

Confusing yardsticks of age: The BNS provides for higher penalties in the case of offences against children, treating a victim below 18 in most cases as a child. However, it is inconsistent with the Protection of Children from Sexual Offences Act, 2012 in some cases. For example, the penalty differs based on whether the victim is above or below 18 years, while for rape it stipulates different penalties when the age of the victim is below 12 years, between 12 and 16 years, or above. Moreover, the BNS does not set the age threshold for certain offences against children at 18 years. For instance, the act of kidnapping or abducting a child with the intent to steal from a parent applies only to a child under 10 years old. This suggests that the punishment for kidnapping an 11-year-old is the same as that for kidnapping an adult.

Rape of an adult man and engaging in intercourse with an animal no more an offence: Section 375 defines rape as an offence against women, while Section 377 addresses ‘intercourse against the order of nature’ involving any man, woman, or animal as an offence. The Supreme Court, however, limited its scope to exclude consensual sex between adults, while maintaining the classification of sodomy and bestiality as crimes as before. Thus, forced intercourse with an adult male and intercourse with an animal continued to be offences.

In contrast, the BNS omits Section 377 rendering rape of an adult man and engaging in intercourse with an animal not offences any more. Now, a man faced with the situation of forced intercourse is left with the only option of using his right to private defence under Clause 38 of the BNS by which he can even go to the extent of causing death to the aggressor. In contrast, the POCSO Act, 2012, deems rape of children, regardless of gender, as an offence.

Marital rape is yet exempted: That being said, rape remains a gender-specific crime, and the BNS still maintains the exemption for marital rape. The broadened definition of rape under Clause 63 encompasses various violations of the female body, but it also leaves ample room for social sanctions to overshadow the concept of consent.

Confusing ‘community service clause’: Another issue with the BNS is its definition of ‘community service.’ BNS introduces community service as a penalty, applying it to offences like: (i) theft of property valued at less than Rs. 5,000, (ii) attempting suicide with the intent to restrain a public servant, and (iii) appearing intoxicated in a public place and causing annoyance. However, the legislation does not specify the nature or administration of community service.

Leaves out important recommendations of the Verma Committee: While the BNS has not incorporated many of the recommendations of the Justice Verma Committee, it retains the original provision of the IPC in its Clause 63. For instance, although the committee recommended including any non-consequential penetration of a sexual nature in the definition of rape, the BNS has not adopted this suggestion.

While the Verma Committee recommended increasing the penalty for assault or criminal force on women with the intent to disrobe to five to ten years, the BNS has not accepted the committee's suggestion.

While the provision under Section 497 of the IPC, which criminalizes adultery, has been omitted, the BNS retains Section 4 under Clause 83. This section penalizes a man for enticing another man's wife to engage in intercourse. The Justice Verma Committee pointed out that adultery should not be treated as an offence as it violates the right to privacy under Articles 14 and 21 of the Constitution.  

Overlap with special laws: Another major issue with the BNS is its overlap with some of the special laws.

The BNS stipulates the punishment for the adulteration of food or drink for sale as imprisonment of up to six months or a fine of up to Rs 5,000. However, the punishment for the same offence under The Food Safety and Security Act, 2006 is life imprisonment and a fine of up to 10 lakhs for the manufacture, storage, and sale of unsafe food.

Adulteration of drugs and the sale of adulterated drugs under the BNS carry a punishment of imprisonment for up to one year, a fine of up to 5,000, or both. The sale of an adulterated drug, on the other hand, attracts imprisonment for up to six months, a fine of up to Rs 5,000, or both.  However, under the Drugs and Cosmetics Act, 1940, the punishments for the same offences are significantly more severe.

For adulteration of drugs, the penalty ranges from a minimum of ten years to life imprisonment, along with a fine of at least 10 lakhs or three times the value of the drug seized, whichever is higher. For the sale of an adulterated drug, the punishment includes imprisonment for three to five years and a fine of at least one lakh or three times the value of the drugs seized, whichever is more

Unlawful compulsory labour under the BNS attracts imprisonment of one year, a fine, or both, whereas the same offence under the Bonded Labour System (Abolition) Act, 1976, carries a punishment of imprisonment for up to three years and a fine of up to Rs 2000.

Parents or guardians abandoning a child below the age of 12 can face imprisonment of up to seven years, a fine, or both, under the BNS. In contrast, under the Juvenile Justice Act, 2015, abandoning or procuring a child for abandonment is punishable by imprisonment of up to three years, a fine of up to one lakh, or both. It's worth noting that biological parents abandoning a child due to circumstances beyond their control are exempted under the act.

