Three new penal codes – Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagrik Suraksha Sanhita (BNSS) and Bharatiya Sakshya Adhiniyam (BSA) – were rolled out on Monday, marking a major legal overhaul 77 years after Independence. According to Union Home Minister Amit Shah, the new penal codes, which replace ‘justice’ with ‘punishment’, pull a curtain on the British-era penal codes.
The Bharatiya Nyaya Sanhita (BNS), the Bharatiya Nagarik Suraksha Sanhita (BNSS) and the Bharatiya Sakshya Adhiniyam (BSA) replaced the colonial Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act respectively.
The Bharatiya Nyaya Sanhita introduces 358 sections, down from the 511 in the IPC, with 20 new offences and increased imprisonment for 33 offences. However, there is no provision for gender-neutral punishment for rape, which is a notable lacuna in the new penal code.
There are some gray areas that the revamped criminal laws of Prime Minister Narendra Modi's government cannot address, despite a 'renewed' vision.
From 'Rajdrohi' to 'Deshdrohi'
A major overhaul of the new criminal laws includes the abolition of the controversial sedition law, which has been in place since colonial rule and was recently struck down by the Supreme Court of India. Highlighting this change, Union Home Minister Amit Shah highlighted the abolition of sedition provisions under the updated legal framework.
The sedition law covers offenses that 'endanger the sovereignty, unity and integrity of India'. '
On May 11, 2022, the Supreme Court suspended Article 124A, which was criticized for its misuse and broad interpretation. The court, led by then CJI NV Ramana, emphasized the historical context of British colonial rule in prosecuting freedom fighters under colonial rule and stayed its application until further orders were issued.
In the Bharatiya Nyaya Sanhita, Section 150 defines sedition as 'subversive activities'. The term “subversive” refers to the tendency or intention to overthrow, destroy, or undermine an established or existing system, especially a legally established government or set of beliefs.
Despite opposition, the Prime Minister Modi-led government introduced the bill with a broader definition: “Whoever, intentionally or knowingly, by words, spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial means, otherwise incites or attempts to incite secession, armed rebellion or subversive activity, or encourages sentiments of separatist activity or endangers the sovereignty, unity and integrity of India; or is guilty of such act, shall be punishable with imprisonment for life or with imprisonment which may extend to seven years and shall also be liable to fine.”
While in English the word 'subversive activities' replaces 'sedition', in Hindi the law makes a simple name change – from Rajdroh (rebellion against the king) to Deshdroh (rebellion against the nation).
Male, transgender rape victims unsafe
As the new penal laws are implemented, concerns are emerging over the exclusion of penal provisions for rape involving male or transgender victims in the Bharatiya Nyaya Sanhita. .over, the law omits Section 377 of the IPC, which criminalises 'carnal intercourse against the order of nature'.
In 2018, the Supreme Court of India significantly amended Section 377 of the IPC through its landmark Navtej Singh Johar vs Union of India judgment. The Supreme Court's decision decriminalized consensual sexual relations between adults, including those of the same sex.
Despite the 2018 reform to exclude consensual same-sex relations, Section 377 continues to be used to prosecute non-consensual acts. However, the Bharatiya Nyaya Sanhita’s omission of this provision, coupled with non-gender neutral rape laws, leaves male and transgender victims with limited legal recourse in cases of sexual assault.
