Evolution of Land Transfer Regulations under the Karnataka PTCL Act

In the former State of Mysore, the grant of government lands to citizens was regulated by the Mysore Land Revenue Code and Rules, as well as the Mysore Land Grant Rules. The concept of “restricted tenure” appears to have emerged to facilitate the swift disposal of darkasths (land grants) and to protect certain members of the Depressed Classes (did not include all communities classified as Scheduled Castes/Tribes). Under this concept, grantees were required to hold the land for a specified period, which was later extended from 10 to 20 years, and were prohibited from alienating the land without the prior permission of the Deputy Commissioner1.

Furthermore, with the repeal of Rule 30 of the Karnataka Land Grant Rules, 1968, and Rule 93-A of the Karnataka Land Revenue (Amendment) Rules, 1967, and the introduction of Rule 29A on September 17, 1974, a new legal framework was established, stipulating that no alienation of granted land could occur without prior permission or sanction from the government1. In line with this development, the Legislature enacted the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (PTCL Act) on January 1, 1979. This act was designed to protect the interests of Scheduled Castes and Scheduled Tribes grantees, ensuring that the purpose of the land grants was upheld and that these communities were safeguarded from exploitation.

The statute came into force on January 1, 1979, with a succinct 12 sections that comprise an array of provisions pertaining to the transfer, alienation, resumption and restoration of lands granted to the Scheduled Castes and Scheduled Tribes communities, hereinafter referred to as SC/ST communities.

A Few Key Provisions of the PTCL Act:

 
Definition of grant land under the PTCL Act:

Section 3(b) of the PTCL Act defines “Granted Land” as any land provided by the government to an individual belonging to a Scheduled Caste or Scheduled Tribe. This definition also includes land allocated or granted under existing laws related to agrarian reforms, land ceilings, or the abolition of inams, excluding those related to hereditary offices or rights. The term “granted” is to be understood in this context. 

Prohibition on Transfer of Grant Lands under Sections 4 and 5 of the PTCL Act:

Section 4 reinforces the grantee’s right to hold the land by imposing a restriction on transferring the granted land without prior government permission. Section 5 grants the Assistant Commissioner the authority to take possession of any such land that has been transferred, including evicting those in possession if necessary, and to declare the transfer null and void. In essence, the Assistant Commissioner is empowered to reverse the transfer and restore the land to the original grantee.

A Slew of Circulars by the Government of Karnataka on Alienation, Transfer and Sale Permission:

The Government of Karnataka, through a circular dated February 21, 19892 directed the Deputy Commissioner to provide appropriate recommendations for grantees seeking to alienate their land, provided that the non-alienation period had been completed. Additionally, a condition was imposed on the grantees to use the sale proceeds to purchase agricultural land. Further, in a circular dated January 11, 1990, the Deputy Commissioner, Assistant Commissioner, and Tahsildar were instructed to ensure that purchasers were not disqualified from holding agricultural land under the existing land reform laws.

In 2006, the following guidelines for granting sale permission were implemented through a circular:

  • Applications within the first 5-year period were to be rejected, as land granted within this duration was not eligible for alienation.
  • For granted lands held between 5 and 25 years, each case was to be evaluated individually, taking into account the grantee’s family needs. If the Deputy Commissioner decided to permit the alienation, the grantee was required to pay an amount equal to fifty percent of the market value of the land, as determined by the Deputy Commissioner, to the government on the date of sanction, in accordance with Section 9(1)(i) of the Karnataka Land Grant Rules, 1969.
  • For cases where the stipulated time had been fulfilled, permission to alienate could be granted, considering the grantee’s family needs. However, such alienation was to be conditioned upon the grantee purchasing agricultural land using the proceeds from the sale. Granting permission in these cases was at the discretion of the Competent Authority and not mandatory.

