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Decoding Legal Evolution Examining the
Impact of New Criminal Laws on India's Independence from British Legal
Influences through a Linguistic Lens |
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| Paper Id :
18821 Submission Date :
13/04/2024 Acceptance Date :
22/04/2024 Publication Date :
25/04/2024
This is an open-access research paper/article distributed under the terms of the Creative Commons Attribution 4.0 International, which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited. DOI:10.5281/zenodo.11300030 For verification of this paper, please visit on
http://www.socialresearchfoundation.com/remarking.php#8
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| Abstract |
Law is the means of maintaining harmony and order in
society by protecting law abiders from criminals. The criminal codes are set in
place to ensure citizens are not oppressed by other citizens and to enforce the
control and rule of the king. During the 18th and 19th
centuries, the kings were replaced by European imperialists across the globe,
and India was ruled by the Britishers. As they overturned the heterogeneousmonarchy,
to establish complete political control, they made all the acts that were
obstacles in maintaining their political and superior dominion as crime.
Further, as they learned that the criminal codes in India were disorganized,
they organized the law drawing from British legal philosophies to suit their
rule. As India gained independence, all oppressive laws were amended but the
criminal code, for the most part, maintained its original nature. The
classification of crime, criminal justice administration, and the powers of
judges and courts continued as in the times of Britishers. Thus, the current
Indian government to remove the deep-rooted aftermath of imperial rule, has
floated the new Criminal Codes to completely indigenize the law. Thus, this
paper aims to examinewhether the evolution of criminal codes of India
post-independence has been able to remove the British influence. |
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| Keywords | Indian Criminal Laws, Post-Colonialism, British Influence, Legal Independence, Linguistic Pretense, Colonial Legacy. | ||||||||||||||||||||||||||||||||||||||||||||||
| Introduction | According to Salmon, law is the body of Principles recognised, and applied by the State in the Administration of Justice, whilst as per Rudolph Von Ihering's law definition. – “The form of the guarantee of conditions of life of society, assured by State's power of constraint. As you can see, the difference in the definition is the point of perspective, one from the side of the state and the other from the acceptance of society. As a matter of fact, in countries following democracy and especially representative democracies, the law ought to reflect the ideals of the state. A philosophy that ultimately boils down to self-governance, or Swarj, as demanded by our freedom fighters from the imperialists. However, after attaining freedom the first torchbearer of the Swaraj government, kept on continuing the law made by the imperialist with certain editions and deletions made time and again to suit the need of the hour, but never were the transformed or re-drafted for India, by Indians to represent the principles of Indians and the society they wish to achieve. This need was long pending to be fulfilled, as the current government came into power, it always has preached governance for India, favouring India and developing India. Thereby, washing off the cast of aftermaths of imperial rule. In the conquest of delivering true Swaraj, the current government has recently introduced the Bhartiya Nyaya Sanhita Bill, which aims to not just replace but re-appeal the exiting Indian Penal Code of 1860. The bill so introduced in the parliament is still under consideration and discussion. At this very stage, it sparked debate, confusion, and battle. Surprisingly, the debate is not on the provisos it contained but on whether there was any need for this or if it was just the current government, yet another trick to rebrand the old thing in front of the public. Thus, the researcher aims, through this study, to analyse the fruitfulness of the current bills introduced by the government of India and analyse the possible outcomes. |
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| Aim of study |
1. To critically analyse the laws that are being (re)defined for Indian Citizens 2. To examine the changes under the new criminal legislation vis-a-vis existing British legal regime 3. To analyse whether they are suitable for Indians following the Theory of Volksgeist |
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| Review of Literature | 1. Critical
Analysis of The Bharatiya Nyaya Sanhita Bill 2023 With Special Regard to Laws
