BHARTIYA NYAYA SANHITA

INTRODUCTION

 New changes and provisions in BNS

 Structure of BNS
 Problems with BNS
 Whether the case laws of the earlier IPC provisions be still applicable on BNS
provisions?

NEW CHANGES AND PROVISIONS IN BNS

BNS came into force on 1st of July 2024 but received presidential assent on 25th December, 2023.
BNS has 358 sections spread over 20 Chapters that makes it shorter by 153 sections.

 20 new provisions and 17 new offences and 20 offences (many consider it to be 21

offences dropped as Sec 366 A is now Sec 96 but it is considered to be dropped as it
refers to “child”, whereas earlier it was “girl child” and hence the offence is considered to
be changed) were dropped and 27 sections were dropped.
 Number of chapters were also reduced from 23+3 to 20 by combining chapters as well
 Period of imprisonment increased in 33 provisions
 Amount of fine increased for 83 sections
 Minimum mandatory punishment for 23 offences was introduced
 From Sec 1-52A of IPC are Independent sections and in BNS they all have been
combined in 3 sections and all the independent sections have been made into clauses
under these sections.
 BNS does not specify the extent of operation unlike the previous legislations including
the IPC, even in BNSS and BSA. This omission does not mean it would apply to other
countries but it is an assertion that Indian law would apply to Indians abroad. This was to
omit the complications in recording of evidences from abroad. But for all practical
applications it is still applicable in the territory of India.
 Another notable change is Sec 48 of abetment deals with the abetment outside India for
an offence in India which would hold a person residing in another country liable for
abetment if he/she abets another person situated in India to commit an offence.
 Community service is defined in Sec 23(explanation) of BNSS which means unpaid work
that convict is required to perform which benefits the community. Sections which provide
for community service as alternative punishment are:
 Sec 202: public servant unlawfully engaging in trade [1yr/fine]
 Sec 209: non appearance in response to a proclamation under Sec 84
BNSS[3yrs/fine]
 Sec 226: attempt to commit suicide to compel or restrain exercise of lawful power
of P.S.[1 yr/fine]
  Sec 303 (2): Theft by a first time offender where the value is less than 5000 and
restores [community service is the only punishment]
 Sec 355: misconduct in public by a drunken person[24 hrs/rs.1000 fine]
 Sec 356: defamation[2 yr/fine]

STRUCTURE OF BNS

Key Changes in the definitions

 Sec 2(3): “child”

A person under 18 years of age
This is problematic as every section has their own definition of child
Such as in section 92 and 97, the age is 10 and 12 which is different from
the definition
 Sec 21: “movable property”
 It has been expanded to include movable property of “every description”
and the word “corporeal” has been dropped
 It now includes electronic data and intellectual property.
 Now theft of electricity, copyright is an offence in the BNS
 Sec 2(10): “gender”
 It includes “transgender” and refers to the Transgender Act (Protection of
Rights), 2019 for the definition of the word.

Chapter V: Offences against women and children

 This is the first chapter in BNS as considered the most heinous crimes.
 Almost all offences have been retained and not many changes have been made.
 Raping wife over 18 years still not a crime and Gang rape of a girl under 18 years may be
visited.
 Bigamy is an offence against institution of marriage and so is adultery. But these have
been added in this section, even though it is not a crime against the wife, as the wife can
as well as be committed.
 Though most sections have been retained and there are not many changes, Sec 69 of BNS
is a new offence that has been added i.e. , “sexual intercourse by employing deceitful
means etc.” Though it is a newly added section and there in no corresponding offence in
the IPC but looked from another angle, Sec 69 in not an entirely new offence.
 There were cases being reported, decided and adjudicated by the court, including
the highest court of Supreme Court. These are the cases where there was
intercourse taking place under the false promise to marry. The accused was tried
and convicted under the Rape provisions of Sec 375 and 376 IPC.
 Sec 69 applies only when the act does not amount to rape. To prove the deceitful
means one has to prove a false promise to marry that has been made. To prove is a
 difficult task as have to differentiate between breach of promise and false promise
as false promise is the one that is punished and mere breach of promise would not
result as an offence under this Section.
 This section also has added in the provision as deceitful means as marrying by
suppressing identity. Though this has been included in the cheating bythe
judgement of the Sc, yet still added in this section under Sec 69 and will be
punishable for 10 years.
 Sec 95 is a new offence: hiring a child to commit an offence. The adult would be
punished with the same punishment that the offence carries out. The child’s liability is
not answered in BNS.
 Reform in the gender of the offender have been made for the better, in some sections but
done in a limited manner.

