BNS Views & Applicability Questions
The ground of mental illness does not recognise general exceptions of criminal responsibility
The IPC states that any act performed by a person of unsound mind does not constitute an offence. The BNS retains this provision, except that it replaces the term ‘unsound mind’ with ‘mental illness’. It states that mental illness is as defined in the Mental Healthcare Act, 2017 (MHA, 2017). The MHA, 2017 defines mental illness as a substantial disorder of thinking, orientation or memory that grossly impairs the capacity to recognise reality. The definition explicitly excludes mental retardation or incomplete development of mind from mental illness. Using this definition of mental illness to exempt someone from criminal responsibility may deny persons suffering from mental retardation protection from trial. The Code of Criminal Procedure (CrPC), 1972 was amended in 2008 to require a clinical test of whether the person was suffering from unsoundness of mind or mental retardation (both could be used as reasons to acquit the person).[12]
The definition of mental illness under MHA, 2017 also includes abuse of alcohol and drugs as a form of mental illness. Therefore, if an alcoholic commits an offence while intoxicated, he may be able to claim the defence of mental illness. This defence may apply even if he voluntarily consumed alcohol or drugs. This contradicts the general defence of intoxication under the IPC, which only exempts acts committed under involuntary intoxication from criminal responsibility.[13] The Standing Committee on Home Affairs (2023) recommended reverting to the term unsound mind.11
Terrorism may be defined too broadly
The BNS adds terrorism as an offence. It defines terrorism as an act that intends to: (i) threaten the unity, integrity, and security of the country, (ii) intimidate the general public, or (iii) disturb public order. Terrorist acts include: (i) using firearms, bombs, or hazardous substances to cause death, danger to life, or spread fear, or (ii) destroying property or disrupting essential services. By including the intention to disturb public order as a terrorist act, a wide range of offences may be classified as acts of terrorism. These may range from armed insurrection and war against the state to rioting and mob-violence.
The Supreme Court (1960) has held public order as the absence of disorder caused by breaches of peace at the local level.[14] It differentiated such disorder from national upheavals such as revolution, strife and war, which risk affecting the security of the state. Under the BNS, terrorist acts also include intimidating the general public. The Standing Committee on Home Affairs (2023) suggested defining ‘intimidation’ to resolve ambiguities in categorising terrorist acts.11
Lack of clarity in the definition of petty organised crime
The BNS defines petty organised crime as an offence. It includes: vehicle theft, pick-pocketing, selling of public examination question papers, any other form of organised crimes committed by a gang. To be considered as such, these must: (i) cause a general feeling of insecurity amongst citizens, and (ii) be committed by organised criminal groups or gangs (including mobile organised crime groups). Such offences are punishable with imprisonment between one and seven years, and a fine. It is unclear what is meant by general feelings of insecurity. In addition, the BNS does not define terms such as ‘gang’, ‘anchor points’ and ‘mobile organised crime groups’. The Standing Committee on Home Affairs (2023) has suggested redrafting the provision.11
Age specifications for offences
Minimum age of criminal responsibility higher than several other jurisdictions
Age of criminal responsibility refers to the minimum age at which a child can be prosecuted and punished for an offence. Advances in understanding of how brain biology affects adolescent behaviour has raised questions about how responsible children should be held for their actions.[15] Under IPC, nothing is considered an offence if committed by a child below the age of seven years. The age of criminal responsibility increases to 12 years, if the child is found to not have attained the ability to understand the nature and consequences of his conduct. The BNS retains these provisions. This age is lower than the age of criminal responsibility in other countries. In 2007, a UN Committee recommended states to set the age of criminal responsibility to above 12 years.[16]
The age of criminal responsibility varies across countries. For instance, in Germany, the age of criminal responsibility is 14 years, whereas in England and Wales, it is 10 years.[17],[18] In Scotland, the age of criminal responsibility is 12 years.[19]
Age threshold of the victim for similar offences against children varies
The BNS provides for higher penalties in case of offences against children. In most cases, it provides that a victim below the age of 18 years be treated as a child. The penalty for rape and gang rape of women and children is different. However, the threshold for minority of the victim for different offences of rape and consequently the penalty, varies. For gang rape, the penalty differs based on whether the victim is above or below 18 years of age. However, for rape, the penalty is different based on whether the victim’s age is below 12 years, between 12 and 16 years, or above. This is inconsistent with the Protection of Children from Sexual Offences Act, 2012, which classifies all individuals below the age of 18 as minors.
Additionally, under BNS, age threshold of the victim for certain offences against children is not 18 years. For example, kidnapping or abducting a child with the intent to steal from a parent applies only to a child under 10 years. This implies that the punishment for kidnapping an 11-year-old is the same as that of kidnapping an adult. Further, the BNS retains from the IPC the age of 21 years for the offence of importing a foreign woman from another country. However, for boys, it adds the age threshold of 18 years. The Standing Committee on Home Affairs (2023) has recommended defining a child as a person below the age of 18.11
Overlap between the BNS and special laws
Duplication of offences with other special laws
When the IPC was enacted, it encompassed all criminal offences. Over time, special laws have been enacted to address specific subjects and related offences. Some of these offences have been removed from the BNS. For example, offences related to weights and measures were incorporated in the Legal Metrology Act, 2009 and have been removed from the BNS. However, several offences continue to be retained (see Table 1 below for some illustrations). The BNS also adds certain new offences such as organised crime and terrorism which are already covered under special laws. Such overlap in laws may cause additional compliance burden and costs. It may also lead to multiple laws providing varying penalties for the same offences. Deleting such offences could remove duplication, possible inconsistencies, and multiple regulatory regimes.