New Criminal Laws: Media Needs to be Careful

Instead of amending every penal section and definition allowing intensive discussion among different stakeholders, the Central government has gone and changed the criminal laws "lock, stock, and barrel".

The Central government has brought in big changes to the country's criminal justice system by replacing three old laws -- the Indian Penal Code (IPC) from 1860, the Code of Criminal Procedure (CrPC) from 1973, and the Indian Evidence Act from 1872.  These are named as:  Bharatiya Nyaya Sanhita (BNS), 2023, replacing the IPC, Bharatiya Nagrik Suraksha Sanhita (BNSS), 2023, replacing the CrPC and Bharatiya Sakshya (BS), 2023 for the Indian Evidence Act. The new laws have come into effect from July 1.

However, the “new” criminal laws are not totally “new”. The government says that the Sanhita is based on recommendations of the Law Commission of India and also claims that it seeks to remove archaic and obsolete provisions, introduce new offenses, and enhance penalties for certain crimes. It also tries to make the language of the law clearer and more concise.

In 2020, the Ministry of Home Affairs formed a committee led by Ranbir Singh, a former Vice Chancellor of the National Law University (NLU) in Delhi. (Earlier Prof Singh was the first VC of NALSAR University in Hyderabad, where this writer was a professor, before present assignment).

This committee was set up to review the three main criminal law codes in the country and suggest changes that would ensure the safety of individuals, communities, and the nation, while also focusing on principles like justice and dignity. The committee gave its recommendations on amending the criminal laws in February, as claimed.

Bharatiya Nyaya Sanhita, 2023: The Indian Penal Code (IPC) was created in 1834 and became effective in 1860. The new BNS is designed to replace and update the IPC. There are various changes, including those related to defamation, crimes against women, and attempted suicide. While the current IPC has 511 Sections, the BNS has 356 sections. As many as 175 sections have been amended, eight new sections have been added and 22 Sections have been repealed.

Home Minister Amit Shah, in his speech in Lok Sabha, said: "313 badlav hai maanyavar...Hamare criminal justice system ke andar amool chool parivartan hoga aur sabko zyaada se zyaada 3 saal mein nyay milega...isme police durupyog na kar paye, aisa bhi hai. Ismein Raj droh jaise kanoon ko nirast kar rahe hai."(There are 313 changes in the new bill...The entire criminal justice system will be completely overhauled and everyone will get justice in a minimum of three years... The bill will introduce that police do not misuse their power. Offenses like sedition have been repealed.)

Two new crimes

Terrorist: The first new serious definition is ‘the terrorist’. The BNS defines terrorism for the first time, which was not the case in the IPC. A terrorist is defined as someone who commits acts in India or abroad to threaten India's unity, and security, intimidate the public, or disturb public order.

Mob Lynching: The BNS has introduced capital punishment for mob lynching, along with life imprisonment or seven years imprisonment. Sexual exploitation of women under pretenses like marriage, jobs, or promotions is considered a crime. The BNS has removed the provision for the crime of adultery, following a 2018 Supreme Court ruling that found the old provision unconstitutional.

Sedition: Media Should be Careful

The Sanhita proposes the removal of the term "sedition" and has introduced of a new Section that deals with "Acts endangering sovereignty, unity and integrity of India". This ‘new sedition’ is in the name of Section 150, which is more specific and comprehensive than IPC Section 124A, which was often used to suppress dissent and criticism of the government. This will be very problematic for those who write.

The penalty under this Section is higher and stricter in the Sanhita. It increases the maximum punishment for such offenses to life imprisonment or up to seven years imprisonment and adds the possibility of imposing a fine. The proposal means higher fines than the earlier. It also clarifies the meaning of terms such as "secession", "armed rebellion", "subversive activities" and "separatist activities", which were not defined in the IPC Section 124A.

The Executive and the Legislature say the Sanhita is supposed to balance the need to protect the national security and integrity of India along with the right to freedom of expression and opinion of its citizens.

The Definition in Section 150

"Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial mean, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years and shall also be liable to fine."

The explanation as provided in the Section states: "Comments expressing disapprobation of the measures, or administrative or other action of the Government to obtain their alteration by lawful means without exciting or attempting to excite the activities referred to in this section."

IPC Section 505

The Sanhita aims to simplify and modernise the Indian Penal Code of 1860. One of the changes is the removal of Section 505, which deals with statements that can cause public mischief or create or promote enmity among different groups.

It introduces Section 194, which covers the same offence but with more clarity and specificity. Section 194 defines the grounds of religion, race, place of birth, residence, language, etc. as the basis for enmity and also includes acts that are prejudicial to the maintenance of harmony.  It also prescribes higher punishment for offences committed in places of worship or religious ceremonies, as well as for repeat offenders.

Promoting Enmity Between Different Groups

In the present political atmosphere, another harsher Section is the old IPC 153A in a “new” form, dealing with promoting enmity between different groups. The Sanhita changes Section 153A in the IPC, which deals with the offense of promoting enmity between different groups based on religion, race, place of birth, residence, language, etc., and doing acts prejudicial to the maintenance of harmony, replacing it with Section 194. This section also includes offenses committed in a place of worship or any other place considered sacred by any religious group.

One needs to delve deeper into problems in the definition in Section 153 of the Sanhita, of the offense of receiving property taken by war or depredation mentioned in Sections 153 and 154. This section corresponds to Section 412 in the IPC, which deals with dishonestly receiving property stolen in the commission of a dacoity.

The ‘New’ Defamation Law

The media has been facing wrongful and harassing cases of political vendetta under alleged ‘defamation’ cases. IPC Section 500 lays down the punishment for defamation: “Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.”

What happens now under the new BNS 2023? It does not have Section 499. The offense of defamation is covered under Section 354 (1) of the new Sanhita. Section 354(2) of the Sanhita describes the defamation punishment, including “community service”. It says: “Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both or with community service.”

The problem is clandestinely presenting the increase in the ‘fine’, causing more money-related difficulties.

The writer is Professor, School of Law, Mahindra University, Hyderabad. The views are personal.