Comparative Analysis Between IPC & BNS

In an effort to reform India’s criminal justice system, Union Home Minister Amit Shah introduced three bills in the Lok Sabha on August 11, 2023. The previous Indian Penal Code (1860), Indian Evidence Act (1872), and Code of Criminal Procedure (1973), respectively, will be replaced by the Bharatiya Nyaya Sanhita, Bharatiya Saksh Bill, and Bharatiya Nagarik Suraksha Sanhita.

The three proposed statutes have been forwarded to a Parliamentary Standing Committeee, which will undertake in-depth deliberations and is anticipated to present its findings by the start of the next session of Parliament.

This article will analyse the statutory changes made to the Indian Penal Code, 1860, which will be renamed as the Bharatiya Nyaya Sanhita, 2023. In the following, the terms IPC and BNS, respectively, will be used.

By conducting a thorough comparison of sections from the IPC and BNS, the article’s scope would be constrained to just significant changes made to Indian penal law.

Alteration In the Structure

• Inclusive of amendments and additions, IPC is subdivided into 26 chapters that comprise of 576 Sections.
• In contrast to the IPC’s convoluted structure, the BNS has an improved structure having 19 chapters and 356 Sections.
• In addition to proposing revisions to 175 existing provisions and the addition of 8 new sections, BNS also recommends the deletion of 22 IPC provisions.
• In IPC, there was no definition clause. All the interpretation clauses were spread over sections 8 to 52A of IPC.
• The definition of ‘section’ in section 50 of IPC stands omitted by BNS as it is now a word of extensive usage in various legislations and it needs no definition or elucidation.
• Most of these interpretation clauses in sections 8 to 52A of IPC,1860 have been retained in BNS without any change and have been compactly grouped in section 2 of BNS in alphabetical dictionary sequence for ease of reading and reference.

Child

New definition of ‘child’ in section 2(3) of BNS

Transgender

The definition of “gender” in section 8 of IPC recognizes only male and female genders. The new definition of “gender” in section 2(10) of BNS recognizes “transgender” in addition to genders of “male” and “female”

Omission of illustration

Illustration below section 20 of IPC referring to “Regulation VII, 1816, of the Madras Code” has been omitted from the definition in section 2(5) of BNS, as the illustration had become redundant long back with the repeal of Regulation VII by the Madras Civil Courts Act, 1873.

Document [Section 2(8) of BNS/Section 29 of IPC]

Section 2(8) of BNS provides that documents include ‘electronics and digital record’.

Gender [Section 2(10) of BNS/Section 8 of IPC]

Transgender recognised as gender and defined –Definition in section 2(10) expressly refers to transgender and defines the term which was not the case in section 8 of IPC.

 Judge [Section 2(16) of BNS/Section 19 of IPC]

Old Law – Section 19 (IPC, 1860) – “Judge”

• The old law’s definition of “Judge” is quite detailed.
• It states that the term “Judge” includes not only individuals officially designated as Judges but also those who have the authority to render definitive judgments in any legal proceeding, whether civil or criminal.
• This definition encompasses individuals who can make judgments that, if not appealed against, would be considered definitive.
• It also includes members of a body of persons authorized by law to render such judgments.
• The illustrations provided clarify this definition further, including examples of Collectors, Magistrates, and members of a panchayat.

New Law – Section 2(16) – “Judge”

• The new law’s definition of “Judge” is more concise and follows a similar pattern.
• The new law aligns with the old law’s definition but presents the information in a more streamlined manner.

Movable Property [Section 2(21) of BNS/Section 22 of IPC]

Scope of “Movable property” in section 2(21) not limited to property in corporeal form, unlike the definition in section 22

• Section 2(21) of BNS omits the word “are intended to include corporeal” before the word “property” which was there in the definition of movable property in section 22 of IPC.
• Therefore, movable property includes property of every description other than immovable property whether such property is in corporeal (tangible physical) form or not.
• Definition of movable property under BNS will include intangible assets like patents, copyrights, etc., also as well as actionable claims.

