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GS Paper II

News Excerpt:

The Bharatiya Nyaya Sanhita (BNS) is the official criminal code in the Republic of India. It came into effect on 1 July, 2024 after being passed by the parliament in December 2023 to replace the Indian Penal Code (IPC), which dated back to the period of British India.

Context of the BNS:

• The Indian Penal Code (IPC), 1860, is India's principal law on criminal offences. Offences covered include those affecting:
  • Human body such as assault and murder;
  • Property such as extortion and theft;
  • Public order such as unlawful assembly and rioting;
  • Public health, safety, decency, morality, and religion;
  • Defamation, and
  • Offences against the State.

Key Features of BNS2: 

• Offences against the body: The IPC criminalizes acts such as murder, abetment of suicide, assault and causing grievous hurt. The BNS2 retains these provisions.
• It adds new offences such as organised crime, terrorism, and murder or grievous hurt by a group on certain grounds.

• Sexual offences against women: 
• The IPC criminalizes acts such as rape, voyeurism, stalking and insulting the modesty of a woman. 
• The BNS2 retains these provisions. It increases the threshold for the victim to be classified as a major, in the case of gang rape, from 16 to 18 years of age.
• The BNS2 omits Section 377 of IPC, which the Supreme Court read down. This removes rape of men and bestiality as offences. 
• It also criminalises sexual intercourse with a woman by deceitful means or making false promises. It adds community service as a form of punishment. 

New Changes brought by BNS 2:

Sedition: The BNS2 removes the offence of sedition. It instead penalizes the following: 

• Exciting or attempting to excite secession, armed rebellion, or subversive activities, 
• Encouraging feelings of separatist activities, or
• Endangering the sovereignty or unity and integrity of India.

These offences may involve exchanging words or signs, electronic communication, or using financial means. 

Terrorism: Terrorism includes an act that intends to:

• Threaten the unity, integrity, security or economic security of the country or Strike terror in the people or any section of people in India.

• Punishment for attempting or committing terrorism includes:

• Death or life imprisonment, and a fine if it results in death of a person or 
• Imprisonment between five years and life, and a fine.

Organised crime: It includes crimes such as kidnapping, extortion and cyber-crime committed on behalf of a crime syndicate. Petty organised crime is also an offence now.

• Attempting or committing organised crime will be punishable with: 
• Death or life imprisonment and a fine of Rs 10 lakh if it results in the death of a person or
• Imprisonment between 5 years and life, and a fine of at least Rs 5 lakh rupees.

Mob lynching:The BNS2 adds murder or grievous hurt by five or more people on specified grounds as an offence.

• These grounds include race, caste, sex, language, or personal belief. 
• The punishment for such murder is life imprisonment or death.

Rulings of the Supreme Court: The BNS2 conforms to some Supreme Court decisions. 

• These include omitting adultery as an offence.

• Adding life imprisonment as one of the penalties (in addition to the death penalty) for murder or attempt to murder by a life convict.

Key Issues and Analysis:

Minimum age of criminal responsibility higher than several other jurisdictions: Advances in understanding how brain biology affects adolescent behaviour have raised questions about how responsible children should be for their actions.

• Under IPC, nothing is considered an offence if committed by a child below the age of seven years. 
• The age of criminal responsibility increases to 12 years if the child is found to not have attained the ability to understand the nature and consequences of his conduct.
• The BNS2 retains these provisions. This age is lower than the age of criminal responsibility in other countries.
• In 2007, a UN Committee recommended that states set the age of criminal responsibility to above 12 years.
• The age of criminal responsibility varies across countries.

The age threshold of the victim for similar offences against children varies: 

• The BNS2 provides for higher penalties in case of offences against children. In most cases, it provides that a victim below the age of 18 years be treated as a child.
• The penalty for rape and gang rape of women and children is different. However, the threshold for a minority of the victim for different offences of rape and, consequently, the penalty varies.
• For gang rape, the penalty differs based on whether the victim is above or below 18 years of age.
• However, for rape, the penalty is different based on whether the victim's age is below 12 years, between 12 and 16 years, or above.
• This is inconsistent with the Protection of Children from Sexual Offences Act, 2012, which classifies all individuals below the age of 18 as minors. 

Sedition Law:

• The government announced the removal of sedition, a significant move following the Supreme Court's May 2022 decision, which deemed the sedition law "prima facie unconstitutional" and virtually stalled its operation. 
• Despite these claims, the Bharatiya Nyaya Sanhita (BNS) reintroduces sedition with a broader definition, adhering to the Supreme Court guidelines from the 1962 Kedarnath Singh case, which upheld the law's constitutional validity.
• The law is renamed from "Rajdroh" (rebellion against the king) to "Deshdroh" (rebellion against the nation) in Hindi.

Male Victims of Sexual Assault:

• Another major concern is the penalization of rape in cases where the victims are male. 
• The BNS, despite its progressive stance, omits the contentious Section 377 of the Indian Penal Code (IPC), which criminalises "carnal intercourse against the order of nature." 
• The Supreme Court's 2018 Navtej Singh Johar v Union of India ruling had read down this provision, decriminalising consensual sex among adults, including same-sex relations.
• However, Section 377 is still used to penalize non-consensual sex and is often the only legal recourse for male rape victims, as specific rape laws apply only to women. 

• The BNS's exclusion of this provision and the lack of gender-neutral rape laws leave male victims of sexual assault with limited legal protection.

Petition against its implementation:

• The petition argues that these laws were passed without thorough parliamentary debate due to the suspension of opposition MPs and lack of public participation.

• Concerns include ambiguous provisions, excessive police powers, and inadequate safeguards for electronic evidence.
• The petition urges the Supreme Court to form an expert committee to assess the laws' viability.

Way Forward:

• Minimum Age of Criminal Responsibility

• • Raise Age Threshold: Increase the minimum age of criminal responsibility to align with international standards, ensuring it is above 12 years.
  • Focus on Rehabilitation: Prioritise rehabilitation over punishment for young offenders, providing educational and psychological support.

• Age Threshold for Victims of Offences Against Children

• • Harmonise Laws: Align BNS provisions with the Protection of Children from Sexual Offences Act, 2012, treating all individuals below 18 as minors.
  • Uniform Penalties: Establish consistent penalties for offences against children, eliminating discrepancies based on varying age thresholds.

• Sedition Law

• • Adhere to Guidelines: Ensure the redefined sedition law follows Supreme Court guidelines to prevent misuse and uphold constitutional rights.
  • Conduct Public Consultations: Refine the law through widespread public and expert consultations, addressing concerns about overreach.

• Male Victims of Sexual Assault

• • Inclusive Legislation: Amend laws to explicitly protect male victims of sexual assault, ensuring comprehensive legal coverage.
  • Develop Support Systems: Create specific legal frameworks and support systems for male victims, including helplines and counselling.

• Petition Against Implementation of New Criminal Laws

• Form an expert committee: To review new laws for robustness and fairness before full implementation.
• Enhance Public Participation: Increase public involvement in the legislative process through consultations and transparent discussions.