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Organised Crime under the Bharatiya Nyaya Sanhita

Sakshi Singh
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Organised Crime under the Bharatiya Nyaya Sanhita

Organised Crime under the Bharatiya Nyaya Sanhita (BNS): A New Legal Era

Organised crime has been a major difficulty for law enforcement agencies and the legal system in India for a long time. With the new Bharatiya Nyaya Sanhita, 2023 (BNS)—India’s new criminal code and replacement for the Indian Penal Code (IPC)—greater attention has been afforded to dealing with criminal organisations, accurately and effectively, through the law. This blog will look at where the BNS addresses organised crime, how effective this will be, and what the legislative reform means for dealing with organized crime in India.

What is Organised Crime?

Organised crime are structured groups that extensively engage in illegal activities, such as extortion, drug trafficking, human trafficking, cybercrime, arms smuggling, and terrorism, with a financial or material gain motive. Organised crime can merge unlawfully across state and national borders more often than street crimes and use systematic means to evade law enforcement.

Organised crime is systemic, rather than casual or incidental as with street crimes. Organised crime requires laws that reach beyond policing and address all financial, technological, and institutional aspects enacted or engaged by organised crime.

The Shift from IPC to BNS: Why Was It Needed?

The Indian Penal Code (IPC) of 1860, although it established the basis of Indian criminal law, was a colonial product suited to a vastly different socio-political context. As time went on, it became increasingly antiquated and inadequate in handling contemporary criminality, particularly organised and transnational criminality.

Enter the Bharatiya Nyaya Sanhita, 2023—a complete overhaul meant to modernise India’s criminal justice system. An important feature of the BNS is the explicit recognition and criminalisation of organised crimes, which were either vaguely construed or scattered in various provisions in the IPC.

Key Provisions Related to Organised Crime in BNS

1. Definition and Scope

One of the most valuable features of the BNS is its definitive and complete definition of “organised crime”. Crimes commited by a group or network seeking profit or benefit from illegal conduct is clearly identified under the act. This definition provides clarity that the IPC never had.

The BNS is applicable to:

  • Mafia-like conduct
  • Extortion rings
  • Drug trafficking organisations
  • Cyber crime organisations
  • Terrorist organisations
  • Human trafficking organisations

Because of its sweep, law enforcement may target the entire ecosystem of organised crime and not only stand-alone situations.

2. Penalties and Sentencing

The BNS proposes tougher penalties for organisied crime. Punishments include:

  • Term of imprisonment (including life imprisonment)
  • Seizure of property
  • Enhanced sentences in case of an offender being a repeat offender
  • Specific punishment for a gang leader or mastermind

These tough measures are to deter offenders and to disrupt the financial base of these organisations.

3. Special Courts and Fast-Track Trials

The BNS proposes to establish Special Courts to adjujate matters related to analytical crime depverity framework without the delay of appeal. This is important because previous delays in trials has weakened the ability to persue cases again syndicates and allowed them to regroup.

4. Technology and Technical Means

The BNS prescribes the use of digital surveillance, interception of communications, and collection of data to gather relevant intelligence as methods of gathering evidence. These are essential tools

5.Witness Protection

Witness intimidation is one of the biggest challenges in organized crime prosecutions. The BNS includes provisions for witness protection and whistleblower protections which may help to improve conviction rates.

IPC vs. BNS: How They Deal with Organised Crime

1. Legal Recognition

IPC:Did not define ‘organised crime’ specifically.Was reliant on various provisions for various syndicate offensesWas often subject to judicial interpretation, and confusion.

BNS:Offers a definition of ‘organised crime’ that fully encompasses something beyond gang-type behaviour.Is clear and encompasses mafia-style behaviour, extortion syndicates, trafficking, etc.Offers legal certainty, and exactness of applicability.

2. Investigation Tools.

IPC:Was limited in investigation tools and rules.Had little legal backing behind surveillance and digital tracing.Had challenges dealing with tech-savvy enterprises.

BNS:Utilizes modern digital tools, and includes interception and surveillance.Supports forensic technology and cyber surveillance.Creates power tools to address sophisticated organized crime processes.

3. Judicial Process

IPC:Cases related to organized crime were tried in a regular court.Delayed due to heavy workload in the judicial system.Had no mechanisms to fast track organized crime cases.

BNS:Has provisions for Special Courts which aim to accelerate cases.Helps to mitigate backlog, and improve conviction rates.Ensure organized and timely prosecutions.

4. Punishments and Sentencing

IPC:Sentencing depended on the crime for which a person was convicted, and there was a lack of uniformity in sentencing. There was no differentiation of group crimes from individual crimes. Lower deterrence for leaders of syndicates

BNS:Serious punishments with the possibility of life. Specific provisions for leaders of gangs and repeat offenders. Provisions seize assets and properties that were illegally procured.

5. Witness Protection

IPC:No real provisions or protection. Witnesses are often influenced to turn hostile by threats or intimidation. Extremely low conviction rates in organised crimes as a result.

BNS:Covered witness protection. Basically prohibits witnesses from being influenced while under protection. Allows for cooperation with law enforcement and police. Aims to strengthen testimony before the courts and ensure evidence is reliable.

6. Scope and Applicability

IPC:Only likely to be applied to, typical, generally individual or conventional types of crime. Cross-border or interstate criminal networks were challenging to combat with an umbrella approach.

BNS:Specifically aimed at addressing the syndicates type crimes that progress across state and transnational borders. Encounters cooperation from various agencies and jurisdictions. Sees the episode complexity of modern organised crime, and accommodates this in its definitions and operations.

Evaluating the Impact: Strengths of the BNS Approach

1. Clarity and Legal Certainty

By defining and distinguishing organized crime, the BNS removes uncertainty and gives prosecutors a distinct policy path. This has the potential to improve the probability of convictions and target criminal enforcement.

2. Modern Tools for Modern Crimes

As organized criminals turn to encrypted contact, darknet markets, finance and cryptocurrency, the BNS provides new powers for technological aids for law enforcement and policy makers to monitor evolving impacts of modern organized crime.

3. Deterrence Through Punishment

As listed in section 16-D of the BNS, there are most severe penalties if someone is convicted for organized crime, life imprisonment and asset forfeiture. It is reasonable to assume that entering into an organized crime network will heavily disincentivize future participation. The only effective manner to eliminate an organized crime network is to attack its economic roots.

4.Policies for Institutional Change

The introduction of Special Courts and expedited processes is an institutional leap forward in clearing out backlogs and providing services in a timely manner.

Challenges and Critiques

No law is without its flaws, and the BNS too has its set of challenges.

1. Gaps in Implementation

While the law is solidly written, the implementation depends on the capacity of the police, judiciary and forensic regimes to engage with cyber and economic crimes. Many states do not have trained cyber or economic crime units.

2. Potential for Abuse

There is always the potential for abuse of laws that impose stringent measures, either through surveillance or the seizure of property. Safeguards and checks have to be built-in to avoid instances of harassment especially in policing that can arise from the psychological strategy of political targeting.

3. Limited International Cooperation

Organised crime is transnational but India has limited global cooperation or treaties for enforcement with several nations, particularly in Africa, South America or parts of Asia. The provisions of BNS can’t deal with international mafias without, at minimum, international cooperation.

Organised Crime in the Indian Context: Case Studies

Case 1: Dawood Ibrahim Network

The notorious D-Company was operating across India, Dubai, and Pakistan. Proving the links for the IPC and getting conviction was extremely cumbersome. Under BNS, such a syndicate could be legally labelled to be tried in Special Courts and have their finances seized systematically.

Case 2: Human Trafficking in West Bengal

Inter-state gangs that are traffickers of women and children had a low conviction rate due to many provisions that were ad-hoc. Under BNS these operations would qualify as organised crime with systematic focus and increased punishment provisions.

Conclusion: A Progressive Step Forward

The introduction of organized crime provisions in the Bharatiya Nyaya Sanhita is a bold, innovative development in India’s legal history that indicates forward thinking. It suggests a new age of crime control, compared to colonial times policing. While the true test will be implementation, the framework itself is thoughtful, expansive and forward-looking.

As crime develops and changes, so too must the law. The BNS is not merely an updated set of rules, but a reimagination of what justice could be in modern India.

Also Read:
Rights of undertrial prisoners in India
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Offences Against Women and Children Under the BNS

Sommya Kashyap
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Offences Against Women and Children Under the BNS

1. Introduction

The Bharatiya Nyaya Sanhita (BNS), 2023, which replaced the colonial-era Indian Penal Code (IPC) of 1860 on July 1, 2024, represents a watershed moment in India’s criminal justice system. This comprehensive overhaul reflects contemporary societal values and addresses modern challenges in criminal justice. One of the most significant aspects of this reform is the enhanced and expanded framework for offenses against women and children. These provisions reflect a growing recognition of the unique vulnerabilities faced by women and children and the need for robust legal protections. This article examines the BNS provisions concerning offenses against women and children, analyzing their evolution, scope, interpretation, and practical implications within India’s constitutional and international legal commitments.

2. Historical Background and Legal Context

The legal protection of women and children in India has evolved significantly over time. The colonial-era IPC contained limited provisions addressing gender-specific crimes, often reflecting patriarchal values of the Victorian era. Post-independence, amendments to the IPC gradually expanded protections, notably through the Criminal Law Amendment Acts of 1983, 2013, and 2018, which introduced or modified provisions on rape, sexual harassment, acid attacks, and trafficking.

For children, specialized protections developed primarily through separate legislation rather than the IPC, including the Juvenile Justice Acts and the Protection of Children from Sexual Offences (POCSO) Act, 2012.

The BNS represents the culmination of this evolutionary process, consolidating many separate developments into a cohesive framework while introducing new provisions to address contemporary challenges. This reform was informed by recommendations from various committees, including the Justice Verma Committee (2013) and the Committee on Reforms of Criminal Justice System (Malimath Committee, 2003), as well as evolving international standards on gender justice and child rights.

The transition to the BNS occurs against the backdrop of India’s constitutional guarantees of equality (Article 14), prohibition of discrimination on the basis of sex (Article 15), and special provisions for women and children (Articles 15(3) and 39), as well as its commitments under international instruments like the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC).

3. Relevant Laws and Regulations

3.1 Key Provisions Under the BNS for Offenses Against Women

The Bharatiya Nyaya Sanhita contains several enhanced and new provisions addressing offenses against women:

  1. Section 63 (Sexual Assault and Aggravated Sexual Assault): This provision replaces and expands upon the former Section 375 (rape) of the IPC. It adopts a broader definition of sexual assault, recognizes various forms of non-consensual sexual acts beyond traditional definitions of rape, and establishes graduated penalties based on aggravating factors. The definition of consent has been clarified and strengthened.
  2. Section 64 (Gang Sexual Assault): This section specifically addresses sexual assault committed by multiple perpetrators, recognizing the heightened trauma and reduced possibility of resistance in such cases.
  3. Section 65 (Punishment for Causing Death or Resulting in Persistent Vegetative State): This provision enhances penalties for sexual assault resulting in death or a persistent vegetative state of the victim.
  4. Section 66 (Sexual Intercourse by Husband Upon His Wife During Separation): This provision criminalizes marital rape during judicial separation, representing a partial but significant step toward addressing marital rape.
  5. Section 78 (Acid Attack): This section maintains and strengthens provisions against acid attacks, a gendered crime that disproportionately affects women.
  6. Section 79 (Attempt to Administer Acid): This new provision specifically criminalizes attempted acid attacks, allowing for intervention before harm occurs.
  7. Section 80 (Stalking): This expanded provision addresses physical and digital stalking, with enhanced penalties for repeated offenses.
  8. Section 81 (Voyeurism): This section criminalizes the non-consensual viewing, capturing, or dissemination of images of private acts.
  9. Section 82 (Sexual Harassment): This provision expands the definition of sexual harassment to include various forms of unwelcome sexual behavior.
  10. Section 83 (Disrobing a Woman): This section specifically criminalizes acts intended to disrobe or compel nudity of a woman.
  11. Section 317 (Dowry Death): This provision maintains and strengthens the presumption regarding dowry death when a woman dies in suspicious circumstances within seven years of marriage.
  12. Section 318 (Cruelty by Husband or Relatives): This section addresses mental and physical cruelty by husband or relatives, with expanded definitions of cruelty.
  13. Section 85 (Trafficking of Person): This comprehensive provision addresses human trafficking with a focus on trafficking for sexual exploitation.
  14. Section 351 (Criminal Intimidation with Intent to Outrage Modesty): This provision specifically addresses intimidation intended to violate a woman’s dignity.

