The Bharatiya Nyaya Sanhita (“BNS”) is a transformative legal overhaul that reshapes the 163 year old legal landscape with nuanced provisions. In managing the conflict between laws, BNS plays an important role in reforming by being more decisive and concerned towards the many challenges of the Indian Society. This article delves into the key facets of the BNS, exploring its impact on issues ranging from sedition to medical negligence, ushering in a new era of legal precision and societal consideration; it not only focuses on how there will be a positive impact of the changes but also gives in depth criticism of the Sanhita. This law reform seeks to strike a balance between accountability and understanding by criminalizing actions that jeopardize the unity and integrity of our country, and establishing softer penalties for doctors navigating the sensitive healthcare system. But conversely, it has also just merely reordered most of the other provisions, which begs the question- whether it was a fruitful outcome for the society when the major portion of the law remains the same.
The latest iteration of the BNS introduces Chapter V titled “Of Offences Against Women and Child Of Sexual Offences.” This strategic restructuring consolidates all offenses pertaining to women and children into a dedicated chapter at the outset of the Code. This marks a departure from the prior arrangement, where such offenses were dispersed across multiple chapters and sections.
Embarking upon an innovative era in penal methodologies, community service emerges as an avant-garde punitive modality. Community service has also been incorporated as a punitive measure under Section 4. This form of punishment can be applied to various offenses such as attempting suicide to coerce or obstruct the execution of legal authority, defamation, public misconduct due to intoxication, and failing to show up at a designated spot and time. In these cases, community service can supplement the usual penalties, now beckoning the inclusion of community service, introducing a commendable facet to the panorama of punitive repercussions
Further, the imposition of heightened penalties under section 70 for gang rape offenses against victims under 18 years of age serves as a robust deterrent, ensures a more stringent legal response to such heinous crimes and signalling a strong commitment to protecting vulnerable members of society. Consequently, this enhanced punishment aims to discourage and punish perpetrators, contributing to a safer and more just societal framework. Section 73 additionally fortifies the legal system by requiring court permission for the publication of sensitive details, preventing potential bias and safeguarding the privacy of individuals involved in cases of rape, marital issues, abuse of authority, and gang rape. This promotes fair trials, avoids sensationalism, and enhances public trust in the judicial process.
With the latest BNS provision, the government now possesses a dual legal mechanism to prosecute and imprison individuals involved in terrorism. This entails leveraging both the robust but somewhat circumscribed special law (UAPA) with limited procedural safeguards and the broader general law (BNS), which lacks even minimal procedural cover, thereby strengthening the government’s arsenal in combating terrorism.
The meticulous delineation of organized crime under section 111 and economic offenses, coupled with stringent punitive measures, serves as a potent disincentive, mitigating illicit activities and fortifying societal safety through a comprehensive legal framework. It unveils a paradigm shift, exonerating suicide attempts and turning over a new leaf in legal perspective, signalling a more empathetic era that understands mental health challenges with a fresh set of eyes, emphasizing compassion over condemnation.
Hence, a salient feature of BNS is that it aims to strike a fair equilibrium between accountability and the inherent uncertainties in healthcare.
While the proponents argue about the overall efficacy and streamlined structure of the Sanhita, a critical assessment reveals that it merely applies a superficial remedy to an inherently flawed system. One of the primary lacunae of the Sanhita is that no prescribed action has been taken in respect towards gender neutrality in rape and sexual assault. Although the revised section 139 of BNS cites that importing of boys under 18 years of age for illicit intercourse is deemed to be an offence, no heed has been taken towards the recognition of the fact that men and transgender people could also be victim of rape, sexual and domestic violence.
The newly introduced provision, section 69, addressing the offense of a “false promise of marriage,” warrants scrutiny on two fronts. Firstly, it exhibits gender specificity, implying that only a man can deceive a woman and secondly, that it ousts the consent of women. This means that regardless of whether promises of employment, promotion, or marriage influenced the woman’s consent to engage in sexual intercourse, if it is proven that such assurances are deceitful or false, the act of sexual intercourse may be subject to legal consequences. This raise concerns regarding about potential inconsistencies in application of the law and misuse in various instances of filing of false cases, where intention is very difficult to be ascertained. It has been further stressed upon that under section 63 of the code, marital rape has not been granted the status of being criminalised and hence contributing towards the limited scope of recognised conjugal and sexual rights of a women in particular or a spouse in general.
The inclusion of a section on mob lynching is commendable; however, equating the offense’s punishment and procedural aspects with murder oversimplifies a complex issue. It has to be acknowledged that there are varied social and political factors at play here and a very different approach has to be taken into account for determining the guilt or intention and collecting evidence in the case of mob- lynching.
The Sanhita’s attempt to address “petty organised crime,” intending to impose more severe penalties for offenses that generate “general feelings of insecurity” among citizens. However, this approach raises concerns. The problematic aspect lies in prescribing higher punishment based on the perception of insecurity among citizens rather than the nature of the offense itself.
Under this provision, if an individual commits an offense and citizens do not generally feel insecure, they would face a less severe penalty under the standard penal section.
Conversely, if another person commits the same offense, but citizens generally perceive it as causing insecurity, that person would receive a harsher punishment. The distinction in penalties does not stem from differences in the acts committed but results solely from variations in the public’s perception of the acts. The primary rationale for imposing more severe penalties is to enhance deterrence and it typically operates when individuals are aware of the consequences of their actions. Yet, when the severity of punishment hinges on whether the act would “cause general feelings of insecurity,” the offender remains uncertain about whether the offense they are committing constitutes a straightforward “offense” or a petty organized crime.
Finally, the last straw that broke the camel’s back would be section 150 which refers to the “wider variety of actions and behaviour”, alarming towards the vague nature of drafting as this clause results in excessive expansion of arrest powers for the police, fostering the continuation of the exercise of police authority in manners that contravene constitutional norms. Additionally, it also defines an open-ended offence labelled as ‘subversive activities,’ capable of encompassing any political action that the state seeks to discredit. The ambiguous definition of “terrorist acts” could legitimize the suppression of legitimate protests with antigovernment sentiments, posing a threat to constitutional norms.
Henceforth, it is put forward that BNS finds itself at juncture marked by streamlined legal transformations or it just being a mere attempt of being served as an old wine in a new bottle. The comprehensive reforms embedded within the BNS, particularly those pertaining to penal methodologies, reflect a commendable commitment to augmenting justice and fortifying societal well-being. However, a meticulous examination underscores inherent ambiguities and vague drafting within the Sanhita, such as the absence of gender neutrality in addressing sexual offenses or the oversimplified punitive measures raise cogent concerns regarding the equitability and efficacy of the legal framework.
Parochial policy interventions must take cognizance of the fact that such amendments must have stipulated obligations to ensure that individual rights are not jeopardized at the cost of state’s interests. Legal scholars must recognize the imperative that legislators, in addressing disparities in the gravity of offenses subjected to identical penalties, must acknowledge the principle that “higher punishments do not necessarily correlate with a reduction in criminal activity.” While the BNS signifies a stride towards legal exactitude and societal contemplation, its efficacy is contingent upon the rectification of these concerns to establish a harmonized and equitable legal framework for the Indian milieu.
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