Not an Open and Shut Case (GS Paper 2, Governance)
Introduction
- India has witnessed a seismic shift in its criminal law framework.
- The Bharatiya Nyaya Sanhita, 2023 (BNS) has replaced the Indian Penal Code (IPC), 1860.
- Similarly, the Bharatiya Sakshya Adhiniyam, 2023, has succeeded the Indian Evidence Act, 1872, and the Bharatiya Nagarik Suraksha Sanhita, 2023, has supplanted the Code of Criminal Procedure, 1973.
Continuities in the Bharatiya Nyaya Sanhita (BNS)
Retention of IPC Provisions:
- Extent of Retention: Experts suggest that 80 to 90 percent of the IPC is retained in the BNS, 2023. The essence of the provisions has been maintained, even though the provision numbers have been revised.
- Key Offenses Unchanged: Provisions relating to culpable homicide, murder, assault, forgery, criminal intimidation, defamation, and rape remain largely unchanged. For instance, murder, previously addressed in sections 300 and 302 of the IPC, is now covered under sections 101 and 103 of the BNS.
Minimal Revisions from IPC to BNS
Sedition and Negligence:
- Sedition: The offense of sedition (now section 152 BNS) has been retained but with an expanded definition and increased punishment. It now includes acts endangering sovereignty, such as exciting secession or armed rebellion. Punishment has been increased from three years to life imprisonment.
- Negligent Medical Practice: The BNS specifically punishes death caused by negligence of a “registered medical practitioner” while performing a medical procedure, addressing a gap in the previous legislation (section 304A IPC).
Reform in Theft Provisions:
- Community Service for Petty Theft: Section 303 of the BNS introduces community service for first-time offenders where the value of stolen property is under Rs 5,000. This is a progressive step considering most thefts are petty.
Redefinitions in the Bharatiya Nyaya Sanhita
Organized Crime and Terrorism:
- Unified Framework: Unlike previous legislative practices that maintained separate statutes for organized crime and terrorism (e.g., UAPA and MCOCA), the BNS integrates these under general criminal law.
- Organized Crime Definition: Section 111 of the BNS includes unlawful activities such as kidnapping, robbery, vehicle theft, land grabbing, and trafficking, committed by two or more persons. Punishments range from five years to life imprisonment.
- Terrorist Acts: Former UAPA offenses are now under section 113 of the BNS, with similar definitional provisions but differing procedural safeguards. Decisions on whether to register cases under BNS or UAPA are now vested in officers of Superintendent of Police rank or higher.
Conclusion
- Law reform is essential in postcolonial nations to align legal frameworks with contemporary values and constitutional principles.
- In the realm of criminal law, this reform must uphold fair trials, the presumption of innocence, and procedural justice.
- The BNS represents a significant step in this direction, integrating old and new legal provisions to create a coherent and updated criminal law system for India.
