The Bharatiya Nyaya (Second) Sanhita, commonly known as BNSS, emerged as a significant legislative attempt to reform India’s criminal justice system.
However, amidst its intended reforms, the bill retains several elements from the Indian Penal Code (IPC) while introducing new provisions, raising concerns and debates regarding its effectiveness in modernizing and improving the criminal justice process.
Clause 4: Community Service Punishment (Continuity)
Clause 4 of the Bharatiya Nyaya (Second) Sanhita (BNSS) marks a notable step towards introducing community service as a form of punishment for specific low-stakes offences, mirroring its provision within the Indian Penal Code (IPC). The inclusion of community service as an alternative penalty aims to offer a more rehabilitative and restorative approach to justice for certain minor infractions.
However, despite the recognition of community service as a viable punishment, the BNSS inadequately addresses the crucial aspect of its execution. The lack of explicit guidelines regarding the implementation and administration of community service within the legal framework poses significant challenges.
The absence of detailed instructions or parameters regarding how community service should be executed raises concerns regarding its effectiveness and fairness. Without specific guidelines outlining the nature, duration, or supervision of community service, there is a risk of inconsistent application or arbitrary imposition of this penalty by judicial authorities.
Furthermore, the ambiguity surrounding the execution of community service under the BNSS might result in its underutilization. Courts and law enforcement agencies might hesitate to implement community service as a punishment due to the absence of clear directives, likely limiting its potential as an alternative penalty.
The absence of a structured framework for executing community service within the BNSS could lead to disparities in sentencing and the imposition of punishments, which might not align with the original intent of promoting rehabilitation and community reintegration.
For community service to be a meaningful and effective punitive measure, it requires well-defined guidelines specifying its nature, duration, supervision, and implementation protocols.
Clear directives are essential to ensure consistency, fairness, and the successful integration of community service as a constructive aspect of the criminal justice system.
Therefore, the BNSS’s failure to provide comprehensive guidelines on executing community service creates a critical gap that needs to be addressed to achieve the intended goals of justice and rehabilitation.
Clause 63, 74, 75, 76, 77: Gender Neutrality (Continuity and Change)
Clause 94 of the Bharatiya Nyaya (Second) Sanhita (BNSS) marks an attempt towards gender neutrality by introducing it specifically in the context of the offense of ‘Procuration of Child.’ This clause signifies a recognition that criminal acts related to procuring a child should not be limited by gender, acknowledging that individuals of any gender can be involved in such offenses.
However, despite this positive step towards gender-neutral legislation in the case of ‘Procuration of Child,’ several other clauses within the BNSS, especially those addressing offenses like rape, sexual harassment, and voyeurism, retain gender-specific provisions. These clauses maintain the traditional construct where the perpetrator is presumed to be male and the victim is presumed to be female.
This maintenance of gender-specific provisions overlooks the lived realities and vulnerabilities of the LGBTQIA+ communities. It perpetuates an outdated binary understanding of gender roles and fails to accommodate the diverse range of identities and experiences within society.
For instance, clauses addressing offenses like rape (Clause 63), sexual harassment (Clause 74), and stalking (Clause 77) continue to adhere to a gendered framework where only men are presumed as perpetrators and only women as victims. This exclusion of gender-neutral language disregards the fact that individuals of any gender can perpetrate or fall victim to these crimes.
This failure to include gender-neutral language in crucial clauses related to offenses of sexual nature not only neglects the experiences of LGBTQIA+ individuals but also reinforces stereotypes and biases within the legal system.
To achieve true gender neutrality and inclusivity within the criminal justice system, it is imperative to revise these clauses by adopting language that is not confined to a binary understanding of gender.
Such amendments would acknowledge the diverse identities and experiences of all individuals within society, providing them with equal protection under the law, irrespective of their gender identity or sexual orientation.
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Clause 498: Enticement of Married Woman (Continuity)
Section 498 of the Bharatiya Nyaya (Second) Sanhita (BNSS) retains the provision addressing the enticement of a married woman for illicit intercourse, similar to its counterpart in the Indian Penal Code (IPC). This clause specifically focuses on the act of enticing a married woman, reflecting an archaic perception entrenched in traditional gender norms.