3.2 Key Provisions Under the BNS for Offenses Against Children

The BNS contains several provisions specifically addressing offenses against children:

  1. Section 69 (Sexual Assault on Children): This section provides specific protections against sexual assault of minors, with enhanced penalties based on the age of the victim.
  2. Section 86 (Trafficking of More Than One Person or Minor): This provision establishes enhanced penalties for trafficking of children.
  3. Section 87 (Trafficking of a Minor): This section specifically addresses child trafficking, with severe penalties.
  4. Section 88 (Exploitation of a Trafficked Person): This provision criminalizes the exploitation of trafficked children.
  5. Section 89 (Slavery and Forced Labor of Children): This section specifically criminalizes enslaving or compelling children into forced labor.
  6. Section 124 (Child Abandonment): This provision criminalizes the abandonment of children by parents or guardians.
  7. Section 125 (Cruelty to Child): This section addresses physical and mental cruelty toward children by caregivers.
  8. Section 126 (Employment of Child for Begging): This provision criminalizes the exploitation of children for begging.
  9. Section 331 (Kidnapping): This section addresses kidnapping of children, with enhanced definitions and penalties.
  10. Section 334 (Kidnapping or Inducing Child to Compel Marriage): This provision specifically addresses kidnapping for forced marriage.

3.3 Interface with Other Laws

These BNS provisions interface with several specialized laws:

  1. Protection of Children from Sexual Offences Act (POCSO), 2012: The BNS provisions complement POCSO, with the specialized law taking precedence in case of conflict.
  2. Juvenile Justice (Care and Protection of Children) Act, 2015: This Act provides the framework for dealing with juvenile offenders and children in need of care and protection.
  3. Prohibition of Child Marriage Act, 2006: This Act complements BNS provisions on forced marriage involving minors.
  4. Protection of Women from Domestic Violence Act, 2005: This provides civil remedies that complement the criminal provisions in the BNS.
  5. Immoral Traffic (Prevention) Act, 1956: This specialized law addresses aspects of trafficking for sexual exploitation.
  6. Information Technology Act, 2000 (as amended): This addresses digital aspects of offenses such as online harassment, stalking, and child pornography.

4. Key Judicial Precedents

Several landmark judicial decisions have shaped the legal framework for offenses against women and children, which will influence the interpretation of the BNS provisions:

  1. Vishaka v. State of Rajasthan (1997): Established guidelines for addressing sexual harassment at the workplace, principles which have influenced BNS provisions on sexual harassment.
  2. Tuka Ram v. State of Maharashtra (1979) and its subsequent legislative reversal: The controversial “Mathura rape case” led to significant reforms in rape laws, particularly regarding consent.
  3. Independent Thought v. Union of India (2017): Criminalized sexual intercourse with a minor wife, influencing the BNS’s approach to child marriage and sexual offenses within marriage.
  4. Sakshi v. Union of India (2004): Led to broader interpretations of sexual assault beyond traditional definitions of rape, reflected in the BNS’s expanded definitions.
  5. State of Maharashtra v. Madhukar Narayan Mardikar (1991): Established that a woman’s sexual history is irrelevant in sexual assault cases, a principle incorporated into BNS procedures.
  6. Delhi Domestic Working Women’s Forum v. Union of India (1995): Established guidelines for assisting rape survivors, influencing procedural aspects complementing the BNS.
  7. Lalita Kumari v. Government of U.P. (2014): Established mandatory registration of FIRs in certain cases, including those involving women and children.
  8. Laxmi v. Union of India (2014): Led to guidelines on acid attack cases, reflected in the BNS’s provisions on acid attacks.

5. Legal Interpretation and Analysis

5.1 Constitutional Framework and Fundamental Rights

The BNS provisions on offenses against women and children must be interpreted in light of constitutional principles:

  1. Article 14 (Equality): The provisions aim to address historical inequalities by providing specialized protections. Courts have held that such differential treatment constitutes “positive discrimination” permitted under the Constitution.
  2. Article 15 (Non-discrimination): While prohibiting discrimination on the basis of sex, Article 15(3) specifically permits special provisions for women and children, providing constitutional foundation for gender-specific criminal laws.
  3. Article 21 (Right to Life and Personal Liberty): Courts have interpreted this to include the right to dignity, privacy, and freedom from violence, principles that underpin many BNS provisions.
  4. Article 39 (Directive Principles): This article directs the state to ensure that children develop in healthy conditions and are protected from exploitation, supporting the BNS’s enhanced protections for children.

5.2 Gender-Sensitive Interpretation

The BNS provisions represent an evolution toward more gender-sensitive criminal law:

  1. Shifting from Honor-Based to Autonomy-Based Framework: Earlier provisions often framed offenses against women in terms of “modesty” and “honor.” The BNS increasingly adopts language of autonomy, consent, and dignity.
  2. Recognition of Power Dynamics: The provisions acknowledge power imbalances in relationships, particularly in domestic contexts and authority figures’ interactions with children.
  3. Inclusive Language: While maintaining gender-specific protections where statistically justified, the BNS moves toward more inclusive language in many provisions.

5.3 Child-Centric Approach

The BNS adopts a child-centric approach aligned with international standards:

  1. Best Interests of the Child: This principle from the CRC informs the interpretation of provisions concerning children.
  2. Age-Appropriate Protections: The BNS establishes graduated protections based on the age and vulnerability of children.
  3. Special Procedural Safeguards: The provisions are complemented by child-friendly procedural protections, including specialized courts and sensitive investigation procedures.

6. Comparative Legal Perspectives

6.1 International Standards

The BNS provisions largely align with international standards:

  1. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW): The BNS advances India’s compliance with obligations to address gender-based violence through appropriate legislation.
  2. Convention on the Rights of the Child (CRC): The provisions addressing offenses against children align with CRC principles on protection from violence, exploitation, and abuse.
  3. United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons: The BNS’s comprehensive trafficking provisions reflect international standards on addressing human trafficking.

6.2 Comparative Analysis with Other Jurisdictions

  1. United Kingdom: The UK’s Sexual Offences Act 2003 adopted a consent-based approach to sexual offenses similar to the BNS, but with more comprehensive provisions on marital rape.
  2. United States: The federal Violence Against Women Act and state laws provide models for comprehensive approaches to gender-based violence, including coordinated services alongside criminal provisions.
  3. South Africa: South Africa’s Criminal Law (Sexual Offences and Related Matters) Amendment Act adopts expansive definitions of sexual assault similar to the BNS approach.
  4. Australia: Australia’s state-level criminal codes have increasingly adopted gender-neutral language for sexual offenses while maintaining specialized protections where statistically justified.
  5. Scandinavian Countries: These nations have pioneered consent-based definitions of sexual assault and integrated approaches to child protection that could inform the interpretation of BNS provisions.

7. Practical Implications and Challenges

7.1 Investigative and Procedural Challenges

The implementation of the BNS provisions faces several practical challenges:

  1. Investigation Capacity: Effective implementation requires specialized training for police, prosecutors, and judiciary on trauma-informed approaches to cases involving women and children.
  2. Evidentiary Challenges: Many offenses against women and children present unique evidentiary challenges, including delayed reporting and limited physical evidence.
  3. Secondary Victimization: The justice system must guard against processes that cause additional trauma to survivors during investigation and trial.
  4. Resource Limitations: Specialized courts, forensic facilities, and support services are unevenly distributed, particularly in rural areas.

7.2 Sociocultural Context and Implementation

The effectiveness of the BNS provisions is shaped by the sociocultural context:

  1. Stigma and Underreporting: Social stigma continues to contribute to underreporting of offenses against women and children.
  2. Awareness Gaps: Limited awareness of legal protections, particularly in marginalized communities, can hinder access to justice.
  3. Intersectional Vulnerabilities: Women and children from marginalized communities face compound barriers to accessing justice.
  4. Implementation Disparities: Urban-rural, class, and regional disparities affect the consistent implementation of protective provisions.

7.3 Balancing Protection and Agency

A key challenge in implementing these provisions is balancing protection with respect for agency:

  1. Paternalism Risk: Over-protective approaches can undermine the agency of women and the evolving capacities of children.
  2. Cultural Sensitivity: Implementation must navigate diverse cultural contexts while upholding fundamental rights.
  3. Support Services Integration: Effective implementation requires coordination between criminal justice, healthcare, education, and social welfare systems.

8. Recent Developments and Trends

The BNS was passed in December 2023 and came into effect on July 1, 2024, representing a significant legislative development in itself. However, several related trends and developments are noteworthy:

  1. Digital Dimensions: Growing recognition of technology-facilitated violence against women and children, reflected in provisions addressing digital harassment, stalking, and exploitation.
  2. Trauma-Informed Approaches: Increasing adoption of trauma-informed practices in criminal justice responses to offenses against women and children.
  3. Restorative Justice Experiments: Emerging interest in restorative approaches for certain categories of offenses, particularly those involving juvenile offenders.
  4. Specialized Courts: Expansion of fast-track courts and specialized courts for offenses against women and children.
  5. Integrated Protection Systems: Development of coordinated systems linking legal protections with social support services.

9. Recommendations and Future Outlook

Based on this analysis, several recommendations emerge:

  1. Comprehensive Training: Systematic training for all criminal justice stakeholders on the new BNS provisions and trauma-informed approaches.
  2. Monitoring Mechanisms: Establishment of robust monitoring mechanisms to track implementation and identify barriers to justice.
  3. Resource Allocation: Enhanced allocation of resources for specialized courts, forensic facilities, and victim support services.
  4. Public Awareness: Comprehensive awareness campaigns to familiarize communities with the enhanced protections.
  5. Support Services: Strengthening of support services for survivors, including healthcare, counseling, legal aid, and rehabilitation.
  6. Data Collection: Systematic data collection on the implementation of these provisions to inform evidence-based refinements.
  7. Further Legislative Review: Consideration of additional reforms, particularly regarding marital rape and comprehensive prevention measures.
  8. Juvenile Justice Coordination: Enhanced coordination between the BNS implementation and the juvenile justice system.

10. Conclusion and References

The BNS provisions on offenses against women and children represent a significant advancement in India’s legal framework for protecting vulnerable groups. These provisions reflect evolving societal values and international standards on gender justice and child rights. While challenges remain in implementation, the comprehensive approach adopted in the BNS provides a stronger foundation for addressing violence and exploitation.

The effectiveness of these provisions will ultimately depend on their interpretation by courts, implementation by law enforcement agencies, and the broader sociocultural context. A rights-based approach that balances robust protection with respect for agency and dignity will be essential for realizing the transformative potential of these legal reforms.

