Understanding The Bharatiya Nyaya Sanhita, 2023

Overview: The year 2023 witnessed the introduction of three significant bills in the Lok Sabha, namely the Bharatiya Nyaya Sanhita, 2023 (BNS), the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), and the Bharatiya Sakshya Bill, 2023 (BSB). These legislative measures aimed to replace the established legal framework comprising the Indian Penal Code, 1860 (IPC), the Code of Criminal Procedure, 1973 (CrPC), and the Indian Evidence Act, 1872 (IEA), respectively. The primary objective behind these bills was to modernize the existing legal infrastructure and reform the criminal justice system.

Introduction to Bharatiya Nyaya Sanhita 2023

About the New Act: In terms of their approach to justice, the Bills sought to transition towards a reformative justice system by incorporating provisions for community service as an alternative to incarceration. However, it's worth noting that they predominantly retained the punitive aspects of the current criminal justice system.

Another noteworthy aspect was the retention of certain offenses from the IPC and CrPC within these Bills, which, in some cases, might pertain to civil disputes causing harm to individuals rather than offenses against the public or the state.

One critical point of discussion revolved around whether the Bharatiya Nagarik Suraksha Sanhita (BNSS) should encompass both criminal procedure and the maintenance of public order within its scope, as these two areas were addressed in the same legislation.

The Bills also retained several provisions from the IPC, which had already been incorporated into other specialized laws. The potential removal of such duplicative provisions could contribute to reducing inconsistencies and administrative redundancy. Furthermore, these Bills introduced new provisions from other specialized laws, particularly in the context of terrorism and organized crime.

An area of concern was the retention of the minimum age for criminal responsibility at seven years, a threshold lower than the international standards established by conventions and other jurisdictions.

Regarding the issue of undertrials in jails, the BNSS maintained the existing provisions from the CrPC and imposed restrictions on bail for accused individuals with multiple pending cases. The legislation did not permit plea bargains for lesser offenses.

One notable omission was the absence of codified directions from courts, including those related to anticipatory bail and arrest procedures. Additionally, several recommendations made by high-level committees concerning arrest, confessions, bail, and the death penalty were not incorporated into the Bills.

Addressing institutional challenges within the justice system, such as police vacancies and inadequate forensic capacity, was not within the scope of these Bills.

Lastly, certain gaps in the definition of offenses, drafting errors, and the use of outdated illustrations were observed in the Bills.

This legislative overhaul marked a significant milestone in the evolution of the Indian criminal justice system. However, it also raised critical questions and concerns, necessitating further examination and deliberation by relevant authorities and stakeholders.

Codifying Supreme Court and High Court Directions

The courts have established procedural guidelines for various aspects of the criminal justice system. There are compelling reasons to codify these procedures and directives into law. Firstly, numerous court judgments may address the same issue, making them inaccessible or challenging for the general public and law enforcement personnel to comprehend.

Secondly, the legislative body possesses the constitutional authority and the necessary deliberative processes to enact comprehensive laws with adequate safeguards, while the courts primarily serve to fill gaps in existing legal frameworks. A notable example is the Vishakha judgment, which laid down guidelines to safeguard women from workplace sexual harassment, subsequently leading to the enactment of a parliamentary Act in 2013.

These Bills partially adhere to this principle. The Bharatiya Nyaya Sanhita (BNSS) introduces a provision mandating each state to create and announce a witness protection scheme aimed at safeguarding witnesses. This inclusion can be attributed to the repeated emphasis by the Supreme Court on witness protection, as exemplified by the implementation of the Witness Protection Scheme in 2018. Nevertheless, certain other aspects, such as those concerning arrests and bail, remain uncodified within the Bills.

Given that these functions are performed by police officers and judges nationwide, codifying them would promote uniformity in implementation. For instance, the Supreme Court's ruling in 2021 stipulated that for offenses punishable with imprisonment of up to seven years under the Indian Penal Code (IPC), the court may consider bail applications in the presence of the accused without the need for taking them into custody.

Overlap between the Bills and Special Laws

When the Indian Penal Code (IPC) was initially enacted, it encompassed all criminal offenses comprehensively. However, over time, specialized laws have been introduced to address specific subjects and related offenses. Some of these offenses have been excluded from the Bharatiya Nyaya Sanhita (BNS). For instance, offenses related to weights and measures, which were incorporated into the Legal Metrology Act, 2009, have been omitted from the BNS.

Nevertheless, several offenses are still retained within the BNS, including those related to food and drug adulteration, bonded labor, motor vehicles, and human trafficking. Additionally, the BNS introduces offenses related to terrorism and organized crime, even though these offenses are already covered under relevant special laws.

The duplication of laws in certain cases can result in parallel regulatory and administrative frameworks, potentially leading to increased compliance burdens and costs. Furthermore, penalties for identical offenses may vary across these laws, and some laws may provide different definitions for the same subjects.

Eliminating provisions related to such offenses could eliminate duplication, mitigate possible inconsistencies, and reduce the presence of multiple regulatory regimes. For specific examples of such overlaps, please refer to our Legislative Briefs on the BNS and Bharatiya Nagarik Suraksha Sanhita (BNSS).

Criminal Identification: In 2006, the Code of Criminal Procedure (CrPC) was amended to grant Magistrates the authority to collect handwriting or signature specimens from individuals. The BNSS extends this provision by enabling Magistrates to collect finger impressions and voice samples and broadens the scope of individuals from whom data may be collected.

The Criminal Procedure (Identification) Act, 2022, permits the collection of more extensive identifiable information about individuals for investigations, including biological samples, and allows the collection of data from individuals who may not be the accused. The question arises whether there is a necessity for this provision if it is already covered by an existing law with broader provisions for data collection.

Gaps in the Law and Drafting Issues

The Bill exhibits gaps that are not addressed in other laws. For instance, the BNS removes the previous Section 377 of the IPC, leaving no legal provision to classify the rape of an adult man as an offense. Additionally, there are several instances of drafting errors, such as the substitution of "provided that" with "unless," which reverses the circumstances under which an intoxicated person cannot be held liable for an offense.

Furthermore, there are illustrations within the Bill that have become obsolete, referring to items like swords, horsewhips, cannons, chariots, and palanquins. Illustrations are intended to facilitate the understanding of what falls under a particular section for the public and judges alike, and therefore, they should pertain to examples found in everyday life. For specific examples of gaps, drafting errors, and outdated illustrations, please consult our Legislative Briefs on the respective Bills.