Bharatiya Nyaya Sanhita
On August 11, the Union Home Minister Amit Shah tabled three Bills in the Lok Sabha – Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita and Bharatiya Sakshya Bill – repeal and replace the colonial-era legislations – the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act.
“The focus of the existing laws was to protect and strengthen the British administration, the idea was to punish and not to give justice. By replacing them, the three new laws will bring the spirit to protect the rights of the Indian citizen,” the Union Home Minister said.
The Government of India said, in the ‘Statement of Objects and Reasons’ of the Bharatiya Nyaya Sanhita, that it decided to review the existing criminal laws to strengthen law and order and simplify the legal procedure so that “ease of living is ensured to the common man.” The government has introduced the Bharatiya Nyaya Sanhita with a view to creating a legal structure which is citizen-centric and to secure the life and liberty of the citizens.
Enhancing Punishment for Offences Against Women
The government has amended the definition of ‘Rape’ in Clause 63 of the proposed code. In the new definition, the provision contains an Explanation that criminalises marital rape of a woman under the age of 18, which was earlier 15 under Section 375 of the Indian Penal Code. The amendment brings the age on par with the age of consent.
The government has introduced Clause 69 in the proposed code to penalise sexual intercourse where consent was obtained through “deceitful means” or on false pretext of marriage. In the Explanation, the term “deceitful means” includes false promise of employment or promotion, inducement or marrying after suppressing identity. The convict under Clause 69 could be punished with either simple or rigorous imprisonment for a maximum term of 10 years.
Furthermore, the government has streamlined the provision criminalising ‘Gang Rape’ and made the punishment under the said provision more stringent. The government has clubbed Sections 376D, 376DA and 376DB, which criminalised gang rape, gang rape of a woman under the age of 16 and under the age of 12 respectively, into Clause 70 of the proposed code.
Clause 70(1) criminalises ‘Gang Rape’ with rigorous imprisonment for a term not less than 20 years which may extend to life imprisonment for the remainder of the convict’s natural life. Meanwhile, Clause 70(2) of the proposed code criminalises gang rape against women under the age of 18. The government has introduced the death penalty for those convicted of gang rape of minors. Notably, the death penalty was earlier prescribed in cases of gang rape against women under the age of 12 only.
Furthermore, the provisos to Clause 70(1) & (2) provide that the fine imposed against the convict must be just and reasonable to cover the medical expenses and rehabilitation of the victim and that the fine shall be paid to the victim.
Gender Neutral Laws For Offences Against Minors
Furthermore, the government has introduced Clause 93 to criminalise a person who hires, employs or engages a child under the age of 18 to commit an offence. The clause punished such a person with a term stipulated for the offence as if such person committed the crime himself. Notably, the Explanation provided under the provision explains that it includes cases where such a child was hired or engaged in sexual exploitation or pornography.
The government has made amended the language of Section 366A which dealt with the procuration of a minor girl to make it gender neutral in Clause 94 ‘Procuration of Child’, of the proposed code. Clause 94 criminalises the procuration of a child under the age of 18 and inducement to the child to go from any place, knowing that such a child would be forced or seduced into illicit intercourse with another person. The prescribed punishment under this provision may extend to imprisonment for 10 years.
Repealing Sedition Provision
Recently, the Law Commission of India submitted its 279th report titled “Usage of the Law of Sedition” to the Government of India. The commission suggested that the Government of India retains Section 124A of the Indian Penal Code which criminalised Sedition. The commission also recommended incorporating certain amendments to bring clarity to the provisions.
However, the government has removed the Sedition provision in the Bharatiya Nyaya Sanhita. The government has introduced Clause 150 to criminalise acts endangering the sovereignty, unity and integrity of India.
Under Clause 150, whoever excites or attempts to excite secession, armed rebellion or subversive activities, or encourages feelings of separatist activities, or endangers sovereignty, unity and integrity of India, or indulges in or commits such act would be punished with imprisonment extending to seven years or life imprisonment and would also be liable to fine.
