A COMPARATIVE STUDY OF THE INDIAN PENAL CODE AND THE BHARATIYA NYAYA SANHITA

• Introduction

India’s criminal law has changed dramatically over millennia, beginning with the early codifications of Manu, who recognized and classified different offences such as assault, theft, and adultery. With the arrival of British colonial control, India’s legal environment suffered major changes. The British imposed a diverse set of laws based on their own legal system, with little uniformity across the Indian subcontinent. Recognizing the importance of a coherent legal code, the British established the first Indian Law Commission in 1834 under Thomas Babington Macaulay. This commission’s efforts culminated in the development of the IPC, which was implemented in 1860[i] following various amendments and deliberations. Despite criticisms of its colonial roots and alleged deficiencies in handling contemporary concerns, the IPC has remained the cornerstone of Indian criminal law.

The Bharatiya Nyaya Sanhita (BNS)[ii] Bill was introduced in the Lok Sabha in August 2023, paving the way for the IPC’s eventual replacement. The BNS recommends a number of reforms, including community service for minor offences, increased protections and penalties for crimes against women and children, and gender-neutral legislation. It also addresses developing challenges like as terrorism and organized crime by enacting new offences with severe penalties. Furthermore, the BNS integrates the concepts of the reformative theory of punishment, which prioritizes rehabilitation over retribution.

This shift towards reformative justice is based on Mahatma Gandhi’s idea that “an eye for an eye blinds the whole world”. This approach has been repeatedly supported by Indian courts, as seen by judgements such as Gulab Singh v. Yuvraj Singh (1994)[1], in which the Supreme Court emphasized the reformative purposes of India’s criminal system.

This study seeks to critically evaluate the proposed BNS in comparison to the IPC, determining whether the new law effectively solves the inadequacies of its predecessor.

• IPC Approach Towards Crime And Punishment[iii]:The Indian Penal Code of 1860, as stated earlier, serves as India’s criminal code. It outlines various criminal behaviors, their nature, and the corresponding penalties and punishments.It has been changed several times to reflect changing times. As social standards evolve, the understanding of criminal justice has matured, emphasizing the ongoing need for changes to ensure fairness, proportionality, and rehabilitation in the justice system.

The Indian Penal Code (IPC) is more aligned with the principles of Retributive and Deterrent Justice in its approach to punishment[2]:

While the IPC strongly integrates retributive and deterrent features, it also allows for reformative justice, particularly through judges’ discretion in sentences. The IPC allows for the evaluation of mitigating elements that may influence the severity of the punishment, demonstrating an explicit acknowledgment of the importance of balancing retribution, deterrence, and rehabilitation.

• Need of Reform[3]:

The Indian Penal Code (IPC) needs updating to reflect modern society and ideals. Changes in crime perception, criminal activity, and social values should influence laws. The Act the British passed to meet their needs has failed the people today. British colonial beliefs about governing India underpin it. Changing the IPC is necessary to give power to the people.
Due to changing economic conditions and technical advances, several IPC provisions need updating. Grave damage crimes are sentenced unevenly. Life-threatening chain-snatching incidents are not considered under the IPC, and no punishment is given. Police call it robbery or theft. Reforming and updating the IPC is necessary to standardize punishment.
Since its conception, the IPC has undergone adjustments to evolve, but not comprehensive updates.

The Indian Penal Code (IPC) needs a gender-neutral definition of rape to promote inclusivity and societal reintegration. While some adjustments have been made based on judicial decisions, criminal law should shift towards a reformative philosophy focused on rehabilitation and societal reintegration of offenders[iv].

• Women are the only victims of rape under IPC 375.
• The 1898 sedition statute under Section 124A of the IPC has been misused to target critics of the administration, underlining the need for reform and clarity in its application.
• Section 57 of the IPC limits judges’ discretion in sentencing, resulting in inconsistent sentences based on crime severity because it sets a fixed period of 20 years for life imprisonment.
• According to Section 294 of the IPC, harassment in public places is prohibited, however the phrase ‘obscene’ is often misinterpreted and misused by law enforcement. A clear definition is needed to avoid misunderstanding.
• Chapter 3 of the IPC limits punishments to imprisonment or fines, eschewing community service or rehabilitation programmes. Diverse sentencing tactics are necessary to accommodate offender needs and promote rehabilitation. Nobody mentions community service or criminal reform.
• Key Features and Changes Proposed by BNS in Comparison TO IPC:

The Bharatiya Nyaya Sanhita (BNS) introduces comprehensive reforms aimed at modernizing the Indian criminal justice system, reflecting contemporary societal values and addressing modern criminal activities. This document outlines the key features and changes proposed by the BNS, highlighting its progressive approach compared to the Indian Penal Code (IPC).

