The Bharat Nyay Sanhita, 2023

The Bharat Nyay Sanhita, 2023

Colonial

Of course, this adjective is not used for the new code. The epithet 'Colonial' is apt for the almost 163-year-old Indian Penal Code, 1860. The British wanted to rule India. They had few troops and officers at their disposal. The British were concerned about the safety of all of them. The reason for such concern is that recently in 1857, Akhand India united and fought a great freedom struggle against the British. Some call it the 'Revolt of 1857'. But 'rebellion' for the British. For us it was a freedom struggle. Certainly, in the background of this freedom struggle, the British first brought the 'Queen's Declaration' to prevent this kind of freedom struggle from happening again. It provided us with some civil rights. And generally at the same time the Indian Penal Code was introduced to curtail those civil rights, as well as to pre-empt the freedom struggle that might arise. Also the Indian Evidence Act, 1872 was introduced. Similarly, the Code of Criminal Procedure, 1898 was introduced. This Act was of course brought to support the Indian Penal Code.

The stranglehold of freedom

This had such an impact on the Indian freedom struggle that it took from 1860 to 1947 for India to become independent from British rule. All these Acts were misused against many known and unknown patriots like Lokmanya Bal Gangadhar Tilak, Swatantrya Veer Vinayak Damodar Savarkar, Hutatma Bhagat Singh Sandhu, Mahatma Mohandas Karamchand Gandhi, Pandit Jawaharlal Nehru, Netaji Subhash Chandra Bose. For 87 years till 1947 and even after that, these Acts have been misused against Indians by the colonialist leaders who remained in India after the British left India. There is no reason to doubt that all these Acts were colonial because they were used only to expand and strengthen the colony. It was necessary to remove such colonial acts after India became independent and replace them with the ones we are bringing today. But belatedly, it is undoubtedly commendable that we have taken the right path. Of course, this is going to exercise the lawyers who have practiced for many years like the writer. But we all lawyers will do it for national interest.

A little history

All you need to know about Lord Thomas Babington Macaulay and his colleagues. The Indian Penal Code was written by this man and his colleagues. Lord, of course the landlord, Macaulay was the historian. Yes you may be surprised he was not at all a 'law expert', or an 'education expert'. Macaulay was the Chairman of the first Law Commission of British India. Macaulay made a general codification of the existing acts of British law and the Napoleonic Code and the Louisiana Code of 1825 and first presented it to the Governor General in Council of India in 1837. Macaulay died in 1859. 

Regarding the First Law Commission of British India

In the first Law Commission, Lord Macaulay, J.  M.  McLeod, G.  W.  Anderson and F.  Millet had four members. As mentioned above Macaulay was a historian.  None of the other three were lawyers. Before the Indian Penal Code came into force on 1 January 1860, two judges of the Calcutta High Court made some changes to it and the IPC came into existence. IPC came into force in British India. In addition, IPC was also implemented in Burma, Ceylon, Malaysia, Singapore, Brunei. But most Princely States in India have their own laws. In 1940, these three Acts were implemented throughout the then British India.

Lord Macaulay

Macaulay was appointed by the British to study the then Indian society, culture and economy in order to have rule in India. Macaulay, who served in various roles as a landlord, historian and former Paymaster General, agreed to go to India as First Law Member in 1833 and remained in India from 1834 to 1838. It is very important for all of you to know all this history because of three important points in the report of Macaulay and his committee in 1838. In 1838, Lord Macaulay in the British Parliament presented three important things that British must do if India is to be ruled. They are:1. To Britishize the education system in India, 2. To keep Indians half-educated and half-fed, 3. Beware of Shivaji's followers.

Why renew?

Basically, this question cannot come to the mind of those who know history, in fact those who understand history. Still, the reason behind writing the article is to calm the ignorant somewhere. Mahatma Jyotiba Phule said : "Without knowledge, the mind went away.  Without wisdom, righteousness is gone. Without righteousness, the pace went.  Finances went without pace. Without finance, the Shudras are crushed. Avidya caused such a disaster."

