Criminal Law Bills: On Tuesday, the Union government proposed to include threats to the nation’s “economic security” and “monetary stability” under the definition of “terrorist act” under the penal law. However, the proposal did not include a recommendation made by a parliamentary panel to include a gender-neutral provision that criminalises adultery and a clause that criminalises non-consensual gay sex.
Introduction of Bharatiya Nyaya (Second) Sanhita Bill, 2023
Among the other noteworthy modifications were the addition of two new provisions to define “cruelty” against women in married relationships and to criminalise the publication of court proceedings that might reveal the identity of a rape victim. The Bharatiya Nyaya (Second) Sanhita Bill, 2023, was introduced by Union home minister Amit Shah in the Lok Sabha on Tuesday in place of the colonial Indian Penal Code (IPC).
Replacement of Indian Evidence Act and CrPC
The Indian Evidence Act and the Code of Criminal Procedure (CrPC) are scheduled to be replaced by Bharatiya Sakshya (Second) Sanhita and Bharatiya Nagarik Suraksha (Second) Sanhita, respectively, which Shah also introduced on Tuesday. The House was informed by the home minister that the bills will be discussed on Thursday.
Role of Parliamentary Standing Committee
The parliamentary standing committee on home affairs was tasked with reviewing the three criminal law bills that the government had initially introduced in August. Shah withdrew the original bills on Monday in order to reintroduce the amended versions that included the panel’s recommendations.
An explanation of community service
The new bill to replace the CrPC has defined what “community service” would mean. The previous version of the penal code bill had proposed, for the first time in the nation, to include community service as one of the punishments for “petty” offences, including criminal defamation. According to the new bill, community service is defined as any work that a court orders a convicted person to perform as a means of punishment that benefits the community and for which they are not allowed to receive payment. Additionally, it makes clear that first- and second-class magistrates can now order the community service sentence for offenders. The amended bill makes it clear that a judicial magistrate of the first class may impose a sentence of community service, a fine of no more than ₹50,000, or a term of imprisonment not to exceed three years.
Definition of Terrorism
BNS-Second provides an expansive definition of terrorism, stating that any action taken with the intention of endangering or likely to endanger India’s unity, integrity, sovereignty, security, or “economic security” qualifies as a terrorist act. Proposed Section 113 of the amended code further states that any act that harms India’s “monetary stability” through the creation, smuggling, or distribution of fake Indian coins, paper money, or other materials will also be considered a terrorist act. If a terrorist act results in a person’s death, the code considers a death sentence or life in prison; however, for other acts covered by this section, a jail sentence of five years to life has been suggested.
The first bill to overhaul the penal code was introduced in August, and it included a number of offences under its purview, including using explosives, acting in a way that is likely to cause death or injury to any public official, detaining someone and threatening to kill or injure them in order to force the government to act or refrain from acting. The IPC, 1860, does not contain any provisions regarding a “terrorist act” or the economic or monetary stability of the nation. Under BNS-Second, counterfeiting coins or currency is still considered a separate offence; however, there is a catch: if the counterfeiting has a negative effect on India’s monetary stability, it will be considered terrorism.
The previous version of the definition of a terrorist act included any act that threatened public safety, created a state of emergency, or destabilised or destroyed the nation’s political, economic, or social structures. This clause is removed from the new bill, and the proposed section now includes the terms “sovereignty,” “economic security,” and “monetary stability.” Additionally, the proposed Section 113 states that the officer, not less than the rank of Superintendent of Police, will have the authority to determine whether to register the case under this clause or under the Unlawful Activities (Prevention) Act, which is a law designed expressly to address terrorism.
Ignored recommendations
The panel’s final report, which was turned in to the government last month, suggested making acts of bestiality and non-consensual sex between men, women, or transgender people illegal as well as re-criminalizing adultery. Among the nearly 50 amendments it suggested, the recommendation to reinstate the two crucial provisions was one that HT first reported on October 25. However, BNS-Second does not take the panel’s recommendations into account, indicating the government’s unwillingness to reinstate the two clauses that have been addressed by two Supreme Court bench decisions pertaining to the Constitution.
While the Supreme Court struck down Section 497 of the Indian Penal Code in 2018 for being discriminatory, unconstitutional, and against women’s dignity, the government in BNS dropped the charge of non-consensual gay sex under Section 377 of the Indian Penal Code. By striking down Section 377, the Supreme Court decriminalised homosexual sex between consenting adults in its 2018 ruling. The panel noted that there was no provision for non-consensual sexual offences against “men, women, transpersons, and for acts of bestiality” after BNS removed any reference to Section 377, despite the 2018 ruling upholding the other portion of the law that criminalised non-consensual gay sex. These recommendations are not included in BNS-Second.
Two new sections
Apart from that, BNS-Second includes two new sections. According to Section 73, printing or publishing court documents that might identify a rape victim is illegal and can result in up to two years in prison if the court has not given its prior consent. The prior bill limited the restriction to printing or publishing the name of a rape victim or any information that could reveal their identity. The new clause makes it clear that the restrictions will also apply to court proceedings, and that publishing or printing a high court or Supreme Court decision will not be considered a crime.
The proposed clause might discourage the publication of events and proceedings, such as the charge sheet’s specifics, the charge’s order, or witness testimony given during a rape case trial. Section 86, which would define “cruelty” against a woman by her husband and his family and carry a maximum three-year prison sentence, is another addition to BNS-second. According to definitions, an act of cruelty is any deliberate behaviour that puts a woman in danger of suicide or poses a serious threat to her life, limb, or health, whether it be physical or mental.
While BNS-Second now defines “cruelty” in a different way, cruelty was previously defined in Section 498A and Section 84 of BNS, both of which used the same terminology in their “explanation” clauses. Therefore, the proposed penal code does not really gain anything new from the new section in BNS-Second.
Key deletions
Another significant change made to the new bill is the removal of a clause that would have made mob lynching a separate criminal offence. BNS proposed that each member of a group of five or more people acting together would be punished with either death or life imprisonment or “imprisonment for a term which shall not be less than seven years” if the group commits murder on the basis of race, caste or community, sex, place of birth, language, personal belief, or any other ground. The seven-year reference is absent from the updated BNS-Second. Murder is still a crime that carries a life sentence or the death penalty.
Additionally, BNS-Second modifies the wording of Section 23, which addresses actions taken against the will of an intoxicated person rendering them incapable of making decisions. According to the amended provision, an individual who is intoxicated and unable to understand the nature of their actions or that they are breaking the law is not guilty of any crime; this is “provided” that the intoxicating substance was given to them against their will or without their knowledge at the time of the act. Confusion resulted from the previous bill’s provision using the word “unless” rather than “provided.”
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