Concerning Rape and Unnatural Offences by Archana Gupta*Ashim Nanda-1 (Archana Gupta), in this Research
article, the author has scrutinized the whole act and highlighted that despite
the new amendments the government has still failed to address certain
considerations of modern society, leaving out some sections of society and
missed animals. The rights of the LGBTQ+ community and the rampant crimes
against domestic animals or stray animals have yet again been left out of the
purview and protection of the law and state. 2. The Bhartiya
Nyaya Sanhita, 2023: Analysing the proposed replacement to the Indian Penal
Code, 1860 (1/3) by Ankoosh Mehta, Ankoosh Mehta and others2
(Ankoosh Mehta)- this research
article, attempts to give an overview of the new crimes brought about by this
bill and focuses on how the old crimes have been redefined. The authors in this
research commend the policy markers for stricter laws in the field of cyber law
and economic crimes, however, it questions the makers on their description of
crimes against the state. This article highlights the vagueness of the wording
and language of the bill and insists upon further clarifications and
refinements at the government’s end. 3. Karl Renner
an Austrian jurist, focussed on viewing law as a tool for social control and
engineering. He advocated for the use of law to foster social harmony, address
social conflicts, and reduce inequalities. Renner underscored the role of
legislation and legal institutions in shaping and reforming society, advocating
for legal changes to achieve social justice and equality. 4. Roscoe Pound
propogated a "sociological jurisprudence" approach, suggesting that
law should be understood based on its societal impacts rather than just
abstract principles. He believed that law should adapt to meet the evolving
needs and values of society, emphasizing social welfare and justice. Pound
emphasized the concept of "law in action," asserting that the
effectiveness of the law should be evaluated based on its real-world
consequences rather than just its formal provisions. 5. Leon
Petrazycki a Russian legal theorist who highlighted the significance of
psychology and sociology in comprehending the law. He introduced the concept of
a "pure sociology of law," aiming to examine law as a social
phenomenon without moral or philosophical considerations. Petrazycki stressed
the importance of studying law within the context of social relationships and
interactions, asserting that legal norms are influenced by social forces and
cultural values. |
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| Methodology | The research adopts a doctrinal approach, relying on
existing laws and ethical principles to analyze their impact on societal norms.
It employs a comprehensive methodology, integrating legal analysis with
empirical data, statistics, and research from national and international
sources. To ensure impartiality, the study utilizes primary, secondary, and
tertiary sources, including constitutional documents, international agreements,
journals, research reports, and literature. |
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| Analysis | Redefining Old Crimes-Since
independence, contemporary governments have always tried to do away with the
colonial laws that are no longer socially apt and legally relevant. Therefore,
the Bhartiya Nyaya Sanhita has tried to redefine the old crimes. Numerous
crimes have been redefined to either increase or decrease the ambit in the wake
of suiting the needs of current society. The offense of rape has been defined under
section 63 “..A man is said to commit “rape”
if he— (a) penetrates his penis, to any extent, into the vagina, mouth, urethra
or anus of a woman or makes her do so with him or any other person; or (b)
inserts, to any extent, any object or a part of the body, not being the penis,
into the vagina, the urethra or anus of a woman or makes her do so with him or
any other person; or (c) manipulates any part of the body of a woman to cause
penetration into the vagina, urethra, anus or any part of body of such woman or
makes her to do so with him or any other person; or (d) applies his mouth to
the vagina, anus, urethra of a woman or makes her to do so with him or any
other person, under the circumstances falling under any of the following seven
descriptions: — (i) against her will. (ii) without her consent. (iii) with her
consent, when her consent has been obtained by putting her or any person in
whom she is interested, in fear of death or of hurt….”3 This
is the same definition as provided in IPC under section 375. the only
difference over here is that in furtherance this section has enhanced the
punishment for the crime. Similarly, crimes committed by police officers, armed
forces, or hospitals have been penalised just the same way as under IPC 1860.
