THE BHARATIYA NYAYA SANHITA, 2023
(Act No. 45 of 2023)
Prof. (Dr.) Sharanjit
Professor of law and
Controller of Examinations,
Rajiv Gandhi National University of Law,
Punjab
RATIONALE BEHIND CRIMINAL
SUBSTANTIVE LAW
Punishment is not for revenge, but to lessen crime and
reform the criminal.
➢ WHAT CONSTITUTIES CRIME (Evolving nature)
• PUNISHMENT (provision of minimum punishment, gravity of offence)
• DETERRENCE (death penalty( UN GEN. ASSEMBLY RESOLUTION 2022) life
imprisonment (Remission provisions), ( fine)
• CRIME CONTROL (criminalizing attempt, abetment and conspiracy)
• VICTIM JUSTICE (retributive and restorative justice)
• BALANCING OF CONFLICTING INTERESTS – victim, offender and society
• ADDRESSING NEW FORMS OF CRIMINALITY (cyber-crimes, money laundering,
organized crime- domestic and transnational, nexus between organized crime
and terrorism)
THE BHARTIYA NYAYA SANHITA, 2023 vis a vis CRIME AGAINST WOMEN
“Every woman who thinks that she is the only victim of violence has
to know that there are many more”.
• THE NATIONAL CRIME RECORDS BUREAU REPORT, 2022 -with a
staggering 4,45,256 cases registered in 2022 alone, equivalent to
nearly 51 FIRs every hour.
• Year 2022. - 4,45,256 cases
• Year 2021. – 428, 278 cases
• Year 2020. - 371, 503 cases
• WOMEN AND VULNERABILITIES
• ACCESS TO JUSTICE- ZERO FIR, Section 199, 200 BNS
• MEANING OF WOMEN - State of Punjab v. Major Singh (1966),
transwoman.
• UNDERSTANDING CRIME AGAINST WOMEN– The Criminal Law
(Amendment) Act, 1983, 2013, 2018.
IMPORTANT CASE STUDY – CRIME AGAINST WOMEN
“Why every time a girl has to prove that she has been raped and why the onus is
not shifting on the accused?”
➢Compulsory registration of FIR – Lalita Kumari v. Government of Uttar
Pradesh.
• Granting bail to rape accused – Miss P v. State of Madhya Pradesh, (2022),
Aparna Bhatt and others v. State of MP.,(2022)
• Compromise of victim and accused – State of MP v. Madan Lal, Aparna Bhat v.
State of MP (2022)
• Reliance on sole testimony of the victim of rape – Wahid Khan v. State of
Madhya Pradesh, State of Punjab v. Gurmeet Singh, State of HP v. Rajbir Singh.
• Speedy trial of rape/sexual assault cases – Alok Srivastava v. Union of India.
• Two finger test – volitive of the victims right to privacy, State of Jharkhand
v. Shailendra Kumar Rai, 2022 and Lilu v. State of Haryana.
• Sexual assault on minors – Ira through Dr Manjula v. State
• Sexual assault on transgender persons – NALSAR v. Union of India.
• Right to safe abortion – X v. Principal Secretary, 2022
• Rights of women in live-in relationships – Indira Samra versus VKV Samra
• Sexual privacy of gay and lesbian couples – Navtej Singh Johar v. Union of
India.
• Prevention of sexual harassment at workplace – Vishakha v. State of
Rajasthan.
COMPARATIVE STUDY OF BNS 2023 AND IPC 1860 IN CONTEXT OF
CRIME AGAINST WOMEN
• age of consent-exception 2 section 63 of BNS provides that sexual intercourse by a
man with his own wife, the wife not being under 18 years of age is not rape. Under
section 375 of the IPC the age limit was 15 years.
• consent – clause (i) of section 64(2) of BNS provides that ‘commits rape on a woman
incapable of giving consent”. Section 376(2)(i) of IPC provided for commits rape on
woman when she is under 16 years of age (Mohd. Farooqui v. State, 2017)
• age categories-section 65 of BNS combines both age categories under 12 and
under 16 into a single section, simplifying the legal framework.
