Conflict Between Bharatiya Nyaya Sanhita, 2023 and Special Statutes

On 11 August 2023, the government of India introduced the Bharatiya Nyaya Sanhita Bill, 2023 (BNS), which seeks to repeal and replace the Indian Penal Code, 1860 (IPC) as the primary penal legislation in India. Alongside this, the government also introduced the Bharatiya Nagarik Suraksha Sanhita Bill (BNSS) and the Bharatiya Sakshya Bill (BS), which seek to replace the Criminal Procedure Code, 1973 and the Indian Evidence Act, 1872, respectively.

This article examines and outlines certain overlaps between offences under the BNS vis-à-vis special statutes, and highlights the myriad of issues that arise on account of such overlaps.

Clause 111(1) of the BNS defines the “terrorist act” offence. However, this has already been defined under Section 15 of the Unlawful Activities (Prevention) Act, 1967 (UAPA), which is a specialised statute enacted for dealing with terrorist acts. While the definition of a terrorist act in the BNS mirrors the definition in the UAPA, the intention required to constitute a terrorist act under the BNS is wider in scope than under the UAPA. The UAPA requires that the intention should be to strike terror in people, whereas the BNS states that an act may constitute a terrorist act even if it is done with the intention to intimidate the general public or disturb public order.

The issue that arises is that if an act falls within the definition of a terrorist act under both the BNS and UAPA, the special statute – ie, the UAPA – will prevail, rendering the provisions of the BNS redundant. If the intention of the legislature was to widen the scope of the definition of terrorism or to strengthen the laws punishing terrorism, this could have been done through an appropriate amendment to the UAPA, as it is a specialised statute dealing with terrorist activities.

Besides the above, there are other overlapping offences between the BNS and UAPA, such as the following:

The introduction of the overlapping offences under the BNS circumvents the safeguards provided under the UAPA – for instance, the offence of terrorism (as under the BNS) does not require obtaining sanction for initiation of proceedings before court. This is in contrast with Section 45 of the UAPA, which mandates obtaining sanction of the relevant government before a jurisdiction court can take cognisance under the Act. Further, the UAPA provides for challenge to notification of an organisation as a terrorist organization, under Sections 36 and 37 of the Act. The same safeguard has not been provided under the UAPA. The removal of these safeguards will have widespread ramifications, and may amplify the potential for misuse by the State. 

Clause 111(6) penalises holding of any property directly or indirectly derived from a terrorist act, or use of such property to facilitate any terrorist act. Pertinently, the sub-clause omits the word “knowingly”, which is present in Section 21 of the UAPA, the corresponding section which similarly penalises holding proceeds of terrorism. The removal of “knowingly” could in effect render an innocent third party who unknowingly comes to possess any property/funds relating to a terrorist act punishable with imprisonment for life. Additionally, Clause 111(2)(i) of the BNS criminalises the commission of or the attempt to commit a terrorist act that leads to death of a person with death or imprisonment for life “without the benefit of parole”, which amounts to an unwarranted fetter on, and an illegal encroachment into, the executive’s power to grant a parole under the relevant State Rules. The blanket removal of the right to parole is also contrary to the Supreme Court’s decision in Asfaq v State of Rajasthan & Others, (2017) 15 SCC 5, wherein it was held that merely because an applicant was convicted of a serious or heinous offence, this cannot be a ground for denying parole.

Clause 109 of the BNS introduces the definition of “organised crime”, borrowing it largely from specialised state legislations aimed at curbing organised criminal activity, such as the Maharashtra Control of Organised Crime Act, 1999 (MCOCA), the Gujarat Control of Organised Crime Act, 2015 (GCOC), etc. As with the offence of terrorism, the definition of “organised crime” appears to have been widened under the BNS. For example, while organised crime is defined as a continuing unlawful activity to obtain direct or indirect benefits, Explanation (i) to Clause 109(1) broadens the meaning of “benefit” considerably to include “property, advantage, service, entertainment, the use of or access to property or facilities, and anything of benefit to a person whether or not it has any inherent or tangible value, purpose or attribute”.

