Why?
The central government has notified July 1, 2024 as the day on which the recently enacted three criminal laws will come into effect.
Approach:
- Introduce your answer by highlighting the enactment of Bharatiya Nyaya Sanhita (BNS) and its co-legislations to modernize India’s criminal justice system.
- In the main body, discuss the reforms introduced by BNS for addressing modern societal needs, including new crimes, victim support, rehabilitative justice, etc. Highlight concerns like disproportionate penalties, vague definitions, potential conflicts with constitutional rights, etc.
- Conclude by acknowledging BNS’s role in modernizing legal frameworks while emphasizing the need for balancing modernization with rights protection and legal clarity.
Answer:
In a landmark move, India has passed the Bharatiya Nyaya Sanhita (BNS), alongside the Bharatiya Nagarik Suraksha Sanhita and Bharatiya Sakshya Adhiniyam, aiming to modernize its criminal justice system. These new laws are set to replace the Indian Penal Code (IPC), the Code of Criminal Procedure (CrPC), and the Indian Evidence Act, thereby seeking to address contemporary societal needs and align with modern legal principles.
BNS Addressing the Needs of Modern Society:
- Modernization of Legal Definitions and Inclusion of New Crimes: for contemporary issues such as cybercrime and organized crime. By recognizing the evolving nature of criminal activities and incorporating them into the legal system, BNS ensures the law remains relevant and effective.
- The inclusion of organized crime, allows for a more targeted approach to combat syndicates and networks that were previously difficult to prosecute under the outdated IPC.
- Combat cyber threats effectively, such as hacking, identity theft, online fraud, etc.
- Removal of Sedition and Emphasis on National Security: BNS introduces provisions to penalize acts that endanger the sovereignty, unity, and integrity of India, focusing on actions rather than expressions that could be misinterpreted as seditious.
- Addressing Terrorism with Specific Provisions: underscores India’s commitment to maintaining national security and aligns with international efforts to combat terror.
- The definition of terrorism in BNS is designed to encompass a wide range of terror-related activities, ensuring that the law can be applied effectively against evolving terrorist tactics.
- Decriminalization of Certain Acts: that no longer align with modern societal norms or that have been deemed to disproportionately penalize certain behaviors.
- Conforms to rulings of the supreme court like omitting adultery as an offence, decriminalizing homosexuality.
- Provisions for Victim Support and Rehabilitation: especially in cases of sexual violence and trafficking, showcases a more victim-centered approach to justice. This focus ensures that the legal system acknowledges the long-term impact of crime.
- Introduction of Community Service: as a form of punishment reflects a shift towards rehabilitative justice rather than mere retribution.
- For minor offenses like theft of property valued under ₹5,000, offenders may be sentenced to community service.
- Streamlining Legal Procedures: such as investigations and trials to make the legal process more efficient and less cumbersome.
- Expedite the resolution of cases and making justice more accessible and timelier for citizens.
Concerns with Bharatiya Nyaya Sanhita (BNS):
- Disproportionate Penalties and Rights Implications: Section 106(2) introduces severe penalties for failing to report fatal accidents, potentially conflicting with the right against self-incrimination under Article 20(3) of the Indian Constitution.
- Vague Definitions Leading to Legal Ambiguity: Certain provisions, like “petty organized crime” in Section 112, lack precise definitions, leading to potential arbitrariness in application.
- Overlap with Existing Laws: The BNS’s introduction of organized crime and terrorism, already covered under specific laws like UAPA, creates potential overlap and confusion regarding jurisdiction, procedural rules, and penalties.
- Inadequate Consideration of Gender and Marital Rape: By not making the offense of rape gender-neutral or including marital rape as an offense, BNS misses an opportunity to align India’s legal framework with international human rights standards and contemporary understandings of consent and sexual autonomy.
- Potential for Misuse of Broad Offenses: The removal of sedition and introduction of offenses related to endangering sovereignty and unity could still be broadly interpreted, risking misuse against political dissent and freedom of expression.
- Potential Impact on Juvenile Justice: The BNS retains the age of criminal responsibility at seven years, with certain provisions extending to children up to 12 years based on their maturity. This approach does not align with contemporary understanding of child psychology, which advocate for higher ages of criminal responsibility.
- Inconsistencies with International Human Rights Standards: Certain provisions of the BNS, such as those dealing with terrorism and organized crime, might conflict with international human rights standards, particularly concerning fair trial rights and the presumption of innocence.
The Bharatiya Nyaya Sanhita, 2023, represents a significant step towards modernizing India’s legal framework. While it introduces forward-looking changes and addresses key areas of concern, there are notable areas where it could potentially conflict with constitutional principles and emerging legal standards. It is essential to ensure that the BNS effectively balances the goals of justice, security, and individual rights in India’s dynamic societal context.
‘+1’ Value Addition:
- In 2007, a UN Committee recommended states to set the age of criminal responsibility to above 12 years. For instance, in Germany, the age of criminal responsibility is 14 years, whereas in England, it is 10 years.
- Petty organised crime as an offence includes: vehicle theft, pick-pocketing, selling of public examination question papers, any other similar criminal act. To qualify as petty organised crime, such offences must be committed by members of a group or gang.
- BNS retains the IPC provisions on solitary confinement for offences that are penalised with rigorous imprisonment. However, the Supreme Court in 1978 recognised the Law Commission’s recommendation and held that solitary confinement must be enforced only in exceptional cases.