References

  1. Bharatiya Nyaya Sanhita, 2023
  2. Constitution of India, 1950
  3. Indian Penal Code, 1860 (now repealed)
  4. Protection of Children from Sexual Offences Act, 2012
  5. Juvenile Justice (Care and Protection of Children) Act, 2015
  6. Protection of Women from Domestic Violence Act, 2005
  7. Prohibition of Child Marriage Act, 2006
  8. Immoral Traffic (Prevention) Act, 1956
  9. Information Technology Act, 2000 (as amended)
  10. Convention on the Elimination of All Forms of Discrimination Against Women
  11. Convention on the Rights of the Child
  12. United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons
  13. Vishaka v. State of Rajasthan, (1997) 6 SCC 241
  14. Independent Thought v. Union of India, (2017) 10 SCC 800
  15. Sakshi v. Union of India, (2004) 5 SCC 518
  16. State of Maharashtra v. Madhukar Narayan Mardikar, (1991) 1 SCC 57
  17. Delhi Domestic Working Women’s Forum v. Union of India, (1995) 1 SCC 14
  18. Lalita Kumari v. Government of U.P., (2014) 2 SCC 1
  19. Laxmi v. Union of India, (2014) 4 SCC 427
  20. Justice Verma Committee Report, 2013
  21. Committee on Reforms of Criminal Justice System (Malimath Committee) Report, 2003
  22. Ministry of Home Affairs, “The Bharatiya Nyaya Sanhita: A New Era in Criminal Justice,” 2023

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offences against child in bns

Shreya Sharma
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offences against child in bns

1. Introduction

The legal system plays a crucial role in safeguarding the rights and dignity of children. With the advent of the Bharatiya Nyaya Sanhita (BNS), 2023, India has taken a decisive step towards reforming and modernising its criminal law. Among the noteworthy changes introduced in this legislation is a dedicated focus on protecting children from various forms of harm and exploitation. The BNS has made child protection more comprehensive and enforceable by streamlining and categorising these offences.

2. Historical Background and Legal Context

Prior to the BNS, child-related offences were scattered throughout the Indian Penal Code, 1860, often lacking coherence or sufficient clarity. There was no exclusive chapter dealing with crimes against minors. The fragmented structure made it difficult for both legal practitioners and enforcement agencies to uniformly interpret and apply the law.

The BNS corrects this gap by consolidating offences against children under a single chapter, bringing clarity, consistency, and stronger legal safeguards for minors, aligned with contemporary social and judicial needs.

3. Relevant Provisions in the BNS, 2023

Chapter V of the BNS (Sections 93 to 99) lays out explicit provisions to address crimes committed against children. Here’s a breakdown of the key sections:

  • Section 93 – Deals with the abandonment or exposure of a child under 12 years by a parent or guardian, with the intent to desert. It is punishable with up to 7 years of imprisonment and/or a fine.
  • Section 94 – Criminalizes the secret disposal of a deceased infant’s body in order to hide birth, punishable with imprisonment up to 2 years or fine or both.
  • Section 95 – Prohibits hiring, using, or encouraging a child under 18 to engage in any criminal act. If the crime involves sexual exploitation or pornography, the penalties are significantly more severe—ranging from 3 to 10 years of imprisonment, along with a fine.
  • Section 96 – Covers inducement or procurement of a child for illegal sexual activities. This offence is punishable with up to 10 years’ imprisonment and a fine.
  • Section 97 – Addresses kidnapping or abducting a child under the age of 10 for the purpose of theft (i.e., stealing from the child). The offender can face up to 7 years of imprisonment along with a fine.
  • Sections 98 & 99 – These sections criminalize the sale and purchase of a child for immoral purposes such as prostitution or forced intercourse. Both the seller and buyer can be punished with up to 10 years of imprisonment and a fine.

These provisions signify a more protective stance toward children, taking into account the modern-day realities of trafficking, abuse, and exploitation.

4. Landmark Judicial Observations

Although the BNS is a recent law, many of its provisions reflect long-standing judicial reasoning from earlier cases under the IPC:

  • In Bachpan Bachao Andolan v. Union of India, the Supreme Court emphasized proactive state responsibility in preventing child labour and trafficking.
  • Gaurav Jain v. Union of India laid down significant groundwork on child rehabilitation, especially of children rescued from brothels.

Such rulings continue to guide the interpretation of offences now restructured under the BNS.

5. Interpretation and Significance

The BNS not only consolidates earlier legal principles but also expands their scope. It recognizes children as vulnerable individuals who need special protection, especially from trafficking, sexual abuse, and criminal exploitation.

Notably, Section 95 addresses an emerging concern—children being manipulated or used as tools in criminal activities, including organized crimes or digital exploitation, which had limited legal recognition earlier.

6. Global Legal Comparisons

Many countries have evolved their legal systems to offer specialized protection to minors:

  • In the United States, federal laws such as the Child Abuse Prevention and Treatment Act (CAPTA) offer targeted safeguards.
  • The United Kingdom has a comprehensive Children Act that places duties on local authorities and courts to ensure child welfare.

The BNS brings Indian law closer to these international standards by codifying specific and enforceable offences against children in one coherent chapter.

7. Implementation Challenges

Despite its progressive framework, successful implementation of the BNS’s child protection clauses will depend on several factors:

  • Training: Police, prosecutors, and judges must be well-versed in these updated provisions.
  • Awareness: Public knowledge about child rights and these legal protections remains low.
  • Resource Support: Rehabilitation, safe housing, and counseling for child victims need institutional backing.

Only through collaborative efforts between law enforcement, judiciary, and civil society can these legal provisions yield real-world impact.

8. Trends and Recent Developments

There is an evident trend in the Indian legal landscape toward stronger child protection laws. From the POCSO Act to juvenile justice reforms, India is now building a comprehensive ecosystem. The BNS complements this effort by addressing areas not fully covered under previous laws, such as child involvement in crime or exploitation through technology.

9. Recommendations and Way Forward

  • Widespread legal literacy among communities, particularly parents, teachers, and caregivers.
  • Dedicated child protection units in law enforcement agencies.
  • Cross-sector collaboration between legal institutions, child welfare bodies, and NGOs.
  • Regular review and updates of the law to respond to evolving threats, especially cybercrime involving minors.

10. Conclusion

The Bharatiya Nyaya Sanhita, 2023, represents a vital evolution in India’s criminal justice system. Its thoughtful and consolidated approach to offences against children demonstrates an understanding of the gravity of such crimes and the need for urgent, structured legal action. However, the true test of these reforms lies in how effectively they are applied and enforced in practice.

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Rights of undertrial prisoners in India
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Offences Related to Marriage Under the BNS 2023

Sommya Kashyap
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Offences Related to Marriage Under the BNS 2023

1. Introduction

The Bharatiya Nyaya Sanhita (BNS), 2023, which replaced the colonial-era Indian Penal Code (IPC) of 1860 on July 1, 2024, represents a significant transformation in India’s criminal legal framework. Marriage, as a core social institution in Indian society, receives special attention within this new criminal code. The BNS has retained, modified, and expanded various provisions related to marital offenses, reflecting evolving social norms, constitutional values, and judicial interpretations. This comprehensive overhaul addresses longstanding concerns regarding gender justice, personal autonomy, and family dynamics in the context of marriage. This article analyzes the provisions concerning marriage-related offenses under the BNS, examining their evolution, scope, interpretation, and practical implications within India’s constitutional and international legal commitments.

2. Historical Background and Legal Context

Marriage-related offenses have a complex history in Indian criminal law. The colonial-era Indian Penal Code of 1860 incorporated provisions reflecting Victorian morality and the social values of that period. These included offenses such as bigamy, adultery, and various forms of marriage fraud, many of which were designed to reinforce patriarchal family structures and restrict women’s autonomy.

The post-independence era witnessed gradual reforms through both legislative amendments and judicial interventions. Key developments included:

  1. Criminal Law Amendment Act, 1983: Enhanced penalties for dowry-related offenses and introduced the concept of “dowry death” as a distinct crime.
  2. Introduction of Section 498A in 1983: Criminalized cruelty by husband or relatives of husband against women.
  3. Joseph Shine v. Union of India (2018): The Supreme Court struck down Section 497 of the IPC, decriminalizing adultery as a criminal offense.
  4. Independent Thought v. Union of India (2017): Criminalized sexual intercourse with a minor wife, creating an exception to the marital rape exemption for child brides.

The BNS represents the culmination of this evolutionary process, situated within India’s constitutional framework that guarantees equality (Article 14), prohibits discrimination on the basis of sex (Article 15), and protects personal liberty (Article 21). The new code attempts to balance traditional familial values with contemporary notions of individual autonomy, gender equality, and human dignity.

3. Relevant Laws and Regulations

3.1 Key Provisions Under the BNS for Marriage-Related Offenses

The Bharatiya Nyaya Sanhita contains several provisions specifically addressing marriage-related offenses:

  1. Section 66 (Sexual Intercourse by Husband Upon His Wife During Separation): This provision criminalizes non-consensual sexual intercourse by a husband with his wife during judicial separation or under a decree of separation. This represents a partial recognition of marital rape, though it falls short of full criminalization.
  2. Section 319 (Bigamy): This section, evolved from Section 494 of the IPC, criminalizes the act of marrying again during the lifetime of a spouse. The offense carries imprisonment for up to seven years and a fine. The provision applies to both men and women, though it must be interpreted in light of personal laws that may permit polygamy in certain communities.
  3. Section 320 (Marriage Ceremony Fraudulently Gone Through Without Lawful Marriage): This provision, replacing Section 496 of the IPC, criminalizes the act of fraudulently going through a marriage ceremony without lawful marriage, deceiving the other person into believing it to be a valid marriage.
  4. Section 334 (Kidnapping or Inducing Child to Compel Marriage): This section specifically addresses the kidnapping or inducing of a minor for the purpose of forced marriage.
  5. Section 317 (Dowry Death): This crucial provision deals with deaths of women in suspicious circumstances within seven years of marriage where evidence of cruelty or harassment related to dowry demands exists. It carries a minimum sentence of seven years and can extend to life imprisonment.
  6. Section 318 (Cruelty by Husband or Relatives): This comprehensive provision addresses various forms of cruelty by husband or relatives of husband toward a woman, including physical and mental cruelty, harassment related to dowry demands, and conduct that may drive a woman to suicide.
  7. Section 246 (Cohabitation Caused by a Man Deceitfully Inducing a Belief of Lawful Marriage): This section criminalizes the deception of a woman into believing she is lawfully married when she is not, leading to cohabitation.
  8. Section 74 (Marriage Procured by Force or Deception): This provision addresses marriages procured through force, deception, or fraud, recognizing the need for free and informed consent in marriage.

3.2 Interface with Other Laws

These BNS provisions interface with several other legal frameworks:

  1. Prohibition of Child Marriage Act, 2006: Complements the BNS provisions on forced marriage involving minors.
  2. Protection of Women from Domestic Violence Act, 2005: Provides civil remedies that complement the criminal provisions in the BNS related to marital cruelty.
  3. Dowry Prohibition Act, 1961: Specifically criminalizes the giving, taking, or demanding of dowry, complementing the BNS provisions on dowry death and harassment.
  4. Special Marriage Act, 1954: Provides a civil framework for marriage registration that intersects with the criminal provisions on bigamy and marriage fraud.
  5. Various Personal Laws: Hindu Marriage Act, 1955; Muslim Personal Law (Shariat) Application Act, 1937; Christian Marriage Act, 1872; and Parsi Marriage and Divorce Act, 1936 establish the legal parameters of valid marriage within different communities, which must be considered when interpreting offenses like bigamy.
  6. The Bharatiya Sakshya Adhiniyam (Indian Evidence Act replacement): Establishes evidentiary standards for proving marriage-related offenses, including the crucial presumptions in dowry death cases.

4. Key Judicial Precedents

Several landmark judicial decisions have shaped the legal framework for marriage-related offenses, which will influence the interpretation of the BNS provisions:

  1. Joseph Shine v. Union of India (2018): The Supreme Court struck down Section 497 of the IPC (adultery) as unconstitutional, recognizing that it violated women’s dignity by treating them as property of their husbands. This judgment’s principles on autonomy and equality will influence the interpretation of marriage-related provisions in the BNS.
  2. Independent Thought v. Union of India (2017): This judgment criminalized sexual intercourse with a minor wife, creating an exception to the marital rape exemption. Its principles will be relevant to interpreting Section 66 of the BNS.
  3. Rajesh Sharma v. State of U.P. (2017) and subsequent clarification in Social Action Forum for Manav Adhikar v. Union of India (2018): These judgments addressed concerns about the misuse of Section 498A (cruelty by husband or relatives), establishing guidelines that will likely inform the application of Section 318 of the BNS.
  4. Arnesh Kumar v. State of Bihar (2014): Established guidelines for arrest in Section 498A cases, which will influence the procedural aspects of enforcing Section 318 of the BNS.
  5. Prakash v. State of Punjab (1992): Clarified the interpretation of “soon before death” in dowry death cases, relevant to Section 317 of the BNS.
  6. Reema Aggarwal v. Anupam (2004): Extended the protection of Section 498A to wives of de facto marriages, a principle likely to be applied to Section 318 of the BNS.
  7. Shanti v. State of Haryana (1991): Established standards for circumstantial evidence in dowry death cases, which will guide the application of Section 317 of the BNS.