Apart from widening the scope of definition of organised crime, the BNS also uses vague, unclear and catch-all phrases in the provision, which leaves room for unfettered discretion and arbitrariness on the part of the investigating agencies to prosecute persons based on these vague and undefined terms. For example, “members” of an organised crime syndicate under the MCOCA and GCOC are defined as a group of two or more persons, whereas members under the BNS are defined as a group of three or more persons or a “criminal organisation”. A criminal organisation has not been defined anywhere in the BNS, and it is unclear what this is, nor has any procedure been laid down to classify a “criminal organisation”. Similarly, Clause 110 defines petty organised crime as a crime which causes general feelings of insecurity among citizens. The phrase “general feelings of insecurity” is extremely vague and subjective, and, as stated above, leaves space for discretion of investigating authorities in prosecuting persons.

Additionally, “continuing unlawful activity” under Clause 109 of the BNS includes, inter alia, “economic offences”. Economic offences are couched in vague terms, using overbroad phrases such as “financial scams” and “mass-marketing fraud or multi-level marketing schemes”, which otherwise have not been defined anywhere in the BNS or other statutes, potentially adding to further confusion.

Courts have held time and again that special legislation will prevail over general legislation. This settled principle of law (generalia specialibus non derogant) is why special statutes frequently contain non obstante clauses, stating that the provisions of the special statute shall have effect, notwithstanding any other enactment that may have any inconsistent provision. In a similar vein, the Explanation to Clause 2(1) of the BNSS, in pari materia with Section 5 of the Code of Criminal Procedure, 1973 (CrPC), makes it clear that in the case of any contradiction between any special law and the provisions of the BNSS, the special law will prevail.

It may be argued that there are certain differences between the ingredients of offences under the BNS and those under the special statutes; therefore, it is not the identical act that is sought to be criminalised twice. Such an approach erodes and defeats the special purpose and legislative intent for the enactment of special laws in certain areas of law, wherein need was felt for additional safeguards, procedures or provisions, in deviation from the general laws. This can be contrasted to cases wherein the punishable activity is an offence under two legislations that operate in separate spheres altogether. In State of Arunachal Pradesh v Ramchandra Rabidas, (2019) 10 SCC 75, the Supreme Court held that in the case of road traffic or motor vehicle offences, prosecution under the IPC and the Motor Vehicles Act is maintainable. The Court explained that the Motor Vehicles Act, containing only penalties of fines for traffic offences, is silent on punishing offences such as causing hurt or death on account of traffic accidents, and hence such offences remain in the realm of the IPC. This is not the case with the BNS and specialised legislation such as the MCOCA, etc, where the provisions not only operate in the same sphere but also have overlapping ingredients to the offences under the respective legislation. In such cases, the courts have held that the special law will prevail. In Sharat Babu Digumarti v Govt (NCT of Delhi), (2017) 2 SCC 18, in a judgment under the Information Technology Act, 2000 (the “IT Act”) which provides that the Act will have an overriding effect (Section 81 of the IT Act), the Supreme Court held that when the offence relates to obscenity covered under Section 292 IPC, but has a nexus or connection with an electronic record, it shall be prosecuted and punishable under the IT Act and not Section 292 IPC.

The Statement of Objects and Reasons of the BNS states that “in order to effectively deal with the problem of organised crime and terrorist activities, new offences of terrorist acts and organised crime have been added in the Bill with deterrent punishments”. However, not only are such offences not “new”, having been dealt with in specialised legislation, but it also remains unclear as to how the BNS deals with such new offences “effectively”, or better than the extant framework. In fact, on comparison, such offences have only been broadened, using vague language, and the sphere of punishable activities has become more uncertain.

If enacted as is, the overlaps as highlighted above have the potential to create widespread confusion about the applicable legislation and the ensuing enforcement issues. The new legislations can be expected to be subjected to multiple challenges in court on their legality.

It is important to emphasise the implications of these concerns: these are not just matters of resolving statutory conflicts, but also have important bearings on constitutional and human rights. Criminal and evidentiary statutes are the primary vehicles by which the coercive machinery of the State is exercised, and legislation that seeks to expand their scope ought to be earnestly deliberated upon and questioned.