DR.

RAM MANOHAR LOHIA

NATIONAL LAW UNIVERISTY

DIFFERENCES BETWEEN THE INDIAN PENAL

CODE AND BHARATIYA NYAYA SANHIAT BILL

Submitted to Submitted by

Dr. Kumar Askand Pandey Param Chaudhary

Associate Professor Enrollment no. - 210101099

Indian Penal Code-I B.A. L.L.B (Hons.)

Dr. Ram Manohar Lohia National Law University 5th Semester, Section ‘B’

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 DECLARATION

I hereby declare that my project work titled “Differences between the Indian Penal Code and

Bharatiya Nyaya Sanhita Bill” submitted to the Law Department, Dr. Ram Manohar Lohia

National Law University, Lucknow is a record of an original work done by me under the

guidance of Dr. Kumar Askand Pandey and this project work is submitted in the partial

fulfillment of the requirements for the award of the degree of B.A. LLB.(Hons). This project

work has not been submitted to any other University or Institute for the award of any degree

or diploma.

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 ACKNOWLEDGEMENT

I would like to express profound gratitude to Dr. Kumar Askand Pandey, Associate Prof.

(Law), who gave me the opportunity to work on this project and allowed me to develop the

skills and acquire the necessary knowledge to complete this project. I would also like to

express humble gratitude for the exemplary guidance, monitoring and constant

encouragement throughout the course of this project.

I would also like to thank the faculty of Dr. Madhu Limaye Library who extended their

assistance to me by helping me consult relevant legal research material which was essential to

the completion of this project.

Lastly, I would like to thank my family for their constant encouragement without which this

project would not have been possible to complete.

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Introduction

In the intricate labyrinth of legal doctrines that govern society, the Indian Penal Code stands

as a monumental cornerstone, reflecting the ever-evolving dynamics of a nation. Since its

inception in 1860, the IPC has been the bedrock of criminal law in India, encapsulating the

nation's social, cultural, and political fabric. A bastion of justice, it has witnessed the

changing tides of time, adapting and evolving in response to the shifting contours of society.

The Indian Penal Code, drafted under the meticulous guidance of Lord Thomas Babington

Macaulay, emerged as an epochal document during the British colonial rule. At the time, its

architects envisioned a robust legal framework that would protect the rights of the British

Empire while regulating the Indian subjects. Since its adoption, the IPC has remained

unaltered, excepting certain key amendments, in its essence for over a century, which is an

impressive testament to its enduring principles. It provided the subcontinent with a common

framework of justice, irrespective of regional, linguistic, or religious divisions.

Yet, even with its remarkable resilience, the IPC bore the indelible marks of its colonial past.

The British-designed penal code was woven with norms and principles that often seemed

disconnected from the native customs, culture, and aspirations of an independent India. As

the nation transitioned from colonial rule to self-governance, the need for a legislative

overhaul became acutely apparent.

The primary catalyst for this need of revision lay in the need to align the IPC with the

principles enshrined in the Indian Constitution. The Indian Penal Code had to adapt to the

emerging understanding of human rights, gender equality, and individual freedoms.

Moreover, a nation as diverse and multifaceted as India demanded a legal system that could

accommodate the myriad customs, traditions, and sensibilities of its people. This very

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diversity, which has been both the strength and the complexity of India, needed to be

addressed within the legal framework.

Over the years, legislative changes were introduced to redefine and broaden the scope of

criminal laws, focusing on issues ranging from cybercrimes and terrorism to human rights

violations and environmental protection. These amendments reflected the evolving challenges

faced by a modern India, and its commitment to safeguarding the rights of its citizens.

Recently, the Bharatiya Nyaya Sanhita Bill, 2023, along with two other bills, i.e., Bharatiya

Nagrik Suraksha Sanhita Bill and Bharatiya Sakhshya Bill, was introduced in the Parliament,

set to replace the existing Indian Penal Code of 1860. It seeks to overhaul the existing Penal

Code and bring it in line with the modern era, officially incorporating all the amendments that

were made till now, to the IPC, and also to introduce and/or remove certain provisions, as

was seen fit.

