Articles 11th Jul 2024

BNS – Speedy Justice or Colonial Rollover?

Authors

Suhail Nathani Managing Partner | Mumbai
Mumtaz Bhalla Partner | New Delhi | Noida

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  • Introduction

    In a significant move, with effect from 01.07.2024, the Republic of India has overhauled its criminal justice system with the introduction of three new laws: the Bharatiya Nyaya Sanhita, 2023 (“BNS”), the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”), and the Bharatiya Sakshya Adhiniyam, 2023 (“BSA”) replacing the Indian Penal Code (“IPC”) of 1860, the Code of Criminal Procedure Code, 1973, and the Indian Evidence Act of 1872 respectively. The intent is to bring significant reforms in the country’s legal framework to ensure speedy justice.

    The BNS has modernized colonial-era laws by explicitly criminalizing offenses that impact contemporary Indian society, eliminating the need for creative interpretation to address such offenses under the IPC. Previously, the Indian judiciary often had to reinterpret IPC provisions to make them relevant to today’s context. In addition to this, several outdated criminal offences have now been removed.

  • Key features of BNS
    • Change in shift in the classification and nature of offences:

    The erstwhile IPC primarily concentrated on offenses against the human body, sedition, theft, unlawful assembly, public health, defamation and offenses against the State. By contrast, the BNS aims to dispel the colonial legacy by modernizing archaic concepts and aligning the law with current societal challenges. Of course, the IPC addresses traditional crimes too, but stricter punishments are prescribed under BNS, ostensibly to deter these crimes.

    • Extraterritorial reach for abetment:

    A significant change in the transnational reach of the BNS is the introduction of Section 47 and 48 in BNS. Section 47 penalizes the abetment of an offense by a person in India, regardless of whether the act takes place within or beyond India’s borders. This allows for the prosecution of such individuals in India. For example, if Person A in India instigates Person B, a foreigner in Country X, to commit the offense of kidnapping in that country, Person A is guilty of abetting kidnapping.

    Additionally, Section 48 makes the abetment of an offense committed by a person outside India, intended to be carried out within India, punishable. For instance, if Person A in Country X instigates Person B to commit the offense of abduction in India, Person A is guilty of abetting abduction. Notably, the erstwhile IPC lacked such extra-territorial provisions for the abetment of offenses.

    • Organized Crime:

    To better understand the construct and likely impact of the changes brought out by BNS, a brief analysis of the treatment of ‘organized crime’ under the BNS is useful.  Previously these offenses were addressed under state enacted laws such as the Maharashtra Control of Organized Crime Act, 1999 (MCOCA) (which was then made applicable to Delhi by the Ministry of Home Affairs, Government of India) and the Gujarat Control of Terrorism and Organized Crime Act, 2015 (GCOCA).

    These specialized laws were given a stamp of approval by the Hon’ble Supreme Court of India in various cases.  In particular, in its decision in State of Gujarat v. Sandip Omprakash Gupta, reported at 2023 CriLJ 651, the Hon’ble Supreme Court consolidated Clause 2 (d) (e) (f) of GCOCA, which is pari materia MCOCA. It held that an organized crime is an activity prohibited by law, which is a cognizable and punishable with imprisonment of three years or more, jointly or severally as a member of an organized crime syndicate, or on behalf of such syndicate, in respect of which, more than one charge sheet has been filed before a competent court within the preceding period of ten years. 

    To address the need for uniformity across the country, ‘organized crime’ is now explicitly recognized as an offence nationwide. Section 111 of the BNS incorporates the jurisprudence established by the Hon’ble Supreme Court.

    Under the BNS ‘Organized crime’ is defined as any continuing unlawful activity either as a member of organized crime syndicate or on behalf of such syndicate by use of violence, threat of violence intimidation, coercion or by any other means to obtain direct or material or financial benefit and includes kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offenses, cyber-crimes, human trafficking, drug trafficking, weapons trafficking, and trafficking of illicit goods or services, in respect of which, one or more than one charge-sheets have been filed before Courts within the preceding period of ten years and Court has taken cognizance of such an offence, it will be considered to be an organized crime.