5. Legal Interpretation and Analysis

5.1 Constitutional Dimensions

The BNS provisions on marriage-related offenses must be interpreted in light of constitutional principles:

  1. Right to Equality (Article 14): The provisions must be applied equally regardless of gender, religion, or social status. The abandonment of gender-specific language in many provisions reflects this constitutional mandate.
  2. Protection Against Discrimination (Article 15): While Article 15(3) permits special provisions for women, the BNS attempts to balance gender-specific protections with neutral language where appropriate.
  3. Right to Life and Personal Liberty (Article 21): This has been interpreted by courts to include the right to dignity, privacy, and autonomy in intimate relationships, principles that inform many marriage-related provisions.
  4. Freedom of Religion (Articles 25-28): The application of marriage-related provisions must navigate the constitutional protections for religious practices, particularly in relation to personal laws that govern marriage.

5.2 Evolving Interpretations

Several key interpretative trends are evident:

  1. Partial Recognition of Marital Rape: Section 66 represents a limited recognition of marital rape during judicial separation, reflecting an evolutionary step rather than a revolutionary change. The exclusion of marital rape within subsisting marriages remains a controversial aspect that courts may address through interpretation.
  2. Enhanced Focus on Consent: The provisions increasingly emphasize free and informed consent in marriage, criminalizing deception, force, and fraud more comprehensively.
  3. Graduation from Property to Personhood: The provisions reflect a shift from treating women as property within marriage to recognizing their individual personhood and autonomy.
  4. Balancing Protection and Agency: The provisions attempt to balance protecting vulnerable spouses (typically women) while respecting their agency and decision-making capacity.

5.3 Procedural Safeguards and Concerns

The application of marriage-related offense provisions raises procedural considerations:

  1. Proof and Presumptions: For offenses like dowry death (Section 317), the BNS maintains presumptions that shift the burden of proof once certain conditions are established.
  2. Safeguards Against Misuse: Following judicial concerns about potential misuse of cruelty provisions, procedural safeguards have evolved that may apply to Section 318 of the BNS.
  3. Complainant-Friendly Procedures: Several procedural aspects, including territorial jurisdiction and evidence collection, have been designed to be more accessible to complainants in marriage-related cases.

6. Comparative Legal Perspectives

6.1 International Standards

The BNS provisions on marriage-related offenses can be evaluated against international standards:

  1. Universal Declaration of Human Rights and International Covenant on Civil and Political Rights: These recognize the right to marry with free and full consent, principles reflected in the BNS provisions against forced marriage.
  2. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW): Article 16 specifically addresses discrimination in marriage and family relations. While the BNS advances some CEDAW principles, the limited recognition of marital rape falls short of CEDAW Committee recommendations.
  3. UN Declaration on the Elimination of Violence against Women: This identifies violence occurring within the family as a specific concern, reflected in the BNS provisions on marital cruelty.

6.2 Comparative Analysis with Other Jurisdictions

  1. United Kingdom: The UK completely criminalized marital rape in R v. R (1992), going beyond the BNS’s limited recognition. The UK’s approach to domestic violence through specialized courts and integrated service provision offers models for implementing the BNS provisions.
  2. United States: Various states have developed comprehensive approaches to domestic violence within marriage, including mandatory arrest policies and specialized prosecution units that could inform the implementation of Section 318 of the BNS.
  3. South Africa: The Prevention of Family Violence Act and subsequent legislation offer comprehensive protections against domestic violence, with strong procedural protections that could provide lessons for interpreting BNS provisions.
  4. Australia: Australia’s federal system has developed coordinated approaches to family violence across jurisdictions, with innovations in risk assessment and management that could inform the implementation of the BNS provisions.

7. Practical Implications and Challenges

7.1 Implementation Challenges

The effective implementation of the BNS provisions faces several challenges:

  1. Cultural and Social Barriers: Deep-seated cultural norms regarding marriage, family privacy, and gender roles can impede reporting and prosecution of marriage-related offenses.
  2. Accessibility of Justice: Rural-urban disparities, economic barriers, and educational factors affect access to legal remedies for marriage-related offenses.
  3. Specialized Training Requirements: Effective implementation requires specialized training for police, prosecutors, and judiciary on the nuanced nature of marriage-related offenses.
  4. Evidence Collection: Marriage-related offenses often occur in private spaces, creating evidentiary challenges that require sensitive and specialized investigative approaches.

7.2 Balancing Objectives

The implementation of these provisions must balance several objectives:

  1. Deterrence vs. Reconciliation: In many marriage-related cases, the complainant may desire both protection and potential reconciliation, creating tensions in the application of criminal law.
  2. Protection vs. Family Integrity: The legal system must navigate concerns for individual protection against violence and abuse while respecting family integrity and cultural values around marriage.
  3. Criminal Justice vs. Social Reform: Criminal provisions alone cannot address deeply rooted social issues related to marriage, requiring complementary social and educational initiatives.

7.3 Gender Dimensions

The gender dimensions of marriage-related offenses require specific attention:

  1. Gendered Impact: While the BNS adopts more gender-neutral language in some provisions, the reality remains that women are disproportionately affected by marriage-related crimes.
  2. Intersectional Vulnerabilities: The effectiveness of the provisions is influenced by intersecting vulnerabilities related to caste, class, religion, and regional factors.
  3. Economic Dependencies: Economic dependence often complicates the reporting and prosecution of marriage-related offenses, requiring integrated economic support alongside legal remedies.

8. Recent Developments and Trends

The BNS was passed in December 2023 and came into effect on July 1, 2024, representing a significant legislative development in itself. However, several related trends and developments are noteworthy:

  1. Ongoing Debate on Marital Rape: Various petitions challenging the marital rape exemption remain under judicial consideration, which may influence the interpretation of Section 66 of the BNS.
  2. Digital Dimensions: Increasing recognition of technology-facilitated abuse within marriages, including digital surveillance, cyberstalking, and image-based abuse.
  3. Alternative Dispute Resolution: Growing interest in specialized family dispute resolution mechanisms that complement the criminal justice approach.
  4. Integrated Protection Systems: Development of coordinated systems linking legal protections with social support services, shelter homes, and economic empowerment initiatives.
  5. Enhanced Recognition of Same-Sex Relationships: Evolving jurisprudence on LGBTQ+ rights following the Supreme Court’s decisions in Navtej Singh Johar v. Union of India (2018) and related cases may eventually impact the interpretation of marriage-related provisions.

9. Recommendations and Future Outlook

Based on this analysis, several recommendations emerge:

  1. Comprehensive Training: Systematic training for all criminal justice stakeholders on the new BNS provisions relating to marriage, with sensitivity to gender dynamics and cultural contexts.
  2. Integrated Support Services: Development of one-stop crisis centers that provide legal, medical, psychological, and economic support for survivors of marriage-related crimes.
  3. Monitoring and Evaluation: Establishment of robust data collection and analysis mechanisms to track the implementation and effectiveness of the marriage-related provisions.
  4. Public Awareness: Comprehensive awareness campaigns about marital rights and the criminalization of various forms of marital abuse and fraud.
  5. Specialized Courts: Expansion of family courts and specialized courts for marriage-related offenses to ensure sensitive and efficient adjudication.
  6. Legislative Review: Consideration of further reforms, particularly regarding comprehensive criminalization of marital rape and enhancing protections for vulnerable spouses.
  7. Community Engagement: Engaging community and religious leaders in efforts to prevent marriage-related offenses and promote gender equality within marriage.

10. Conclusion and References

The BNS provisions on marriage-related offenses represent a significant evolution in India’s approach to regulating marriage through criminal law. These provisions reflect the challenging balance between traditional familial values and contemporary notions of individual rights, gender equality, and personal autonomy. While the BNS advances protections in several areas, it also maintains certain traditional elements, particularly in its limited approach to marital rape.

The effectiveness of these provisions will ultimately depend on their interpretation by courts, implementation by law enforcement agencies, and the broader sociocultural context. A nuanced approach that recognizes both the protective function of criminal law and the complex social institution of marriage in Indian society will be essential for realizing the potential of these legal reforms to enhance justice and equality within marriage.

References

  1. Bharatiya Nyaya Sanhita, 2023
  2. Constitution of India, 1950
  3. Indian Penal Code, 1860 (now repealed)
  4. Protection of Women from Domestic Violence Act, 2005
  5. Dowry Prohibition Act, 1961
  6. Prohibition of Child Marriage Act, 2006
  7. Special Marriage Act, 1954
  8. Hindu Marriage Act, 1955
  9. Muslim Personal Law (Shariat) Application Act, 1937
  10. Joseph Shine v. Union of India, (2018) 2 SCC 189
  11. Independent Thought v. Union of India, (2017) 10 SCC 800
  12. Rajesh Sharma v. State of U.P., (2017) 7 SCC 821
  13. Social Action Forum for Manav Adhikar v. Union of India, (2018) 10 SCC 443
  14. Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273
  15. Prakash v. State of Punjab, (1992) 4 SCC 212
  16. Reema Aggarwal v. Anupam, (2004) 3 SCC 199
  17. Shanti v. State of Haryana, (1991) 1 SCC 371
  18. Convention on the Elimination of All Forms of Discrimination Against Women
  19. Universal Declaration of Human Rights
  20. UN Declaration on the Elimination of Violence against Women
  21. Ministry of Home Affairs, “The Bharatiya Nyaya Sanhita: A New Era in Criminal Justice,” 2023

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Board of Directors, power, function and appointment process

Simmi Singh
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Board of Directors, power, function and appointment process

Introduction

Boards of Directors constitute an integral and indispensable component of a corporation as delineated by the provisions of the Companies Act 2013. Every company must have a board of directors for proper functioning and legal recognition. The chief administrative control command controlling the management and working of a company is collectively known as the board of directors. The Board of Directors is referred to as a trustworthy and respectable person who looks after the interests of the company’s shareholders.

They are the decision-making authority that gives direction to the company to achieve specific goals within a bounded time. The landmark legislation of the Companies Act 2013 gives us a framework for the appointment and removal of the board of directors with fairness and transparency. Section 2 (34) of the act dictates the meaning of director, that director means a “director” appointed to the board of the company.

Powers ofthe  board of directors

Board of Directors have special powers regarding the smooth functioning of the company under the Companies Act. Section 179 of the Companies Act describes the powers that are vested in the hands of the board of directors. They have the power to pass a resolution regarding the management and running of the firm. If a company does not have a board of directors, then it will not legally be called a company and it will not be able to function according to law. The board of directors exercise their power in different ways so that the company does not suffer any loss. According to the Companies Act, every government or private company must have a board of directors. Shareholders are the most of any company, and the board of directors keeps a balance between them and the company and works in the best interest of both.