There is no difference in the definition provided of this crime in BNS as
against in IPC. It is also pertinent to note that it is keeping different forms
of committing rape out of its ambit. In
the case of Santhosh vs State of Kerala, (SANTHOSH vs the state of Kerala)here,
in this case, the accused had raped the victim by holding her thighs together
and performing non- penetrative sex. the court had held that even though it was
non-penetrative sex between the thighs it still account for rape. Despite this
landmark judgment in 2016, it has not been incorporated into BNS. There are
various forms of non-penetrative sex and sexual assaults other than disrobing
and voyeurism. Further,
in the crimes of criminal force to assault or of voyeurism and disrobing women
under sections 74-76, the offender has been made gender neutral however the
victim continues to remain a woman. The Bhartiya Nyaya Sanhita ( hereinafter
referred to as BNS), thereby has increased the ambit of people who can be
punished. It has done a good job of identifying the predators against women and
realising gender neutrality in criminal acts. earlier in IPC the offender could
only be a man, but with this change, the scope of penalisation has increased.
But the victim remains the same. In
the case of organized crime, the inspiration has been drawn from the state's
acts on organized crime. The nature and wordings have been highly drawn from
MOCCA. Under section 109(l) it is defined as … “Any
continuing unlawful activity including kidnapping, robbery, vehicle theft,
extortion, land grabbing, contract killing, economic offenses, cyber- crimes
having severe consequences, trafficking in people, drugs, illicit goods or
services and weapons, human trafficking racket for prostitution or ransom by
the effort of groups of individuals acting in concert, singly or jointly,
either as a member of an organised crime syndicate or on behalf of such
syndicate, by use of violence, the threat of violence, intimidation, coercion,
corruption or related activities or other unlawful means to obtain a. The lack of
differentiation between attempted and completed offenses is evident in Clause
109(2), which eliminates the distinction by prescribing the same penalties for
both scenarios within organized crime. Previously, laws like MCOCA and GujCOCA
differentiated between attempted and completed offenses by imposing varying
penalties. Under Clause 109(2), individuals face the death penalty or life
imprisonment if the offense results in a fatality, and a minimum of five years
to life imprisonment otherwise. Notably, this clause does not necessitate a
distinct mental state for causing death, potentially leading to individuals
being sentenced to death irrespective of their knowledge or intent. b. The absence of a
requirement for knowledge or intent in facilitating organized crime is
highlighted in Clause 109(3), which does not stipulate that individuals
assisting or facilitating such crimes must possess knowledge or intent. In
contrast to prior laws like MCOCA and GujCOCA, where knowledge of aiding in
organized crime was essential for prosecution, Clause 109(3) could potentially
penalize individuals who unknowingly aid in preparatory acts. For instance, an
individual purchasing clothing for a group that later uses it for a robbery
could be held accountable under this clause, even without awareness of their
intentions. c. Challenges arise with
the clause concerning harbouring and concealing individuals involved in
organized crime, as outlined in Clause 109(5). This clause criminalizes the act
of harbouring or concealing individuals who have committed organized crime,
with an additional provision penalizing those who believe their actions will
encourage or assist such criminal activities. The provision's wording is
ambiguous and could be interpreted as encompassing the act of harbouring or
concealing someone who aids in organized crime. Moreover, the clause includes a
provision exempting spouses of offenders from prosecution for harbouring or
concealing, a provision lacking a clear rationale and not restricted to
specific circumstances, thereby prompting inquiries into its necessity and
equity. A
similar and unfortunate condition exists for the crime of sedition. The
definition of sedition in IPC ... “[124A.
Sedition.—Whoever by words, either spoken or written, or by signs, or by
visible representation, or otherwise, brings or attempts to bring into hatred
or contempt, or excites or attempts to excite disaffection towards, 11***the
Government established by law in 12[India], 13***shall be punished with 14[imprisonment
for life], to which fine may be added, or with imprisonment which may extend to
three years, to which fine may be added, or with fine. Explanation 1.—The
expression “disaffection” includes disloyalty and all feelings In
the case of “Vombatkere v Union of India, (Vombatkere vs Union of India)order on
11 May 2022” while passing the judgment the Supreme Court had held that the
central and state government should restrain the use of this section and
restrain from filling FIRs under section 124A, in response to which the
attorney general had assured the reconsideration being done by the government
for the said section. However,
under BNS, the word “ sedition” has not been used, instead it has been reframed
as acts against the government. “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.”
