Bharatiya Nyaya Sanhita: A Step Forward or a Step Back?

India’s criminal law is an amalgamation of history, culture, and power dynamics. From the religious dictates of ancient Hindu legal texts to the structured codification of Islamic jurisprudence, to the comprehensive but colonial Indian Penal Code (IPC), each phase has profoundly reshaped the legal landscape. Today, as the nation stands at the cusp of another significant transformation with the introduction of the Bharatiya Nyaya Sanhita (BNS), it is imperative to critically examine its potential and pitfalls.

Though the IPC, enacted in 1860, is a relic of British colonial rule. Yet, over the decades, it has been celebrated for its clarity and comprehensive nature. The IPC’s commitment to equality before the law, protection of fundamental rights, and the principle of judicial independence are its cornerstones. Its reformative approach, particularly toward juvenile offenders and minor crimes, reflects a progressive understanding of justice. However, beneath this veneer of progressiveness lie deeply ingrained issues. The IPC’s colonial legacy, slow judicial processes, corruption within the police and judiciary, and inadequate protections for vulnerable groups remain glaring problems.

BNS is presented as a bold attempt to modernise and streamline India's criminal justice system. The BNS promises to address new-age crimes like cybercrime and digital fraud, reflecting an understanding of contemporary societal needs. It emphasises codification and clarity, aiming to reduce legal ambiguities and ensure consistent application of the law. It also seeks to expand on the IPC’s commitment to equality before the law, maintaining a uniform legal standard for all individuals, regardless of caste, creed, or gender.

Yet, one must ponder whether the BNS is merely an evolution of the IPC or if it risks perpetuating the same flaws under a different guise. The over-reliance on technology in the BNS raises concerns about the digital divide. In a country where access to technology is starkly uneven, this reliance could exacerbate existing inequities. The push for electronic evidence and digital records, while progressive, might disadvantage those without access to technology, creating a new form of legal disenfranchisement.

Moreover, the implementation challenges of the BNS cannot be overlooked. The successful application of its provisions requires significant training and capacity-building within law enforcement agencies. Without proper training, the enforcement of new laws might be inconsistent, leading to more harm than good. The existing backlog of cases in Indian courts also poses a formidable challenge. Despite the BNS’s intent to streamline processes, judicial delays and inefficiencies could thwart its implementation.

Ambiguities in legal definitions within the BNS also present a potential for misuse. While the code attempts to provide clearer definitions, some terms remain open to interpretation, risking arbitrary application of the law. The introduction of community service as a punishment, for instance, lacks clear guidelines, which could lead to inconsistent and possibly exploitative practices.

The BNS’s approach to social and cultural sensitivities raises additional red flags. Despite introducing provisions for the protection of women, the retention of gender-biased language and the marital rape exception, are troubling. These aspects perpetuate gender stereotypes and fail to provide comprehensive protection for all victims of sexual crimes. The law’s failure to fully address these issues reflects a lack of commitment to genuine gender equality.

Furthermore, the economic and logistical constraints of implementing the BNS are significant. Substantial resources are needed to support its provisions, particularly in rural and underdeveloped areas. Without adequate funding and infrastructure, the reforms may remain largely theoretical, failing to impact the ground reality.

One significant concern regarding the BNS is the limited legislative hours devoted to its framing and passage. The Bill was introduced and approved rapidly within the winter session of Parliament on December 20 and 21, 2023, with Presidential assent on December 25, 2023. This expedited process raises concerns about the depth of deliberation and scrutiny the Bill received.

Insufficient legislative debate can lead to poorly crafted laws with ambiguities and loopholes, which might weaken their effectiveness and lead to potential misuse. Comprehensive legislative processes ensure that diverse perspectives are considered, and potential issues are identified and addressed. Therefore, the rushed passage of the BNS highlights the need for more thorough and inclusive legislative deliberation to ensure the robustness and fairness of such critical legal reforms .

Human rights concerns persist within the BNS, particularly regarding the death penalty and custodial violence. The inclusion of the death penalty for certain offences continues to raise ethical questions about its effectiveness as a deterrent and its alignment with human rights principles. Despite reforms, enforcing laws against custodial violence remains a significant challenge, underscoring the need for robust mechanisms to ensure accountability and prevent abuse of power by law enforcement officials. To this end the BNS should embody principles of social justice and inclusivity, ensuring that the legal framework is both progressive and equitable. Here are some key suggestions:

The BNS must include measures to bridge the digital divide. This can be achieved by investing in nationwide digital literacy programmes and improving digital infrastructure, especially in rural and underserved areas. Ensuring equitable access to technology will prevent legal disenfranchisement of the vulnerable and the marginalised communities. Extensive training programmes for law enforcement officials on the new provisions and technological aspects of the BNS are crucial. Additionally, regular monitoring and evaluation mechanisms should be established to ensure the effective implementation of these training programs.

To prevent misuse and arbitrary application, the BNS should provide clear and unambiguous legal definitions. This includes developing detailed guidelines for community service to ensure consistency and prevent exploitation. Supplementary legislation or judicial interpretation may be necessary to refine ambiguous definitions. It should not seem that the government is trying to codify politically and socially acceptable conduct.

Also, the BNS should incorporate gender-neutral language in all relevant sections, ensuring comprehensive protection for all victims of sexual crimes. Revisiting and amending the marital rape exception is crucial to provide full protection to women within marriage, aligning with international human rights standards.

Securing adequate government funding to support the implementation of the BNS is essential. This includes building infrastructure, training personnel, and ensuring efficient legal processes. Public-private partnerships can also enhance resource allocation and technological integration in the criminal justice system.

A national debate and review of the death penalty should be conducted, considering alternatives that align with human rights principles. Strengthening mechanisms to prevent custodial violence, such as independent oversight bodies and regular audits of detention facilities, is also necessary to ensure accountability. While ensuring that independent bodies are allowed to function independently and in a manner that is free and fair.

Establishing more fast-track courts to handle specific types of cases, such as those involving digital evidence or crimes against women and children, can help reduce backlog and expedite justice. Promoting alternative dispute resolution mechanisms like mediation and arbitration will also alleviate the burden on courts.

Enhancing victim support services, including counselling, legal aid, and financial compensation, is crucial to ensuring comprehensive assistance for victims of crime. Implementing robust witness protection programmes will safeguard witnesses and encourage their participation in the justice process.

Since the BNS claims to represent a crucial step toward modernising India’s criminal justice system, its success will depend on its ability to address potential pitfalls with a principled and inclusive approach. Bridging the digital divide, strengthening law enforcement capacities, clarifying legal definitions, and ensuring adequate resource allocation are critical. A steadfast commitment to human rights, judicial efficiency, and comprehensive victim support will be key in creating a more just and equitable legal system.

India’s journey toward a just and equitable legal system is not merely a legal imperative but a moral one, crucial for the flourishing of India’s democratic spirit. As the nation transitions to the BNS, it must navigate these complexities with a commitment to social justice and inclusivity, ensuring that the legal framework truly serves its diverse populace.

The writers are associate professors at Zakir Husain Delhi College, University of Delhi. The views are personal.