Punishments [Section 4 of BNS/Section 53 of IPC]

Section 53 of IPC provided for 5 types of punishments viz. (1) Death; (2) Imprisonment for life; (3) Imprisonment which is of two descriptions–rigorous and simple; (4) Forfeiture of property and (5) Fine.

Section 4(f) of BNS has introduced a new 6^th type of punishment – Community service.

To reduce the burden on jails, community service has been included in BNS as a punishment for the first time and it is being given legal status. [PIB Press Release, dated 20-12-2023]

BNS prescribes Community Service as punishment for petty offences like non-appearance in response to a proclamation, attempt to commit suicide, to compel or restraint exercise of lawful power of public servant, petty theft on return of theft money, misconduct in public by a drunken person, defamation, etc.

The term “community service” is not defined in BNS. However, it is defined by Explanation to section 23 of BNSS to mean the work which the Court may order a convict to perform as a form of punishment that benefits the community, for which he shall not be entitled to any remuneration.

Life imprisonment-The punishment of imprisonment for life has been clearly defined as imprisonment for remainder of a person’s natural life.

Punishment, Fractions of Terms of [Section 6 of BNS/Section 57 of IPC]

Unlike section 57 of IPC, section 6 applies “unless otherwise provided”.

The words “unless otherwise provided” which were not there in section 57 have been added in section 6 at the end of the provision.

Fine, Liability in Default of Payment of Fine, etc. [Section 8 of BNS/Sections 63 to 70 of IPC]

IPC only provided for imprisonment in default of fine only. As there was no punishment of community service in IPC, there was also no imprisonment in default of community service in IPC.

Consequent upon introduction of new punishment of community service [See section 4 of BNS] by the BNS, sub-sections (4) and (5) of section 8 of BNS provide for imposing imprisonment in default of community service.

Fine of community service, default in payment of Under old law for default in payment of fine following punishment followed:

• Fine not exceeding ` 50 – Imprisonment not exceeding 2 months
• Fine not exceeding ` 100 – Imprisonment not exceeding 4 months
• In any other case – Imprisonment not exceeding 6 months
• Under BNS for default in payment of fine or default of community service following punishment follows:
• Fine not exceeding ` 5000 or community service – Imprisonment not exceeding 2 months
• Fine not exceeding ` 10,000 or community service – Imprisonment not exceeding 4 months
• In any other case – Imprisonment not exceeding 1 year

Private Defence of Property, Commencement and Continuance of Right of [Section 43 of BNS/Section 105 of IPC]

Section 105 of IPC provided for ‘house breaking by night’. Section 43 of BNS provides for ‘house breaking after sunset and before sunrise’.

Abetment Outside India for Offence in India (New) [Section 48 of BNS]

Section 48 of BNS is a new provision [NEW]

Section 48 of BNS provides that a person abets an offence within the meaning of this Sanhita who, without and beyond India, abets the commission of any act in India which would constitute an offence if committed in India.

Abetment by a person outside India has been made an offence under section 48 to allow prosecution of person located in foreign country.

Abetting Commission of Offence By Public or By More Than Ten Persons [Section 57 of BNS/Section 117 of IPC]

Prescribed punishment

Section 117 of IPC provided for imprisonment upto 3 years or fine or both. Section 57 of BNS provides for imprisonment of either description for a term which may extend to 7 years and fine.

Rape [Section 63 of BNS/Section 375 of IPC]

Clause (i) of section 64(2) of BNS provides for ‘commits rape, on a woman incapable of giving consent’. Section 376(2)(i) of IPC provided for ‘commits rape on woman when she is under 16 years of age’.

20 Rape, Punishment for, in Certain Cases [Section 65 of BNS/Section 376AB of IPC]

Age categories-

Section 65 of BNS combines both age categories (under 12 and under 16) into a single section, simplifying the legal framework.