Under clause 150, this definition is the sole reiteration of section 124a of
the IPC, by just incorporating the new means of performinging seditious acts.
(Ranjan) It is startling to know that, while presenting the BNS, the Home
minister had mentioned that sedition has been removed. Yet again, the same
things have been reserved for us with a different plating. This new definition
without proper explanations or exceptions empowers the police and the state
with unregulated might, to control public reactions and freedom of expression of
people. This is because there are no explanations for the terms in this
definition, nor any exhaustive or inclusive list of acts have been mentioned
for better understanding, fruitful and practical exercising, and rightful
implementation of this act. Addition of New Crimes – along with
redefining old crimes, the government has tried to introduce new crimes, to
make society safer. The idea here was to also criminalise the acts, which were
causing grave hurt, trauma, and nuisance in the society, however not properly
governed by IPC or any other legislation for the protection of society and
maintaining peace and harmony. Briefly, the following new crimes have been
introduced- sexual intercourse with false promise of
promotion or marriage being rape- under clause 69 the
act of intercourse based on getting consent for sexual intercourse on the
belief that the other person shall marry or give promotion in the future has
been termed as rape. This has Similarly,
under clause 83, the BNS states that “...
Whoever takes or entices away any woman who is and whom he knows or has reason
to believe to be the wife of any other man, with the intent that she may have
illicit intercourse with any person, or conceals or detains with that intent
any such woman, shall be punished with imprisonment of either description for a
term which may extend to two years, or with fine, or with both.” it is
one of the many controversial clauses of the bill. The fact that it shifts the
complete burden of responsibility on the offender, and frees the woman, in case
of a woman choosing to leave her husband, makes this section highly
questionable and regressive. It is pertinent to note that earlier, adultery for
a criminal offense that was later de-criminalised through judicial
pronouncements. This section yet again, opened the window of adultery to
becoming a crime again, with the burden of blame being completely on the
offender. This undermines the consent of a woman to freely choose her life
partner and step out of marriage, as such allegations can be conveniently put
on the man she chooses to live with, leaving her spouse. It is also startling
to note that this legislation has been made gender-neutral, by using the phrase
“whoever.” This also brings women under this ambit. In
recent times, there have been numerous incidents of mob lynching observed in
various regions of India. These occurrences reflect the deep-seated social and
political divisions within the country, often stemming from religious or caste
disparities. The Indian Penal Code, specifically under clauses 101 and 115,
addresses instances where a group of five or more individuals collectively
commits murder based on factors such as race, caste, religion, gender,
birthplace, language, personal beliefs, or other grounds. According to this
provision, each member of such a group is subject to punishment, including the
death penalty or life imprisonment, along with fines. This legal framework
represents a progressive step towards fostering social and religious harmony in
society. Notably, the legislation is inclusive and does not differentiate based
on the gender of the offender or victim, thereby broadening the scope of accountability. Although the
term "mob lynching" is not explicitly mentioned in the law, a
comprehensive analysis of the relevant sections suggests that such acts are
considered a severe form of culpable homicide, falling under the categories of
grievous hurt or murder. However, there is no distinct classification for mob
lynching as a separate criminal offense, nor does the law address attempts to
commit such acts. The current definition of this crime is vaguely worded,
leading to potential ambiguities and varying interpretations in terms of
enforcement and penalties. Theft and related crimes- theft and robbery have been a part of IPC,
however, their ambit was limited and many times, the implications were left to
police interoperations. added to that, certain acts that may amount to theft
were not included in the previous legislation. Thus,
under section 304 snatching has been made an offence, under the category of
theft. Earlier snatching of movable property like gold chains, other forms of
jewellery, or any other electronic gadgets such as phones, laptops, or even
wallets and purses could not be prosecuted properly. However, with this new
addition, snatching is now a new offence thereby filling the gap and grey area.
