A Penal Code for the 21st century?

The Indian Penal Code 1860 (IPC) used to form the core of criminal law in India. However, in recent years, the Government of India deemed it necessary to review the country's existing criminal laws to modernise, 'decolonise', and strengthen the criminal justice system. Consequently, the Bharatiya Nyaya Sanhita (BNS) 2023, also referred to as the Indian Justice Code 2023 was enacted in 2023.

A comprehensive discussion of all sections of the BNS 2023 is beyond the scope of this write-up, hence, our focus will be on some key provisions that provide significant insights for legal researchers, policymakers, and practitioners.

The BNS comprises only 358 sections, a significant reduction from the 511 sections of the IPC. Notably, the new code prioritises offences against women and children, murder, and offences against the State. To address organised crimes, terrorist activities, and gang rape effectively, new provisions have been introduced in the Indian Justice Code, 2023.

A 'child' has been defined under section 2(3) of the BNS as any person below the age of 18 years.  The pronoun 'he' is now inclusive of all genders—male, female, and gender-diverse as per section 2(10). The definition of 'movable property' has been revised under section 2(21) to include both tangible and intangible property. Furthermore, offences such as attempt, abetment, and criminal conspiracy which were previously scattered across different chapters, are now consolidated under Chapter IV of the BNS 2023.

A significant innovation in the BNS is the introduction of 'Community Service' as an alternative punishment for certain minor offences, replacing imprisonment in specific cases. Examples include drunken misconduct in public (section 355), public servants unlawfully engaging in trade (section 202), and first-time theft involving stolen property valued below 5,000 rupees, provided the offender restores the property (section 303(2)).

The BNS increases fines for 83 offences and extends imprisonment for 41 sections. The term 'imprisonment for life' has been clarified as imprisonment for the remainder of a person's natural life in various provisions (sections 64, 65, 66, 70). For causing death by a rash or negligent act, the maximum penalty has been increased to five years imprisonment under section 106(1). However, if the death is caused by a registered doctor, the punishment is capped at two years. In hit-and-run cases, drivers who cause death through rash and negligent driving and flee without reporting the incident face imprisonment of up to 10 years and fines.

The BNS also introduces a new category of culpable homicide related to 'mob murder' in section 103(2). When a group of five or more individuals commits murder based on race, caste, community, sex, language, or similar grounds, each member is punishable with death or with life imprisonment, and a fine. Other new offences include organised crime (section 111), petty organised crime (section 112), and Terrorist act (section 113).

Sexual offences receive particular attention in the BNS. For instance, having sexual intercourse under false pretences—such as promises of marriage or employment, or through concealment of identity—is now a criminal offence under section 69. In the domain of property offences, the new category of 'snatching' (section 304) has been added, broadening the definition of theft. Theft becomes snatching when property is forcibly or suddenly seized from a person or from their possession.

Pertinently, certain colonial-era provisions have been removed. These include, but are not limited to, sections 124A (sedition), 497 (adultery) and 377 (unnatural offences) of the IPC. Terms such as 'lunatic', 'insane', and 'idiot' have been replaced, and colonial remnants such as 'Queen' and 'British-India' have been eliminated.

The BNS received the President's assent on 25 December 2023 and came into effect on 1 July 2024. While it is too early to evaluate its full impact, this new code is expected to align with the needs of the 21st century and enhance the delivery of justice. As we have been discussing extensive reforms to the existing laws, it is hoped that the government will consider updating the Penal Code 1860 to address contemporary challenges of the 21st century and improve efficiency.

The writer is Associate Professor, School of Law, Independent University, Bangladesh.