The retention of Section 498 in the BNSS raises concerns due to its alignment with outdated gender stereotypes. By singularly focusing on the enticement of a married woman, the clause perpetuates the notion of women as passive beings devoid of sexual autonomy or agency. It inherently implies that women are vulnerable and need protection from being lured into illicit activities, reinforcing gendered roles and stereotypes.
This provision undermines principles of gender equality by presuming the married woman as the sole victim and the offender as someone who entices or lures her. Such a perspective not only disregards the complexities of relationships and consent but also fails to recognize scenarios where women might be active participants or initiators in consensual relationships.
Additionally, Section 498 operates on an antiquated framework that fails to acknowledge changing societal norms and values. It reflects a patriarchal viewpoint that considers women as objects of protection rather than recognizing their agency and autonomy in making personal choices.
To uphold principles of equality and non-discrimination enshrined in the Constitution, there is a critical need to revisit and potentially reform Section 498 of the BNSS.
Amending this provision would entail adopting a more inclusive and contemporary approach that respects the autonomy and agency of individuals in relationships, regardless of gender or marital status. Such reforms are essential to align the legal framework with evolving societal values and promote genuine gender equality within the justice system.
Clause 312: Criminalization of Abortion (Continuity)
Section 312 of the Indian Penal Code (IPC) is imported into the Bharatiya Nyaya (Second) Sanhita (BNSS), thereby perpetuating the criminalization of abortion. This clause retains the legal stance on abortion without incorporating amendments in line with recent judicial pronouncements and contemporary medical-legal terminologies.
The inclusion of Section 312 in the BNSS sustains a legal framework that criminalizes abortion without acknowledging advancements in medical science, changing social attitudes, and evolving legal precedents. This section, inherited from the IPC, characterizes the act of voluntarily causing a miscarriage as an offense, irrespective of the circumstances surrounding the pregnancy.
Despite recent judgments and an evolving understanding of reproductive rights, the BNSS fails to align its provisions regarding abortion with contemporary legal perspectives and medical advancements. The continued criminalization of abortion under Section 312 disregards the recognition of a person’s right to make decisions about their own body, including decisions related to pregnancy termination.
Moreover, recent judicial pronouncements, including landmark judgments such as those addressing the Medical Termination of Pregnancy Act, 1971, have emphasized the importance of women’s reproductive autonomy and the right to access safe and legal abortions. However, the BNSS overlooks these advancements and judicial directions, maintaining an archaic legal stance that impedes individuals’ reproductive rights.
The absence of amendments to reflect current medical-legal terminologies and the failure to incorporate the spirit of recent judgments in the domain of abortion law underscores a critical gap in the BNSS.
There is a pressing need for comprehensive reforms that ensure the legal framework surrounding abortion aligns with contemporary medical understanding, respects individual autonomy, and upholds reproductive rights as enshrined in constitutional principles.
Addressing these issues is pivotal for providing equitable access to safe and legal abortion services and safeguarding individuals’ reproductive health rights within the ambit of the law.
Clause 377: Omission of Decriminalization (Continuity)
The Bharatiya Nyaya (Second) Sanhita (BNSS) signifies a significant omission by excluding Section 377, effectively decriminalizing consensual same-sex intercourse. This move marks a pivotal step toward recognizing the rights and dignity of LGBTQIA+ individuals by eliminating a discriminatory law that previously criminalized their consensual relationships.
However, the absence of specific provisions addressing issues related to bestiality and non-consensual same-sex intercourse within the BNSS raises concerns regarding the protection of vulnerable communities, including both animals and individuals.
Firstly, the omission of specific clauses about bestiality implies a legal vacuum in addressing this particular form of sexual offense. Bestiality, involving sexual acts between humans and animals, remains unaddressed within the BNSS, lacking explicit provisions to criminalize such acts.
This gap in legislation poses risks not only to the welfare of animals but also raises concerns about potential exploitation and harm to vulnerable creatures.
Secondly, the failure to explicitly address non-consensual same-sex intercourse within the BNSS leaves a void in safeguarding LGBTQIA+ individuals against sexual violence and assault.
While consensual same-sex intercourse is no longer criminalized, the absence of provisions targeting non-consensual acts specifically involving same-sex relationships fails to offer adequate protection to this marginalized community.