It is pertinent to note that before BNS only the state government of Gujarat
had recognized snatching as a theft and a separate crime, however with this
legislation we achieved pan-India application. Petty organized crimes-
Section 110 of the Bhartiya Nyaya Sanhita introduces a novel classification
termed "petty organized crime," which distinguishes it from
traditional "organized crime." This particular provision sanctions
any illicit activity that induces a sense of insecurity among the populace,
typically linked with prevalent forms of organized crime carried out by
organized criminal factions or gangs, including mobile groups. The section delineates
instances of such offenses, such as various forms of theft, unauthorized ticket
vending, and the unauthorized disclosure of public examination papers. In
contrast to Section 109, Section 110 does not delineate the specific
methodologies through which these crimes must be executed, such as through
coercion or violence, nor does it necessitate the direct or indirect
acquisition of material gains. Nevertheless,
certain apprehensions arise concerning Section 110. The phrase "any crime
that causes general feelings of insecurity among citizens" is ambiguous
and could potentially result in an excessively broad interpretation. While the
section enumerates specific offenses, it also encompasses a catch-all provision
for "other common forms of organized crime," thereby further
complicating its ambit. Furthermore, Section 110 permits petty organized crime
to be perpetrated by any "criminal group or gang," yet it neglects to
furnish a precise definition of this terminology. Additionally, unlike Section
109, there exists no stipulation mandating that the crime be carried out by an
organized crime syndicate with a documented history of chargesheets within the
preceding decade. Change of Punishments- while
as there has been a revamping of crimes, so have been punishments altered. BNS
has tried to make the laws stricter and stronger to emphasis deterrence. This
has been done in a two-fold manner- Firstly, the concept of This
means for a certain specified crime, already a minimum punishment has been
specified. This means that the judge must award those minimum punishments,
irrespective of and by not considering other influencing the award of
punishments. These punishments are fundamentally stricter and stronger.
Therefore, despite being the minimum or the lowest punishment that must be
awarded, it is grave enough to cause deterrence. Additionally, since they are
mandatory there is no scope for compound-ability, bail, or plea bargaining done
to secure reduced punishments. Often people resort to plea for compundability
of crime, which means they insist on converting the punishments into fines which
would be of a huge amount but shall prevent the convict from going to jail.
Further, often criminals were advised to accept their guilt to settle for a
reduced punishment, but having these minimum mandatory punishments, does away
with such tactics, helping the government establish the due fear in the minds
of criminals. SOURCE- SCC ONLINE
Furthermore,
the BNS serves to increase the severity of penalties for existing criminal
offenses. This includes the ability to impose minimum fines, longer prison
sentences, life imprisonment, and even the death penalty for a wider range of
crimes than previously permitted. The primary objective is to establish a
strong deterrent effect on individuals with criminal inclinations within
society. Additionally, the BNS introduces a mechanism for the rehabilitation of
first-time offenders, aiming to prevent their association with more experienced
criminals in correctional facilities. A novel approach introduced by the BNS is
the concept of "Community Service" for minor offenses, which not only
promotes restorative justice within the community but also aids in the
reintegration of offenders into society. By
engaging offenders in projects that contribute positively to societal welfare,
the system aims to foster a sense of belonging and purpose among them, thereby
reducing the likelihood of repeat offenses. Moreover, community service
initiatives facilitate the development of positive relationships between
offenders and community members, breaking down barriers and stereotypes, and
promoting mutual understanding and social cohesion. With this change, India
joins the ranks of countries like the US, UK, Sweden and many other developed
nations that provide for community services as a form of punishment. (Moti)
The
above chart, depicts the crime rates in different countries of the world, with
specific reference to murder, As it can be observed that, all these nations are
the ones where law and order is dysfunctional. There are countries where the
norms for murder are that strong. Thus, drawing from this comparison, it can be
attributed that having stricter punishments is essential to enforce law and
order in society. One another perspective that can drawn over here is that the