India became like this because of the British. The ranks of semi-educated clerks were raised by the British for their benefit. Half-bellied Indians with hunger in their stomachs are not fit to fight any war of independence. Independence was a long way off. The forts of Chhatrapati Shivaji Maharaj, the inspiration of all Indians, were destroyed by the British with cannons. And it was easy for the British to rule over such a half-educated, half-grown, ill-mannered, chivalrous India. The ruthless writings of Macaulay and his colleagues ravaged India.  It did not stop even after independence. The British continued to loot India indiscriminately. Not only other European countries but America, China also, industrialists and political leaders of some separated countries like Pakistan and Bangladesh also,  participated in this looting. The common citizens of these countries have no fault in this. But it is certain that the looted wealth from India has been invested in all these countries. India's wealth has played a major role in making these superpowers superpowers. 

Why did the Indians sit quietly?

The answer to the question of why the Indians remained silent while this looting was taking place is that all three and the other Acts supporting them existed in favor of the British against the Indian people. Clerks who had job security were mindlessly obeying the orders of the British authorities. We know the Jallianwala Bagh massacre of 13 April 1919. General Dyer never once apologized for the massacre, even in private, until he died of cerebral hemorrhage and arteriosclerosis, after being isolated due to the paralysis and speechlessness. Such stubbornness among the British authorities could only be due to these colonial laws. The point to be made here is that the hands firing the bullets in Jallianwala were the same half-educated, half-fed Indian soldiers. This old law had the poisonous power to use Indians against our Indians. Indians were not silent but stood against their own innocent brothers.

Reign of injustice

Not that we know of a case like Jallianwala. How hurriedly Bhagat Singh was hanged without any reason. Along with him, Sukhdev, Rajguru also became martyrs. It was not investigated. Even in independent India, many nobles were jailed in this way. Emergency was imposed. There were many cases of corruption. There was investigated, uncompensated Bhopal gas tragedy. There were cases of land acquisition like Singur. Many of those crimes were not investigated. These colonial acts are responsible for the constant atmosphere of fear and injustice that the common citizen experiences when he walks into any police station due to ignorance of the law and lack of knowledge. The later colonial rulers made no effort to make the British apologize to the Indians for all this. Due to this, the rule of justice could not come in India even in the next 76 years. The common citizen was deprived of justice. An atmosphere of injustice was created in India where only the rich and powerful got justice.

Justice and punishment

The Bharatiya Nyay Sanhita, 2023 introduced by the Government of India in Parliament on 11 August 2023 and the original Indian Penal Code, 1860 have a fundamental difference between the two words justice and penalty. It is from this that the objectives of both the Acts are realized. The Act of 1860 was made to 'punish' Indian citizens. The Act of 2023 is designed to provide complete 'justice' to the citizens of India.

Structure

The most important thing in this new code is that the sections and chapters have been arranged in a proper manner. All provisions have been made gender neutral. Provisions have been introduced to strongly deal with organized crime and terrorism. Crimes threatening the unity, integrity and sovereignty of India are made punishable. There are a total 511 sections in IPC. BNS has 356 sectios. Of course, the number of 175 provisions has been reduced.  In fact 22 provisions have been completely removed. 175 new changes are proposed in the existing provisions. Similarly, 9 new provisions have been proposed. Sedition has been completely removed. But crimes against the Nation have been made punishable. Section 150 has proposed punishable offenses against the sovereignty, unity, integrity of India. The crime of mob lynching is punishable by seven years, life imprisonment or death. A provision has been proposed to provide stiffer punishments for organized crime as well as acts of terrorism. Strict punishment has been proposed against those who rape women by luring them for marriage or employment. Separate provisions were proposed for chain snatching and similar criminal acts. Death penalty has been proposed for rape of a minor girl, while strict punishment of 20 years imprisonment or life imprisonment has been proposed for those who commit gang rape.