Key powers of the board of directors:

  • Advisory body – They ggiveadvise and gguidethe firm on critical matters and hhelpto tackles the challenges coming in front of the company.
  • Distributes shares – They allot shares to the people or company who have applied for them. They are also accountable for the transfer of shares.
  • Appointing and removing power – They had the power to appoint new members to the board and could also recommend the removal of any member, as well as the CEO of the company.
  • Conduct meetings – They conduct general meetings to navigate the company towards success and also to discuss on the performance of the company.
  • Decision-making body – They are the decision-making authority body of the company, which provides direction in the proper functioning of the firm.
  • Fundraising – One of their main function is to raise funds in the form of loans and use them to invest for profit. They also prepare the list of defaulters and present it before the general body.
  • Announce dividend – They decide on the distribution of profit to the shareholders of the company.
  • Oversees mergers – They also look after the terms and conditions on which the company unites with a new company to expand their reach and business.
  • Appoints internal auditor – They appoint an internal auditor and establish an audit committee to oversee the process of audit oprocess f the firm.
  • Protect sshareholders’interest – They are responsible tfor protectingthe interest of shareholders of the company. They act as a connection between the company, management, eemployees customers and shareholders.
  • Transparent act – They act with transparency to maintain trust and respect of the company and the shareholders.
  • Overlooks finances – They monitor and approve financial statements, oversee budgets and tmakefinancial decisions.
  • Management of risks – They manage the risks involved in financial transactions and the operation of the firm.
  • Compliance with law – They oversee that the functions and operations of the company comply with laws and regulations so the company is safe from any legal conflicts.

    Types of Directors:

  • Safeguard sshareholders’interest – They are responsible tfor safeguardingthe interest of shareholders of the company. They act as a connection between the company, management, employees customers and shareholders.
  • Transparent act – They act with transparency to maintain trust and respect of the company and the shareholders.
  • Overlooks finances – They monitor and approve financial statements, oversee budgets and make financial decisions.
  • Management of risks – They manage the risks involved finin ancial transactions and the operation of the firm.
  • Compliance with law – They oversee that the functions and operations of the company ccomplywith laws and regulations so the company is safe from any legal conflicts.

Composition

Section 149 (1) of the Companies Act 2013 states that a public company shall have a minimum number of 33 directors a private company shall have 2 directors and a one-person company shall have 1 director. A firm may appoint a maximum of 15 directors,and if it wishes to appoint more than 15 directors, then it has to pass a special resolution in the board’s general meeting.

Section 149 (3) of the Companies Act 2013 states that a company must have at least 1 director who resides in India for at least 182 days, and it is mandatory. In case of a wwomandirector, every listed company must have at least one 1womann director according to section 149(1) of the Companies Act.

And section 2(47) of the Companies Act 2013 states the meaning of the independent director, and in every listed company, one-third of its directors must be independent according to section 4 subsection (4) of the Companies Act 2013. They are appointed by the board of directors and serve temporarily for a specific period. For better conditions and performance of the company and to meet the expectations of the shareholders, the board of directors prioritises diversity in terms of gender, skills and experience.

Appointment of the board of directors

  • Appointment by the board of directors –

The board had the authority to appoint additional directors, nominee directors for a certain period to fill the vacant posts.

  • Appointment by the government –

The government has the right to appoint a director in certain cases, like in public sector companies.

  • Appointment by shareholders –

Shareholders have the authority to appoint directors through passing a special resolution or through the voting process in the annual general meeting.

  • Independent directors –

They are appointed by the selection committee for a certain period. They are also known as non-executive directors.

  • Women directors –

Every listed company must have at least one wwomandirector according to the cCompanies Act2013 to maintain gender equality and equal participation of women.

  • Resident director

According to the Companies Act, a company must have at least one director who resides in India for at least 182 days.

Disqualification ofthe  board of directors

  • If a person is found to be of unsound mind and incompetent to handle the position of board of directors of a firm, he can be disqualified from the post of board of directors.
  • If a person declares himself insolvent and wisnot able to pay the company, he can be disqualified from the post of bthe oard of ddirectors
  • If a person is convicted by a court of law of any kind of offence which includes a punishment of at least six months or extended to 5 years, he can be disqualified from the post of the board of directors.
  • If a person did notfiled his financial statement or annual returns for the 3 following years, he can be disqualified from the post of board of directors.
  • If a court or tribunal orders to disqualification a person from the appointment process , he can not be appointed as a board director.

Conclusion

Under the companies act, board of directors an important role in development of a firm and helps to achieve the goals to the company. They are the core members of a company, without them a company could not work legally. They safeguard the interest of shareholders and the company both. The board is responsible in maintaining transparency in the organisation.

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Criminal Intimidation, Insult, and Annoyance Under the BNS

Sommya Kashyap
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Criminal Intimidation, Insult, and Annoyance Under the BNS

1. Introduction

The Bharatiya Nyaya Sanhita (BNS), 2023, which replaced the colonial-era Indian Penal Code (IPC) of 1860 on July 1, 2024, represents a significant transformation in India’s criminal justice framework. This legislative overhaul aimed to align India’s criminal laws with contemporary needs while preserving key principles of justice. Among the provisions that have undergone significant modification are those relating to criminal intimidation, insult, and annoyance. These offenses, which affect interpersonal interactions, public order, and individual dignity, have been reformulated under the BNS to address modern challenges while maintaining constitutional values. This article provides a comprehensive analysis of these provisions, examining their evolution, interpretation, and application in the contemporary Indian legal landscape.

2. Historical Background and Legal Context

The concept of criminal intimidation, insult, and annoyance in Indian criminal law has deep historical roots. In the colonial era, these provisions were primarily designed to maintain public order and protect the colonial administration. The Indian Penal Code of 1860 contained several provisions addressing these offenses, notably Sections 503-510, which criminalized intimidation, insult, and acts causing annoyance.

Post-independence, these provisions were retained but increasingly interpreted through the lens of constitutional principles, particularly the right to freedom of speech and expression under Article 19(1)(a) and its reasonable restrictions under Article 19(2). Over the decades, judicial interpretation progressively limited the scope of these provisions to prevent their misuse for suppressing legitimate speech or democratic dissent.

The transition to the BNS marks an important milestone in this evolution. The provisions on criminal intimidation, insult, and annoyance have been restructured and reformulated to address contemporary challenges such as digital harassment, gender-based intimidation, and emerging forms of public annoyance, while also incorporating safeguards against potential misuse.

3. Relevant Laws and Regulations

3.1 Key Provisions Under the BNS

The Bharatiya Nyaya Sanhita contains several provisions specifically addressing criminal intimidation, insult, and annoyance:

  1. Section 351 (Criminal Intimidation): This provision, which replaces Section 503 of the IPC, defines criminal intimidation as threatening another person with injury to their person, reputation, or property, or to the person or reputation of anyone in whom that person is interested, with the intent to cause alarm or to cause that person to do or omit any act. The definition has been expanded to explicitly include digital and electronic forms of threats.
  2. Section 352 (Intimidation by Anonymous Communication): This section enhances the penalties for criminal intimidation committed anonymously or under a false identity, reflecting concerns about anonymous digital harassment.
  3. Section 353 (Criminal Intimidation Causing Death or Grievous Hurt): This provision introduces graduated penalties based on the consequences of intimidation, with severe punishment when intimidation results in death or grievous harm.
  4. Section 354 (Insult with Intent to Provoke Breach of Peace): This section criminalizes deliberate insults with the intention of provoking a breach of peace, maintaining the essential elements from Section 504 of the IPC but with updated language.
  5. Section 355 (Statements Conducive to Public Mischief): This provision addresses false statements, rumors, or reports that may cause fear, alarm, or induce violence between classes or communities. It incorporates digital publication as an aggravating factor.
  6. Section 356 (Annoying Others): This section criminalizes intentional annoyance to others, incorporating modern forms of harassment such as persistent unwanted digital communications.
  7. Section 357 (Uttering Words with Deliberate Intent to Wound Religious Feelings): This provision maintains the criminalization of deliberate insults to religious beliefs but introduces a clearer intent requirement to protect legitimate expression.
  8. Section 358 (Statements Creating or Promoting Enmity, Hatred or Ill-Will Between Classes): This expanded provision addresses hate speech and incitement to violence between different groups.

3.2 Interface with Other Laws

These provisions interface with several other legal frameworks:

  1. The Information Technology Act, 2000 (as amended): Particularly Sections 66A (though struck down, its replacement provisions), 66E, 67, and 67A, which address various forms of digital harassment and intimidation.
  2. The Protection of Women from Domestic Violence Act, 2005: Which addresses intimidation in domestic contexts.
  3. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013: Which addresses specific forms of gender-based intimidation and insulting behavior.
  4. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989: Which provides enhanced penalties for intimidation and insults directed at members of marginalized communities.
  5. The Bharatiya Sakshya Adhiniyam (Indian Evidence Act replacement): Which establishes evidentiary standards for proving these offenses.

4. Key Judicial Precedents

Several landmark judicial decisions have shaped the interpretation of laws concerning criminal intimidation, insult, and annoyance, which will influence the application of the BNS provisions:

  1. Shreya Singhal v. Union of India (2015): This landmark judgment struck down Section 66A of the IT Act for being overly broad and vague. Its principles of protecting free speech while narrowly defining restrictions will likely guide the interpretation of the BNS provisions on criminal intimidation and insult.
  2. Subramanian Swamy v. Union of India (2016): While upholding the constitutional validity of criminal defamation, this judgment established important principles balancing free speech with protection against harmful speech that will inform the interpretation of insult provisions.
  3. Amish Devgan v. Union of India (2020): This case established a contextual approach to determining what constitutes insulting speech relating to religious matters, requiring assessment of the speaker’s intent, audience, and context.
  4. Navtej Singh Johar v. Union of India (2018): This judgment’s broader principles on dignity and autonomy are relevant to interpreting provisions on harassment and annoyance.
  5. R. Rajagopal v. State of Tamil Nadu (1994): This case established the right to privacy as a facet of Article 21, influencing how criminal intimidation involving privacy threats would be interpreted.
  6. Vishaka v. State of Rajasthan (1997): This judgment established principles for addressing gender-based intimidation and harassment, which remain relevant for interpreting related BNS provisions.

5. Legal Interpretation and Analysis

5.1 Constitutional Validity

The provisions of the BNS concerning criminal intimidation, insult, and annoyance must be interpreted in light of constitutional principles, particularly Article 19(1)(a) guaranteeing freedom of speech and expression. These provisions constitute “reasonable restrictions” under Article 19(2) on grounds including public order, decency, morality, and defamation.

The Supreme Court has consistently held that restrictions on speech must be narrowly tailored, proportionate, and not excessively vague. The BNS provisions attempt to meet these standards through:

  1. Enhanced Specificity: The definitions of criminal intimidation and insult are more specific than their IPC predecessors, reducing ambiguity.
  2. Clear Intent Requirements: The provisions explicitly require specific intent (mens rea), protecting legitimate speech from criminalization.
  3. Graduated Penalties: The introduction of graduated penalties based on the severity and consequences of the offense enhances proportionality.

However, challenges to constitutional validity may still arise, particularly regarding:

  1. Overbreadth: Whether some provisions, particularly those related to annoyance, remain too broadly defined.
  2. Chilling Effect: Whether the enhanced penalties might deter legitimate speech.
  3. Subjective Standards: Whether terms like “annoyance” and certain forms of “insult” remain too subjective.

5.2 Mens Rea Requirements

A significant advancement in the BNS provisions is the clearer articulation of mens rea requirements. For instance:

  1. Criminal Intimidation: Requires an “intent to cause alarm” or to compel action or inaction.
  2. Insult: Requires a “deliberate intent” to provoke a breach of peace.
  3. Statements Conducive to Public Mischief: Requires knowledge or reason to believe that statements are false and will cause harm.

These enhanced intent requirements serve as important safeguards against the misuse of these provisions to penalize unintentional or ambiguous communications.

5.3 Digital Context and Application

The BNS provisions explicitly address digital forms of intimidation, insult, and annoyance, reflecting the realities of modern communication. This includes:

  1. Recognition of electronic threats as a form of criminal intimidation.
  2. Enhanced penalties for anonymous digital intimidation, addressing the particular harm caused by anonymous harassment.
  3. Specific provisions for digital publication of inflammatory content.