• Sexual intercourse by employing deceitful means – section 69 of BNS is a new
provision (Deepak Gulati v. State of Haryana; State of UP v. Naushad; Naim
Ahmed v. NCT of Delhi, 2023)
• Rape, gang rape – death sentence was provided under section 376DB of IPC for
gang rape of woman under 12 years of age. No death penalty was provided for gang
rape of a woman who was below 16 but above 12 years in section 376DA. Now
section 70(2) of BNS provides death-penalty for gang rape of woman under 18 years
of age.
• Section 71- Punishment for repeat offenders
• Section 72- disclosure of identity of victims of certain offences etc.
GENDER NEUTRAL PROVISIONS
• Section 76 of BNS/section 354B of IPC – now gender neutral by using words
‘whoever’.
• Voyeurism in section 77 of BNS/section 354C of IPC – is now gender neutral.
• Stalking and sexual harassment continues to be gender specific under BNS.
• Section 84 of BNS/section 498 of IPC – section 84 protects a married woman
whether or not she is living in the care of her husband or any other person
under the new provision.
• Child procuration – section 96 of BNS/section 366A of IPC – section 366A
provided for offence of procuration of a minor girl under 18 years of age. Section
96 of BNS deals with offence of procuration of any child below the age of 18
years.
• Section 98 of BNS/section 372 of IPC – word ‘child’ is substituted for any
‘person’.(selling child for purposes of prostitution, etc.)
• Section 99 of BNS/section 373 of IPC – the word child is substituted for any
person in section 99 of BNS. (buying a child for purposes of prostitution, etc.)
• REPEAL OF SECTION 377 IPC- POCSO ACT, 2012 only to deal with crime
against minor boys. (Denmark, United Kingdom and Australia have proposed
and excepted gender-neutral laws). The Immoral Traffic Prevention Act, 1956
TRANSGENDERS AND SEXUAL VICTIMIZATION
• Meaning of man and woman- IPC, 1860
• Transgender-BNS, 2023
• The Transgender Persons (Protection of Rights) Act, 2019
• Section 2(k)- “Transgender person” means a person whose gender
does not match with the gender assigned to that person at birth and
includes trans man or trans woman (whether or not such person has
undergone sex-reassignment surgery or hormone therapy or laser
therapy or such other therapy), person with inter sex variations,
genderqueer and persons having such socio-cultural identities as kinner,
hijra, aravani and jogta.
• Chapter 8- offences and penalties under the 2019 Act.
• Offences (forced or bonded labour, denying a transgender access to
public place, forcing to leave household, village, etc., physical, verbal,
economic and sexual abuse).
• Penalty- imprisonment which shall not be less than 6 months but which
may extend to two years and with fine.
RAINBOW COMMUNITY (Gilbert Baker) AND JUDICIAL PERSPECTIVE
“It is not our differences that divide us. It is our inability to recognize, accept, and
celebrate those differences.”
Puttuswamy v. UOI, NALSA v. UOI, Naz Foundation v. Govt. of NCT of
Delhi, S. Sushma v. Commissioner of police (2021),
S. Sushma v. Commissioner of police (2021)- guidelines by the court are-
• The LGBTQIA community also has right to equality.
• Not to be discriminated as per article 15(1) – includes gender identity and
sexual orientation.
• The police should close complaints for missing persons once they find
that they are in a consensual relationship.
• Short stay homes.
• Prohibition on any attempt to medically cure sexual orientation.
• Change in curriculum
CRIME AFFECTING HUMAN BODY, MOB LYNCHING, HIT AND
RUN CASES, MEDICAL NEGLIGENCE.
“Collective fear stimulates herd instinct, and tends to produce ferocity towards those who are
not regarded as members of the herd.”
• MOB LYNCHING
• Communal violence- Partition of India, anti-Sikh riots, Gujarat riots,
religious terrorism (Islamic terrorism, saffron terrorism).
• As per the NCRB, between 2014 and 2021, 190 murders with a
communal motive were reported from across the country.
• Over 2900 cases of communal or religious rioting where registered in the
country between 2017 and 2021 as per NCRB.
• Section 103(2) of BNS is a new provision – it provides 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 ground each member of such group shall be
punished with death or within prison meant for life and shall also be
liable to fine.
MEDICAL NEGLIGENCE
Death by negligence – section 106 of BNS/section 304A of the IPC.
(With special emphasis on medical negligence.)
• What is medical negligence?