Organised Crime
The government has introduced Clause 109 in the proposed code to penalise organised crime. Clause 109(1) defined ‘Organised Crime’ as any continuing unlawful activity including human trafficking racket, prostitution, cyber-crimes with severe consequences etc. by the effort of groups of individuals through the use of violence, intimidation, coercion, corruption etc. to obtain material benefit.
Under Clause 109(2)(i), if the offence of organised crime results in the death of a person, then whoever committed such act shall be punished with life imprisonment or death. In other cases, under Clause 109(2)(ii), whoever commits the offence of organised crime shall be punished with imprisonment of not less than five years which may extend to life imprisonment.
Furthermore, the government has introduced Clause 110 to deal with petty organised crime including organised pickpocketing, vehicle theft, ATM theft, selling of public examination papers etc. by mobile organised groups in a region. Clause 110(2) of the proposed code prescribes a minimum imprisonment of one year which may extend to seven years.
Offence of Terrorist Act
Clause 111 of the proposed code criminalises the offence of terrorist acts. Under Clause 111(1), a person is said to have committed a terrorist act if he commits the act in India or abroad with the intent to threaten the unity, integrity and security of India, intimidate the general public or disturb the public order, by doing such act using explosive substances, inflammable materials, firearms, lethal weapons, poisonous gases etc. to create an atmosphere or spread a message of fear, to cause death or serious bodily harm etc.
The clause also includes acts causing disruption of essential services, destruction of government facilities, causing extensive interference with critical infrastructure, destabilising or destroying the political, economic, or social structures of the country, creating a public emergency or undermining public safety etc.
Under Clause 111(2), if such a terrorist act results in the death of a person, then the offender would be punishable with death or life imprisonment without the benefit of parole, and would also be liable to a fine not less than Rs 10 lakhs. In any other case, the offender would be liable to imprisonment not less than five years which may extend to life imprisonment, and would also be liable to a fine not less than Rs 5 lakhs.
Sensitivity Towards Persons With Mental Illness
The colonial-era legislation contained inhumane language for people suffering from mental illnesses. Throughout the Indian Penal Code, terms like “unsound mind” and “insane person” were used for people suffering from mental illnesses. However, the government has corrected the language to exclude such terms from the proposed code.
The government has further defined people suffering from “mental illness” as u/s 2 of the Mental Healthcare Act (2017). The term “mental illness” is defined as “a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence,” under the Mental Healthcare Act.
Decriminalised Attempt to Commit Suicide
Section 309 of the Indian Penal Code criminalises the attempt to commit suicide and punishes it with simple imprisonment which may extend to one year. However, no such provision has been included in the Bharatiya Nyaya Sanhita.
However, the government has introduced a provision to penalise the attempt to commit suicide with the intent to compel or restrain a public servant from discharging official duty in Clause 224 of the proposed code. Under Clause 224, the convict could be punished with simple imprisonment with may extend to one year, or with a fine, or with community service.
The government has retained the provisions criminalising the abetment of suicide. Sections 305 & 306, which penalise ‘abetment of suicide of child or insane person’ and ‘abetment of suicide’ have been incorporated in Clauses 105 & 106 of the proposed code respectively. Notably, the term ‘insane person’ has been amended to ‘person with mental illness’ in Clause 105.
Community Service as a Form of Punishment
Clause 4 prescribes punishments to which offenders of the Sanhita are liable under. Clause 4(f) introduces ‘Community Service’ as a form of punishment for the offenders. The government has prescribed community service as a form of punishment for petty offences.
Under Clause 200, which penalises public servants unlawfully engaging in trade, the government has prescribed that such public servants could be punished with simple imprisonment extending to one year, or with a fine, or with community service.
Under Clause 301(2), which prescribes punishment for theft, the government has included a proviso which prescribes community service as the sole form of punishment deliverable upon first-time offenders in cases where the value of the stolen property is less than Rs 5,000.
The proposed code also prescribes community service as one of the forms of punishment related to non-appearance in response to proclamation u/s 82 of the Bharatiya Nagarik Suraksha Sanhita (Clause 207), attempt to commit suicide to compel or restrain the exercise of lawful power (Clause 224), misconduct in an intoxicated state in a public place (Clause 353) and criminal defamation (Clause 354).
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