Sexual Intercourse by Employing Deceitful Means, etc. [Section 69 of BNS]

Sexual intercourse by employing deceitful means

Section 69 of BNS is a new provision [NEW]

Section 69 of BNS provides that whoever, by deceitful means or making by promise to marry a woman without any intention of fulfilling the same, and has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.

“Deceitful means” shall include the false promise of employment or promotion, inducement or marring after suppressing identity.

Rape, Gang [Section 70 of BNS/Sections 376D to 376DB of IPC]

Death penalty for gang rape of woman under 18 years of age

Death sentence was provided under section 376DB of IPC for gang rape of woman under 12 years of age. No death penalty was provided for gang rape of woman aged below 16 but above 12 in section 376DA. Now, section 70(2) of BNS provides death penalty for gangrape of woman under 18 years of age.

Woman, Assault or Use of Criminal Force with Intent to Disrobe [Section 76 of BNS/Section 354B of IPC]

Neutral Gender

Word “whoever” is used in sections 76 and 77 of BNS. Earlier word ‘man’ was used in section 354B/354C of IPC

POSITIVE CHANGES

The recently introduced BNS has resulted in a number of positive changes. Although there may be overlaps where one provision might be categorised under more than one heading, they are divided into four major headings in this article:

Progressive Changes in BNS include:

• Sexual intercourse by deceitful means or false promise to marry will be considered as Crime under Section 69 of BNS. It will be punishable with simple or rigorous imprisonment up to 10 years, and a fine.
• Terrorism and Terrorist Act have been defined under law for the first time and also regarded as an offence in Section 111 of BNS.
• New Provision on ‘Snatching’ under Section 302. It says that whoever commits snatching shall be punished with imprisonment of up to three years, and shall also be liable to a fine.
• Section 101(2): A separate provision of mob lynching provided for seven years imprisonment, life imprisonment, and death sentence as a punishment.

The BNS has also changed significantly in that archaic and insulting phrases like “lunatic person” and “person of unsound mind” have been replaced. All of these references have been labelled with more delicate language, such as “person with mental illness” or “having intellectual disability.” Section 22 of the BNS, which corresponds to Section 84 of the IPC, reflects this modification. A similar modification has been made to Section 28(b) of the BNS, which corresponds to Section 90(b) of the IPC.

Earlier, importing girls under the age of 21 years for illicit intercourse with another person is an offence. Now the revised Section 139 of BNS which corresponds to Section 366B of IPC specifies that importing boys under the age of 18 years for illicit intercourse with another person will also be an offence. This could have a positive impact as it is a way towards equality in criminal law.

Introduction of Organised crime and petty Organised crime or organised in general, i.e., Section 109 and 110 of BNS respectively.

Stricter laws on Sexual Offences

Stricter laws on Sexual Offences in BNS include:

Punishment for rape has been enhanced from seven years to ten years as given in Section 64 of BNS which corresponds to Section 376 of IPC.

Earlier, Section 376 of IPC provides “Whoever commits rape shall be punished with imprisonment of either description”. Now, Section 64 of BNS explicitly states that “Whoever commits rape shall be punished with rigorous imprisonment.”

Death Penalty for gang rape of women below 18 years of age as per Section 70 of BNS, which corresponds to Section 376DB of IPC.

Additionally, a new law protecting the identities of sexual assault victims has been introduced which can be seen in Section 72 of BNS.

A new provision i.e., Section 69 has been added to BNS in the Chapter governing offences against women and children.

 Community Service as a punishment

Section 53 of IPC explicitly provides five kinds of punishments to which offenders are liable:

• Death
• Imprisonment for life
• Imprisonment, which is of two descriptions, namely:
• Rigorous, that is, with hard labour
• Simple
• Forfeiture of Property
• Fine
• Section 4 of BNS, which corresponds to Section 53 of IPC provides Community service as a punishment in addition to five aforementioned punishments.
• Community service, to put it simply, is unpaid labour that offenders may be required to perform as a form of punishment rather than being imprisoned.
• The BNS calls for community service as a punishment for petty offences. Following this, some section-by-section changes include:
• A public servant who violates their legal obligation to refrain from conducting trade will be subject to simple imprisonment for up to a year, a fine, both, or community service as given in Section 200 of BNS, which corresponds to Section 168 of IPC.
• Defamation is an offence that carries a simple sentence of up to two years in jail, a fine, both, or community service as per Section 354 of BNS, which corresponds to Section 499 of IPC.
• Community Service as a punishment in Attempt to Suicide.
• If not given a 24-hour prison sentence, people accused of making a public nuisance while under the influence of alcohol may be required to perform community service.