Subsequently, a checklist was issued through a Circular dated December 27, 2010, outlining over 20 criteria for landowners seeking permission to sell land under the provisions of the Karnataka Scheduled Castes and Scheduled Tribes (Prevention of Transfer of Certain Lands) Act, 1978. Following this, a Circular dated March 10, 2011, bearing No. RD880 LGP 2010, was issued, requiring the proper documentation of the non-agricultural income of landowners seeking sale permission and mandating the rejection of applications that did not meet the specified criteria.

Additionally, a Circular dated January 1, 2020, introduced new conditions, which included:

  • Mandatory land purchase: The grantee was required to use the sale proceeds to purchase land.
  • Submission of Sale Deed: The grantee had to submit the Sale Deed for the purchased land, after which the Sub-Registrar would permit the registration of the sale of the grant land.
  • Khata transfer: The Revenue Inspector or Village Accountant was responsible for transferring the khata of the grant land to the prospective purchaser, following verification of the Sale Deed for the land purchased by the grantee.

Furthermore, on the directions of the Hon’ble High Court of Karnataka, the following advisory was issued:

  • The grantee or their legal heirs were required to submit applications before the competent authority.
  • The advance payment made during the Agreement to Sell needed to be verified as part of the sale process.
  • It was mandated that all transactions during the sale process be conducted via Account Payee Cheque or Demand Draft.
  • Pursuant to the Order dated August 12, 2021, and the Order in W.P. 14746/2020 (SCST) by the Hon’ble High Court, the State Government was directed to ensure that an updated list of granted lands be provided to registering officers under the Indian Registration Act, 19082.
Circular on Period of limitation to invoke PTCL Provisions:

A circular dated February 15, 2022, offering a perspective on applications for restoration made more than 25 years, clarified that the authorities under the PTCL Act, 1978, should deal with the application for resumption according to the facts and circumstances of each case. Given the absence of a prescribed limitation period for such applications, Civil Appeal No. 1390/2009 (Nekkanti Rama Lakshmi vs. State of Karnataka) was decided in favor of the purchaser. The circular also included excerpts from the advisory issued by the Law Department, as outlined below:

“…..Even Hon’ble Apex Court in Nekkanti Rama Lakshmi case has not indicated as to how much time is ‘reasonable time’ to invoke the provisions of PTCL Act. The term reasonable time depends on the facts and circumstances of each case. Hence, fixing a particular period of time so as to apply to all types of matters, irrespective of the facts and circumstances of the case, to invoke the provisions of the PTCL Act may not appear proper. However, if the administrative department wants to fix the limitations/time to invoke the provisions of the PTCL Act, as far as the period of limitation/time to be fixed is concerned, administrative department may take its own decision after going through the above noted materials.” Based on this, the circular directed competent authorities to consider the case explicitly without deviating from the purpose of the provisions of the PTCL Act2.

Amendments to PTCL Act

The PTCL Act was amended in 1984, 1992, and most recently in 2023. The 2023 Amendment to the Act introduced changes to Section 5 by adding clauses (c) and (d), which stated that there was no time limitation for invoking the provisions of the Act, regardless of any other law. Further, the provision applied to all cases pending before competent authorities and courts adjudicating under the section. In effect, the amendment specified that there will be no time limit for the grantees to approach courts and reclaim assets transferred to others without the government’s approval.

Although no constitutional challenge to the Amendment has been raised yet, the Karnataka High Court, in its judgment in the case of Jayalakshmamma and Ors. v. Deputy Commissioner, Tumkur and Ors., rejected a request to restore land under the PTCL Act. The rejection was based on the fact that the application was filed more than 25 years after the PTCL Act’s enactment, and the Supreme Court’s ruling in Nekkanti Rama Lakshmi v. State of Karnataka and Anr. as shared above established that proceedings under the PTCL Act must be initiated within a’reasonable time’. The judgment indicates that the Karnataka High Court did not consider the recent amendment to the PTCL Act and dismissed the writ appeal accordingly.

