Comparing The BNS With The IPC : A Detailed Analysis

The Indian Penal Code, 1860 (hereinafter referred to as “IPC”) has been the backbone of the Indian criminal system since 1860. However, IPC went under time-bound changes to take in the developing scenario. After realizing that present times demand reformations and bringing about lines with modern socio-legal scenarios, an Act was proposed in the Parliament of India to enact the Bharatiya Nyaya Sanhita, 2023 (hereinafter referred to as "BNS") as an act of far-reaching criminal law reforms.

The article is going to deal with a comprehensive comparison between the IPC and the BNS. 

Historical Background Of IPC And BNS

IPC and BNS have been enacted under the following backgrounds with certain objectives: 

Indian Penal Code, 1860: A Legacy Of Colonialism

The IPC was enacted in 1860. It was drafted by the First Law Commission under the chairmanship of Lord Macaulay. It was aimed at providing India with a uniform criminal code to replace the patchwork of existing laws. Although the IPC had its colonial origins, it remained largely relevant and adaptable due to judicial interpretations and amendments over time.

Need For Change

There was the need for a change due to modernization. Hence, the Bharatiya Nyaya Sanhita, 2023, was introduced by the Indian government. BNS was introduced as a part of three key legal reforms in India. The other two were Bhartiya Nagarik Suraksha Sanhita, 2023 in place of the Code of Criminal Procedure, 1973 (CrPC) and Bhartiya Sakshya Adhiniyam, 2023, in place of the Indian Evidence Act, 1872 (IEA).

The objectives behind the enactment of BNS are as follows:

• Removing colonial legacy and enacting laws according to Indian socio-political situations.

• Modernizing provisions for new-age crimes like cyber fraud, organized crime, and terrorism.

• Strengthening the rights of the victims and ensuring speedy justice.

• Reducing pendency of cases through procedural efficiency.

Structural And Terminological Differences Between IPC And BNS

There are the following structural differences between IPC and BNS:

Key Changes And Additions In The BNS

There are the following key changes and additions in the BNS:

Crimes Against The State

Following changes have been introduced regarding crimes against the state:

Treason And Secessionist Activities

• Section 124A IPC (Sedition) has been substituted with Section 150 BNS which incorporates a broad definition of activities endangering sovereignty, unity and integrity.

• Section 150 of BNS incorporates secessionist activities, armed rebellion, subversive acts and actions inciting secessionist ideology within the definition of offences punishable under the new law.

Terrorism And Organized Crime

• Terrorism was not defined under IPC. Section 109 of BNS incorporates a holistic definition and imposes severe punishment upon terrorist activities.

• BNS has made organized crime, gang violence, contract killing, and extortion as explicitly criminal activities. 

Offences Against The Human Body

Following changes have been introduced regarding offences against the human body:

Criminalisation Of Mob Lynching

• IPC did not have specific provisions on mob lynching.

• BNS Section 103 prescribes death or life imprisonment for lynching leading to death.

Strengthing Of Rape Laws 

• BNS retains most of the IPC provisions on sexual offences but introduces harsher punishments for gang rape and repeat offenders.

• Marital rape is still not criminalized explicitly. However, the age of the girl has been increased to 18 years from 15 years. 

• BNS also envisages provisions to cover newer aspects of sexual offences committed with the help of digitalization.

Death Penalty For Rape of Minors

• BNS prescribes the death penalty for rape of minors. This was discretionary under IPC.  

Cyber Crimes And Economic Offences

Following changes have been introduced regarding cyber crimes and economic offences:

New Provisions For Cyber Crimes

• IPC did not specifically deal with cybercrimes. Provisions regarding cyber offences have been incorporated through other enactments like the Information Technology Act, 2000.

• Section 86 of BNS would criminalize identity theft, cyber fraud, online defamation, and AI-generated deepfake crimes. 

Strict Laws Against Financial Fraud

Following changes have been introduced regarding financial fraud: 

• Economic offences like bank fraud, Ponzi schemes, and identity theft have been defined under new provisions.

