Bharatiya Nyaya Sanhita (BNS) 2023

Some Frequently Asked Questions

Udit Singh*


Why was Bharatiya Nyaya Sanhita (BNS) 2023 enacted?

The stated objective of enacting the three new criminal laws, including Bharatiya Nyaya Sanhita or BNS, is to ‘decolonise’ the Indian criminal justice system. It has been claimed that the BNS proposes to provide speedy ‘nyaya’ (justice), rather than ‘dand’ (punishment).

Isn’t it good to decolonise laws?

However, critics say that most of the ‘colonial’ provisions of the old criminal laws have been retained without any change. Raising doubts over the government’s claim of ‘decolonisation’, some experts have stated that the new laws have retained approximately 75 to 90 per cent of the old ‘colonial’ provisions.

What is new under BNS?

Section 4 of BNS provides ‘community service’ as a new form of punishment, one which was not provided under the IPC. However, there is no clarity regarding the meaning of this form of punishment and how would it be executed.

Has the BNS removed the colonial offence of ‘sedition’?

Section 124A of the IPC dealt with the offence of ‘sedition’. Under Section 152 of BNS the word ‘sedition’ has been removed. However, a new phrase -- ‘Act endangering sovereignty, unity and integrity of India’ -- has been used. This phrase has a wider meaning. The use of vague words like ‘purposely’ or ‘excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities’ tends to broaden the ambit of the provision and may lead to the criminalisation of many more activities which may otherwise be non-criminal acts per se. Hence, the idea of sedition seems to have been made stricter and given a new name.

What is the new provision regarding ‘mob lynching’ under BNS?

Section 103(2) of the BNS provides that when a group of five or more persons acting in concert commit murder on the grounds of race, caste or community, sex, place of birth, language, personal belief or any other similar ground, each member of such group shall be punished with death or with imprisonment for life, and shall also be liable to fine. However, the phrase ‘acting in concert’ has not been defined.

It is to be noted that there was no analogous provision in the IPC.

How is ‘snatching’ defined under BNS?

Section 304(1) of BNS defines ‘snatching’ as ‘Theft is snatching if, in order to commit theft, the offender suddenly or quickly or forcibly seizes or secures or grabs or takes away from any person or from his possession any movable property’.

Section 304(2) of BNS provides for punishment for ‘snatching’: ‘Whoever commits snatching, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine’.

There is no clarity as to how the offence of ‘theft’ is different from the offence of ‘snatching’ under BNS as the punishment for both is similar.

The use of vague words like ‘purposely’ or ‘excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities’ tends to broaden the ambit of the provision and may lead to the criminalisation of many more activities which may otherwise be not criminal acts per se.

What is the change regarding ‘hit and run’ cases under BNS?

Section 106(2) of BNS states that whosoever causes death of any person by rash and negligent driving of a vehicle not amounting to culpable homicide, and escapes without reporting it to a police officer or a magistrate soon after the incident, shall be punished with imprisonment of either description of a term which may extend to 10 years, and shall also be liable to a fine.

There is no provision in BNS providing a definition of ‘unnatural offence’ or a punishment for it.

There was no equivalent provision in the IPC. It is to be noted that this particular provision has not been brought into force yet by the government.

Has ‘Attempt to Suicide’ been criminalised under BNS?

This is partially correct. Section 226 of the BNS states that whosoever attempts to commit suicide with the intent to compel or restrain any public servant from discharging his official duty shall be punished with simple imprisonment for a term which may extend to one year, or with a fine, or both, or with community service.

It is to be noted that there was no corresponding provision in IPC.

However, BNS does not have any provision equivalent to Section 115 of MHA, 2017. Section 226 of BNS is carved out as an exception which criminalises attempt to commit suicide to ‘compel or restrain the exercise of lawful power’. This particular provision may lead to the prosecution of people observing hunger strikes.

How does the BNS deal with ‘unnatural offences’?

There is no provision in BNS providing a definition of ‘unnatural offence’, or a punishment for it. Section 377 of the IPC states that whosoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to a fine.

A five-judge bench of the Supreme Court in Navtej Singh Johar & Ors. v. Union of India1 held this provision as unconstitutional, to the extent that it covered consensual sexual acts. By completely removing Section 377 from BNS, there is no possible legal remedy for forced or non-consensual sexual acts against men, trans persons and animals.

What about a life convict committing a murder?

Section 104 of BNS provides that whosoever, being under sentence of imprisonment for life, commits murder, shall be punished with death or with imprisonment for life, which shall mean the remainder of that person’s natural life.

There was a corresponding provision in IPC (Section 303) too for murder by a life convict, for which the only punishment was a death sentence. However, a five-judge bench of the Supreme Court in Mithu v. State of Punjab2 struck down Section 303 of IPC for being violative of Articles 14 and 21 of the Constitution.

Section 303 has been reintroduced in BNS in the form of Section 104 with a modification that allows for a mandatory whole life sentence, i.e., life imprisonment till the person’s natural life.

References

  • AIR 2018 SC 4321
  • 1983 AIR 473

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