Tag: Bharatiya Nyaya Sanhita

Bharatiya Nyaya Sanhita Comes With Some Hits And Misses

‘Bharatiya Nyaya Sanhita Comes With Some Hits And Misses’

By LokMarg

Somya Singh, a law graduate from Delhi University who is pursuing Masters from University of Lausanne, Switzerland, shares her views on new criminal laws

India has finally bid adieu to the colonial-era 164-year-old Indian Penal Code (hereinafter referred to as the IPC), originally designed by Thomas Babington Macaulay. The IPC has been replaced by the new legal framework, Bharatiya Nyaya Sanhita (referred to as the BNS). Whether the new laws are a genuine leap to deliver justice or if they would pave the way for potential exploitation by law enforcement forces, is yet to be seen.

The BNS comes with some hits and misses. The colonial-era sedition law enshrined under Article 124-A of the IPC has been removed. Nevertheless, its shadow persists in Article 152 in what can be described as ambiguous itself. For example, phrases such as “subversive activities” and “endangers sovereignty” are vaguely defined. This new law too mirrors the flaws of Article 124-A and runs the risk of being spuriously misused by the state. Hence, in the spirit of safeguarding personal liberty and the right to free speech, the present definition must be reassessed.

Another controversial omission was the removal of the provision of Section 377 of the IPC. In Navtej Singh Johar & Ors. v. Union of India, Ministry of Law and Justice (2018) 1 SCC 971, the Hon’ble Supreme Court decriminalised consensual sexual intercourse amongst homosexual couples. However, Section 377 was retained to protect public morality and to penalise non-consensual acts and unnatural offences. Despite a Parliamentary Committee’s recommendation to maintain these specific provisions, the BNS has done away with the entire Section. This step has not been viewed in good taste because it goes against the welfare of men, transgender individuals and animals.

ALSO READ: ‘New Codes Will Ensure Speedy Justice, Fair Probe’

The BNS incorporates the term transgender under Section 2(10) within the definition of “gender”, a progressive step that was absent in the IPC. Moreover, it adopts a gender-neutral position, such as the offence of voyeurism, described under Section 77 of the BNS. Despite these advancements, offences such as rape are still women-centric. Similarly, Section 96 uses the word “child” instead of “minor girls”, replacing Section 366 of the IPC. This partial inclusivity in the BNS is a missed opportunity for gender neutrality and falls short of creating a more representative and equitable legal framework.

Section 497 of the IPC which criminalised adultery is omitted in the BNS. This step is in alignment with the Hon’ble Supreme Court’s ruling in the landmark Joseph Shine v. Union of India, (2018) 2 SCC 189. However, this omission has not escaped criticism. It has been suggested that the BNS retain Section 497 in a gender-neutral manner to safeguard against the scourge of infidelity and ideas that are fundamentally hostile to marital sanctity. In addition to these amendments, the BNS introduced new provisions related to community service, mob lynching, snatching, organised crime, offences related to sexual relationships by a false promise to marry and terrorist acts.

These additions reflect a conscious effort to adapt to the contemporary issues faced by our country. Overall, the BNS is a significant stride in the progressive direction highlighting the crucial need for a legal framework designed by Indian lawmakers. However, the lawmakers must acknowledge the criticisms and further pursue an exhaustive review of the contentious provisions.

The efficacy of the BNS in delivering justice does not merely hinge on its legislative content but also its implementation. The focus should be on building the infrastructure to navigate legal complexities and ensure a fair, accessible justice system. Laws, by nature, should be dynamic, evolving fluidly to serve social, economic, environmental, technological and international interests. The Indian legal system should advance, but with measured deliberation, as striking the right balance between stability and progress remains fundamental in preserving the rule of law.

(The narrator practises civil and corporate litigation, and has worked in prominent law firms such as S&R Associates and P&A Law Offices)

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As told to Deepa Gupta

New Criminal Code Will Ensure Timely Justice

‘New Criminal Code Will Ensure Timely Justice, Fair Investigation’

By LokMarg

Pankaj Mishra, a criminal lawyer at the Lucknow Bench of Allahabad High Court, says the new criminal code which replaces colonial-era IPC is a laudable step. His views

A criminal justice system should not only withstand the changes in time but also address contemporary challenges. The new legal code, named Bharatiya Nyaya Sanhita, in my humble understanding of criminal justice system, will not only ensure timely justice but also prove to be the valediction of the ‘tareekh-pe-tareekh’ courtroom drama.

To begin with, the now obsolete IPC (1860) which had over 500 sections pertaining to various crimes. In the newly-adopted BNS, these sections have been reduced to only 358 provisions, thereby saving time for not only the police (while filing a complaint) but also for the lawyers who used to jumble across various sections pertaining to the crime.

The other thing that is praiseworthy in the new set of laws are the provisions of separate time limits set for the completion of proceedings pertaining to the cases lodged under various sections. This will in effect save time, energy and money for both the client and the legal assistance. In addition, it will make the life of the police and administrative officials simpler. The inclusion of Zero FIR, wherein police can register a case irrespective of the place of the offence, coupled with the time-bound disposal of cases, will certainly strengthen the legal system and restore the faith of citizens in the law of the land.