Further, in Basavraj v. Deputy Commissioner, the high court said that once an application filed by the grantee under Section 5 of the PTCL Act is rejected, the only option available is to challenge such an order, and no fresh application can be filed by such a grantee and/or their legal heirs.

Introduction of Rule 6 in the PTCL (Amendment) Rules, 2024

The Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) (Amendment) Rules, 20243, introduce the addition of Rule 6 to the Karnataka Scheduled Castes and Scheduled Tribes (Prevention of Transfer of Certain Lands) Rules, 1979. These amendments will take effect from the date of their publication in the Official Gazette.

Rule 6 outlines the process for obtaining permission to transfer or acquire grant land under Section 4(2) of the PTCL Act, as follows:

  1. Application Submission: The grantee or their legal heirs must submit an application to the Office of the Tahsildar.
  2. Tahsildar’s Role: The Tahsildar will investigate, verify the submitted documents, and prepare a report based on their findings, which will then be submitted to the Assistant Commissioner (AC).
  3. Assistant Commissioner’s Review: Upon receiving the Tahsildar’s report, the AC may conduct further inquiries to ensure there is no coercion, misrepresentation, fraud, or incorrect valuation of land. The AC will then provide recommendations to the Deputy Commissioner (DC) on whether to approve or deny the transfer request.
  4. Deputy Commissioner’s Actions: The DC will review the recommendations and reports, verify the records, and forward the application to the Revenue Commissioner (RC).
  5. Revenue Commissioner’s Recommendations: The RC will examine the application and provide recommendations to the Principal Secretary (Revenue). Based on the recommendations from the AC, DC, and RC, the Principal Secretary may approve the transfer. The RC will then issue an order granting permission, and the AC will remove the PTCL tag from the land to facilitate the transfer.
  6. Right to Appeal: Sub Rule 10 allows applicants who are aggrieved or denied permission to file representations before the Principal Secretary (Revenue) for a review within 30 days of the order.

Conclusion

The Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) (Amendment) Rules, 2024, are introduced to address the skepticism and ambiguity surrounding grant lands under the PTCL Act. These rules eliminate the requirement for a No Objection Certificate for the sale of lands covered by the PTCL Act. However, the government has yet to establish digital platforms for the implementation of services outlined in Rule 6 of these amended rules.

Also considering the fact that in the Basavraj case cited above, the revenue authorities were forced to determine the issue of the lack of required documents, the court also issued general directions, including digitisation of records related to land grants. The court said:

“Once the said documents are digitised, all the documents are to be hyperlinked with each other so that all the documents are accessible from any particular document or location, going historically backward or forward. Entries relating to the grant with reference to the grant and concerned documents are to be entered into the RTC, and the documents are to be accessible by way of hyperlinks. A master e-registry is to be prepared in respect of each survey number village-wise, with the documents being accessible by hyperlinking. Search to be capable of, on the basis of the name of the district, village, survey number, grantees name, etc., the facility to apply and obtain e-certified copies of all the documents to be made available.”

To streamline the process, the Government of Karnataka has introduced the Karnataka Land Revenue (Second Amendment) Act, 2024. This Act creates a Revenue Commissionerate at the state level and establishes the position of Revenue Commissioner (Revenue, Land Acquisition, Resettlement and Rehabilitation, and Social Security) within the I.A.S. cadre. The objective is to improve efficiency and decentralize administrative powers.

References:

  1. Indian Kanoon, https://indiankanoon.org/doc/245136/ 
  2. Land Grants 1 of Revenue Department, Government of Karnataka, https://kandaya.karnataka.gov.in/storage/pdf-files/Land%20grants%201/PTCL%20%E0%B2%95%E0%B2%BE%E0%B2%AF%E0%B3%8D%E0%B2%A6%E0%B3%86%E0%B2%AF%20%E0%B2%95%E0%B3%81%E0%B2%B0%E0%B2%BF%E0%B2%A4%E0%B3%81%20%E0%B2%B8%E0%B3%81%E0%B2%A4%E0%B3%8D%E0%B2%A4%E0%B3%8B%E0%B2%B2%E0%B3%86%E0%B2%97%E0%B2%B3%E0%B3%81.pdf 
  3. Karnataka Rajayapatra, https://erajyapatra.karnataka.gov.in/WriteReadData/2024/7340.pdf 

The Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (PTCL Act) was enacted on January 1, 1979  to protect the interests of Scheduled Castes and Scheduled Tribes grantees, ensuring that the purpose of the land grants was upheld and that these communities were safeguarded from exploitation.