This project aims to delve into a brief historical overview of the existing Indian Penal Code

of 1860 and its key amendments up until this point, and then take a look at the various

changes that will be brought about by the proposed Bharatiya Nyaya Sanhita Bill, 2023.

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Historical Development of the Indian Penal Code

The earliest forms of a codified penal code in India came about in the forms of the ancient

legal texts of Manu where offences such as assault, theft, robbery, false evidence, slander, etc.

were recognized. The King was the one who administered justice and if not available for

some reason, the matter would be entrusted to a judge.

Although legal texts such as Manusmriti and Kautilya’s Arthshastra were brought into

existence, the justice administered differed quite a bit between various rulers. When the

Britishers came into India they adopted a different set of laws, which were based on British

pattern. However, even this was not uniform throughout India. To bring uniformity, the first

Law Commission was set up in India in 1834 to look into the jurisdiction, powers and rules of

the existing courts as well as police establishments and into the laws in operation in British

India.

Under the presidentship of Lord Macaulay, the Indian Penal Code was drafted by the Law

Commission. It underwent multiple reviews, revisions, and redrafts by another commission in

1846 and 1847 and the final version was put forth to the Legislative Council in 1856.

Subsequently, the Indian Penal Code Bill was passed by the Legislative Council and it

received the assent of the Governor-General on 6th October, 1860, thus bringing the Indian

Penal Code into effect.

Important Amendments

Criminal Law Amendment of 1983 – the provisions of the 1860 Code were amended in the

year 1983 to bring a stop to the growing menace of cruelty against women in society. In order

to extract dowry, to control women, or for various other reasons, cruelty was being meted out

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to women in physical, emotional, verbal, or financial ways. To prevent such incidents, the

amendment introduced Section 498A. It states –

Whoever, being the husband or the relative of the husband of a woman, subjects such woman

to cruelty shall be punished with imprisonment for a term which may extend to three years

and shall also be liable to fine. For the purpose of this section, “cruelty” means— any wilful

conduct which is of such a nature as is likely to drive the woman to commit suicide or to

cause grave injury or danger to life, limb or health (whether mental or physical) of the

woman; or harassment of the woman where such harassment is with a view to coercing her

or any person related to her to meet any unlawful demand for any property or valuable

security or is on account of failure by her or any person related to her to meet such demand.

Criminal Law Amendment of 1986 – another social evil which the present Code intended to

prevent was ‘dowry death.’ In doing so, the amendment of 1986 added section 304B to the

Code which states – Where the death of a woman is caused by any burns or bodily injury or

occurs otherwise than under normal circumstances within seven years of her marriage and it

is shown that soon before her death she was subjected to cruelty or harassment by her

husband or any relative of her husband for, or in connection with, any demand for dowry,

such death shall be called “dowry death”, and such husband or relative shall be deemed to

have caused her death. Whoever commits dowry death shall be punished with imprisonment

for a term which shall not be less than seven years but which may extend to imprisonment for

life.

Criminal Law Amendment of 2005 – it introduced various concepts in both the Indian Penal

Code, 1860 and the Criminal Procedure Code, 1973. In the Indian Penal Code, 1860, a new

offence was added by way of Section 195A – Threatening or inducing any person to give

false evidence.

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Criminal Law Amendment of 2013 – this amendment made various additions to the existing

1860 Code, making it pivotal in shaping the course of our criminal justice system. After the

shocking case of the Delhi Gang Rape in December, 2012, the legislature realised the need to

enact stringent and better-defined provisions to ensure the protection and safety of women.

