From ’Rajdroh-Deshdroh’ to law penalising rape: Ambiguities galore in Bharatiya Nyaya Sanhita — a deep dive

Three new criminal laws—Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagrik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA)—were rolled out on Monday, marking a significant legal overhaul 77 years after Independence. According to Union Home Minister Amit Shah, these new criminal laws, which replace ‘justice’ with ‘punishment,’ draw a curtain on the British-era criminal laws.

The Bharatiya Nyaya Sanhita (BNS), the Bharatiya Nagarik Suraksha Sanhita (BNSS), and the Bharatiya Sakshya Adhiniyam (BSA) replaced the colonial-era Indian Penal Code, Code of Criminal Procedure, and Indian Evidence Act, respectively.

The Bharatiya Nyaya Sanhita introduces 358 sections, fewer than the IPC’s 511, with 20 new offences and increased imprisonment terms for 33 crimes. However, it lacks provisions for gender-neutral penalisation of rape, posing a notable gap in the new criminal law.

There are some grey areas that the revamped criminal laws brought forth by the Prime Minister Narendra Modi government fail to address despite a ‘renewed’ outlook.

From ‘Rajdrohi’ to ‘Deshdrohi’

A significant overhaul in the new criminal laws includes the removal of the controversial sedition act, which has been in place since colonial rule and was recently halted by the Supreme Court of India. Union Home Minister Amit Shah highlighted this change, emphasising the elimination of sedition provisions under the updated legal framework.

The sedition act pertains to criminal offences that ‘endanger sovereignty, unity, and integrity in India’.

On 11 May 2022, the Supreme Court stayed Section 124A, which was criticised for its misuse and broad interpretation. The court, led by then-CJI NV Ramana, highlighted its historical context of British colonial rule in prosecuting freedom fighters under colonial rule and suspended its application until further orders were issued.

In the Bharatiya Nyaya Sanhita, Section 150 defines sedition as “subversive activities”. The term “subversive” refers to tending or intending to overthrow, destroy, or undermine an established or existing system, especially a legally constituted government or a set of beliefs.

Despite opposition, PM Modi-led government did introduce the bill with a broader definition- “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.”

While in English, the term ‘subversive activities’ replaces ‘sedition’, in Hindi, the law carries out a simple name change — from Rajdroh (rebellion against the king) to Deshdroh (rebellion against the nation).

Male, transgender rape victims unsafe

As the new criminal laws are implemented, concerns arise over the exclusion of penal provisions for rape involving male or transgender victims in the Bharatiya Nyaya Sanhita. Additionally, the law omits Section 377 of the IPC, which criminalises “carnal intercourse against the order of nature.”

In 2018, the Supreme Court of India significantly altered Section 377 of the IPC through its landmark Navtej Singh Johar vs Union of India ruling. The apex court’s decision decriminalised consensual sexual relations among adults, including those of the same sex.

Despite its reformation in 2018 to exclude consensual same-sex relations, Section 377 is still used to prosecute non-consensual acts. However, the Bharatiya Nyaya Sanhita’s omission of this provision, coupled with non-gender-neutral rape laws, leaves male and transgender victims with limited legal avenues for recourse in sexual assault cases.