Chapters

There are a total of 23 chapters in the IPC. There are a total 19 chapters in 'BNS'. The number of chapters has also been reduced by 4. 19 Chapters are as follows (numbers of the proposed provisions contained in the Chapters are given in brackets):

1. Preliminary (1-3)

2. Of punishments (4-13)

3. General exceptions (14-44)

4. Of abatement, criminal conspiracy and attempt (45-62)

5. Of offenses against women and children (63-97)

6. Of offenses affecting the human body (98-144)

7. Of offenses against the state (145-156)

8. Of offenses relating to the Army, Navy and Air Force 157-166

9. Of offenses relating to elections (167-175)

10. Of offenses relating to coin, currency notes, bank notes and government stamps (176-186)

11. Of offenses against the public tranquility (187-195)

12. Of offensive by or relating to public servants (196-203)

13. Of contempts of the lawful authority of public servants (204-224)

14. Of false evidenced offenses against public justice (225-267)

15. Of offenses against affecting the public health, safety, convenience, decency and morals (268-295)

16. Of offenses relating to religion (296-300)

17. Of offenses against property (301-332)

18. Of offenses relating to documents and to property marks (333-348)

19. Of criminal intimidation insult annoyance defamations etc (349-356)

Other features

The Bharatiya Nyay Sanhita, 2024, The Bhartiya Nagrik Suraksha Sanhita, 2023 and the Bharatiya Saksha Adhiniyam, 2023 have been introduced. All these three codes were introduced to completely reorganize the criminal justice system. These new laws will replace the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act respectively. All these laws will come into force at the place declared by the Government of India on the date declared by the Government of India. It may not apply with retrospective effect. All these Acts have been made after serious discussions and deliberations with learned scholars from Hon'ble Supreme Court and High Court, Law Universities, Chief Ministers of various States, Governors of various States etc. and taking into consideration their recommendations and suggestions.

Justice

While giving a general speech, it is said that the 'Constitution of India is based on the three principles of Liberty, Equality and Fraternity'. But in reality, the Indian Constitution is based on the 'four' principles of 'justice', liberty, equality and fraternity. The reason many political leaders conveniently drop the word 'justice' is again rooted in colonialism. It is self-evident that the objective of the present Government of India while bringing into existence the BNS, 2023 is to inculcate the principle of 'Naya' as envisaged by the Constitution of India for the common citizens of India. The BNS, 2023 has been structured in such a way that the common citizen can understand it. India has adopted the concept of welfare state while enacting the Constitution of India. Its main foundation is 'justice'. If there is no justice, freedom, equality and fraternity cannot exist. "The Union of India shall secure social, economic and political 'justice' for the citizens of India", we promised ourselves on 26 November 1949. 

The implementation of that promise started on 26th January 1950 or on 11th August 2023 the common citizens of India should think that the reign of 'Nyaya' has really started. 

Consciousness

This country is our home. This country is our family. It is our collective responsibility to protect our home and family. It is the responsibility of all of us to create a rule of justice. We should come forward and report the crimes to the police. As citizens we should cooperate with the entire system up to the point of testifying in court. We should not engage in indecent behavior such as turning testimony in court. Our laws are capable of showing criminals their proper place. But as citizens we also have the responsibility to prove that we are capable and worthy. Police system and judges, lawyers will do their job. But as a citizen you should also do your duty responsibly.

A further request to Parliament and Government 

In this regard, the above two Acts have also been presented before the Parliament for sanction by the Government of India. Neither these Acts have made any provision to reduce the burden on the police of the completely antithetical things of enforcement and investigation. Actually, it should be seen if the system can be modified in such a way that both the police who enforce and the police who investigate can work independently. Another suggestion is that judges are also stressed. Judges who deliver justice have the burden of work from first order to 'ready work'. The division of unready and ready works among different judges or systems will lead to flexibility in the justice delivery system. It does not appear that any such attempt was made while doing all the three Acts. If the judges in the justice delivery system are independent, and another system or other judges are appointed to perform managerial or supervisory functions, in this case too the stress on this system will be reduced and the delivery of justice will be easier and faster. Now, the central government should issue government resolutions regarding the implementation of these three acts in India at the earliest. While promulgating these Acts, the Government shall consider whether they are to have effect from the date on which they come into force or with retrospective effect.

A prayer at the feets of Shiv is that everyone should enjoy the state of 'Nyaya' provided by the Indian Constitution. 

Jeet

Advocate Ranjitsinh Ghatge 🦅

9823044282 / 8554972433 / 9049862433

info@rglegalservices.com

www.rglegalservices.com