    Moreover, the inclusion of cyber-crimes in this definition recognizes the sophisticated and evolving nature of organized crime, as criminal organizations adapt to new technologies and opportunities to commit crimes.

    Most of the offences defined under the section of ‘Organized crime’ such as kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, also continue to exist as stand-alone offences under BNS, as they did under IPC It is important to note however that if they are committed by a group of two or more persons, they will come under the definition of an ‘Organized crime’  (jointly or severally), if  one or more than one charge-sheet has been filed before Courts within the preceding period of ten years against either accused and the Court has taken cognizance of such an offence.

    Further there is also a classification of crimes based on their severity. As an illustration, Petty organized crime under Section 112 of BNS is also a new offence and includes theft, snatching, cheating, unauthorized selling of tickets, unauthorized betting or gambling and selling public examination question papers, which are commonly committed as a member of a group or a gang.

    • Mob Lynching:

    Murder of any form has always been punishable as an offence under IPC.

    The Hon’ble Supreme Court of India, in the matter of Tehseen S. Poonawala v. Union of India and Ors. reported at AIR 2018 SC 3354 the Hon’ble Supreme Court, recommended the legislature to create a separate offence for mob lynching and provide adequate punishment for the same, as a special law in this field to create awareness and bring justice to the victims.

    In line with the recommendation, ‘Mob Lynching’ has been provided as a separate offence under Section 103(2) of BNS and is punishable with death or with imprisonment for life and fine. An offence of Mob Lynching is said to have been committed under the Sanhita which in English means “Code”, when a group of five or more persons, acting in concert commit murder on the ground of race, caste or community, sex, place of birth, language, personal belief and the like. Punishment for Mob Lynching is the same as that of murder.

    • Terrorism:

    Section 113 of the BNS introduces a new offense: the “Terrorist Act.” This definition originates from the Unlawful Activities (Prevention) Act, 1967 (UAPA) and is consistent with the definition provided under Section 15 of the UAPA. Recognizing that terror schemes can also be planned overseas, Section 113 is included in the BNS, supported by the expanded territorial reach of Sections 47 and 48. This ensures that no terror accused can escape punishment due to the lack of a precise definition for terrorist acts planned overseas and executed in India.

    Notably, Section 48 of UAPA gives the law overriding effect over other laws.   Although terrorism has been defined as a separate offense for the first time in the BNS, the special law dealing with terrorist acts, the UAPA, remains in force and has not been repealed. A senior government official clarified this on August 11 2024 through various media reports. This dual framework could create an anomaly if an act falls within the purview of both the BNS and the UAPA, as the UAPA, being a special statute, may take precedence over the BNS based on traditional principles of statutory interpretation.

    • Paradigm shift to the Digital Age:

    With the digital age and increasing online crimes, IPC was woefully inadequate to address the new ways of committing offences; especially offences such as Cheating, Cheating by Personation by use of technology and other sophisticated economic offences.

    Cheating and Cheating by Personation was previously tried under Section 416 and 420 IPC along with Section 468 viz. Forgery for the purpose of cheating, r/w the Information Technology Act, 2000, was amended from time to time to keep up with the use of technology. However, no changes were made in IPC to acknowledge the use of technology for the offence of Cheating. While the essential ingredients of Cheating remain the same under BNS, Punishment for Cheating has been enhanced.  Cheating by Personation, which was previously punishable by up to three years under section 419 of IPC is now punishable by upto five years under section 319(2) of BNS.

    Additionally, Section 111 of the BNS classifies and punishes cyber-crime and other ongoing unlawful activities, which are cognizable and punishable with three years or more when committed by a syndicate, as organized crime. This classification provides for harsher penalties.

    Thus, if Cheating defined under Section 318(4) of BNS or Cheating by Personation under Section 319(2) of BNS, is committed as a syndicate, and there is a preceding chargesheet within a period of 10 years of which a Court has taken cognizance, it will constitute an ‘Organized crime’ and will attract higher punishment.