This digital context raises new interpretative challenges regarding jurisdiction, attribution, and the assessment of intent in online communications, which the courts will need to address through case law.

6. Comparative Legal Perspectives

6.1 International Standards

The BNS provisions concerning criminal intimidation, insult, and annoyance generally align with international standards, though with some distinctive features:

  1. International Covenant on Civil and Political Rights (ICCPR): Article 19 protects freedom of expression while recognizing the legitimacy of certain restrictions. The BNS provisions generally align with these principles, though some commentators argue that certain provisions may be broader than necessary.
  2. General Comment No. 34 of the UN Human Rights Committee: Emphasizes that restrictions on speech must be necessary and proportionate. The BNS attempts to meet this standard through graduated penalties and intent requirements.

6.2 Comparative Analysis with Other Jurisdictions

  1. United Kingdom: The UK addresses similar concerns through multiple statutes, including the Public Order Act 1986, the Communications Act 2003, and the Malicious Communications Act 1988. The BNS approach is more consolidated but shares similar conceptual foundations.
  2. United States: The US has a more speech-protective regime, with intimidation generally criminalized only when it constitutes a “true threat.” The BNS provisions are broader but include intent requirements that serve somewhat similar functions.
  3. Germany: The German approach, particularly the Network Enforcement Act (NetzDG), focuses on platform liability for failing to remove illegal content. The BNS focuses more on individual liability but shares concerns about digital speech.
  4. Singapore: Singapore’s approach, including its Protection from Harassment Act and recent anti-fake news legislation, provides strong governmental tools against harassing speech. The BNS adopts a somewhat less restrictive approach while maintaining robust protections.

7. Practical Implications and Challenges

7.1 Investigative and Procedural Challenges

The implementation of the BNS provisions faces several practical challenges:

  1. Evidentiary Challenges: Proving intent in cases of criminal intimidation and insult, particularly in digital contexts where tone and context may be ambiguous.
  2. Digital Forensics: The need for enhanced capabilities in digital forensics to investigate online intimidation and harassment cases.
  3. Jurisdictional Issues: Challenges in addressing cross-jurisdictional intimidation, particularly when perpetrators are located outside India.
  4. Privacy Considerations: Balancing thorough investigation with privacy rights, particularly in cases involving anonymous communication.

7.2 Societal Impact and Vulnerabilities

The application of these provisions has significant implications for vulnerable groups:

  1. Gender-Based Considerations: Women and gender minorities face disproportionate levels of intimidation and harassment, making the effective implementation of these provisions particularly important for gender justice.
  2. Caste and Religious Minorities: The provisions on insulting speech affecting religious feelings and group enmity are particularly relevant for protecting marginalized communities.
  3. Political Dissenters: Concerns remain about the potential for these provisions to be misused against political dissent, requiring careful judicial interpretation.

7.3 Balancing Rights and Protection

A central challenge in implementing these provisions is balancing:

  1. Freedom of Expression: Ensuring legitimate speech, including critique, satire, and dissent, remains protected.
  2. Protection from Harm: Providing effective remedies against genuinely harmful intimidation and harassment.
  3. Preventing Misuse: Ensuring these provisions are not weaponized for political purposes or to settle personal grudges.

8. Recent Developments and Trends

The BNS was passed in December 2023 and came into effect on July 1, 2024, representing a significant legislative development in itself. However, several related trends and developments are noteworthy:

  1. Growing Concern About Digital Harassment: There is increasing recognition of the harm caused by online intimidation and harassment, reflected in the BNS’s explicit address of digital forms of these offenses.
  2. Intersectionality: Greater recognition of how intimidation and harassment affect different groups in distinct ways, necessitating nuanced legal responses.
  3. Platform Responsibility: Emerging discussion about the responsibility of digital platforms in preventing and addressing intimidation and harassment, which may complement the individual-focused approach of the BNS.
  4. Alternative Dispute Resolution: Growing interest in restorative justice approaches for certain categories of these offenses, particularly in interpersonal contexts.

9. Recommendations and Future Outlook

Based on this analysis, several recommendations emerge:

  1. Judicial Training: Enhanced training for the judiciary on interpreting these provisions in light of constitutional values and digital realities.
  2. Investigative Capacity: Building specialized investigative capacity, particularly in digital forensics, to effectively address modern forms of intimidation and harassment.
  3. Clear Guidelines: Development of prosecutorial guidelines to ensure consistent application and prevent misuse of these provisions.
  4. Public Awareness: Comprehensive public education about the nature and limits of these provisions, both to prevent offenses and to ensure reporting of genuine cases.
  5. Data Collection: Systematic data collection on the implementation of these provisions to identify patterns of use, misuse, and effectiveness.
  6. Legislative Review: Establishment of a mechanism for periodic review of these provisions based on implementation experience and evolving social contexts.

10. Conclusion and References

The BNS provisions on criminal intimidation, insult, and annoyance represent a significant modernization of India’s approach to these offenses. They attempt to address contemporary challenges, particularly in the digital realm, while maintaining constitutional principles of free speech and expression. The effectiveness of these provisions will depend significantly on their judicial interpretation and practical implementation.

As these provisions are applied in the coming years, courts will play a crucial role in developing jurisprudence that balances protection against genuine harm with safeguarding legitimate expression. The success of this legal framework will ultimately be measured by its ability to protect vulnerable individuals and communities from intimidation and harassment while preserving the vibrant democratic discourse essential to India’s constitutional values.

References

  1. Bharatiya Nyaya Sanhita, 2023
  2. Constitution of India, 1950
  3. Indian Penal Code, 1860 (now repealed)
  4. Information Technology Act, 2000 (as amended)
  5. Protection of Women from Domestic Violence Act, 2005
  6. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
  7. Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
  8. Shreya Singhal v. Union of India, (2015) 5 SCC 1
  9. Subramanian Swamy v. Union of India, (2016) 7 SCC 221
  10. Amish Devgan v. Union of India, 2020 SCC OnLine SC 994
  11. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1
  12. R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632
  13. Vishaka v. State of Rajasthan, (1997) 6 SCC 241
  14. International Covenant on Civil and Political Rights
  15. UN Human Rights Committee, General Comment No. 34
  16. Ministry of Home Affairs, “The Bharatiya Nyaya Sanhita: A New Era in Criminal Justice,” 2023

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Offences Against Army, Navy, and Air Force Under the BNS

Sommya Kashyap
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Offences Against Army, Navy, and Air Force Under the BNS

1. Introduction

The Bharatiya Nyaya Sanhita (BNS), 2023, which came into effect on July 1, 2024, represents a significant overhaul of India’s criminal justice framework, replacing the colonial-era Indian Penal Code (IPC) of 1860. This transition marks a pivotal shift toward a more contemporary legal system that aligns with India’s constitutional values and addresses modern challenges to national security. Among the crucial provisions of the BNS are those concerning offenses against the armed forces—Army, Navy, and Air Force—which have been reformulated to strengthen national security while ensuring constitutional safeguards. This article examines these provisions, their legal context, interpretation, and implications for the administration of justice in contemporary India.

2. Historical Background and Legal Context

The provisions relating to offenses against the armed forces have undergone a significant evolution from the colonial era to modern times. Under the British colonial regime, the Indian Penal Code of 1860 primarily focused on protecting the interests of the colonial government, with provisions concerning the military designed to maintain imperial control. Post-independence, these provisions were retained but interpreted in light of constitutional values and national sovereignty.

The transition from the IPC to the BNS represents a decolonization of the legal framework. The colonial-era provisions were often criticized for being outdated and insufficient to address contemporary challenges. The BNS was introduced as part of a trio of new laws—alongside the Bharatiya Nagarik Suraksha Sanhita (replacing the Code of Criminal Procedure) and the Bharatiya Sakshya Adhiniyam (replacing the Indian Evidence Act)—to modernize the criminal justice system.

The BNS’s provisions concerning offenses against the armed forces reflect this evolution, incorporating enhanced protections for national security while being situated within a constitutional framework that respects fundamental rights and the rule of law.

3. Relevant Laws and Regulations

3.1 Key Provisions Under the BNS

The Bharatiya Nyaya Sanhita contains several provisions specifically addressing offenses against the armed forces:

  1. Section 152 (Waging War Against the Government of India): This section, which replaces Section 121 of the IPC, criminalizes waging war against the Government of India. While not exclusively focused on the armed forces, this provision has direct implications for attacks on military establishments and personnel.
  2. Section 153 (Abetting Mutiny): This section criminalizes abetting mutiny or attempting to seduce military, naval, or air force personnel from their duty. It carries severe penalties, including imprisonment for life.
  3. Section 154 (Harboring Deserters): This provision penalizes the harboring of military, naval, or air force deserters, recognizing the critical importance of maintaining discipline within the armed forces.
  4. Section 150 (Espionage): This section addresses espionage activities that may compromise national security, including those targeting military installations, equipment, or operations.
  5. Section 176 (Impersonating Armed Forces Personnel): This new provision explicitly criminalizes the impersonation of armed forces personnel, addressing a modern security concern.

3.2 Interface with Other Laws

These provisions interface with several other legal frameworks:

  1. The Armed Forces (Special Powers) Act: The BNS provisions must be read in conjunction with AFSPA, which provides special powers to the armed forces in designated “disturbed areas.”
  2. The Official Secrets Act, 1923: This act complements the BNS in matters relating to espionage and unauthorized disclosure of information relating to the armed forces.
  3. The Army Act, 1950; Navy Act, 1957; and Air Force Act, 1950: These acts establish specialized military tribunals and procedures for offenses committed by service personnel.
  4. The Constitution of India: Particularly relevant are Article 33, which empowers Parliament to restrict or abrogate certain fundamental rights of armed forces personnel, and Article 34, which provides for the validation of certain acts done in disturbed areas.

4. Key Judicial Precedents

Several landmark judicial decisions have shaped the interpretation of laws concerning offenses against the armed forces, which will likely influence the application of the BNS provisions:

  1. Navtej Singh Johar v. Union of India (2018): While primarily known for decriminalizing consensual homosexual acts, this judgment also addressed the application of Article 33 to restrict certain rights of armed forces personnel, establishing principles that will guide the interpretation of the BNS.
  2. Extra Judicial Execution Victim Families Association v. Union of India (2016): This case established that military operations, even in disturbed areas, are subject to legal scrutiny, a principle that will likely apply to interpreting the BNS provisions.
  3. D.K. Basu v. State of West Bengal (1997): This judgment established guidelines for arrest and detention, including those applicable to cases involving offenses against the armed forces.
  4. Naga People’s Movement of Human Rights v. Union of India (1998): This case set important parameters for the exercise of powers under AFSPA, which will be relevant for interpreting related provisions in the BNS.
  5. Vishaka v. State of Rajasthan (1997): This judgment is significant for interpreting provisions related to sexual harassment within the armed forces context.

5. Legal Interpretation and Analysis

5.1 Constitutional Validity

The provisions of the BNS concerning offenses against the armed forces must be interpreted in light of constitutional principles. While these provisions serve the legitimate state interest of protecting national security, they must be balanced against fundamental rights guaranteed under Part III of the Constitution.

The Supreme Court has consistently held that even in matters of national security, the principles of proportionality and reasonableness apply. This implies that any restriction on rights must be proportionate to the objective sought to be achieved and must not be arbitrary or excessive.

The BNS provisions introduce more clarity and specificity compared to the IPC, addressing concerns of vagueness that often led to constitutional challenges. For instance, the provision on “waging war” has been reformulated to provide clearer parameters, making it less susceptible to arbitrary application.

5.2 Mens Rea Requirements

A significant legal aspect of the BNS provisions is the mens rea (guilty mind) requirement. For many offenses against the armed forces, the BNS maintains or enhances the requirement of specific intent. For instance, the offense of abetting mutiny requires a specific intent to cause disaffection or induce personnel to abandon their duty.

This emphasis on specific intent serves as a safeguard against the misuse of these provisions. It ensures that legitimate expressions of opinion or inadvertent actions are not criminalized, focusing instead on deliberate actions intended to harm national security.

