Bharatiya Nyaya Sanhita: Decolonising or Reinforcing Colonial Ideas?

In December 2023, the Indian Parliament enacted three new criminal codes—the Bharatiya Nyaya Sanhita (‘BNS’), the Bharatiya Nagrik Suraksha Sanhita (‘BNSS’) and the Bharatiya Sakshya Adhiniyam (‘BSA’)—to replace the Indian Penal Code, 1860 (‘IPC’), the Criminal Procedure Code, 1973 (‘CrPC’), and the Indian Evidence Act, 1872 (‘IEA’), respectively. The Bills received Presidential assent, and were published in the Official Gazette on December 25, 2023. The date on which they will come into force is yet to be notified.

The stated aim of these three legislations is to ‘decolonise’ criminal laws of the British era. The Union Government has repeatedly invoked the rhetoric of decolonisation, justice, and citizen-centric laws to justify this legal reform project. To assess whether the new laws succeed in this aim, we must first articulate what was colonial about these three legislations.

This piece focuses on the BNS, meant to replace the IPC. It analyses how the bill falls short of its stated goal of decolonisation. We argue that the BNS expands powers of the state and the police, retains offences grounded in archaic morality, and widens the punitive network through broad and vaguely defined offences.

Offences against the state

One of the markers of colonialism is a perpetual and continued expansion of the police powers that the State exerts over its subjects. The new criminal laws do little to steer away from the colonial mentality of an all-powerful state. Rather, by expanding police powers and creating provisions for vaguely defined but stringently punished offences, they deepen the power dynamic between state and citizen. In this regard, perhaps the most significant vestige of coloniality in our criminal laws is the IPC’s chapter, ‘Offences Against the State’, which includes the offence of sedition under Section 124A. While the chapter remains largely unchanged in the BNS, ‘sedition’ has been replaced by a new offence, defined in section 152 of the BNS, titled ‘Act endangering sovereignty, unity and integrity of India’ and differs in some ways from its counterpart in the IPC.

Section 124A of the IPC focuses on activities that excite hatred, contempt or disaffection towards the government, whereas Section 152 of the BNS penalises activities that excite ‘subversive activities’ or encourage ‘feelings of separatist activities’ or endanger the ‘sovereignty or unity and integrity of India.’ While the word ‘sedition’ has been removed from the penal statute, the new provision appears to be as rights-restrictive as its counterpart.

Further, the BNS does not explain what constitutes exciting ‘subversive activities’ or encouraging ‘feelings of separatist activities’. Post-independence, courts have had multiple occasions to interpret Section 124A of the IPC, particularly regarding its impact on the right to freedom of speech guaranteed under the Constitution. These decisions have had the effect of limiting the scope of the section to only curb speech that poses an imminent threat to public order. In this light, the scope of Section 152 of the BNS—a completely new provision with changed standards—is unclear since the tests evolved by the courts in decisions regarding Section 124A of the IPC no longer apply.

The Union government has reasoned that the new provision no longer criminalises ‘sedition’ (rajdroh), but criminalises ‘treason’ (deshdroh), since criticising the government is no longer an offence. However, this does not signify a departure from the IPC. The Explanation to Section 124A of the IPC in any case exempts from its ambit any comments criticising governmental measures that do not excite feelings of hatred and disaffection as defined in the provision. Section 152 of the BNS lays down a similar exception. Thus, it is unclear how the standards under the new provision are substantially different from those under the older provision. Moreover, the concern about sedition law has always been about how the state has utilised it to stifle dissent through arrest and extended detention of persons. Most cases do not lead to conviction (as reflected in the NCRB Data for 2022, 2021, 2020, 2019 and 2018), and the criminal process itself becomes the punishment. This has been facilitated by broadly worded provisions that empower law enforcement agencies to detain individuals. Creating more ambiguity in the standards for these offences will only increase their harmful impact.

Remnants of archaic moralism

An important sign of the colonial legacy of the IPC is the Victorian morality encoded in it. This is exemplified in the marital rape exception (Section 375, IPC) and in language such as ‘outraging the modesty of a woman’ (Section 354, IPC), the understanding of obscenity (defined in Section 292, IPC), and the criminalisation of abortion (Section 312, IPC). We discuss each of these in turn.

Exception to marital rape

The marital rape exception is rooted in the notion of irrevocable consent upon marriage. This was first articulated by Matthew Hale, who wrote that it is impossible for a husband to be guilty of rape upon his wife, since marriage implies irrevocable consent to sexual intercourse on her part. This principle was entrenched in English common law, and from there, found its way into the IPC. While the UK House of Lords struck down the exception in 1991, it continued to remain in the IPC. The Justice Verma Committee’s (2013) recommendation to remove this exception was not  implemented in the subsequent amendment of the IPC. Recently, a Division Bench of the Delhi High Court delivered a split verdict in a petition challenging the constitutionality of the provision, and the issue is currently pending before the Supreme Court. Given that this is an effort to rid our criminal justice system of colonial era laws, the enactment of the BNS would have been the perfect opportunity to end the exception, and recognise the bodily integrity and sexual autonomy of married women. However, the BNS, in Section 63 (offence of rape) retains the exception.