Section 74: Outraging Modesty Anyone can commit

Section 75: Sexual Harassment Only a man can commit
Section 76: Disrobing Anyone can commit
Section 77: Voyeurism Anyone can commit
Section 78: Stalking Only a man

Chapter VI: Offences against the Human Body

 Most significant changes have been made under this Chapter.

 Sec 103 (2) adds a new offence of mob lynching. Though the provision does not use the
word ‘mob lynching’
 103 is counterpart of 302 which is punishment for murder
 Religion not used as personal belief would include religious belief and hence it is still a
ground for murder under this section and also any other similar ground and by ruel of
ejisdum generis where colur taken by specific words and hence it would include religion
as a ground.
 It is political provision , on much change in the criminal jurisprudence

PROBLEMS WITH THE BNS

 The first issue is that Law of evidence is not a part of the criminal law family.
 Eg: Dying Declaration is relevant even in civil matters, such as in life insurance
policy cases. In England it is only in criminal cases where a person is on his death
bed and the statement made by him then is considered to be a dying declaration
but in India any statement which tells about the circumstances about the death of
the person, even if the statement was not made in the apprehension of death, shall
be considered as a dying declaration. Eg: The person says to his wife he is going
to return money to someone and the next day his chopped up corpse is delivered
 to his house. This sentence that he had last said to his wife will be considered as a
dying declaration in India but not in England.
 It is because that most cases of evidence are related to criminal law that a
misconception has arisen that Law of evidence is a criminal law. Therefore, a
wrong clubbing of these three acts that has being done while implementation of
these new laws.
 Discourses are very lopsided as to the implementation of these new laws as there was no
healthy discussion on the laws and the government departments were so apprehensive
about criticism of the new laws that they were not even open to constructive criticism. No
open discussion was done as the government wanted no controversy regarding the new
laws and hence academic discussions were not held and this was a very big loss to the
new laws as thorough academic discussions could have provided for improvements in the
new laws.
 A committee was set up headed by the Vice Chancellor of NLUD to prepare a draft for
the three new laws in 2020. A draft for each new law was prepared by the committee but
the new laws are not the proposed drafts by the NLUD committee. Though this is not
what is depicted and portrayed in the media as that would be contradicting the
government’s stance where it has thanked NLUD committee for their contribution to the
new laws. The drafts were censored and the committee was even barred from publishing
the same.
 The whole of the BNS has not been implemented as on 1st July 2024. Section 106 is still
not in force yet.

SECTION 304A OF IPC: SECTION 106 (1) OF BNS

carried only 2 years maximum replacing this Section of 304A:
punishment for causing death Punishes act of causing death
by negligence by a negligent act up to
SC in the past few years has maximum of 5yrs of
expressed their concern over imprisonment
the meagre punishment which
is not deterring the negligence
 SECTION 106 (2) OF BNS is a new section added and there is no corresponding
section in IPC for the same. The Section states that if the driver hits and runs
away without informing the police or magistrate within reasonable time and the
person dies, he shall be punishable up to max 10 years of imprisonment

 Section 106 (2) has been put on hold and the truck drivers have even said that they
would go on strike if this Section is implemented. This section applies to every
driver on the road and not only heavy vehicle drivers. Many concerns were raised
against this Section 106 (2). One such concern is of self incrimination and
violating the person’s right against self incrimination. But this is not the case as
one would confess to committing an accident and accident is a complete defence.
 This is not giving evidence but only information which cannot be considered as
incriminating.
 The problem with Section 106(1) is that now the punishment for negligence of the
persons is 5 years but in cases of doctors i.e. medical negligence, the punishment
is still 2 years. The question arises is that how doctors constitute a different set of
society and why should they be differently punished. It is a discriminatory
provision. It is the most vulnerable section of the Act.
 Another change that is causing confusion is that Data is now movable property. The
word “tangible” “corporeal” were used in the IPC to describe movable property but now
it has dropped these words and now it includes “movable property of every description”.
This has proven to be a problem as this has complicated the task of valuation of
intangible property is a difficult task. Another issue with this change is that there is no
change in the definition of theft but there is a change in the definition of property i.e.
something that can be stolen.
 It is not a decolonised law. It is considered as a tribute to Macaulay as the most of the
sections are the same and hence it shows that how it is not modern and decolonised law
 The claim of cutting out unwanted and useless sections: the contention of chopping of
dead wood is not true as in IPC there were three trends:
 Offence in one section and punishment in the next section. Eg: Sec 378 defines
theft and Sec 379 gives the punishment
 Offence in one and punishment given after a fewer sections eg: murder in 300 and
punishment in 302
 Offence and sections in one. Eg: sec 306 or 305,