Based on the recommendations of the Justice Verma Committee, the 2013 Amendment was

enacted. By way of this amendment several new offences were added, namely –

1. Sections 326 A – Voluntary causing of grievous hurt by use of acid,

2. Section 326 B – Voluntarily throwing or attempting to throw acid,

3. Section 354 A – sexual harassment,

4. Section 354 B – attempt to disrobe a woman,

5. Section 354 C – voyeurism,

6. Section 354 D – Stalking,

7. Section 370 – trafficking of person,

8. Section 370 A – exploitation of a trafficked person,

9. Section 375 – definition of rape was notably expanded in addition to penetration,

10. Section 376 A – Causing death or permanent vegetative state of a victim of rape.

Criminal Law Amendment of 2018 – the aim of this amendment was to provide for the most

stringent punishments for grave and unconscionable offences like the rape of a girl below the

age of 12 years. It added the following new provisions –

1. Section 376 AB – punishment for rape of woman under 12 years of age,

2. Section 376 DA – punishment for gang rape of woman under 16 years of age,

3. Section 376 DB – punishment for gang rape of woman under 12 years of age,

4. Section 376 – the punishment clause was enhanced.

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The Objective of Bringing Legislative Changes

The Indian Penal Code, 1860 was drafted by the First Law Commission in the year 1837

under the able presidentship of Lord Macaulay. After the first draft was presented, it was

circulated to the Judges and law advisors of the Crown. In the year 1845, another

Commission was appointed to review the Code. The report of the Second Law Commission

was submitted in two parts 1846 and 1847. After being revised, it was presented to the

Legislative Council in 1856. After being passed by the Legislative Council it received the

assent of the Governor-General on 6th October, 1860.

Since then, Indian Courts referred to the 1860 Code and whenever the need arose, the Code

was amended to serve the needs of the society and also to shed the deadwood. The most

noteworthy amendments were made in the years 1983, 1986, 2005, 2013, and 2018. Over the

years, the bulk of the provisions were increased by the various amendments, making the

reading of provisions cumbersome.

The Indian Government considered it necessary to review the existing provisions with the

aim of providing a robust criminal justice system as per the needs of our society and also to

simplify the legal procedure to ensure ease of living for the common man. In this process,

various stakeholders, eminent jurists, educators, legal minds, etc., were consulted to create a

legal structure which catered for the contemporary needs and aspirations of the people of

India.

On the 11th of August, 2023 three new Bills were introduced in the Lok Sabha by the Central

Government, namely-

1. Bhartiya Nyaya Samhita, 2023

2. Bhartiya Nagrik Suraksha Samhita, 2023

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 3. Bhartiya Sakshya Adhiniyam, 2023

The Bhartiya Nyaya Samhita Bill of 2023 is set to replace the current Indian Penal Code,

1860. The draft Bill is currently under consideration by the parliamentary standing

committee. The proposed Bill has 356 sections and is divided into 19 chapters. This section

deals with the changes which have been proposed in the 2023 Bill.

The new Code is written in a simpler language, it provides for stricter punishments for

offences against women and children, it defines new offences to prevent perpetrators of

crimes like mob-lynching escape the justice system, and provides for a new type of

punishment.

Changes in the Scheme of the Code

1. The various sections which dealt with different forms or aggravated forms of offences

have been clubbed under one section. This has reduced the number of sections as well

as chapters in the proposed Bill.

2. All inchoate offences have been clubbed together under Chapter IV of the proposed

Bill.

3. All offences against women and children have been clubbed together under Chapter V

of the proposed Bill.

4. The proposed Bill uses the term ‘After sunset and before sunrise’ instead of the term

‘at night’.

5. Offences related to children have been made gender-neutral. For instance, the

procuration of a girl was punishable under the 1860 Code, however, under the 2023

Bill, the procuration of a child under the age of 18 years has been made punishable.