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What's New in Indian Evidence Law? A Look at BSA, 2023

The Bharatiya Sakshya Adhiniyam, 2023 (hereinafter referred to as the “BSA”) replaces the Indian Evidence Act, 1872 (hereinafter referred to as the “IEA”), which has long been the primary legislation concerning law related to evidence in all proceedings before the Court. This article explores some of the significant changes introduced by the BSA. To ensure better clarity, the authors have included a comparative chart contrasting the provisions of the IEA with those of the BSA, highlighting all the changes made.

Key Additions and Alterations

Definition of Experts

Opinions of experts on the topics as mentioned in Section 45 of the IEA have been getting increasingly relevant with the passage of time due to the development of modern sciences and its deep integration with the entire process of dispensation of justice.[1] Even though expert evidence is not considered conclusive proof in itself, its importance is substantial in proceedings, and it assists the Court in the formation of conclusions, provided that they are in conformity with other direct evidence.[2] Due to its importance, the BSA reproduces the provision regarding the opinion of experts exactly under Section 39, with the addition of the words “or any other field”.

This is a significant change in the literature of expert opinions as now Courts may rely upon expert opinions on any field that requires or necessitates, or is better served with the opinion of an expert, and not just the limited fields that were previously mentioned under Section 45 of the IEA, pertaining to handwriting, science, art, foreign law or finger impressions.

Removal of Archaic and Use of Inclusive Language

The BSA also resolves to alter archaic legal language prevalent in the IEA to replace it with modern[3], acceptable and inclusive words and phrases. One of the examples of this change is Section 124 of the BSA, which replaces Section 118 of the IEA, pertaining to the provision of a competent witness. In the IEA, the explanation of the Section used the word “lunatic” to explain the position with regards to the competency to testify of persons of unsound mind. The BSA has replaced the word with the words “a person of unsound mind”.

Various opinions highlight that the use of words like “lunatic” or “idiot” have a negative impact on how society perceives individuals with mental illnesses, creating a sense of polarisation among them from a functional society.[4] Therefore, the removal of such terms from legislations and thereby from judicial discourse is a positive step expected to foster better integration and acceptance of persons with mental illnesses into society.

Various words and phrases which were linked to India’s colonial past, present in the IEA by virtue of it being drafted by Sir James F. Stephen, have been completely removed and the Sections of the BSA now include language that aptly replaces them. For example, the words “of Her Majesty’s Dominions”, used in Section 86 of the IEA, in the context of the presumption of copies of foreign judicial records, have been removed and are now replaced with the words “of any country beyond India”, under Section 88(1) of the BSA.

Taking Cognizance of the Role of Technology

The advent of technology and its role in all of the major sectors and institutions of the country, including the operation of Courts[5] and other judicial offices is a remarkable and inevitable shift. Various Courts have the facility of a virtual hearing now, and it has smoothly integrated with the regular functioning of such Courts. Keeping this change in mind, the BSA has added “electronic and digital records” within the purview of the definition of “document” under Section 2(d).

Furthermore, even the definition of evidence under Section 2(e) of the BSA has been altered and the words “statements given electronically” have been added, increasing the purview of evidence that can be given in conformity with the fact a lot of exchanges of communication take place digitally, making it only natural to bring those into the fold of the definition of evidence. In line with these changes, the entire BSA includes words such as “digital” in order to include electronic records in the realm of applicability of other provisions.