Structure and Scope

In contrast to the IPC’s complex structure, the BNS offers an improved and streamlined organization. It consists of 19 chapters and 356 sections, compared to the IPC’s more convoluted arrangement. The BNS recommends revisions to 175 existing provisions, adds 8 new sections, and deletes 22 IPC provisions. It largely retains the IPC’s core provisions while introducing new offences, eliminating those declared invalid by courts, and increasing penalties for several offences.

The following document discusses the key features and changes proposed by the Bharatiya Nyaya Sanhita (BNS):

1. Community service as a form of punishment

Section 53 of the IPC explicitly provides five kinds of punishments for which offenders are liable:

• Death
• Imprisonment for life
• Imprisonment, which has two descriptions, namely:

1. Rigorous, that is, with hard labor
2. Simple

• Forfeiture of Property
• Fine

Section 4 of the BNS, which aligns with Section 53 of the IPC, introduces community service as a punishment alongside the existing five penalties, mostly for petty offences.

Community service, to put it simply, is unpaid labor that offenders may be required to perform as a form of punishment rather than being imprisoned.

Supreme Court Rulings: The BNS conforms to some Supreme Court decisions. These include omitting adultery as an offence and adding life imprisonment as one of the penalties (in addition to the death penalty) for murder or attempt to murder by a life convict.

2. Stricker laws on sexual offences:

BNS Section	Corresponding IPC Section	Key Provisions and Changes
Section 64	Section 376	Increased Punishment: Increases the punishment for rape from seven years to ten years. Explicit Punishment Type: Specifies that the punishment is rigorous imprisonment.
Section 70	Section 376 DB	Death Penalty for Gang Rape: Stipulates the death penalty for gang rape of women under the age of 18.
Section 72	N/A	Victim Identity Protection: Introduces a new law that protects the identities of sexual assault victims.
Section 69	N/A	False Promises and Deceit: Criminalizes engaging in sexual activities through dishonest methods or making false assurances of marriage.
Section 139	Section 366B	Importing for Illicit Intercourse: Expands the offence to include importing boys under the age of 18 for illicit intercourse, in addition to girls under 21.

3. Removal and addition of laws:

• Organized crime: This includes crimes such as kidnapping, extortion, contract killing, land grabbing, financial scams, and cybercrime carried out on behalf of a crime syndicate. Attempting or committing organized crime will be punishable with death, life imprisonment, and a fine of Rs 10 lakh if it results in the death of a person. Alternatively, the penalties include imprisonment ranging from five years to life and a fine of at least five lakh rupees.
• Section 111 of the BNS defines terrorism and the Terrorist Act as offences for the first time.
• Section 302 introduces a new provision on ‘snatching’. It stipulates that anyone found guilty of snatching faces a maximum three-year prison sentence and a fine.
• Section 66A of the BNS updates laws and penalties to effectively combat the rising threat of cybercrime and digital offences, ensuring legal measures keep pace with technological advancements.
• The BNS has undergone significant changes, including the replacement of archaic and insulting phrases such as “lunatic person” and “person of unsound mind.” More delicate language, such as “person with mental illness” or “having an intellectual disability,” has replaced all these references.
• The sedition law will be repealed and replaced.
  The proposal in the BNS to completely repeal “sedition laws” stands out the most. Section 150 will retain provisions under the proposed scrapping of the sedition law for acts endangering the sovereignty, unity, and integrity of India.
• Section 375 of the BNS proposes a gender-neutral definition of sexual offences. This inclusive approach aligns with contemporary understandings of gender equality and protects all genders from sexual assault.
• Negative Modifications and Gaps:

While the majority of the BNS’s modifications are positive, several have also caused serious issues, and some are still in place[v].

1. There is no definition for community service.

• As was already indicated, the addition of community service as a form of punishment is one of the improvements brought about by BNS. Nevertheless, the measure does not provide a clear definition of community service. Sentence disputes cannot be completely ruled out in the absence of such a prescription.
• A few unique cases required odd kinds of community work. For example, they were instructed to perform temple tasks, provide money to a gaushala, or distribute Quranic copies.
• It’s probable that more instructions with comparable religious undertones or that supported patriarchal (or other damaging) standards existed, even though some of these were eventually overturned.

2. Gender Bias

• When it comes to rape and sexual assault cases, there is no appropriate procedure for obtaining gender neutrality.
• Gender neutrality in rape and sexual assault laws refers to the idea that the criminal code should acknowledge that rape can be committed by men, women, and transgender persons as well as by them.
• The Criminal Law Amendment Bill, which sought to make major modifications to Indian criminal laws gender-neutral, was filed as a private member’s bill in 2019.
• However, BNS and IPC both identify men as the perpetrators of sexual assault and rape, while solely acknowledging women as the victims of such crimes.
• According to Section 375, raping a woman is illegal. The Supreme Court interpreted Section 377’s definition of “intercourse against the order of nature against any man, woman, or animal” as excluding consenting adult sex. This implied that having sexual relations with an animal is illegal, just as having sex against your will with an adult male. The POCSO Act of 2012 makes child rape, regardless of gender, a criminal offence.
• Section 377 is not retained by the BNS. This suggests that having sex with an animal or raping an adult man will not be illegal under any circumstances. The recommendation of the Standing Committee on Home Affairs (2022) is to reinstate this particular provision.