ALSO READ: ‘Tardy Justice Breeds Calls For Extra-Judicial Killing’

Some new inclusions and re-introductions are also noteworthy, such as the decision to reintroduce adultery as a sex-neutral offence keeping in line with the principle of non-discrimination and equality. By embracing contemporary legal practices like time-bound investigations, evidence clarity and enhanced punishments, the reforms aim to safeguard citizens’ rights and fostering a progressive legal system.

The provision of community service as a punitive measure for pretty offences is another laudable move. Look at our prisons: they are overcrowded, predominantly by undertrials. Community services for many petty offences in developed and progressive countries are widely acceptable and practiced as a reformatory measure. If the aim is to reform, public services are a better step to bring an offender to the mainstream. However, the key should be to ensure that it is meaningful, reviewed and monitored.

In fact, the new sections will change the way policing is done, complaints are filed and most importantly, the evidence is collected. This will not only change the way lawyers prepare to fight cases but will also need judicial aspirants to prepare afresh to become judges. Besides, a lot of training sessions and, in a way, small key notes (like guides for examinations for X and XII) should be made available to officials in department like police, administration, judiciary, etc. to make them familiar with the new provisions. That will help them better familiarize with the new set of laws at a pace to ensure that the delivery of justice is put on the faster mode.

As told to Rajat Rai

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Parliament Budget Session 2024

Budget Session Ends, Parliament Adourned Sine Die

By LokMarg

Lok Sabha and Rajya Sabha were adjourned sine die on Saturday after the conclusion of the budget session. 

This was the last day of the ongoing budget session of the 17th Lok Sabha before the general polls. The budget session, which began on January 31, was to conclude on 

February 9 but was extended by a day.  

Lok Sabha Speaker Om Birla, in his valedictory remarks, said that the House had passed several significant legislations including Bharatiya Nyaya Sanhita bill, triple talaq bill and women’s reservation bill. 

Speaker Om Birla on Saturday said that the overall productivity of the 17th Lok Sabha has been around 97 per cent, the highest among the tenures of the last five Houses .  The lower House of Parliament also lost a total of 387 hours to disruptions

In his remarks, Prime Minister Narendra Modi said that the past five years of BJP-led government were about “reform, perform and transform” in the country. PM Modi greeted the members and lauded the role of Speaker Om Birla in running the House.

“These five years were about reform, perform and transform in the country. It is very rare that both reform and perform take place and we can see transformation right in front of our eyes…The country is experiencing this through the 17th Lok Sabha and I firmly believe that the country will continue to bless the 17th Lok Sabha,” he said.

Rajya Sabha Chairman Jagdeep Dhankhar, in his valedictory remarks, highlighted that the country is making phenomenal progress in all walks of life. 

“As highlighted by the Hon’ble President in her address, Bharat is making phenomenal progress in all walks of life. We are in Amrit Kaal of our republic. As members of the Upper House, we have to ensure exemplary standards of conduct. We need to be a source of inspiration as Bharat steadfastly surges towards a Viksit Rashtra and a global leader. We are in an era of immense possibilities. Let us vigorously contribute to the continual, incremental rise of Bharat. I have no doubt that this sentiment is shared by every member of this House and the people at large,” Dhankhar said. 

Dhankhar also mentioned the bills that received a nod from the House. 

“It is noteworthy that during this session Hon’ble Members spoke in 15 regional languages with simultaneous interpretation in Hindi and English. In addition to the discussion on the Motion of Thanks to President’s Address and interim Union Budget, this House also passed 7 Bills including Public Examinations (Prevention of Unfair Means) Bill, Water (Prevention and Control of Pollution) Amendment Bill, Jammu and Kashmir Local Bodies Laws (Amendment) Bill and Constitution Amendment Bills related to inclusion of Scheduled Castes and Scheduled Tribes. I would also like to mention that 22 Private Members’ Bills have been introduced in this Session,” he said.

He said the House also bade farewell to 68 Members.

“Out of this, three members retired in the month of January and the remaining 65 would be retiring between February and July this year. Let me express our profound appreciation for the distinguished service rendered by each one of our esteemed retiring colleagues,” Dhankhar said. 

He expressed gratitude to Deputy Chairperson Harivansh and members on the panel of Vice-Chairpersons for assisting him in conducting the proceedings of the House.

“I also thank the Leader of the House, the Leader of the Opposition, the Minister of Parliamentary Affairs, the Leaders of various Parties and the Hon’ble Members for their cooperation.” 

The Rajya Sabha chairman also extended greetings to the members ahead of the coming Lok Sabha polls. 

“I acknowledge the untiring efforts of the Secretary-General and his team of dedicated officers and staff in ensuring that the session runs smoothly. Before I conclude, I would like to extend my good wishes to all of you for the forthcoming festivals and for the general election,” he said. 

Lok Sabha elections are slated to be held in April-May. (ANI)

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