This omission in the BNSS underscores the necessity for comprehensive legal frameworks that extend beyond decriminalization to ensure the protection of vulnerable communities against various forms of sexual exploitation and abuse.
Addressing gaps in legislation by introducing specific provisions that criminalize bestiality and non-consensual same-sex acts is crucial for upholding justice, protecting individuals’ rights, and ensuring inclusivity within the legal system.
To provide comprehensive protection and ensure equality and safety for all individuals, including LGBTQIA+ communities and animals, legislative reforms should encompass a broader spectrum of protections against sexual offenses, including explicit provisions addressing these overlooked issues.
Clause 101(2) and Clause 111: Mob Lynching and Terrorism (Change)
While the bill recognizes mob lynching under the provision dealing with punishment for murder (Clause 101[2]), it lacks comprehensive and specific guidelines crucial for handling cases of mob violence. The absence of a clear delineation of roles and evidentiary thresholds within the legislation presents significant shortcomings.
For instance, in the context of mob violence, determining the roles of individuals involved—such as organizers, participants, instigators, or passive bystanders—is pivotal. However, the BNSS fails to explicitly differentiate between these roles and their respective liabilities, making it challenging to prosecute cases where individuals might have played varying degrees of culpable roles in the mob.
Moreover, establishing evidentiary thresholds and standards becomes crucial for prosecuting mob lynching cases effectively. This includes factors like identification of accused persons, determining guilt amidst a chaotic mob setting, ensuring witness protection, and securing evidence—a notably different set of challenges compared to standard murder trials.
The absence of explicit provisions addressing these specific challenges in the BNSS leaves a legal vacuum, making it arduous to navigate the complexities of prosecuting mob violence cases. Ideally, a robust legal framework should have distinct and well-defined clauses that delineate the different roles individuals might play in mob incidents, coupled with clear evidentiary standards tailored to these unique circumstances.
Addressing the nuances of mob violence requires a more detailed, nuanced, and comprehensive approach within the law to effectively prosecute perpetrators, ensure justice for victims, and deter such heinous acts in society. Without these vital clarifications and thresholds, the BNSS falls short of providing the necessary tools for tackling the grave issue of mob lynching effectively.
Clause 106(1): Medical Negligence (Change)
The BNSS introduces amendments regarding medical negligence, specifically targeting registered medical practitioners (RMPs). Under Section 106(1), the bill stipulates punishment for RMPs in cases of negligence, deviating from the provisions of the IPC.
In contrast to the IPC’s blanket exemption for doctors, the BNSS specifies that RMPs found guilty of negligence can face imprisonment up to two years and a fine. This amendment signifies a departure from the earlier legal framework, emphasizing accountability within the medical profession.
However, a closer examination reveals the evolution of this clause. Initially, a draft Bill proposed stringent measures, suggesting a seven-year imprisonment term for RMPs in cases of negligence. The Indian Medical Association (IMA) voiced concerns over criminal intent in patient-doctor relationships, resulting in a reduction to a five-year term during the deliberation process.
Ultimately, the law passed with a provision for a two-year imprisonment term for RMPs, striking a balance between accountability and the complexities inherent in medical practice. Despite these revisions, debates persist regarding the adequacy of this clause in addressing medical negligence while ensuring fairness in legal proceedings involving healthcare professionals.
This amendment in the BNSS reflects a dynamic shift in addressing medical negligence, attempting to find an equilibrium between stringent punitive measures and acknowledging the nuances of medical practice.
In essence, the Bharatiya Nyaya (Second) Sanhita attempts to reform India’s criminal justice system by introducing new provisions and retaining certain elements from the IPC.
However, while it addresses certain aspects, it falls short in ensuring gender neutrality, safeguarding the rights of marginalized communities, and establishing effective measures for addressing emerging criminal activities like mob lynching and terrorism.
The bill’s successes and shortcomings underscore the need for a more comprehensive, inclusive, and refined approach toward criminal justice reform in India.
Image Credits: Google Images
Feature Image designed by Saudamini Seth
Sources: India Today, Times Now, Economic Times
Find the blogger: Katyayani Joshi
This post is tagged under: BNS, Bhartiya Nyay Sanhita, IPC, community service, Decriminalisation, penalty, medical negligence, clauses, continuity, changes, mob lynching, terrorism, murder
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