    • Economic Offences:

    In the Report of the 47th Law Commission of India (1972), the Government of India had recognized economic offences as a separate category of crimes that require special attention. The IPC however was not amended to include economic offence as a specific offence. Subsequently, the Prevention of Money Laundering Act, 2002 (PMLA) was enacted to encompass the punishment for Money Laundering of proceeds of crime.

    Section 111 (1) (iii) of BNS now specifically defines an economic offence to include criminal breach of trust, forgery, counterfeiting of currency-notes, bank-notes and Government stamps, ‘hawala transaction’, 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 organization for obtaining monetary benefits in any form. The exhaustive definition points to the intention of the legislature to permit the police to bring within its scope other sophisticated crimes which are economic in nature. If an economic offence is committed as an ‘Organized crime’, punishments are more severe as provided in accordance with Section 111 as opposed to standalone sections.

    • Consolidation of Offences:

    The BNS consolidates offenses into chapters and removes decriminalized offenses. Chapter V of the BNS brings together offenses related to women and children, which were previously dispersed across four separate chapters in the IPC. Offences which were struck down by the Hon’ble Supreme Court such as Section 377 of IPC (Unnatural Offences – which outlawed homosexuality in India) and Section 309 of IPC (Attempt to commit suicide) find no place in BNS, unless attempt to suicide pertains to preventing a public servant from carrying out any public duty.

    Another significant change under the BNS is the introduction of gender neutrality for the accused in offenses such as forced disrobing of a woman (Section 76) and voyeurism (Section 77). Additionally, the offense of ‘importation of a girl’ from a foreign country, previously covered under Section 366 of the IPC, has been made gender-neutral with regard to the victim in Section 141 of the BNS. This section, now titled “Importation of girl or boy from foreign country,” states: “Whoever imports into India from any country outside India any girl under the age of twenty-one years or any boy under the age of eighteen years with the intent that the girl or boy may be, or knowing it is likely that the girl or boy will be, forced or seduced into illicit intercourse with another person, shall be punishable with imprisonment which may extend to ten years and shall also be liable to a fine.”

    Colonial language of “Minor” has been replaced with “Child” and “Insane” with “Person with Unsound Mind”. “Document” now includes electronic and digital records and they are also now included in the definition of movable property.

    • Introduction of a New Form of Punishment:

    In perhaps its most drastic change, the BNS adds community service as a form of punishment.  Traditionally, IPC had provided only four forms of punishment viz. Death Sentence, Imprisonment (Simple and Rigorous), Property forfeiture and Fine. Clearly, with a shift in the mindset from retributive to reformative, Section 4(f) of BNS has been enacted to add a new form of punishment viz. “Community Service”, in order to alleviate the burden on jails and provide individuals with an opportunity to repent after a first offense, or for petty offences, taking into account the societal patterns in India, the population, and the available space in jails. However, the law lacks the definition of ‘Community Service’, leaving its implementation at the discretion of judges.

    By way of example, the offence of defamation under IPC only provided for imprisonment and/or fine as the two modes of punishment. A Petition titled as Subramanium Swamy v. UOI (reported at (2016) 7 SCC 2211), was filed in the Hon’ble Supreme Court to decriminalize the offence of defamation. The Hon’ble Supreme Court, while refusing to decriminalize defamation held that the ‘reputation’ was included in the protection of ‘dignity’, which was part of the constitutionally protected right to life. In order to reach a balance, the BNS does not de-criminalise defamation, but seeks to dilute to severity of the offence of Defamation by providing community service as an alternate form of punishment under Section 356(2) of BNS and thus, giving the judges an option while meting out the punishment.