justice administration and law enforcement mechanism in these countries is
poor, resulting in such rampant criminal activities, thus not only should Prominent Issues- The BNS, comes across as a promising
attempt to revamp and do away with the shadow of colonialism, it unfortunately
comes with similar or the same issues as we faced under IPC, 1860- 1.Gender
Biasedness- all the crimes that have been described against the human body,
especially that of sexual nature only sees women as the potential and
vulnerable section of society that can be a victim. It fails to recognize the
numerous gender identities that are present in India. India as a country is now
openly recognizing gender fluidity, people are no longer contained in binary
genders of male and female. Further, a regressive approach is projected over
here, considering only women or females can be victims. India in the recent
past has across many instances of sexual assault or harassment of a man by
woman, or man by man, or of a woman by woman. None of such acts are
criminalised over here. as males under 18 are concerned they are protected
under POCSO act, however, the rest of the population does not even have the
vulnerability to get attacked, as per this new bill. 2.Vagueness- when Britishers ruled, India they often kept laws in favour of the elite and the language for purposefully kept vague for the British administration to exploit as much as they could. With the new bill, this idea of the ruling class being a ringmaster was expected to change, however, in the garb of making the laws all the stricter, the government has made the same mistake or mischief of keeping the laws vague. The description of crimes, lacks explanations, provisos, and proper definition of each ingredient that constitutes the crime. The language and wordings are redundant. For example, the words lunatic has been changed with mental illness, which literally and etymological have different meaning. Further the description of punishments, are not proper, there s mention of two or more punishments by using the word “or” and not “or and both.” 3.Clause
4(b) highlights a problem in the Bhartiya Nyaya Sanhita (BNS) where some
offenses carry the possibility of life imprisonment as a penalty, while
aggravated forms of the same offense prescribe a whole life sentence. This
creates inconsistency because both types of sentences end up being the same if
"life imprisonment" always means a whole life sentence. For example,
the punishment for rape can range from ten years to life imprisonment, while
aggravated rape carries the same sentence but for the remainder of the offender's
natural life. Similarly, murder can result in either life imprisonment or the
death penalty, but if someone convicted of murder is already serving a life
sentence, they receive another whole life sentence along with the death
penalty. This leads to confusion and defeats the purpose of having stricter
penalties for aggravated offense 4.Other life forms left out of the bill are supposed to reflect the needs and wants of society and indigenous Indian values and perspectives on peaceful and harmonious society; however, it fails to cover in its ambit the other life forms apart from humans. India today being a youthful population that is aware and sensitive towards animals and nature, expects norms for animal rights as well. considering that fact, we have numerous instances of humans inflicting predatory behaviour and actions on stray animals, torturing them, beating them other forms of unnatural acts, etc., all of this has not been covered at all. Similarly, any harm and damage to the physical environment has not been covered by BNS. The gross violation of sustainability norms regarding rivers a forest has simply kept away from BNS’s ambit. An argument in dense can be that for such activities, other legislations exist, however, this bill could have been a support strengthening those legislation, giving impetus and making such inhumane acts to be rightfully categorized as crimes against the environment and humanity. |
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| Conclusion |
It
can be summarised that, in the many attempts of the current Indian government
to bring back Bharat’s real and true glory before being colonised, this is yet
another bold attempt. Changing the basic penal legislation to suit the needs of
the country, and to remove redundancy is brave. however, unfortunately, the
fruits of these efforts seem sour prima facie. The IPC has been streamlined
into lesser sections and there has been a change in the existing crimes. That
forms the major part of the change, as the definition and the punishments have
been enhanced. It feels like it is an upgrade to the existing IPC, which could
have been brought about by certain amendments, because the lacunae of IPC, and
the acts that were ignored by IPC, continue to exist. There are no norms for
transgenders, animals, nature, or other sensitive and ignored issues of law.