6. Offences relating to weights and measures have been removed.

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Changes in the Definition Clause

1. The term ‘Gender’ now includes a human male, female, and transgenders. The term

transgender has the same meaning which has been given to it under Section 2(k) of

the Transgender Persons (Protection of Rights) Act, 2019, i.e., "transgender person"

means a person whose gender does not match with the gender assigned to that person

at birth and includes trans-man or trans-woman (whether or not such person has

undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such

other therapy), person with intersex variations, genderqueer and person having such

socio-cultural identities as kinner, hijra, aravani and jogta.

2. The term ‘Mental Illness’ has been added and it replaces the term ‘Unsoundness of

mind’ wherever used in the 1860 Act. The term ‘Mental Illness’ has been given the

same meaning as assigned to it in Section 2(s) of the Mental Healthcare Act, 2017,

i.e., "mental illness" means a substantial disorder of thinking, mood, perception,

orientation or memory that grossly impairs judgment, behaviour, capacity to

recognise reality or ability to meet the ordinary demands of life, mental conditions

associated with the abuse of alcohol and drugs, but does not include mental

retardation which is a condition of arrested or incomplete development of mind of a

person, specially characterised by subnormality of intelligence.

Changes in the Punishment Clause

1. The draft Bill of 2023 defines the term ‘Life Imprisonment’ which had been

recommended by the Justice Verma Committee. It is defined as, ‘Imprisonment for the

remainder of person’s natural life. This has been done in order to ensure that no

confusion regarding the legislative intent remains regarding the term ‘Life

Imprisonment’.

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 2. The term ‘Transportation for life’ and all references to it have been deleted in the draft

Bill.

3. The Bill introduces a new form of punishment, Community Service, for 3 specific

offences – Petty Theft, Defamation, and Misconduct by a drunken person in Public

Place. This has been added keeping in mind the reformatory nature of our criminal

justice system. The rules or criteria for awarding community service as a form of

punishment have not been laid down by the 2023 Bill.

4. With respect to Community Service, Section 8 of the draft Bill states that where there

is a default in the performance of community service, the offender would be liable to

imprisonment as per the same criteria as adopted in cases of default of payment of

fine.

Changes in Inchoate Offences

1. As per Section 108A of the 1860 Code, abetment in India of offences to be committed

outside India was punishable. This meant that the punishment was only for offences

originating in India.

2. The proposed Bill discusses the terminatory theory under Section 48 of the 2023 Bill.

According the this, an abettor situated outside India who abets the commission of an

offence within India would be liable as though the abetment had been caused within

India.

Changes in provisions relating to Sexual Assault

1. In cases of sexual assault or rape, the bifurcation on the grounds of age as seen in the

1860 Code has been removed. The reason for the bifurcation on the basis of age

groups was due to the 2013 and 2018 criminal amendments. Under the proposed Bill,

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 offences like gang rape are punishable with equal severity irrespective of the age of

the prosecutrix.

2. Sexual offences under the proposed Bill have not been made gender-neutral. Given

the ever-changing needs of our society, sexual offences could have been made gender-

neutral in order to offer protection to a larger section of society.

3. The 2023 Bill is also silent on the growing concerns related to the offence of marital

rape, only a legislative change has been made increasing the age of consent of the

wife to 18 years. The question whether marital rape should be criminalized is pending

in appeal before the Honourable Supreme Court.

Changes in offences affecting the human body

1. Section 101(2) of the proposed Bill deals with a new offence which makes murder on

grounds of communal violence punishable as a separate offence. It also deals with the

concept of vicarious liability where a group of 5 or more people are involved in

committing several offences during any communal violence, one of which is murder.

2. Section 102 of the proposed Bill reintroduces Section 303 of the 1860 Code titled,

‘Murder by life convict’. This provision had been declared unconstitutional by the

Honourable Supreme Court in the case of Mithoo Singh v. State of Punjab onto the

grounds that only death penalty was cited as the punishment which limited judicial

discretion. Under the new Code in such cases, the Court may award imprisonment for

life or death penalty.

3. Section 104 of the 2023 Bill deals with death caused by negligence where the

punishment has been increased from 2 years of imprisonment to 7 years of

imprisonment. Additionally, hit and run cases have been dealt with separately with the

punishment being imprisonment of upto 10 years.