• Corporate fraud and tax evasion are punishable with higher fines and stricter investigations under BNS.

Definitions And Provisions

Following changes have been introduced regarding definitions and provisions: 

Definitions

• Definitions under IPC were distributed throughout sections.

• BNS has consolidated all the definitions in one section to make them easy for clarity of understanding.

Adultery & LGBTQ+Rights

Following changes have been introduced regarding adultery and LGBTQ+ rights: 

Decriminalisation Of Adultery & Unnatural Offences

• IPC Section 497 (Adultery) was declared unconstitutional by the Supreme Court in 2018. BNS does not reinstate adultery as a crime.

• IPC Section 377 (Unnatural offences) was repealed following Navtej Johar vs. Union of India (2018). BNS does not reinstate the same.

Procedural And Punitive Reforms

Following changes have been introduced regarding procedural and punitive reforms: 

Community Service As Punishment

• IPC offered only fines or imprisonment as punishments.

• BNS has introduced community service as a punishment for petty crimes.

Timelines For Trials Of Criminal Cases

• BNS emphasizes speedy trial and timely justice for all. It has provisions for reducing delays in the legal process and delivering justice efficiently.

• BNS provides time-bound investigation and completion of trial, thus speeding up the delivery of justice.

• Charge sheets by police must be submitted within 90 days. 90 days of time period is extendable to 180 days in complex cases. 

Digital Records

• IPC did not explicitly address the aspect of electronic and digital records in legal proceedings.

• BNS acknowledged the role of electronic and digital records in the contemporary legal order. It included provisions relating to the admissibility and use of digital evidence in view of the increasing extent of technology in handling legal matters.

Also Read : Exploring India's New Criminal Laws

Criticisms And Challenges Of BNS

BNS has faced the following criticisms and challenges after its enactment:

Repacking of Sedition

It has been argued that Section 150 (Acts against Sovereignty) of BNS is a rebranded sedition law. This Section has the potential to be misused against dissenters.

No Recognition Of Marital Rape

BNS has failed to legally recognise and criminalise marital rape laws.  BNS has kept the outdated norms of society intact. 

Broad Definition Of Terrorist Act

The wide definition of terrorist acts under Section 113 of BNS could lead to misuse by law enforcement.

Absence Of Judicial Reforms

BNS emphasizes the substantive law in itself but fails to account for the delay caused by the trial procedure.

Recommendations For Better Enforcement Of BNS

There are the following recommendations for better enforcement of BNS:

Clear Definitions

Terms like “terrorism," "organized crime," and "acts against sovereignty" should be defined with proper safeguards to avoid abuses. Judicial review systems should be introduced before such strict provisions as prolonged detention periods are applied.

Strengthen The Implementation & Training

Conduct nationwide training of police, prosecutors, and judges on the new provisions. Provide a gradual transition period to ensure easy enforcement of the law.

Strengthen The Gender-Sensitive Provisions

Marital rape should be explicitly criminalized. Where applicable, sexual violence can be treated in a gender-neutral manner.

Conclusion

BNS represents a significant overhaul of India's criminal law framework, aiming to modernize the legal system and address contemporary challenges. While it introduces progressive changes like recognizing cybercrimes and organized crime and strengthening provisions for sexual offences, it also faces criticism for potentially overbroad definitions and the continued absence of marital rape criminalization. The BNS's success hinges on striking a balance between ensuring justice and safeguarding individual liberties.

FAQs

A few FAQs based on the comparison of BNS with IPC are:

Q1. What are the important changes in BNS?

Crucial changes include a broader terrorism definition, particular mob-lynching provisions, stricter punishment for sexual offences against minors, and new cybercrime provisions.

Q2. What are the criticisms of the BNS?

Criticisms include concerns regarding overbroad definitions of terrorism and acts against sovereignty, the absence of marital rape criminalization, and a lack of focus on judicial reforms.

Q3. What are the recommendations for improving the BNS?

Recommendations include clearer definitions of key terms, better training for law enforcement, and addressing procedural delays in the judicial system.