5.3 Extraterritorial Application

The BNS explicitly addresses the extraterritorial application of its provisions, which is particularly relevant for offenses against the armed forces. Section 4 of the BNS extends its application to offenses committed by Indian citizens outside India, addressing modern challenges such as cyberattacks on military networks originating from foreign territories.

This extension of jurisdiction reflects the global nature of contemporary security threats and aligns with international legal principles on protective jurisdiction.

6. Comparative Legal Perspectives

6.1 International Standards

The BNS provisions concerning offenses against the armed forces generally align with international standards. The International Covenant on Civil and Political Rights (ICCPR), to which India is a signatory, recognizes that certain rights may be limited in the interest of national security.

However, international law also emphasizes that such limitations must be necessary, proportionate, and prescribed by law. The BNS provisions, with their enhanced clarity and specificity, generally meet these standards.

6.2 Comparative Analysis with Other Jurisdictions

  1. United Kingdom: The UK’s Armed Forces Act 2006 provides a unified system of military law, but regular criminal offenses against the armed forces are primarily dealt with under the general criminal law. The BNS approach is more specialized, with dedicated provisions for such offenses.
  2. United States: The US system distinguishes between the Uniform Code of Military Justice (UCMJ) for service personnel and federal criminal law for civilians. The BNS adopts a similar approach, with specialized military laws coexisting with the general criminal code.
  3. France: The French Code of Military Justice was integrated into the general criminal code in 2006, reflecting a trend toward unification. The BNS maintains separate provisions but within a unified criminal code.
  4. Australia: Australia’s Defence Force Discipline Act 1982 covers military-specific offenses, while the general criminal law covers offenses against the armed forces by civilians. The BNS adopts a more integrated approach.

7. Practical Implications and Challenges

7.1 Investigative and Procedural Challenges

The implementation of the BNS provisions faces several practical challenges:

  1. Jurisdictional Complexities: Cases involving offenses against the armed forces often involve multiple jurisdictions, including civil and military courts. The BNS does not fully resolve these complexities.
  2. Evidentiary Challenges: Many of these offenses involve sensitive information, creating challenges for evidence collection and presentation while maintaining necessary secrecy.
  3. Technological Complexities: Modern offenses against the armed forces increasingly involve sophisticated technology, requiring specialized investigative capabilities.

7.2 Impact on Civil-Military Relations

The BNS provisions have significant implications for civil-military relations:

  1. Balance of Power: The provisions aim to protect the armed forces while ensuring that military power remains subject to civilian control and legal oversight.
  2. Public Perception: The implementation of these provisions can influence public perception of the armed forces, affecting trust and cooperation.
  3. Institutional Interactions: The provisions necessitate coordination between military and civilian authorities, potentially creating both synergies and tensions.

8. Recent Developments and Trends

The BNS was passed in December 2023 and came into effect on July 1, 2024, representing a significant legislative development in itself. However, several related trends and developments are noteworthy:

  1. Digital Offenses: There is an increasing recognition of digital threats to military security, including cyber espionage and information warfare. The BNS begins to address these through broader provisions.
  2. Terrorism Linkages: The intersection of terrorism and offenses against the armed forces is receiving greater attention, with the BNS providing enhanced penalties for terrorist acts targeting military installations.
  3. Integration of International Law: Recent judicial decisions have emphasized the relevance of international humanitarian law and human rights law in interpreting domestic provisions concerning the armed forces.
  4. Reforms in Military Justice: Parallel reforms in the military justice system complement the BNS provisions, creating a more cohesive legal framework.

9. Recommendations and Future Outlook

Based on this analysis, several recommendations emerge:

  1. Clarifying Guidelines: The Ministry of Home Affairs should issue detailed guidelines for the application of the BNS provisions concerning the armed forces, particularly in areas of jurisdictional overlap.
  2. Specialized Training: Law enforcement agencies and the judiciary should receive specialized training on these provisions, focusing on their constitutional interpretation and application.
  3. Regular Review: A mechanism for regular review of these provisions should be established to ensure they remain effective and proportionate in light of evolving security challenges.
  4. International Cooperation: Enhanced international cooperation is necessary to address transnational offenses against the armed forces, requiring both legal frameworks and operational mechanisms.
  5. Public Awareness: Public awareness programs should be implemented to ensure that these provisions are understood correctly, preventing both unintentional violations and misconceptions.

10. Conclusion and References

The BNS provisions concerning offenses against the Army, Navy, and Air Force represent a significant modernization of India’s legal framework for protecting its armed forces. They reflect a balance between robust national security measures and constitutional values. While challenges remain in implementation, these provisions provide a stronger foundation for addressing contemporary threats to military security.

The effectiveness of these provisions will ultimately depend on their interpretation and application by law enforcement agencies and the judiciary. A rights-based approach that recognizes the legitimate needs of national security while respecting constitutional principles will be essential for their success.

References

  1. Bharatiya Nyaya Sanhita, 2023
  2. Constitution of India, 1950
  3. Indian Penal Code, 1860 (now repealed)
  4. Armed Forces (Special Powers) Act
  5. Official Secrets Act, 1923
  6. Army Act, 1950
  7. Navy Act, 1957
  8. Air Force Act, 1950
  9. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1
  10. Extra Judicial Execution Victim Families Association v. Union of India, (2016) 14 SCC 536
  11. D.K. Basu v. State of West Bengal, (1997) 1 SCC 416
  12. Naga People’s Movement of Human Rights v. Union of India, (1998) 2 SCC 109
  13. Vishaka v. State of Rajasthan, (1997) 6 SCC 241
  14. International Covenant on Civil and Political Rights
  15. Ministry of Home Affairs, “The Bharatiya Nyaya Sanhita: A New Era in Criminal Justice,” 2023

Also Read:
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General exceptions in bns

Sakshi Singh
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General exceptions in bns

Understanding General Exceptions in BNS: A Comprehensive Evaluation

The world of finance is complex, regulated, and ever-changing. In Banking and Securities (BNS), the term “general exceptions” is essential in all areas of compliance, audits, and internal controls. Exceptions can often be red flag—signs that there are problems with a process, deviations from the prescribed processes, or systemic issues that need to be corrected. Understanding what exceptions are critical if financial institutions and regulators, or even customers, want to ensure transparency, trust, and stability in the financial ecosystem.

In this blog post, we will discuss what BNS general exceptions are, how they occur, how they can be identified and remedied, and the effects they have on institutions and consumers. Let’s get started.

What Are General Exceptions in BNS?

Generally speaking, general exceptions are deviations from the expected or normative banking and securities procedures. They may not represent criminal activity, but they may identify some sort of risk, absence of care or systemic failures, or procedural failures.

They may appear in various departments and take various forms:

  • Transaction processing errors
  • Documentation discrepancies
  • Regulatory reporting failures
  • Settle securities discrepancies
  • Unauthorized access or authorization breaks

In legal regulated industries such as banking and securities, even minor deviations are investigated for compliance risks.

Why Do Exceptions Occur?

To evaluate general exceptions meaningfully, it’s important to understand their root causes. Most exceptions arise due to one or more of the following reasons:

1. Human Error

With human beings as part of entering/dealing with data and making decisions, mistakes are inevitable. A wrong account number by a finger slip or forgetting a piece of documentation can create exceptions right away.

2. Systemic Gaps

Legacy systems that do not interface or integrate properly contribute to inconsistent data management along with failed reconciliations.

3. Operational Delays

  1. Operational delay in documenting, approving, and/or carrying out transactions can create exceptions because of timing mismatches.

4. Regulatory Non-Compliance

Not meeting deadlines for required filings or submitting erroneous data can trigger alerts or penalties for non-compliance with regulations, all tagged as exceptions.

5. Deviant Behavior

Not every exception is fraudulent; however, unusual behavior is tended to be flagged for investigation. Just in case…

Common Types of General Exceptions in Banking

Let’s explore some of the most frequent general exceptions observed in banking institutions:

1. Unmatched Accounts

These arise from differing balance amounts located in two systems (e.g. internal ledger vs. external bank statement).

2. Duplicate Entries

Duplicate entries for the same transaction could result from system errors or human error.

3. Missing Authorization

If transactions are processed and lack authorization or the wrong authorization, they would be flagged as exceptions.

4. Overdraft/Limit Exceptions

Transaction activity in an account that exceeds approved limits without timely approvals will often be flagged and generate an exception.

5. KYC/AML Exceptions

Know Your Customer (KYC) and Anti-Money Laundering are critically important. Missing or incomplete documentation, or transactional activities that indicate suspicious patterns would be flagged as exceptions.

General Exceptions in Securities Markets

In the securities realm, general exceptions usually relate to trade lifecycle management and regulatory compliance. Key examples include:

1. Settlement Failures

When either securities are not delivered or payment is not received within a normal specified settlement time frame an exception is created.

2. Pricing Errors

The failure to price an asset correctly, either at trade time or at valuation, can lead to reporting errors.

3. Corporate Actions

Failures to process or execute corporate actions correctly (dividends, stock splits, takeovers) can lead to shareholder complaints and regulatory intervention.

4. Reporting Exceptions

Financial sector participants are required to report trades and positions to their regulators. Whenever there is a difference in what is reported and what is real, a new exception has occurred.

How Are General Exceptions Managed?

Managing exceptions is not just about resolving the issue—it’s about preventing future occurrences. Here’s how institutions typically handle them:

1. Exception Monitoring Tools

Automated tools search for abnormal activity in real time and will flag any discrepancy for personnel to review. These tools are sometimes AI and machine learning-enabled and provide predictive insights about various discrepancies.

2. Exception Handling Teams

Teams with dedicated exception handling resources take accountability to review, escalate, and address exceptions. They are responsible for determining root causes and making adjustments, if appropriate.

3. Audit Trails

Such audit trails provide documentation about actions taken and decisions made which provide investigators with information about how and why exceptions occurred. Audit trails are useful for internal review and external audits.

4. Policy/Procedural Changes

Repeated exceptions often leads to a more thorough review of existing policy, modification in protocol, and sometimes, improvements to a system.

The Role of Compliance and Internal Audit

General exceptions are a concern to internal audit and compliance functions. Their job is to:

  • Identify and resolve in a timely manner
  • Prevent regulatory fines
  • Identify trends and common issues
  • Report significant exceptions to senior management or the board.

Impact of Exceptions on Institutions

Ignoring or mishandling general exceptions can have serious consequences:

1. Financial loss

Unresolved exceptions often lead to monetary loss – through fraud, lost opportunity and or fines due to not complying with regulations.

2. Reduced credibility

Continual exception management erodes trust for customers and parties who expect an entity to maintain clean operations.

3. Regulatory infringement

Frequent or unresolved exceptions generate investigation, sanctions, or scrutiny by regulatory bodies.

Best Practices to Minimize General Exceptions

Proactive management can drastically reduce the occurrence of exceptions. Here are a few best practices:

1. Automation & Integration

Minimizing manual interactions and integrating multiple systems leads to limited variances and delays.

2. Staff Training

Ongoing training for staff on compliance policies and standard use of the systems can help avoid human error.

3. Strong Exception Policy

Having a clear policy that describes how exceptions should be identified, escalated, and managed is important.

4. Monitoring in Real-Time

Using dashboards in real-time means that the problems can be identified while they are happening and not after.

5. Continuous Improvement

Institutions should perform root-cause analysis and utilize insights to continuously improve standard processes.

Future Trends in Exception Management

The future of exception day management is trending towards predictive analytics, AI driven decisions, and blockchain transparency. As the financial system develops, exception management will be less reactive and more preventative.

AI and Machine Learning: Tools that can learn from historical data to forecast and thwart anomalies.

Blockchain: Permanent, real-time records can minimize reconciliation errors and fraudulent entries.

RegTech Integration: Regulatory technology solutions can automatically report on compliance and minimize reporting inaccuracies.