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 4. The offence of Attempting to Commit Suicide as given under Section 309 of the 1860

Code has been removed keeping in view the judgement of the Supreme Court in the

case of Gian Kaur v. State of Punjab.

5. As per Section 320 of the 1860 Code, in order to prove grievous hurt, the sufferer

must have been in severe bodily pain or unable to follow his ordinary pursuits for a

period of 20 days. This time period has been reduced to 15 days under Section 114 of

the 2023 Bill.

6. Section 115(4) of the 2023 Bill deals with grievous hurt caused by 5 or more people

during communal violence, etc. and also imposes vicarious liability.

7. In cases of kidnapping, the age of child kidnapped has been made 18 years for both

male and female child. Under the 1860 Code, the age for male child was 16 years and

for female child 18 years.

8. Section 377 of the 1860 Code dealing with ‘Unnatural Lust’ has been removed in line

with the Navtej Singh Johar v. Union of India judgement.

Changes in offences against the State

1. Section 124A of the 1860 Code dealt with ‘Sedition’. This provision has been

challenged several times on the grounds of being unconstitutional, restricting the use

of a person’s right of freedom of speech and expression as given under Article 19 of

the Indian Constitution.

2. In the cases of S G Vombatkere v. Union of India and Editor’s Guild of India v. Union

of India, the provision is currently under challenge before the Honourable Supreme

Court.

3. Section 150 of the 2023 Bill deals with ‘Sedition’ however, the legislative language

has been changed. The term ‘Feeling of Hatred’ has been substituted by words like

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 secession, armed rebellion, subversive activities, and separatist activities which

endanger the unity, integrity, or sovereignty of India.

4. Section 195(1)(d) of the 2023 Bill makes the publication of false and misleading

information affecting the sovereignty, unity, integrity, or the security of India

punishable.

New Offences Added by the 2023 Bill

1. Section 69 of the proposed Bill introduces a new offence titled, ‘Sexual Intercourse by

employing deceitful means, etc.’ According to this, whoever by using deceitful means

or making false promise to marry a woman without any intention of keeping the

promise, has sexual intercourse with her, in such cases although the offence would not

amount to rape, the accused would be liable.

2. Section 48 of the 2023 Bill states, that an abettor situated outside India who abets the

commission of an offence within India would be liable as though the abetment had

been caused within India.

3. Section 302 of the proposed Bill deals with ‘Snatching’. It states that, Theft is

“snatching” if, in order to commit theft, the offender suddenly or quickly or forcibly

seizes or secures or grabs or takes away from any person or from his possession any

moveable property. It is to be noted that ‘Snatching’ was already an offence in the

state of Haryana via state amendment.

4. Section 93 of the 2023 Bill deals with a new offence, any person who hires, employs

or engages a minor to commit an offence in order to escape liability shall be held

liable for the offence committed.

5. Section 109 of the proposed Bill deals with ‘Organized Crimes’. It states, Any

continuing unlawful activity including kidnapping, robbery, vehicle theft, extortion,

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 land grabbing, contract killing, economic offences, 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 direct or indirect, material benefit including a financial benefit, shall

constitute an organised crime.

6. Section 111 of the proposed Bill deals with the ‘Terrorist Act’. It states, A person is

said to have committed a terrorist act if he commits any act in India or in any foreign

country with the intention to threaten the unity, integrity and security of India, to

intimidate the general public or a segment thereof, or to disturb public order by doing

an act – using explosive substances, destruction to property, destruction of crucial

infrastructure, create a public emergency, etc.

7. Section 224 of the 2023 Bill introduces a new offence which makes the attempt to

commit suicide to compel a public servant to do or abstain from doing any act in

discharge of his lawful duties as punishable.

8. For the first time, India’s penal code has a repealing clause, as given under Section

356 of the proposed Bill.

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