  • Coverage of New Age Crimes

    Now, the BNS brings in clear sections punishing for heinous acts such as mob lynching, organized crime, terrorism, crimes abetted outside India.  By way of example:

    • The definition of “economic offence” which is a new provision under Section 111(1)(iii), includes the traditional offences of criminal breach of trust, forgery, counterfeiting of currency notes, security papers – all crimes that were already punishable under IPC. Under this same section, the BNS now also includes certain new offences such as mass marketing frauds, running fraudulent schemes, or defrauding a bank/financial institution, which were not specifically covered under the IPC.
    • Similarly, “Organized crime”, under Section 111(1) is defined to mean any continuing unlawful activity, either as a member of an organized crime syndicate or on behalf of such syndicate, by use of violence, threat of violence intimidation, coercion or by any other means, to obtain direct or material or financial benefit and it includes, within its ambit, offenses that already existed in IPC under separate heads, such as kidnapping, robbery, drug trafficking, prostitution and the like.
    • Further there is also a classification of crimes. As an illustration, Petty organized crime under Section 112 of BNS is also a new offence and includes the crime of theft, snatching, cheating, unauthorized selling of tickets, unauthorized betting or gambling and, selling public examination question papers, which are commonly committed as a member of a group or a gang.
    • Now, ‘Petty organized crime’ under Section 112 of BNS is also a new offence which is referred to as the crime of theft, snatching, cheating, unauthorized selling of tickets, unauthorized betting or gambling, selling public examination question papers, committed as a member of a group or a gang.
  • The Colonial Rollover

    A major area of concern is the resurrection of the offense of sedition which was a huge colonial legacy.  The Supreme Court in the year 2022 called for Section 124A of IPC (introduced in 1870 and criminalised sedition) to be kept in abeyance and asked the government to assess whether the provision needs to remain on the statute books.

    It seems that the sedition provisions are back with greater vigour.  Section 152 of the BNS outlaws acts endangering the sovereignty, unity and integrity of India and includes ‘subversive activities’ or encourage ‘feelings of separatist activities’ or endanger the ‘sovereignty or unity and integrity of India.’ Somewhat alarmingly, BNS does not define what constitutes exciting ‘subversive activities’ or encouraging ‘feelings of separatist activities’ and it has been left open to interpretation.

    Under the IPC, courts had held that any speech posing an imminent threat to public order could be classified as sedition. However, Section 152 of the BNS introduces a new provision with a different legislative intent. This shift suggests that the tests established in earlier cases may be reinterpreted, moving beyond the colonial legacy of using sedition laws to suppress free speech.

  • Conclusion

    At many levels, the BNS leaves behind the colonial hangover and will undoubtedly have a profound impact on India’s criminal justice system.

    The intent is clearly justice oriented with due accommodation/regard to the existing society, and the new nature of offences that plague it.  What is most welcome is the inclusion of ‘community service’ as a form of punishment, which enables judges to exercise their discretion while considering the profile of the accused.  Given the notorious delays in the criminal justice system in India, this may actually give first time offenders a chance to reform.

    Defining economic offences and providing severe punishments for economic offences committed as Organized Crime, are likely ensure that speedy justice, which is the need of the hour.  However, attributing the draconian definition of Organised crime to repeat offences of breach of trust, cheating etc could leave some traces of colonial hangover.

    The long shadow of sedition which was designed to arm colonial powers continues to find a place in the BNS, albeit under a new nomenclature, and whether it can be abused to thwart free speech in a robust democracy remains a matter of concern.

    We hope you have found this information useful. For any queries/clarifications please write to us at insights@elp-in.com or write to our authors:

    Suhail Nathani, Managing Partner – Emailsuhailnathani@elp-in.com
    Mumtaz Bhalla, Partner – Email – mumtazbhalla@elp-in.com

Disclaimer: The information contained in this document is intended for informational purposes only and does not constitute legal opinion or advice. This document is not intended to address the circumstances of any individual or corporate body. Readers should not act on the information provided herein without appropriate professional advice after a thorough examination of the facts and circumstances of a situation. There can be no assurance that the judicial/quasi-judicial authorities may not take a position contrary to the views mentioned herein.