To bolster the admissibility of electronic evidence, the BSA introduced Section 61, which provides that electronic evidence cannot be declared inadmissible solely by virtue of being in an electronic form.

Other Relevant Changes

The substantive provision of estoppel as given under the IEA from Sections 115-117 has been amended, in particular the provision regarding the prohibition of denial of landlord’s title by the tenant. Under the provision of Section 122 of the BSA, no tenant shall be able to deny that the landlord had a title to the property at the beginning of the tenancy, even after the expiry of the tenancy as well; the estoppel applies not only during the continuance of the tenancy but also at “any time thereafter”.

The provision of facts of which the Courts must take judicial notice, which was given under Section 57 of the IEA, has a new sub-section under Section 52 of the BSA, which provides for international treaties and agreements prevalent in the global diaspora, as well as decisions taken by India at international associations.

The scope of “secondary evidence” under Section 58 of the BSA has been expanded to include oral and written admissions as well, and the evidence of a person who is specifically skilled in examining particular documents.

Other notable provisions include the proviso to Section 165, which prevents Courts from requiring any communication between the Ministers and the President of India to be produced before it; the conspicuous omission of the ‘extent’ or territory (in Section 1) to which the BSA extends; and incorporation of ‘coercion’ in the list of acts under Section 22 that renders an accused person’s confession irrelevant in a criminal proceeding.

Conclusion

The BSA has incorporated significant changes to crucial definitions pertaining to the law of evidence, some of which were much-needed given the dynamics of the changing legal framework of the country. A lot of the alterations and additions have kept in mind the social landscape of the country as well, also ensuring that the country’s colonial past is put behind. A majority of the provisions remain unchanged in their language and application, and the evaluation of the changes made will be better understood with subsequent judicial decisions pertaining to them.

Here is a color-coded table of the changes made:

References:

[1] Meena Ketan Sahu, Importance of Expert Opinion in Criminal Justice System in India with special reference to determination of paternity: A Legal Analysis, RESEARCHGATE (Jun. 5, 2024, 11:26 AM), available here.

[2] S. Gopal Reddy v. State of A.P., (1966) 4 SCC 596.

[3] SANSAD, available here (last visited Jun. 05, 2024).

[4] Kathryn A. LaFortune, Eliminating offensive legal language, 49 MONITOR ON PSYCHOLOGY, 29 (2018).

[5] Brandon Moss, The importance of modernised technology in court proceedings, THOMSON REUTERS (Jun. 05, 2024, 11:38 AM), available here.

Image Credits:

Photo by John Blottman on Canva

The BSA has incorporated significant changes to crucial definitions pertaining to the law of evidence, some of which were much-needed given the dynamics of the changing legal framework of the country. A lot of the alterations and additions have kept in mind the social landscape of the country as well, also ensuring that the country’s colonial past is put behind. A majority of the provisions remain unchanged in their language and application, and the evaluation of the changes made will be better understood with subsequent judicial decisions pertaining to them.

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Changes Brought Forth by the Bharatiya Nyaya Sanhita, 2023

The Bhartiya Nyaya Sanhita, 2023 (hereinafter referred to as the “BNS”) is a criminal legislation which seeks to replace the erstwhile Indian Penal Code, 1860 (hereinafter referred to as the “IPC”). A lot of significant changes can be observed in the BNS, such as the introduction of community service as a punishment, the grouping of inchoate offences under the same chapter, among others. This article seeks to present a comparative analysis of these changes, highlighting the key differences and their potential impact on our criminal justice system.

Addition and Alteration of Certain Language and Provisions

 
Commission of Offences through Electronic Means

According to individual statistical reports[1], India has reportedly been home to approximately 750 million internet users and 460 million users of various platforms of social media, which equates to roughly 30% of the total users in the world. Further, according to recent independent studies[2], smartphone users in India were approximately 650 million strong. These and other studies on the subject make it obvious that a substantial portion of the Indian population interacts, transacts and operates through digital mediums. Naturally, incidents of criminal activity have risen. In fact, according to Crime in India 2022[3], a publication of the National Crime Records Bureau, there has been an increase of 24.4% in the registration of cases under Cybercrime as compared to 2021.