The last trend has now been followed and combined. Eg: Sec 378 and Sec 379 are combined, Sec
300 and Sec 302 are combined. Hence the numbers of sections have been reduced. This is not
chopping off old wood. It could be actually done by removing

 Community Service is provided in in arbitrary manner and without rationale: There are
only 6 offences which prescribe community service as punishment and the logic of
choosing these offences is totally not logical as there no criteria or rational for choosing
This is good as Indian prisons are over populated with very few resources. 70-75%
prisoners are under trial. Denial of bail adds to the agony of overcrowding. Most
prisoners are in petty offence get bail but cannot pay their meagre fines of 1000-2000.
Breach of community service how to punished is not given, what to do in community is
also not defines. Community service has been given as a condition for bail as there is no
condition for the bail that has been statutorily defined. So high court is adopting certain
creative procedures but community service is not given as form of punishment but as a
ground for bail.
  Bigamy and Adultery are offences against women: But these have been included under
the Chapter of Offences against the Women and Children and not in the Offences against
Marriage.
 There has been no change in the gender of the victim: The old IPC discrimination and
gender bias can be still seen in the BNS.
 Liability of Child under Sec 95: Sec 95 is a new offence: hiring a child to commit an
offnce. The adult would be punished with the same punishment that the offence carries
out. The child’s liability is not answered in BNS
 Kidnapping is not included under offences against children: Kidnapping is not included
under Chapter V OF OFFENCES AGAINST WOMEN AND CHILDREN and is instead
included in the Chapter OF OFFENCES AFFECTING THE HUMAN BODY, even
though this offence can be committed only against a person under the age of 18 years
who is defined as a child in Sec 2(3) of BNS.

GOOD CHANGES MADE IN THE BNSS

Some remarkable changes have also been made by way of the new law. One such change is the
addition of the third gender. “Transgender” as a gender has been added in the new law along
with male and female, recognizing their rights and duties as well. It is complementary and
welcoming change.

Reform in the gender of the offender has also been made in some sections such as

Section 74: Outraging modesty Anyone can commit the offence

Section 76: Disrobing Anyone can commit the offence
Section 77: Voyeurism Anyone can commit the offence

Whether the case laws of the earlier IPC provisions be still applicable on BNS provisions?

In the case of BENGAL IMMMUNITY COMPANY V. STATE OF BIHAR, though the main issue
of this case was about centre-state relations, it has answered the question as to whether the cases
on the repealed act shall still be binding on the courts after the enactment of new act. The court
discussed that there can be different conditions in repealment, such as a provision is repealed and
re-enacted without any change, there is repealment and there is a slight difference and
modification of the old provision, such as change in elements, punishment etc. The court in this
case held that in the first category where the provision is repealed and re-enacted verbatim, that
is without any change, the interpretations of the earlier cases on the old provision would be not
only relevant but also binding on the courts as the presumption is that the legislature knew about
the interpretations and accepted the same and hence kept the provisions verbatim. But where law
is completely changed, the earlier case laws shall no longer be binding upon the new provisions .
For example Sec 69 is a new offence under the BNS. But there is a mass of case law Eg: sec 69
is a new offence, butthere is a mass of case law avaible , whether it was acase of false promise
and vreacj of proimise, whether one is guilty under ec 69, the case emerged in the past 20 years
would not only be relevant but also be binding whether a person is guilty or niit.

SEC 173 BNSS: FIR : if 3 years + less than 7 yrs, premilinary enquiry of 15 days veforer
registration of FIR

2014: LILITA KUMARI V GOVT. OF U.P.: sc: constituinoal bench decision: settled the
principle whether police to accept the complain of sec 154 uses the word shall, which makes it
mandatory, no discretion have to file FIR, but now as sec 173, the case has no relevance and
provison is no longer relevant

SEC133 of IEA AND SEC 138 OF BSA: testimony of an accomplice, earlier uncorboareted
testimony, now corroborated testimony

Sec 63 bsa, is a copy but not mirror image, to that extent of xhnage the case law is not relevant or
binding