Major Changes Introduced by Bharatiya Nyaya Sanhita

Recently, the Bharatiya Nyaya (Second) Sanhita (BNS) has received Presidential assent, and it will replace the 163-year-old Indian Penal Code. However, the Central government is yet to notify the date of enforcement.In Rajya Sabha, the three bills ( Bharatiya Nyaya (Second) Sanhita, the Bharatiya Nagarik Suraksha (Second) Sanhita, to replace the Code of Criminal Procedure, and the Bharatiya Sakshya (Second) Sanhita, which seeks to replace the Indian Evidence Act.) were passed through a voice vote after being moved by Union Home Minister Amit Shah.On December 12, the Centre reintroduced the three revised criminal bills, including the BNS, in the Indian parliament's lower house, withdrawing the previous versions introduced in August.In addition to reordering the sequence of section numbers for offences assigned in the IPC, the following significant amendments have been introduced in the penal law by BNS.Community Service As Form Of PunishmentCommunity service has been introduced as a form of punishment under Section 4, although it has not been defined what community service entails. For offences such as attempting suicide to compel or restrain the exercise of lawful power, defamation, misconduct in public by a drunken person, and failure to appear at the specified place and time as required by a proclamation published under sub-section (1) of section 84 of the BNS, 2023, community service can be awarded in addition to the prescribed punishment.Offences Against Woman And ChildThe new BNS adds Chapter V naming “Of Offences Against Woman and Child Of Sexual Offences”. All the offences relating to woman and child have been placed under one chapter in the beginning of the Code, which was earlier spread under various chapters and parts.Marital Rape With Minor Wife Is OffenceAs per exception of Rape which is Section 63 of BNS, sexual intercourse or sexual acts by a man with his own wife, where the wife is not under eighteen years of age, would not be rape. However, under IPC, the age of wife to not to constitute rape was “fifteen years”.In 2017, the Supreme Court in the judgment Independent Thought v. Union of India, (2017) 10 SCC 800 had read 'fifteen years' in Exception 2 to Section 375 IPC as '18 years' so as to bring sex with a minor wife within the ambit of the rape offence.Sexual Intercourse By Employing Deceitful Means, etc.BNS introduces sexual intercourse by employing deceitful means, etc as offence. Section 69 states that whoever, by deceitful means or by making promise to marry to a woman without any intention of fulfilling the same, 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.Enhanced Punishment In Case Of Gangrape Of Victim Of Under 18 Years Of AgeAs per Section 70, where a woman under eighteen years of age is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and with fine, or with death.It is pertinent to note that, under Section 376DA IPC, the enhanced punishment was prescribed for the victim under sixteen years of age.Printing or Publishing Trial Court Proceeding Relating To Sexual Offences Without Permission Of Court Is An OffenceSection 73 adds that printing or publishing any matter in relation to any proceeding before a Court with respect to offence realting to rape, sexual intercourse by husband upon his wife during separation, sexual intercourse by person in authority, Sexual intercourse by employing deceitful means, etc, gang rape, 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 is also clarified in explanation that the printing or publication of the judgment of any High Court or the Supreme Court does not amount to an offence within the meaning of this section.Section 377 Deleted, but Unnatural Intercourse Against Men or Bestiality No Longer Offences Under BNSIt is pertinent to note that in landmark ruling of Apex Court in Navtej Singh Johar, where a bench of five judges of the Supreme Court partially struck down Section 377 IPC, which criminalised consensual carnal intercourse, however forced intercourse with an adult male is an offence, and also bestiality.The BNS has completely deleted the offence, implying that forcible carnal intercourse against a man and bestiality are no longer offences under BNS.Offence Of Adultery OmittedIn view of Apex Court's judgement in Joseph Shine's case the offence of Adultery has been deleted, however, second BNS retains Section 498 of the IPC (Section 84) which penalises a man for enticing the...

Major Changes Introduced by Bharatiya Nyaya Sanhita

Aiman J. Chishti

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