For this very purpose, a new addition in the form of Section 2(39) of the BNS clearly states that all words or expressions with regards to technology and digital media in general, shall have the same meanings as those given in the Information Technology Act, 2002, as well as the Bhartiya Nagarik Suraksha Sanhita, 2023. This will enable a much wider scope in terms of recognising various acts that fall under the ambit of an offence, thereby contributing to the detection and deterrence of crime. Section 2(8) of the BNS states that documents now include electronic and digital records.

Community Service as a Punishment

As a new addition to the chapter on punishments, community service has been added as one of the punishments that may be given upon the conviction of an individual. It must also be noted that community service as a punishment, according to the Statement of Object and Reasons, is only for petty offences, and is therefore given in the BNS only under six offences as a means of punishment.

Furthermore, a report of the Standing Committee[4] further recommended the insertion of a proper definition of community service as well as contouring the scope of this punishment to the Parliament. However, this hasn’t been incorporated into the text of the Act as of now, with the laws being officially enforced[5]. The lack of proper clarity with regards to community service could result in massive judicial involvement in aiding the interpretation and setting of the law.

Use of Inclusive Language

As a first, the BNS uses the term transgender under Section 2(10), under the definition of “gender”, which was absent in the IPC. In general, various provisions have been made gender neutral, such as the offence of voyeurism, having been defined and punished under Section 77 of the BNS. However, it must be noted that Section 77, along with other provisions, have incorporated the gender neutrality of the perpetrator, and not the victim. Therefore, for example, even though a woman may now be convicted for the offence of voyeurism, a man will never be able to complain about voyeuristic behaviour, an area where the BNS could’ve legislated upon.

Similarly, a lot of offences, such as rape, have still been gendered, wherein only a woman can be a victim. This excludes transgenders from availing themselves of protection under various sexual offences, leaving their inclusion under Section 2(10) superficial.

However, it cannot be said that gender neutrality in the context of victims was not taken into consideration at all since, under Section 96, the BNS uses the word child, replacing the words minor girls in the erstwhile Section 366A of the IPC.

Snatching as a Separate Offence

Section 304 of the BNS provides, for the first time, snatching as an offence distinct from theft. Independent reports suggest that snatching is a high-frequency crime, reportedly[6] being conducted more than 5000 times per day in Delhi alone. It is not only based on frequency, but it also delineates from regular theft in many ways, which justifies its separation. Snatching is a subset of theft wherein movable property is taken by force or quickness of action from a person. Unlike theft, where the accused may employ deceitful means and take away property even without the knowledge of the person who owns it, snatching always involves the victim taking cognizance of the action at the time of commission itself, and it may even be accompanied with hurt or violence in order to give effect to the snatching. The maximum punishment for snatching has also been set at three years instead of seven years for theft.

Provision Related to Mob Lynching

India has witnessed various cases[7] of deaths caused by groups of people motivated by religion and caste, among other factors. Specific data related to mob lynchings in particular is difficult to obtain, primarily because the National Crime Records Bureau does not maintain any, combined with the fact that police and public order are State subjects, for which no centralised data is available[8].

However, through an amendment adding to the provision of murder under Section 103 of the BNS, any murder committed by a group of five or more people, specifically based on conditions like religion, caste or community, place of birth, personal belief, etc., is now distinctly punishable with death or life imprisonment with a fine, just like how a murder is punished. This is a breakthrough addition to the BNS in light of the incidents of lynching that have been surfacing over the years and is expected to act as a potent deterrent against any such incidents in the future. 

Grievous hurt caused by a mob of five or more people has also been punished separately under the provision of Section 117(4) of the BNS, solidifying the resolve against mob justice.