Again, the act of rash driving under the BNS is punishable by imprisonment of up to six months, a fine of up to Rs 1,000 or both, whereas the Motor Vehicle Act, 1988 stipulates it as imprisonment of up to six months, and/a fine of up to Rs 5,000 for the first offence and imprisonment of up to two years and/or a fine of up to Rs 10,000 for the subsequent ones.

Experts agree

“The Bills, if enacted, will establish permanent extra-constitutional emergency powers in India through statutory means. Future governments are unlikely to surrender this power or revoke this extra-constitutional emergency. What makes this possible is that these new criminal laws do not reflect constitutional morality. They have no in-built constitutional constraints. They are anti-Constitutional in letter and spirit,” points out G. Mohan Gopal, currently a Supreme Court lawyer, former director of the National Judicial Academy and former vice chancellor of National Law University, Bengaluru, in his article for The Wire. 

“The fact, in the words of a scholar of the subject, is that “criminal law in the British Empire was neither fully benevolent nor fully despotic, constrained by race and inequality in one direction, and constitutionalism and an ideological adherence to the rule of law in the other,” he adds.

"The Union government’s proposed amendments embrace, retain and enlarge most of the despotic colonial content of the Indian Penal Code, in letter and spirit. The colonial soul is safely ensconced in the two Sanhitas. On the contrary, what is decolonised is the progressive content of the colonial code such as the ideologies of constitutionalism and the rule of law. The Supreme Court will face one of the greatest tests in its history when the constitutionality of the three Bills is challenged once they are enacted,” laments Gopal.

Vageshwari Deswal, working as a professor at the Faculty of Law, University of Delhi, feels that the changes brought out in the new legislation are peripheral.    

“The lofty ideals of justice that the title of this law suggests, come crashing once you go through the punishments suggested therein. With the lone exception of Community service that has been formally introduced as a type of punishment and in default, simple imprisonment may be given, the rest of the punishments are the same,” says she in her article for The Times of India.  

A senior lawyer with the Delhi High Court, on condition of anonymity, told The Polity: “A significant change in the law like this required extensive debates within and outside of the parliament. Broader discussions among legal experts, researchers, lawyers, and implementing agencies were essential, but unfortunately, none of that occurred in this case."

"In the end, it is the justice system that will suffer. The overlapping provisions in the new legislation with existing special laws, along with ambiguities in explanations, will lead to unnecessary and prolonged suffering for the common man. Seeking clarification from the already stressed higher judiciary becomes a costly and time-consuming affair for ordinary citizens."

Interestingly, a public interest litigation (PIL) has been filed before the Supreme Court challenging the three new criminal laws that received the president’s assent on December 25 of last year. The petitioner, advocate Vishal Tiwari, requests a stay on implementing the laws and the constitution of an expert committee under the chairmanship of a retired judge of the Court.

The petitioner argues that the laws were passed without proper parliamentary debates when 141 opposition MPs were under suspension. He further argues that laws passed are more draconian than the British era colonial laws, in as much as they extend the police custody of a person to 90 days and more, while the latter allowed a maximum of only 15 days’ police custody.

It becomes, hence, essential to emphasize that poorly- or hurriedly drafted provisions in the BNS can lead to severe consequences. The three bills introduced by the government, thus, necessitate a thorough scrutiny and thoughtful discussion.  

There are significant changes in the other amended statutes, too.

Bharatiya Nagrik Suraksha Sanhita

The new Bharatiya Nagrik Suraksha Sanhita will bring about significant changes. Consisting of 531 sections this will replace the 484 sections currently present in the CrPC. This comprehensive bill includes a total of 177 modifications, as well as the addition of nine brand-new sections and 39 sub-sections.

With the incorporation of 44 fresh provisions and clarifications, the law aims to strengthen the security of Indian citizens. To ensure timely justice, 35 sections now have specific timelines, and 35 sections feature audio-video provisions. Moreover, 14 sections have been eliminated from the bill, streamlining and refining its contents.

Bharatiya Sakshya Adhiniyam

With a total of 170 provisions now included in the bill, three more than the previous one, the Bharatiya Sakshya Adhiniyam has undergone significant changes. Of these, 24 have been modified, while two new provisions and six sub-provisions have been added. However, six provisions have been removed or discarded.

This revamp in the Indian criminal justice system is a testament to the country's changing values, highlighting a shift towards prioritizing the protection of women, children, and national interests. This marks a significant departure from colonial-era laws, where offences against the state and its treasury held greater importance than the welfare of the people.

The proposal to replace the laws comes after the first codification of criminal law, the IPC, in British India in 1860. The changed title suggests a purported shift towards focusing on justice rather than just punishment, which was the main objective of the colonial IPC.