Introduction
This substantive analysis of the Bharatiya Nyaya Sanhita Bill 2023 aims to assess the major changes being proposed to offences as they currently exist in the Indian Penal Code, 1860. On a simple textual comparison, it is evident that large portions of the IPC have been retained verbatim in the BNS. However, in the parts where major changes have been made there is much to analyse and understand. The introduction of offences, the importing of offences from other legislations (with some changes), and deletion of IPC offences have important implications that need to be assessed.
In this substantive analysis of provisions, there are 11 issues that in our opinion are the most prominent changes proposed in the BNS and which we have analysed in-depth. The other changes that do not receive a detailed assessment have been identified towards the end of this document for the reader’s convenience.
In terms of the issues that are analysed in detail there are serious concerns of expansive criminalisation through vague and unclear language. The use of vague and unclear language has plagued the IPC since its inception and it is instructive that such drafting language continues to be used. The vagueness, effectively, widens the scope of police powers and exacerbates concerns about the arbitrary exercise of such powers. The provisions on ‘false and misleading information’ and ‘acts endangering sovereignty, unity, and integrity of India’ are prime examples of this. Curiously, in provisions of the BNS that bring in offences from other existing legislations on terrorism and organised crime, the scope of activities that have been criminalised is wider. Also, the protections envisaged under those legislations (even though those protections were themselves inadequate) have not been incorporated in the BNS or in the Bharatiya Nagarik Suraksha Sanhita Bill 2023. In provisions like sexual intercourse by deceitful means/promise to marry without intention of fulfilling it, the BNS seems to have worsened the legal position in its attempt to convert the judicial position into a legislative provision. However, there is a proposed provision to make the legislative provision on the marital rape exception as applicable to minor wives consistent with the Supreme Court’s decisions. While retaining the marital rape exception, the proposed provision makes the exception applicable only for wives who are above 18 years. The inclusion of ‘community service’ as a possible punishment is certainly a progressive development. However, in a worrying trend, punishments across the board have been enhanced, and includes sentences of life imprisonment without parole. Another change that the BNS proposes is replacing ‘unsoundness of mind’, a
phrase which commentators have for long criticised because of its vagueness, with mental illness. However, a simple swapping of the phrases does not resolve the problems associated with provisions such as the insanity defence. Such a swapping, in fact, may create conflicts with existing legislation on mental health and disability.
The proportion of text retained from the IPC in the BNS alongside the changes raises an obvious question. Why is the repeal of the entire IPC and re-enactment of a new substantive offences law required when amendments would surely suffice? It is evident there is significant reordering and changes in placement of the provisions but the content of the provisions are to a very large extent a verbatim reproduction of IPC provisions. This extensive verbatim retention of IPC provisions does not justify an exercise of repeal and re-enactment. Repeal and re-enactment will unleash widespread administrative and legal confusion in the police and other investigation agencies, the bar, different levels of judiciary and also prisons. It is doubtful where such widespread consequences can be justified for an exercise that is for most parts only about moving around existing provisions in the IPC.