Note4Students: 

Prelims:  Governance; Bharatiya Nyaya Sanhita (BNS), 2023;

Mains:  Governance;  Issues related to the section in Bharatiya Nyaya Sanhita (BNS); 

Mentor comments: In December 2023, the Indian Parliament enacted three new criminal codes. The Indian Penal Code (IPC), 1860 is the principal law on criminal offenses in India. The stated aim of the new three legislations is to ‘decolonize’ criminal laws of the British era. Currently, ‘Organised crime’ and ‘acts of terrorism’ are not covered under IPC.  Acts of terrorism are covered under the Unlawful Activities (Prevention) Act, 1967 (UAPA).  Organized crime is covered by state laws such as the Maharashtra Control of Organised Crime Act, 1999 (MCOCA), and similar laws are enacted by various states. Hence, there was a demand for a single platform for this code. However, the designed law too has its challenges which need to be revisited considering the diversity of society and its demands.

Let’s learn. 

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Why in the news? 

The three new criminal laws that were passed by Parliament in 2023 will come into effect from July 1, 2024, according to a notification by the Ministry of Home Affairs (MHA).

The Laws that need to be revisited:

1. The issue with Section 106 (Hit-and-Run):

• The Section 106 provision is part of the BNS, which is set to replace the colonial-era Indian Penal Code, 1860.
  • Section 106(1) provides for a punishment of up to 5 years for causing death by any rash or negligent act not amounting to culpable homicide.
  • Section 106 (2) stipulates a penalty of up to 10 years in jail and a fine for fleeing an accident spot and failing to report the incident to a police officer or a magistrate.
• This section has become a focal point of discontent, especially among the driving community. Even though the driver reports immediately after the accident, they will be charged under Section 106(1) instead of Section 106(2). 

2. The issue with Section 112 (petty organized crime):

• It talks about a group or gang, either singly or jointly, commits any act of theft, snatching, cheating, unauthorized selling of tickets, unauthorized betting or gambling, selling of public examination question papers, or any other similar criminal acts is said to commit a petty organized crime”.
• The “unauthorized selling of tickets” and “selling of public examination question papers” are not linked with any special Act. However, the phrase ‘any other similar criminal acts’ of the section is more indefinite and open-ended.

3. Section 104 (No discretion):

• Section 303 of the Indian Penal Code (IPC) mandated the death sentence for a person who murders while undergoing imprisonment for life. This provision was struck down by the Supreme Court in Mithu vs State of Punjab (1983) as it violated Articles 14 and 21 of the Constitution of India. 
• Section 303 of the IPC has been reinstated as Section 104 of the BNS without rectifying the unconstitutional defect. 

4. Section 303 of the BNS (Reassessment of Theft Offenses):

• No reason behind it is considered Non-cognizable: The provision stipulates that for theft cases where the value of the stolen property is less than ₹5,000 and it’s the first conviction, community service is mandated upon the return or restoration of the property. This offense is categorized as non-cognizable.
• Three Legal issues may arise: 
  • Firstly, if property offenses, of whatever value, are not registered, property offenders will be out of the police radar for surveillance. 
  • Secondly, legal issues may also arise about the return of such property if recovered with some other stolen or looted property.
  • Thirdly, if the stolen property of a value less than ₹5,000 is not returned or restored by the convict as provided for, the only option available to the court will be to award imprisonment which may extend up to 3 years. 

Way Forward:

• Need for Comprehensive Coverage: We can initiate consultations with all stakeholders to address concerns and gather diverse perspectives.
• Need for clear Protocols: Establish a clear and standardized protocol for emergency response, emphasizing the importance of prompt reporting without exposing drivers to potential violence. The law should also clarify the reporting procedure and the evidence required for the drivers to prove their innocence or mitigating factors.
• Need to maintain Balance: The law should be categorized in different scales based on liabilities and eventually, the punishment should be commensurate with the offense.
• Need for more research: The study and incorporation of successful models and globally best practices with effective legislation is necessary in the Indian context.

https://www.thehindu.com/opinion/lead/revisit-these-sections-of-the-bharatiya-nyaya-sanhita/article68029299.ece#:~:text=Section%20106(2)%20of%20the,has%20been%20put%20on%20hol