Outraging the modesty of women

Another notable colonial inheritance in the IPC is the use of the language of ‘modesty’ in Sections 354 and 509, which stem from a patriarchal understanding of sexual violence. As one of us has argued elsewhere, the centring of ‘modesty’ in Section 354 of the IPC invariably moves the discussion to what constitutes a woman’s modesty, and whether the woman was of a ‘modest character’ to begin with, so as to be able to claim that her modesty was outraged. This deviates from the understanding of sexual assault as a violation of the bodily autonomy of the victim, and thus allows notions of morality to inform decision making in cases of sexual violence. Recognising this, the Justice Verma Committee had recommended the redrafting and rewording of Section 354. It suggested that references to ‘outraging the modesty of women’ be removed from the provision, and be replaced with the term ‘sexual assault’. This change was not made when the IPC was amended in 2013. Implementing it in the new Code would have represented a substantive departure from language invoking colonial morality, based on notions of honour, chastity, and modesty in our laws. However, Sections 74 and 79 of the BNS retain the language of ‘modesty’.

Obscenity

The provisions regarding obscenity in the IPC represent yet another instance of the moral conservatism of colonial era laws. Section 292 of the IPC penalises the sale, exhibition, publication, etc., of any obscene material, and Section 294 penalises obscene actions in public. The test for determining what constitutes ‘obscenity’ under these sections is if the materials/actions in question are ‘lascivious’ or appeal to ‘prurient interests’ or if they tend to ‘deprave and corrupt’ people. In R v. Hicklin, the UK House of Lords held that all materials which have a tendency to ‘deprave and corrupt those whose minds are open to such immoral influences’ are obscene. This test was imported into Indian law through the Supreme Court’s 1965 decision in Udeshi v. Maharashtra. The Court ruled that any material that involved ‘treating with (sic) sex in a manner appealing to the carnal side of human nature, or having that tendency’ would be considered obscene. This implied that any material that tended to arouse sexual feelings would be deemed obscene within the meaning of the provision. In 2014, the Supreme Court in Sarkar v. West Bengal espoused a slightly modified test for obscenity called the ‘community standards test,’ stating that ‘those sex-related materials which have a tendency of ‘exciting lustful thoughts’ can be held to be obscene’ with the caveat that ‘the obscenity has to be judged from the point of view of an average person, by applying contemporary community standards.’ Both these tests for obscenity follow from the overbroad and subjective phrasing in the section itself, and depend entirely on personal and community morality to determine whether or not something is obscene. In recent years, the Supreme Court has ruled that it is constitutional morality, and not personal morality, that should inform criminalisation. This is the only way to ensure that the standard of criminalisation is not solely based on whether the conduct in question offends one’s personal morality. Amending these provisions would have been a welcome step towards decolonising the law. Unfortunately, the BNS has retained the exact wording of the IPC provisions on obscenity.

Criminalisation of abortion

Another remnant of moralism in our criminal laws is Section 312 of the IPC, which criminalises abortion. Under this provision any person who voluntarily causes a woman to miscarry is liable to be punished. This also includes a pregnant woman who chooses abortion. The only exception is if such miscarriage is caused in good faith to save the pregnant woman’s life. The Medical Termination of Pregnancy Act, 1971 (‘MTP Act’) introduces further exceptions to this provision by protecting doctors from criminal liability, if they perform abortions under specific conditions prescribed under the Act. While the MTP Act has liberalised access to abortions, it relies on creating exceptions to the norm of criminalising abortion procedures. The introduction of a rights-based framework on abortion—another missed opportunity—would have constituted a substantive step towards decolonisation.

Conclusion

By not using this opportunity to alter the law on these issues, the new Codes have actually reinforced and legitimised the pre-existing coloniality in our criminal statutes. Besides the specific provisions mapped above, the strongest counter to the logic of decolonisation is arguably the lack of any meaningful reform in the implementation of the laws. The colonial logic of the law, in large part, lay in its differentiated application across white and the ‘native’ populations. Even among the ‘natives’, class, caste and social stature determined outcomes in criminal cases. This colonial mentality continues till today, as is evident from prison statistics revealing that the criminal legal apparatus has a disparate impact on oppressed castes and religious minorities. While the new criminal laws claim to place the citizen at the centre of the justice delivery process, there is absolutely no mention of undoing the discriminatory impact and enforcement of the laws. In fact, by strengthening the state in an increasingly unequal society, these gaps will only be widened. Moreover, given the reality of large portions of BNS, BNSS and BSA being reproduced verbatim from the IPC, CrPC, and the IEA, the opportunity for a meaningful overhaul of the injustices perpetrated by the criminal legal system has been lost.

About the Authors

Mrinal Satish is a Professor of Law at NLSIU.

Preeti Pratishruti Dash is Assistant Professor of Law at NLSIU.

Anushka Pandey is a Research Associate at NLSIU.

By the same authors: Bharatiya Nyaya Sanhita Bill: Implications of Proposed Changes to the Indian Penal Code