Sedition law will be repealed and replaced

The proposal in the BNS that “Sedition law will be completely repealed” stands out the most. Provisions under the sedition law – proposed to be scrapped will be retained in Section 150 for acts of endangering the sovereignty, unity and integrity of India.

Section 150 of BNS provides, “Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial mean, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years and shall also be liable to fine.

The major key differences between Section 124A of IPC and Section 150 of BNS are:

• The expressions used in Section 150 of BNS refers to a wider variety of actions and behaviour while Section 124A of IPC only referred to actions and behaviors “bringing into hatred or contempt” and “exciting disaffection” towards the government.
• Punishment for sedition has been enhanced from three years to seven years in Section 150 of BNS, which corresponds to Section 124A of IPC.
• The act of sedition must be committed intentionally or knowingly, according to Section 150 of the BNS while such a thing isn’t encompassed by Section 124A of the IPC.
• Section 150 of BNS clearly acknowledges the use of modern communication techniques to commit sedition while Section 124A of IPC doesn’t explicitly mention these aspects.

NEGATIVE CHANGES AND LOOPHOLES:

While the majority of the modifications in BNS may be seen as beneficial, some of the reforms have also given rise to serious issues while some are still untouched by the BNS.

No Definition of Community Service

As abovementioned, one of the positive change in BNS is the introduction of Community service as a punishment. But what the Bill fails to do, though, is define just what community service entails. Without such a prescription, it is impossible to rule out the potential of sentencing disputes.

In a few isolated instances, strange forms of community service were mandated. For instance, a directive to donate money to a gaushala, distribute copies of the Quran, or do temple service.

Even though some of these directives were later revoked, it is still possible that there were more directives with similar religious overtones or that promoted patriarchal (or other harmful) standards.

Thus, a list of possible community service activities or guidelines for conduct may be useful.

No Proper Step toward Gender Neutrality in Rape and Sexual Assault

Gender neutrality in rape and sexual assault legislation refers to the concept that the criminal code should recognize that men, women, and transgender people can both commit and be victims of rape.In 2019, the Criminal law amendment Bill was introduced as private member’s bill which suggested major changes, in order to make the Indian criminal laws gender neutral.

But, BNS like IPC recognizes only the women as victim of rape and sexual assault while men as perpetrators in same.

No major Change in Sedition Law

The proposed Section 150 maintains the criminalization of any act that “excites or attempts to excite” secessionist activities or “encourages feelings of separatist activities” without making incitement to violence or disruption of public order a prerequisite to bringing charges.

Almost everything that Section 124A of the IPC now classifies as sedition is covered under Section 150, including speeches, newspaper articles, books, and plays.

Concluding Remarks-

Without a shadow of a doubt, it can be stated that the substantive criminal law, i.e., the IPC, has undergone various changes in terms of content as well as in the arrangement of the sections of the BNS.

The majority of the modifications are generally well-intentioned and much-needed.

This article classified them in four headings:

1. Progressive Changes
2. Stricter laws on Sexual Offences
3. Community service as a punishment
4. Sedition law will be repealed and replaced

On the other hand, BNS contains a few flaws.

This article classified them in three headings:

• No Definition of Community Services
• No Proper Step towards Gender Neutrality in Rape and Sexual Assault
• No major change in Sedition law

‘Bringing laws is one thing and implementing it is another’. For a proper implementation, better infrastructure should be incorporated in the criminal justice system.