• What is the liability for medical negligence?
• Guidelines of the Supreme Court regarding medical negligence
(Jacob Matthew v. State of Punjab).
• Section 106(1) – however causes death of any person by doing
any rash or negligent act not amounting to culpable homicide,
shall be punished with imprisonment of either description for a
term which may extend to 5 years, and shall also be liable to fine;
and if such acts are done by a registered medical practitioner while
performing medical procedures, he shall be punished with
imprisonment of either description for a term which may extend to
2 years and shall also be liable to fine.
Death in Road accidents and section 106(2) of BNS
• Section 106(2)-whoever causes death of any person by rash
and negligent driving of vehicle not amounting to culpable
homicide, and escaped without reporting it to a police officer
or a magistrate soon after the incident, shall be punished with
imprisonment of either description for a term which may
extend to 10 years, and shall also be liable to fine.
• India’s hit-and-run problem – nearly 30% of India’s , 166,
994 road accident deaths in 2022 were from the hit-and run
cases.
• Strict laws on this issue worldwide – France, US, UK.
• Section 134 of the Motor Vehicle Act, 1988- duty of driver
in case of accident and injury to person
DEATH DUE TO HIT AND RUN CASES
• Interpretation of the words ‘soon’- Surinder Singh v. State of
Haryana, 2014 it was affirmed that ‘soon’ does not mean
immediate. Same was reiterated in State of MP v. Joginder 2022
• Nanjundappa and another v. State of Karnataka, 2022, the court
observed that the prosecution must establish a direct link
between the negligent act and the victim’s death.
• Need of the Golden hour – 201st Law Commission of India’s
Report – the Law Commission emphasized the need to provide swift
medical aid to the victim in the critical golden hour which can
prevent 50% of fatalities.
• Encourage bystanders to provide voluntary immediate assistance.
• Various remote areas where public presence is scarce the driver is
the sole responder.
TERRORISM
“the threat of violence – or a campaign of violence designed primarily to instill fear – to
terrorize – Terrorism is violence for effect – violence aimed at the people watching”
• TERRORISM- different from ordinary crime, rational and objective of
terrorists are different.
• SPECIAL SECURITY LAWS- TADA, POTA, UAPA, NIA-definition of a terrorist
act, disruptive activities, created new categories of offences, separate
procedural mechanism was provided. (Kartar Singh v. State of Punjab,
People’s Union for Civil Liberties v. union of India, State v. Mohammed
Afzal and others, Ajmal Kasab v. State of Maharashtra).
• IPC, 1860- CHAPTER “WAGING WAR AGAINST THE STATE”
• NEXUS BETWEEN TERRORISM AND ORGANIZED CRIME- Dawood
Ibrahim, 26/11 Mumbai attacks
• TERROR FUNDING
• ECONOMIC TERRORISM, RELIGIOUS TERRORISM, STATE SPONSERED
TERRORISM
➢ INSURGENCY- the Armed Forces Special Powers Act, 1954
➢ SECTION. 113 BNS- terrorist act
ORGANISED CRIME
• Continuity, group, economic gain, use of violence.
• Organized crime like human trafficking grossly violative of human
rights of the trafficked victims (basket of crimes, gender neutral,
migrant smuggling, global in nature).
• Organized crime and terror funding.
• Technology and organized crime.
• SECTION 111 OF BNS 2023
• THE MAHARASHTRA CONTROL OF ORGANISED CRIMES ACT,
1999
• THE PREVENTION OF MONEY LAUNDERING ACT,2002
• THE NATIONAL INVESTIGATION AGENCY ACT,2008
• ENHANCED PUNISHMENTS UNDER THE NEW PROVISIONS
PETTY ORGANISED CRIME
• SECTION 112 OF BNS HAS ADDED A NEW PROVISION OF
PETTY ORGANISED CRIME.
• Exhaustive meaning of petty organized crime – includes theft,
snatching, cheating, unauthorized selling of tickets, unauthorized
betting and gambling, selling of public examination question papers
or any other similar criminal acts.
• Provision for minimum punishment –whoever commits any petty
organized crime shall be punished with imprisonment for a term
which shall not be less than one year but which may extend to 7
years and shall also be liable to fine.
• Significant step towards controlling criminality
• Juvenile delinquency