transgenders though an integral part of society are being governed by apart
legislation that fails to provide them full protection, unlike other mainstream
societies. These
fundamental laws aim to give comprehensive and wholistic governing norms for
the whole of society, however, these laws are not in sync with the needs and
wants of contemporary Indian society. Further, one of the deductions from the
above analysis can comfortably be that the government has just given us the
same product with different packaging and new tastemakers for rather more
acceptability. For the want of acceptability, yes, the government has removed
section 377 and the term sedition from this new law. it has focussed more on
newer forms of cyber crimes and offered stricter punishments. The hope that
this bill brings to us is the enhanced punishments. It has been duly observed
that in countries with severe punishments and judicial and law enforcement
mechanisms coming heavily down on the criminals in countries i.e. Gulf Nations
like Dubai, Kuwait, etc., the fear of the law is so much that it deters people
from turning into offenders. Given the current nature of the bills, it has
rather to resulted in more confusion and numerous false and malicious trials.
Numerous cases where the evidence will not be enough to fully establish the
crime and the description is vague. Furthermore, it has reduced the scope of
protection of innocent lives who are falsely framed. Since certain crime
punishments are already set, it takes away the executive power of the judiciary
to penalise offenders based on intellect and prudence, given the fact they are
regarded as the most prudent minds in society. In conclusion, all this did require a new bill and could have been sorted rather better by a criminal law amendment bill, and the fruitfulness of this shall depend upon the effectiveness of implementation. |
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| Suggestions for the future Study | Based on the above research the following suggestions- 1. It is high time that rape laws be re defined and become gender neutral. The definition should not be restricted to only penetrative sex, but other means of sexual assault or harassment, by any of the gender binary, as well as non-binary. The definition for victim of rape should also be incorporating all genders. 2. This should be done in consonance with POCSO act, where anyone below 18 years is protected from both male and female gender, however it should also include non- binary genders. 3. The new crime of having sexual intercourse with false promise of getting married, is redundant and regressive approach , especially in the era where social norms around sexual intercourse are changing. As this section put men in the society on serious disadvantage, there must be proper explanation of situations that can be put under its ambit. This definition should rather be inclusive and exhaustive. 4. Similarly, the clause 83, is a dangerous clause and should be done removed, following various Supreme Court judgments, and decriminalization of redundant law adultery. As much family values must be protected so should be individual’s consent to marriage. Thus, if at all the section is to be kept, it should be a civil, personal wrong and not a crime, while the onus being on the one who breaks and contravenes the conjugal duties and rights. 5. Additionally, under aggravated forms of grievous hurt an attempt is made to add offence of mob-lynching, but is dangerously poorly worded, leaving wide scope for false and malicious prosecution. The government instead should pass a separate act like the POCSO, where it defines and deals with Mob-lynching, and other sorts of public outrage. A separate at, giving thorough and explicit explanation so applicable situations, speedy trial as well as apt evidences that are necessary. 6. These changes shall render ineffective as there no change in procedure, or issuance of guild lines to the implementer i.e. the POLICE department. The police department, and norms so governing must be immediately update, modifies, or amended as the case maybe, for every specific law and clause mentioned din the new codes, ensure, just and fair and effective implementation. 7. Similarly, the procedural laws for these codes and limitation periods must be reduced, also curtailing the powers of judged to grant innumerable adjournments, and extensions for court proceedings, to render these amendments viable and effective. |
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| References | 1. n.d. 2. Ankoosh
Mehta, Ankoosh Mehta. The Bhartiya Nyaya Sanhita, 2023: Analysing the proposed
replacement to the Indian Penal Code, 1860. august 2023. 3. Archana
Gupta, Ashim Nanda*. “CRITICAL ANALYSIS OF THE BHARATIYA NYAYA SANHITA BILL
2023 WITH SPECIAL REGARD TO LAWS CONCERNING RAPE AND UNNATURAL OFFENCES.”
MAGLOW (2023). 4. SANTHOSH
vs the state of Kerala. No. CRLA NO.1311/2016. SUPREME COURT OF INDIA.n.d. 5. Vombatkere
vs Union of India. No. WP(c) 682/2021. Supreme court of India. n.d. |
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