INDIA Trends and Developments Contributed by: Sidharth Luthra, Aayushi Sharma Khazanchi and Sheezan Hashmi, Chambers of Sidharth Luthra
sexual favours. It also applies if a person is concealing their criminal history – ie, if a person is hiding their criminal past, such as a history of sexual assault. • Section 70 introduces the death penalty or life imprisonment for the gang-rape of woman under 18 years of age. • Section 103 (2) makes mob lynching by a group of five or more persons acting in concert to commit murder on grounds of race, caste or community, sex, place of birth, language, personal belief or any other similar ground punishable with death or imprison- ment for life, and a fine. • Punishment for hit and run cases is increased to up to ten years’ imprisonment. However, this section has not yet been notified. Overlapping provisions with special laws • Organised crime is defined in Section 111 of the BNS 2023, which borrows from state legislation such as the Maharashtra Control of Organised Crime Act, 1999. Land grab- bing, contract killing, cybercrimes, etc, are punishable under the BNS 2023 but are not defined. A person who hires any other person to commit any continuing unlawful activity – including kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offences, cybercrimes, trafficking of persons, drugs, weapons or illicit goods or services, and human trafficking for prostitu- tion or ransom – shall also be made liable under this Section. • Terrorist acts – Section 113 of the BNS 2023 overlaps with the Unlawful Activities (Preven- tion) Act, 1967 (UAPA). It is unclear why this new offence has been added in the BNS 2023 when a special law exists. To overcome this, the BNS 2023 provides that an officer not below the rank of Superintendent of Police will decide whether to register a case under
the BNS 2023 or the UAPA. A reverse burden of proof/evidence is absent in the BNS 2023 but present in the UAPA. Section 45 of the UAPA mandates prior sanction of government before a jurisdictional court can take cogni- sance but this safeguard is dispensed with for terrorist acts under the BNS 2023. The UAPA provides for a challenge to notification of declaration of an organisation as a terror- ist organisation, under Sections 36 and 37, which is absent in the BNS 2023. Conclusion • Preparing to commit organised crime has now been made an offence, which is a stark departure from traditional jurisprudence as laid down by the Supreme Court of India in Abhayanand Mishra v State of Bihar, (AIR 1961 SC 1698), where “preparation to commit an offence does not amount to crime”. The words “otherwise engages in any act pre- paratory to an organised crime” are too broad and liable to constitutional challenge. • In India, where there is a conflict between a special law and general law (ie, if an act falls within the definition of a terrorist act under both the BNS 2023 and the UAPA), the special statute (ie, the UAPA) ought to prevail. However, this principle of interpretation has been overridden as the BNS 2023 enables a Superintendent of Police to decide which law to apply. • Special stringent laws such as the UAPA have additional safeguards, keeping in mind the specific purpose of the Act, which are miss- ing in the BNS 2023. Bharatiya Sakshya Adhiniyam, 2023 (BSA 2023) The purpose of the BSA 2023, which replaces the Indian Evidence Act, 1872, is to modernise, simplify and streamline how evidence is present-
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