3. Colonial Law

• There have not been any notable modifications to the Sedition Law.Under the proposed Section 150, it will still be unlawful to do anything that “excites or attempts to excite” secessionist actions or “encourages feelings of separatist activities”. But in order to file charges, it won’t be required to encourage violence or disturb the peace.
• Almost everything that is currently considered sedition under subsection 124A of the IPC is covered under section 150, including plays, speeches, newspaper articles, books, and articles.

4. There are no broad exclusions to criminal responsibility recognized under the basis of mental illness.
5. The term “petty organized crime” is not well defined.
6. There is overlap between special laws and the BNS[4]:

Provision	BNS	Special law
Adulteration of food or drink for sale	BNS Clause 272,273	The Food Safety and Security Act, 2006
Adulteration of drugs, and sale of adulterated drugs	BNS Clause 274.275	The Drugs and Cosmetics Act, 1940
Unlawful compulsory labor	BNS Clause 114	The Bonded Labour System (Abolition) Act, 1976
Abandoning a child	BNS Clause 91	The Juvenile Justice Act, 2015
Rash driving	BNS Clause 279	The Motor Vehicles Act, 1988

• Suggestions for Enhancing Improvements in the BNS:
  The BNS is a major departure from the IPC and establishes a more modern and inclusive legal framework. Despite its positive reforms, the BNS might be made more effective and equitable. Key proposals for improving BNS legal reforms:Addressing Law Misuse and Preventing It:
• Laws protect citizens and maintain social order, yet they can be abused. This misuse must be addressed to ensure fair and just rules.
• Specific Provisions Against Misuse: Include specific penalties for legal misuse in sensitive areas including domestic abuse, dowry, and sexual harassment in the BNS. False accusations of personal gain or vendetta should be punished severely.

2. Enhancing Gender-Neutral Laws for Equality and Inclusivity: The BNS provides admirable gender-neutral sexual crime definitions in Section 375. To fully address gender neutrality in law, more expansion and clarification are needed.

• Gender-Neutral Framework: Expand gender-neutral rules beyond sexual offences include domestic violence, harassment, and discrimination. This guarantees equal legal protection and regard for all genders.
• Maintaining inclusive definitions Inclusive Legal terminology: Make sure all legal terminology represents multiple gender identities. Terminology must be updated to reflect non-binary and transgender people in legal language.

3. Ensuring IPC Continuity and Adaptability with Amendments

• The BNS seeks to replace the IPC, yet it has underpinned the Indian legal system for over a century. Strategic IPC changes could maintain continuity while implementing reforms.
• Selectively Amending Outdated IPC Sections: Focus on updating outdated or faulty IPC parts rather than changing the code. This method maintains legal stability while changing it to meet current ideals and issues.

[1]Gulab Singh Vs Yuvraj Singh &Or’s (SC) 1994

[2]Analysis of Punishments under IPC. (n.d.). https://www.legalserviceindia.com/legal/article-11956-analysis-of-punishments-under-ipc.html

[3]Verma, A. (2021, January 18). Need for revamping the Indian Penal Code – iPleaders. iPleaders. https://blog.ipleaders.in/need-revamping-indian-penal-code/

[4]The Bharatiya Nyaya Sanhita, 2023. (n.d.). PRS Legislative Research

https://prsindia.org/billtrack/the-bharatiya-nyaya-sanhita-2023

[i]Indian Penal Code, Act No. 45 of 1860

[ii]Dr.B. Ramaswamy-Criminal Manual, published by PROFESSIONAL’S, in 2024.

[iii]Universal’s-Criminal Manual, published by Lexis Nexis, in 2023.

[iv]ezyLegal. (2023, February 8). IPC: The Cornerstone of Indian Criminal Justice System. EzyLegal. https://www.ezylegal.in/blogs/indian-penal-code-ipc-1860-understanding-the-criminal-law-of-india

[v]Comparative Analysis Between Indian Penal Code, 1860 And Bharatiya Nyaya Sanhita, 2023. (n.d.). https://www.legalserviceindia.com/legal/article-13254-comparative-analysis-between-indian-penal-code-1860-and-bharatiya-nyaya-sanhita-2023.html

Written by: Aisha Adil, student of Anjuman-I-Islam’s Barrister A.R. Antulay College of Law