Revised Bills a mixed bag of reforms

The revised Bharatiya Nyaya (Second) Sanhita Bill, 2023, Bharatiya Sakshya (Second) Sanhita, and Bharatiya Nagarik Suraksha (Second) Sanhita were enacted to replace the colonial-era Indian Penal Code (IPC).

After introduction of the Bills in August, they were referred to a Parliamentary Standing Committee for review. The Committee along with the broader legal fraternity, suggested several changes to the Bills. However, in order to incorporate these changes, there were two options available:

1. Put the Bills up for voting, and if they successfully become Acts, then bring in the necessary amendments.

2. Withdraw the Bills, incorporate the changes, and then put it up for reconsideration.

“The first option is a far lengthier process as the amendments would have to be made through bills of their own, which themselves would also have to go through the entire reading and voting process. This is why the Union Government chose the second option, as confirmed by Union Home Minister Amit Shah himself,” said Divyam Agarwal, Partner and Attorney, JSA Advocates & Solicitors.

While the new Bills have incorporated a number of suggested changes, not all have been considered. “Therefore, the end result is in some senses a bit of a mixed bag,” Agarwal said. He added that the incorporation of community service in the Bharatiya Nagrik Suraksha Sanhita is a marked and progressive departure from the punitive model of incarceration, which is reflective of the prevailing global consensus.

“Similarly, the removal of handcuffing requirements for “economic offenders” is also a welcome move. Handcuffing, and specifically public handcuffing is socially a very humiliating act, and should be reserved only for the most heinous crimes such as murder and rape,” Agarwal said.

The Union government has not included the parliamentary panel’s recommendation to include a “gender-neutral” provision criminalising adultery and a clause to separately criminalise non-consensual gay sex. “The deletion of non-consensual homosexual sex as a crime from the Bharatiya Nyaya Sanhita is a definite step backward. This effectively means that there are no provisions in Indian law which prohibits male rape,” Agarwal said.

Meanwhile, in the revised Bharatiya Nyaya (Second) Sanhita Bill, 2023 two new provisions to define “cruelty” against women in a marital relationship and to penalise the publication of court proceedings that may disclose the identity of a rape victim have been added.

“On the whole, the broader legal community is keeping its eyes peeled for further developments. It is not yet known whether these Bills will undergo further changes or whether they will be tabled for voting in their present form. In these circumstances, there is still a fair amount of uncertainty as to the exact impact of these specific Bills would be,” Agarwal said.

As per the BNS-Second Bill, it does not include the Parliamentary panel’s suggestions for adultery which was added under 497 which was ended by the Supreme Court. The BNS-Second Bill also does not have Section 377 which is related to unnatural sex against the order of the nature. As the Bill is passed, these two sections 377 and 497 cease to exist. The Parliamentary Panel had added adultery under 497, which was ended by the Supreme Court saying that it had been added because “the institution of marriage is sacred” and it must be “protected”.

The BNS-Second Bill has two more new additions. In the BNS-Second two new sections which has been added include Section 73 which says whoever prints or publishes any matter in relation to any proceeding before a court with respect to an offence referred to in section 72 without the previous permission of such Court shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.

It also said that the printing or publication of the judgement of any High Court or the Supreme Court does not amount to an offence within the meaning of this section.

The government has however, accepted the panel’s recommendation on doing away with the alternative punishment for murder by mob lynching -- proposed as not less than seven years in Clause 101(2) of the original BNS Bill -- and made it at par with punishment for murder.

Even as per the revised BNS Bill under Section 103 (2) it says that when a group of five or more persons acting in concert commits murder on the ground of race, caste or community, sex, place of birth, language, personal belief or any other similar ground each member of such group shall be punished with death or with imprisonment for life, and shall also be liable to fine.