Removal of Certain Language and Provisions

Removal of Adultery

In conformity with a seminal decision[9] of the Hon’ble Supreme Court of India, which decriminalised the offence of adultery as given under Section 497 of the IPC, the BNS completely removed the provision. This judgment was based on the Hon’ble Supreme Court’s observation that the continuation of adultery as a crime is a direct interference with the personal lives of individuals. The organs of the government must distance themselves from how individuals make personal choices, according to the opinion of the Hon’ble Supreme Court.

Various opinions suggest that adultery should be reintroduced in the BNS as an offence and should be gender neutral in nature. To the contrary, the dissenting opinion suggests that it is a rather outdated position to consider marriage to be sacred and should only be considered as a contract between individuals, which, if broken, gives rise to civil remedies.

Non-Reproduction of Section 377 of the IPC

In 2018, a landmark judgment[10] of the Hon’ble Supreme Court of India struck down the provision of Section 377, which punished acts of consensual sexual intercourse between adults. The Hon’ble Court considered that the provision in question was a grave violation of Article 19(1)(a) of the Constitution[11], which guarantees all citizens a fundamental right to freedom of expression[12]. However, the remainder of the provision was kept in force, pertaining to bestiality, sodomy, etc., as they are separate offences within the same section, having no link with the sub-section in contention.

However, the BNS has completely removed all the provisions of Section 377 of the IPC, even the ones that have not been expressly declared to be unconstitutional, as discussed above.

Removal of Sedition

One of the most significant changes in the BNS is the removal of the colonial law of sedition, as was enshrined under Section 124A of the IPC. However, it must be noted that Section 152 of the BNS retains the essence of Section 124A, wording it in a manner that has been described as vague in itself[13]. This removal comes after the Law Commission, in its 2023 Report[14] believed sedition, subject to certain amendments based on a landmark 1962 case law[15], should be retained in Indian criminology. The phrases subversive activities and endangers sovereignty in Section 152 of the BNS have not been specifically defined, which may render the application of this Section highly problematic, wherein an individual may be arrested or investigated based on a misinterpretation of the BNS, which will only be rectified by the judiciary through a case before it. This, therefore, has a lot of potential to curtail the liberties of vast multitudes of people- before the new law actually has well defined limits supported by judicial decisions.

Other Relevant Additions and Alterations

Organised crime has been defined under Section 111 of the BNS, which includes certain recognised offences such as kidnapping, land grabbing, etc., among others, committed as a part of a syndicate, or on behalf of one.

Various definitions have been altered to clarify certain intentions, such as in Section 43 of the BNS,  the word night given under Section 103 of the IPC has been replaced by the words after sunset and before sunrise. Further, under Section 41, fire has been expanded to include mischief by fire or any explosive substance.

All inchoate offences, namely conspiracy, attempt, and abetment, have been incorporated under the same chapter. Under the IPC, they were given in various sections present in different Chapters of the Code.

Section 69 of the BNS is a relevant addition as it introduces an offence that was not present in the IPC. The offence of practicing deceit in order to effect sexual intercourse not amounting to rape has been considered a punishable offence under Section 69. Here, deceitful means are inclusive of false promises and inducements.

The provision of Section 376DA of the IPC that dealt with gang rape has been expanded and incorporated in the BNS in the form of Section 70(2), wherein a major change is the alteration of the words from under the age of sixteen to under the age of eighteen, thereby expanding the scope of the offence by bringing more cases under its purview.

While punishments for various offenses have been significantly increased, one of the most notable changes is the enhancement of the punishment for causing death by a rash or negligent act. Previously covered under Section 304A IPC with a maximum sentence of two years, this offense now carries a penalty of up to five years under Section 106(1) of the BNS.

Section 113 of the BNS covers terrorist acts, which are a new addition to the purview. Mostly inspired by the provisions of the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as the “UAPA”), Section 113 introduces fines, the limits of which are specifically mentioned, across various sub-sections, which are absent under the scheme of the UAPA.

