This blog is Written by Manasi Sutar LL.B Student, Government Law College Mumbai.
Abstract:
This paper presents a systematic review of the Bharatiya Nyaya Sanhita with special reference to Juvenile law in India. The paper explores the historical development of juvenile justice in the Indian legal framework to understand if the conventional knowledge of justice system has been adjusted to cater to changing needs. Accordingly, the study seeks to achieve the following objectives: To establish how existing practices in juvenile law have been influenced by legislative and jurisprudential developments by comparing case laws. Therefore, this research proposes a more flexible legal system that addresses the development and emancipatory nature of kids and adolescents as opposed to the current stringent rules in practice.
The Bharatiya Nyaya Sanhita has gone through some minor modifications in the recent past, and from these changes, one can easily make out that the Indian juvenile justice bill proposes more stringent laws for juvenile criminals. This best generates a controversy regarding the relationship between punishment and rehabilitation, as well as providing valuable information to the functionality and the legal credibility of the system. Based on this, the paper offers policy implications of shifting the focus of the public to incorporate both rehabilitation and punishment with an objective of strengthening legal protection of children.
Introduction:
The British-designed Indian Penal Code (IPC), which was adopted by the Indian Parliament in 1860 and introduced in 1834 by the first Law Commission headed by Thomas Babington Macaulay, now replaced by the Bharatiya Nyaya Sanhita Bill of 2023. Apart from itemizing several offenses and their corresponding penalties, Macaulay’s code also sought to remove disparities and inconsistencies from the Indian legal regime. As civilization progressed, so did the various forms of criminal activities that occur due to the nature of progression in technology. As such, the BNS is seen attempting to conform to the modernity by providing a list of modern offenses and modifying the accompanying penalties. After its condensation, I may be having only 358 Sections for BNS and not the IPC’s 511 Sections.
July 1,2024 is a significant day for the Indian Justice System because it completes the following Acts: Bhartiya Nyaya Sanhita (BNS), Bhartiya Nagrik Suraksha Sanhita (BNSS), and Bhartiya Sakshya Adhiniyam (BSA). The new criminal laws that attempt to replace the existing Indian Penal Code, Criminal Procedure Code, and the Indian Evidence Act include the necessary changes that could meet the contemporary issues in India. The BNS recognizes new crime. As for the new practices within the BNSS legal framework, the organization makes the forensic investigation compulsory and digitalizes the legal procedures. The BSA also embraces electronic and digital forms of evidence while working to update the procedures for managing evidence. It also enhances openness on contentious issues.
Comparison of Old vs New Criminal Laws:
Despite this, the BNS Regulations interfere with children’s rights even where the specific focus is elsewhere. It greatly influences the nuances of developing the juvenile law which is at present more focused on the safety of children during their period of confinement within the justice system. The only major differentiation made is that now instead of being divided into several sections as in the old Indian Penal Code of 1860, the new Chapter 5 has a detailed list of crimes against women and children. Another enhancement made is providing a definition for the young readers that will help them in understanding the text better.
By the provision of section 2(3), anyone who is below the age of eighteen years is considered a child. The term ‘child’ is employed recurrently in the BNS, while the terms ‘minor’ and ‘under eighteen years’ were rather often used in the Indian Penal Code, 1860. All regulations presently employ the same meaning of the word ‘child,’ which is more comprehensible and beneficial to the public. Examples of this include: In Sections 370(5 and 6 IPC the term ‘minor’ has been used for human trafficking, while in Sections 141 (4, 5, and 6 Bharatiya Nyaya Sanhita this term has been replaced by the term ‘child’. In the same way, Section 363(A IPC) which deals with kidnapping or maiming a minor for the purpose of begging has used the term ‘minor’, but in The changes that were observed in Sections 96 and 97 of the Bharatiya Nyaya Sanhita which categorically outlawed prostitution also reflected the same. The laws that address the rape of minors have also been subjected to a lot of changes. Girls below the ages of twelve or sixteen could be subjected to the age based gang rape as prescribed by the Indian Penal Code of the year 1860. The later version of Bharatiya Nyaya Sanhita deleted this principle of threshold. Reduction in legal provisions, if a woman below the age of eighteen years is gang raped, the culprit can be punished with life imprisonment or death in accordance with section 70(2) of the Bharatiya Nyaya Sanhita. Further enhancing the Children Protection, Section 63 of the Bharatiya Nyaya Sanhita has increased the consent age from 15 to 18. However, the exemption for rape within marriage has remained.
Inclusion and Eliminating:
Some of offences have been removed while others have been inserted in a bid to enhancing kids protection and the favourable legal environment all in all. This was with the Indian Penal Code Section 310 which stated that “Whoever, at any time after the passing of this Act, shall have been habitually associated with any other or others for the purpose of committing robbery or child-stealing by means of or accompanied with murder, is a thug”. has been altered to participate the word thugs throughout the passage.
As previously mentioned, one step taken to enhance child safety is the implementation of a BNS provision that makes it illegal to hire, engage, or employ a minor to commit an offense: According to section 93, any person who hires, employs or uses the service of any person below the age of eighteen years for the purpose of committing any offense shall be liable to be punished with either of the said types of imprisonment or any other punishment for the said offense as if the said offense was committed by him alone. This section focuses on hiring, employing, engaging, or using a kid for pornographic or sexual related purposes.
Some of the laws have been altered to achieve the desired gender mainstreaming. To advance the case of gender equality, now the term “child” has been incorporated into some clauses, which previously were limited to women only. Section 366 A of the Indian Penal Code provides a provision for the procurement of young girls and it is sexually biassed against men. However, Section 94, which now has the procurement aspect, now applies to anyone below the age of eighteen because of the BNS changes. In the same manner, Section 366 B of the IPC provides a clause which is quite clearly biased towards boys and relates to the importation of girls from other countries. It only covers girls who are below the age of twenty-one years as written in the legislation.
However due to changes to the BNS, males below the age of eighteen are now contained in Section 139 on the same topic. The legal change will safeguard young boys and girls from being made to endure compelled sexual activity. A notable case known as Tania Begum@ Hazra vs. State of West Bengal took place on September 5, 2023, before the launching of BNS in December 2023. The victim was a young girl who was promised a job in Kolkata after her journey from Bangladesh but was instead sexually exploited. This is only one example of many instances and cases where youths who are taken in are abused.
Conclusion:
In broad contours, the Bharatiya Nyaya Sanhita brings about drastic changes in the Indian legal landscape in the following respects. The incorporation of the BNS has signified a significant epoch-making moment in the enhancement of children’s rights in the Indian legal framework. The measure captures difficulties and issues concerning children, thus, showing concern towards the welfare of the children. One more positive change introduced with the modifications, additions, deletions which has lead to protect children of the future generation has been achieved with the core intention of preserving their safety. The changes have accounted for achieving inclusiveness: each of them eliminates the existing gap and creates better conditions for children with various needs to learn in a safety and friendly manner. Thus, the emergence of BNS can be seen as a positive shift in the Indian legal framework on children’s rights and protections; however, its effectiveness is yet to be seen. An update is one thing that everyone would wish to see in the current social context, but in as much as it aims to protect and help society it has to be put into practice.