Final Thoughts

General exceptions in Banking and Securities are not just operational headaches; they are opportunities to find and fix inefficiencies, mitigate risk, and ensure compliance. Exceptions are a common occurrence in the operations of financial institutions, but the way exceptions are managed defines strong institutions and weak institutions.

Financial institutions must invest not only in tools and training but also in a culture of accountability and continuous improvement. This not only allows them to resolve exceptions but to also learn and grow from exceptions.

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Offences Against Coins Currency And Stamps Under BNS Act

Sakshi Singh
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0
Offences Against Coins Currency And Stamps Under BNS Act

Offences Against Coins, Currency And Stamps Under BNS Act

India’s legal system has changed markedly with the enactment of the Bharatiya Nyaya Sanhita (BNS), 2023, replacing the colonial Indian Penal Code (IPC), 1860. One of the most fascinating and important sections in the BNS is offences against coins, currency and stamps–a range of offences that have a direct impact on the economic stability and the confidence in the financial institutions of the country.

In this blog we will assess and dissect how the BNS deals with these offences, what they mean for Indians, and how the new legislation fortifies India’s efforts against financial frauds and economic sabotage.

Introduction:

The Importance of Securing Currency Integrity Currency, coins, and postage stamps are not only a means of buying or selling things in daily transactions, but are also a representation of a country’s economic independence and trust. The act of counterfeit or forgery of currency, coins, and postage stamps impacts not only other individual users but will also impact a stable economy.

The Bharatiya Nyaya Sanhita (BNS) recognizes this and brings forward the continuing development of criminal provisions where such offences are committed and recognised. Such sentences imposed under the BNS will deter and punish an offender who has counterfeited, made a forgery, defaced, and produced any instruments of monetary and official value for commercial trade.

Historical Context and the Need for Reform

The Indian Penal Code (IPC) included several provisions that dealt with offence related to coins and government stamps, but technological advancement and increased use of digital transactions and electronic commerce were identified as requiring further enhancement to address the current fraudulent activity.

The BNS, 2023 recognizes contextual change and provides for new provisions that are relevant to modern threats, including digital counterfeiting and advanced forms of forgery. The BNS, 2023 has simplified language, increased clarity and the intent is to provide for quickly enforceable provisions that will uphold the integrity of the country’s financial system.

Key Offences under the BNS: Coins, Currency and Stamps

Let’s delve into the key offences outlined in the BNS Act that specifically deal with coins, currency notes, and postage stamps.

1. Counterfeiting of Coins and Currency

Counterfeiting is one of the most serious crimes against the economy. The BNS specifically makes subject to criminal sanction:

  • Making or attempting to make counterfeit coins or currency notes.
  • Possessing tools or materials for the making of counterfeit coins or currency notes.
  • Using counterfeit currency knowing it is false.

Punishment: The BNS imposes severe punishment for these acts. For instance, counterfeiting currency can attract a sentence of up to a life sentence and significant fines. The serious nature of this reflects the potential harm to national security and broader trust in the economy.

2. Forgery or Imitation of Government Stamps

The stamps issued by the government are often used for postage but can also prove payment of certain definable amounts, allow the government to keep track of payments that must be made by a defined date, or stamp and authorize documents. The forging of stamps enables illegal transactions, tax evasion, and property fraud.

Examples of offences include the following:

  • Make a forged revenue stamp or forged postage stamp.
  • Sell or use a forged revenue stamp or postage stamp.
  • Have any forged revenue stamp or postage stamp in your possession for the purpose of using it.

Possible punishments are up to 10 years in jail depending on the type of offence and the scale of your activity.

3. Defacement and Destruction of Currency or Stamps

Engaging in the act of damaging, defacing, or altering coins and stamps is a crime, even if it is not as serious as counterfeiting. Damage, defacing, or altering currency may include:

  • Melting or mutilating coins
  • Writing or making a drawing on a banknote
  • Stamp or deface stamps for anything that is not official use

While these acts may seem innocent or trivial, they impair the value of currency in circulation, and they erode the confidence that people have in currency.

Punishment: fines or imprisonment up to 2 years, depending on intent and scope.

Evaluation of the Provisions: Are They Effective?

Strengths of the BNS Provisions:

a. Updated Language and Expanded Definitions

The BNS removes outdated language and changes the definition of currency and stamps to allow any digital or modern format. This enables the same offences to encompass cryptographic counterfeiting or higher fidelity higher technology forgeries.

b. Offence Category Differentiation

The offences are now grouped by category, ranging from possession only to production and distribution. This allows law enforcement and the judiciary to assess and prioritize the appropriateness of penalty differentiation.

c. Prohibited Possession as Preventive Measure

The inclusion of penalties for possession of instruments for counterfeiting is a major advancement. By punishing possession we can target and break up counterfeiting operations before the public is misled into buying into fake instruments.

Areas That Require More Clarity or Implementation Focus

Digital Currency Ambiguity

While the BNS has moved closer to incorporating modern instruments, there is still less clarity regarding offences concerning digital currencies (like e-rupee or cryptocurrency). Digital tokens that are government-issued or government-backed probably need their own guidance.

Enforcement Challenges

While the laws are generally tough, enforcement remains an issue. Counterfeiting networks cross borders and so the need for multinational coordination, the right training for enforcement agencies, and a forensic regime (including forensic accountants) is with the right telecommunications and resources.

Public Awareness

Many people may engage in small features of offences – like writing on currency or using fake stamps – without being aware of the legal implications. There is a need for the public awareness campaign to promote compliance.

Role of Technology in Countering These Offences

BNS also makes reference to the facilitation of technological means in regards to investigation and enforcement in an implicit way:

  • AI money processing machines that pick out counterfeit currency.
  • Blockchain stamped parcels for traceability and checking for forgeries.
  • Mobile apps to allow the public to check that currency and stamps are genuine.
  • By encouraging subject areas like fintech and civic tech, the implementation of the law can be facilitated.

Landmark Cases and Their Impact

The various major currency and stamp fraud cases that have taken place in India include:

The Telgi Stamp Paper Scam (2003): One of the largest stamp paper counterfeiting fraud cases where more than Rs. 30,000 crores were counterfeited and highlighted the gaps in management and security in government instruments.

Fake currency rackets across the borders: Seizures of fake Indian currency by law enforcement agencies continue to occur with foreign banknotes from neighbouring countries regularly, pointing to a need for cross-border legal cooperation.

The major currency and stamp fraud cases served as catalysts or new reforms under the BNS and also reinforced the need for strong legal disincentives.

Conclusion: A Step Toward Economic Security

The Bharatiya Nyaya Sanhita marks a really positive step in modernising the criminal justice system in India. The law relating to offences against coins, currency and stamps demonstrates a good comprehension of the contemporary dangers facing us, particularly the high-tech counterfeiting and international economic sabotage we see today.

However, a law is only as good as the enforcement behind it. India must:

  • Train enforcement agencies regarding modern forensic and digital methods.
  • Implement awareness campaigns regarding these laws.
  • Engage with other jurisdictions to understand and combat transnational economic crime.

In an economy where cash remains a predominant method of trade, to protect the integrity of currency and official instruments is not simply a matter of legality, it is a matter of national interest.

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offences related to election in bns

Shreya Sharma
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0
offences related to election in bns

Introduction

Elections play a pivotal role in a democratic society, serving as the mechanism through which citizens exercise their right to choose representatives. To ensure the sanctity and fairness of elections, it is essential to have a legal framework that addresses and penalizes any malpractice or misconduct. The Bharatiya Nyaya Sanhita, 2023 (BNS) has introduced comprehensive provisions under Sections 169 to 177 that specifically deal with offences related to elections. These sections aim to protect democratic values by preventing activities that may compromise the integrity of the electoral process.

Legal Framework and Purpose

The BNS, 2023, which replaces the Indian Penal Code of 1860, outlines various electoral offences that were previously recognized but have now been modernized to suit contemporary challenges. These offences include bribery, personation, undue influence, false statements, and more. The objective is to uphold transparency, protect voter rights, and maintain public confidence in democratic institutions.

Detailed Provisions: Sections 169 to 177

Section 169 – Bribery

This section makes it a punishable offence to offer or receive any gratification with the intent of influencing a voter to vote or refrain from voting.

  • Punishment: Imprisonment for up to one year, or fine, or both.
  • Exception: Any declaration of public policy or a promise of public action is not deemed to be bribery.

Section 170 – Undue Influence at Elections

This section targets attempts to interfere with the free exercise of electoral rights through coercion, threats, or pressure.

  • Punishment: Imprisonment for up to one year, or fine, or both.

Section 171 – Personation at Elections

Covers cases where a person votes in someone else’s name or tries to vote more than once.

  • Punishment: Imprisonment for up to one year, or fine, or both.

Section 172 – False Statement in Connection with an Election

Punishes individuals who knowingly make or publish false statements about a candidate’s personal character or conduct with the intent of affecting the election result.

  • Punishment: Imprisonment up to six months, or fine, or both.

Section 173 – Illegal Payment in Connection with an Election

Prohibits any form of illegal financial contribution or expenditure made with the intention to influence an election.

  • Punishment: Fine up to ten thousand rupees.
  • Exception: Legitimate expenses authorized under election law are exempt.

Section 174 – Failure to Keep Election Accounts

Mandates the proper maintenance of election expense accounts by candidates or their agents.

  • Punishment: Fine up to five thousand rupees.

Section 175 – Interference with the Free Exercise of Electoral Right

Deals with actions that may hinder or influence a voter’s choice through threats or intimidation.

  • Punishment: Imprisonment up to one year, or fine, or both.

Section 176 – Maintenance of Secrecy of Voting

Ensures that every individual’s voting preference remains confidential. Disclosing another person’s vote without consent is a punishable act.

  • Punishment: Imprisonment up to three months, or fine, or both.

Section 177 – Offence Relating to Elections Not Specifically Provided For

Acts as a residual clause to punish any other electoral offence not explicitly defined in the earlier sections.

  • Punishment: Depending on the nature and gravity of the offence.

Judicial Insight and Relevance

While the BNS is a new enactment, it carries forward the spirit of earlier laws. Courts have historically emphasized the need to uphold free and fair elections. Judicial precedents under the old Indian Penal Code will still guide interpretations until new case law develops under the BNS framework.

For instance:

  • In P. Rathinam v. Union of India, the Supreme Court stressed that elections must be free from undue influence or bribery.
  • Mohinder Singh Gill v. Chief Election Commissioner recognized the importance of transparency and voter autonomy.

Real-World Application and Challenges

Despite the robust legal framework, several challenges continue to plague electoral processes:

  1. Implementation Difficulties: Law enforcement agencies often face challenges in detecting and proving electoral offences.
  2. Lack of Voter Awareness: Many voters are unaware of what constitutes an election offence, reducing their ability to report misconduct.
  3. Digital Manipulation: In the age of social media, the spread of misinformation and fake news aimed at influencing voters is a growing concern.
  4. Political Pressure: Law enforcement officials may at times be influenced by political considerations, impacting impartiality in handling election-related cases.

Recommendations

  • Strengthen Institutional Mechanisms: Electoral commissions must be empowered and adequately funded.
  • Voter Education Campaigns: Citizens need to be informed about their rights and the electoral offences that undermine them.
  • Digital Monitoring Cells: Establish cyber units to track digital misinformation and enforce accountability.
  • Strict Enforcement and Accountability: Timely and fair investigations with legal consequences can act as effective deterrents.

Conclusion

The provisions under Sections 169 to 177 of the Bharatiya Nyaya Sanhita, 2023 are instrumental in safeguarding democratic principles in India. These sections offer a structured and updated legal approach to addressing electoral offences, including both traditional misconduct and emerging digital threats. As elections continue to evolve in complexity, so must the legal systems that protect their fairness. Active enforcement, judicial oversight, and citizen participation remain critical to ensuring that elections in India remain a true reflection of the people’s will.

Also Read:
Rights of undertrial prisoners in India
How To Send A Legal Notice In India

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