As a step towards curbing the spread of misinformation, the BNS also includes Section 353, which renders the making, publishing or circulating of false information backed with dishonest intention a punishable offence. Such a provision was not explicitly mentioned in the IPC, and it supplements the functioning of other laws dedicated to the same goal.

Under Section 337 of the BNS, which has incorporated the erstwhile offence of forgery of a document as given under Section 446 of the IPC, now the forgery of Government issued documents, such as the Aadhar Card, or the Voter Identity Card is also in the ambit, thereby expanding the scope of the offence.

Mischief as an offence has been given specific pecuniary limits[16] in sub-sections (4) and (5) of Section 324 of the BNS, wherein the amount of imprisonment increases as the value of the property destroyed or converted increases.

Section 309 of the IPC, which had become redundant due to Section 115 of the Mental Healthcare Act, 2017, where a person attempting suicide was presumed to have done so under extreme stress and was thus exempt from prosecution under Section 309 of the IPC, has been partially revived by the BNS under Section 226. However, only cases where a person commits suicide with the proven intention of compelling or restraining any public servant from performing their duties are covered.

The offence of kidnapping as envisaged in Section 137 of the BNS has removed the distinction between the age of minor boys and girls for the purposes of kidnapping and now includes the words ‘any child’ which has been defined under 2(3) to mean ‘any person below the age of eighteen years.’ This has brought the kidnapping of boys aged between sixteen and eighteen into the ambit of the offence of kidnapping, which had been absent under Section 361 of the IPC.

Conclusion

The introduction of the BNS, for the most part, is a positive decision to reinvent the IPC in a manner that fits the current social climate. It has made various significant changes, removing laws that have colonial roots, which is archaic, and also certain provisions that hold no credible ground in today’s legal scenario. It rightfully promotes principles like gender neutrality; however, it does seem to fall short of properly incorporating them. The BNS has not acted upon various calls for decriminalisation of offences, particularly those made by the Committee on Draft National Policy on Criminal Justice[17]. After its commencement and after the creation of new questions of law based on its revised provisions, the citizenry will be able to identify its impact in a better manner.

Here is a color coded table of the changes made:

References:

[1] Simon Kemp, Digital 2024: India, DATAREPORTAL (Jun. 03, 2024, 03:24 PM), https://datareportal.com/reports/digital-2024-india#:~:text=The%20state%20of%20digital%20in%20India%20in%202024&text=India%20was%20home%20to%20462.0,percent%20of%20the%20total%20population.

[2] Josh Howarth, How Many People Own Smartphones? (2024-2029). EXPLODING TOPICS (Jun. 03, 2024, 03:26 PM), https://explodingtopics.com/blog/smartphone-stats.

[3] NATIONAL CRIME RECORDS BUREAU, https://ncrb.gov.in/uploads/nationalcrimerecordsbureau/custom/1701607577CrimeinIndia2022Book1.pdf last visited (Jun. 03, 2024).

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[6] DELHI POLICE, https://delhipolice.gov.in/Images/HTMLfiles/Crime%20In%20Delhi(2).pdf last visited (03. Jun, 2024).

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[9] Joseph Shine v. Union of India, (2018) 2 SCC 189.

[10] Navtej Singh Johar & Ors. v. Union of India, Ministry of Law and Justice, (2018) 1 SCC 791.

[11] INDIA CONST. art. 19(1)(a).

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[15] Kedar Nath Singh v. State of Bihar, 1962 SCC OnLine SC 6.

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[17] MINISTRY OF HOME AFFAIRS, https://www.mha.gov.in/sites/default/files/2022-09/DraftPolicyPaperAug_4[1].pdf last visited (Jun. 03, 2024

Image Credits:

Photo by maxkabakov on Canva

The introduction of the BNS, for the most part, is a positive decision to reinvent the IPC in a manner that fits the current social climate. It has made various significant changes, removing laws that have colonial roots, which is archaic, and also certain provisions that hold no credible ground in today’s legal scenario. 

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