As India geared to celebrate its 77th Independence Day, the stage for it was set a few days earlier  in the Parliament through introduction of three Bills to replace the Indian Penal Code (IPC), 1860; the Code of Criminal Procedure, 1973; and the Indian Evidence Act, 1872. These are the Bharatiya Nyaya Sanhita (BNS), 2023; the Bharatiya Nagarik Suraksha Sanhita, 2023; and the Bharatiya Sakshya Bill, 2023 respectively.

While the proposed changes were intended to mark a break from colonial continuities by repealing statutes drafted around 160 years ago, the actual extent of this break has been questioned by experts and lawyers. We briefly look at the big changes brought about by the BNS, which is intended to replace the IPC, the main legislation that describes criminal offences and provides punishments for their commission. 

This is a summary of Project 39A’s annotated review: Bharatiya Nyaya Sanhita Bill, 2023 & Indian Penal Code, 1860: An Annotated Comparison.

BNS proposes to remove sedition as an offence, currently covered by section 124A of the IPC, which includes acts that cause (or attempt to cause) any hatred, contempt, or disaffection towards the government; and is punished with imprisonment ranging from three years to life. However, a concerningly similar provision is found in clause 150 of the Bill, which punishes ‘Acts endangering sovereignty, unity and integrity of India’. 

Indeed, clause 150 goes a few steps further and increases the scope of the provision by covering all acts which excite (or attempt to) “secession, armed rebellion, or subversive activities, or… feelings of separatist activities, or endangers sovereignty, unity and integrity of India.” There is no accompanying explanation for what amount amounts to sovereignty, unity and integrity or endangerment thereof.

In addition to clause 150, a new offence of ‘terrorist act’ has been introduced through clause 111 of the Bill. Terrorist activities are not covered by the IPC. The new definition borrows heavily from the definition provided under section 15 of the Unlawful Activities (Prevention) Act, 1967 or UAPA, in classifying any act that intends to threaten ‘the unity, integrity and security of India’ as terrorist. 

Clause 111 contains new elements, also, as acts intending to, amongst other things, ‘intimidate’ any segment of the public or ‘disturbing public order’ may also be treated as terrorist activities. Similarly, influencing any government official to do any act which may ‘destabilise social structures of the country’ is also a terrorist act under the clause. It may be noted that ‘social structures’ has not been defined in the Bill.

‘Terrorist organisation’ has been defined to include any organisation that commits, participates in, prepared for, promotes, organises, contributes to, or is involved in acts of terrorism. This may be compared with the UAPA, where organisations notified publicly by the union government were classified as terrorist organisations.

Similarly, the offence of ‘organised crime’ has been introduced in the BNS through clause 109, when no such offence exists in any legislation outside of Gujarat and Maharashtra. It refers to any criminal activity committed by or on behalf of a group of three or more persons, who act as members of gang, mafia, or crime ring. 

Apart from this, even helping any person in committing such crime, or helping them hide after they have committed a crime, is also punishable with imprisonment ranging from five years to life. Even holding property derived from commission of an organised crime, such as buying a house with money earned from committing an organised crime, is punishable with life imprisonment.

Another patently new offence has been introduced to target mob-lynching or hate crimes. Although not defined by either description in the Bill, it has been made punishable in clause 101(2) ‘punishment for murder’. In particular, when “a group of five or more persons” together commits a murder based on grounds such as race, caste and ‘any other ground’ (religion is not specifically mentioned), they may be punished with imprisonment ranging from seven years to life, or with death. Punishment for ‘just’ murder is identical to section 302 of IPC. Unlike clause 101(2), ‘just’ murder is punishable only with life imprisonment or death.

Significant changes have also been brought about in the law on sexual violence.

Sexual intercourse with a woman, where consent of the woman has been obtained deceitfully (such as on the basis of a promise which the man does not intend to fulfil), is punishable under clause 69 of the Bill. The new offence is not described as rape in the Bill. Such cases were previously charged as ‘rape’ under section 375 of the IPC. At the same time, section 377 of the IPC which punished ‘Sexual intercourse against the order of nature’ has been deleted. 

The provision was earlier used to prosecute cases of consensual sexual intercourse between men, until the same was prohibited by the Supreme Court in Navtej Johar vs Union of India (2019). The provision remains in the IPC, to prosecute the rape of men by other men. Thus, the deletion of section 377 has created a lacuna in the Bill.

In contrast to this, however, the laws on kidnapping of children, trafficking, employing or procuring minors to commit offences (including pornography) have been made gender neutral. Thus, these laws will now protect children of both genders, whereas in the IPC, these provisions only protect minor girls. Similarly, the language in the offences of assault and voyeurism has been changed so that persons of any gender may be charged with these offences.   

Besides the creation/deletion of offences, punishments have also been changed en masse in the Bill. One of the notable changes is that under the Bill, a man may be sentenced to death for the rape of a girl younger than 12 years of age under clause 65(2). 

Moreover, where a girl below 18 years is gang-raped, the accused may be punished with life imprisonment or death. Currently, the IPC only provides for death only in cases of gang-rape where the girl was below 12 years.  This proposition, however, does not alter the landscape significantly: the Protection of Children from Sexual Offences Act, 2012, also provides for the punishment of death only in cases of ‘aggravated’ sexual assault against all children, which includes rape of a child below 12 years of age.   

An important innovation in the Bill is the introduction of ‘community service’ as punishment. This punishment has been provided for ‘petty’ offences such as public servant engaging in unlawful trade; attempt to commit suicide with the intent to influence a public servant; theft of property which is lesser than Rs. 5,000; drunken misconduct; and defamation. It may be noted that no description or definition of community service is provided in the Bill.

A final change of note is that outdated terminology like ‘unsoundness of mind’ and ‘lunacy’ has been replaced with ‘mental illness’ instead.

A comparative exercise for the Bills was undertaken by Project 39A, a criminal justice organisation at National Law University, Delhi. They have prepared Bharatiya Nyaya Sanhita Bill, 2023 & Indian Penal Code, 1860: An Annotated Comparison, an annotated version of the BNS, which highlights the changes in the text of the Bill and specifies the corresponding provision from the IPC.

(This summary was drafted for Article 14 by Stuti Rai, a lawyer at Project 39A, National Law University, Delhi. The comparative document was prepared by the Project 39A team along with four students at National Law University, Delhi.)