Understanding old defamation & new criminal media law

Hyderabad: The Central government has introduced three new Bills in the Lok Sabha that suggest big changes to the country's criminal justice system. These Bills aim to replace three old laws: the Indian Penal Code (IPC) from 1860, the Code of Criminal Procedure (CrPC) from 1973, and the Indian Evidence Act from 1872. They are newly named as:

• Bharatiya Nyaya Sanhita (BNS), 2023 - This is meant to replace the IPC.

• BharatiyaNagrik Suraksha Sanhita (BNSS), 2023 - This is for replacing the CrPC.

• BharatiyaSakshya (BS) Bill, 2023 - This Bill is for the Indian Evidence Act.

The new media criminal law made by the present Government of Bharath is not totally ‘new’ it is mostly ‘known’. But the problem is criminality is a strong ‘penalty’. It is claimed that the proposed Sanhita aims to simplify and modernize the Indian Penal Code (IPC), which was as old as 1860. The Parliament says that the Sanhita is based on the recommendations of the Law Commission of India and also claims the Sanhita seeks to remove archaic and obsolete provisions, introduce new offenses, and enhance penalties for certain crimes. And the Sanhita also tries to make the language of the law clearer and more concise.

In 2020, the Ministry of Home Affairs formed a committee led by Dr. Ranbir Singh, a former Vice Chancellor of the National Law University (NLU) in Delhi. (Earlier Prof Ranbir was the first VC of NALSAR University in Hyderabad, where this writer was a professor, before present assignment). This committee was set up to review the three main criminal law codes in the country. The committee's job was to suggest changes to these laws that would ensure the safety of individuals, communities, and the nation, while also focusing on principles like justice and dignity. The committee gave its recommendations on amending the criminal laws in February, as claimed.

(Home Minister Says Sedition Offence Will Be Repealed; New IPC Bill Criminalises "Endangering Unity & Integrity of India" Padmakshi Sharma 11 Aug 2023, https://www.livelaw.in/top-stories/home-minister-sedition-repealed-new-ipc-bill-criminalises-endangering-unity-integrity-of-india-234986?infinitescroll=1)

About the Bharatiya Nyaya Sanhita (BNS) Bill, 2023: The Indian Penal Code (IPC) was created in 1834 and became effective in 1860. The new BNS Bill for 2023 is designed to replace and update the IPC. This new bill suggests various changes, including those related to defamation, crimes against women, and attempted suicide. While the current IPC has 511 sections, the BNS Bill has 356 sections. It is mostly a familiar section of the old Indian Penal Code. 175 sections have been amended, 8 new sections have been added and 22 sections have been repealed.

Home Minister Shah, in his speech in Lok Sabha, said: “There are 313 changes in the new bill...The entire criminal justice system will be completely overhauled and everyone will get justice in a minimum of three years... The bill will introduce that police do not misuse their power. Offenses like sedition have been repealed.”

Two new crimes:

The first new serious definition is ‘the terrorist’. The BNS Bill defines terrorism for the first time, which was not the case in the IPC. A terrorist is defined as someone who commits acts in India or abroad to threaten India's unity, and security, intimidate the public, or disturb public order.

Another is Mob Lynching:

The BNS introduced capital punishment for mob lynching, along with a sentence of 7 years imprisonment or life imprisonment. Sexual exploitation of women under pretenses like marriage, jobs, or promotions is considered a crime. The BNS removed the provision for the crime of adultery, following a 2018 Supreme Court ruling that found the old provision unconstitutional.

The Sedition, the media should be careful. Old IPC Section 124A

The proposed Sanhita of 2023 proposed the removal of the term "sedition" and the introduction of a new section that deals with "Acts endangering sovereignty, unity and integrity of India". This present new sedition is in the name of Section 150, which is more specific and comprehensive than the IPC Section 124A, which was often used to suppress dissent and criticism of the government. It is very problematic for the readers and writers.

The penalty is higher and stricter in the proposed Sanhita. It increases the maximum punishment for such offenses from life imprisonment to seven years and adds the possibility of imposing a fine. The proposal means higher fines than the earlier. It also clarifies the meaning of terms such as "secession", "armed rebellion", "subversive activities" and "separatist activities", which were not defined in the IPC Section 124A.

The Executive and the Legislature of Parliament say that the proposed Sanhita is supposed to attempt to balance the need to protect the national security and integrity of India with the right to freedom of expression and opinion of its citizens.

The definition is this: Section 150 states–

"Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial mean, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years and shall also be liable to fine."

The explanation as provided in the Section states– "Comments expressing disapprobation of the measures, or administrative or other action of the Government to obtain their alteration by lawful means without exciting or attempting to excite the activities referred to in this section."

IPC Section 505: Statements creating or promoting enmity

The proposed Sanhita of 2023 aims to simplify and modernize the Indian Penal Code (IPC) of 1860. One of the changes is the removal of section 505, which deals with statements that can cause public mischief or create or promote enmity among different groups.

The proposed Sanhita introduces section 194, which covers the same offence but with more clarity and specificity. Section 194 defines the grounds of religion, race, place of birth, residence, language, etc. as the basis for enmity and also includes acts that are prejudicial to the maintenance of harmony. It also prescribes higher punishment for offences committed in places of worship or religious ceremonies, as well as for repeat offenders.

Promoting enmity between different groups

In the present political society, the increasing criminality is about promoting enmity between different groups. Another harsher section is the old IPC 153A in new form. It deals with promoting enmity between different groups. The proposed Sanhita, 2023, is a draft of a new criminal code for India that aims to simplify and modernize the existing laws. One of the changes that it introduces is Section 153A in the IPC, which deals with the offense of promoting enmity between different groups based on religion, race, place of birth, residence, language, etc., and doing acts prejudicial to the maintenance of harmony, is replaced by Section 194 in the proposed Sanhita. This section also includes offenses committed in a place of worship or any other place considered sacred by any religious group.

One needs to the deep problems in the definition in Section 153 of the Sanhita, of the offense of receiving property taken by war or depredation mentioned in sections 153 and 154. This section corresponds to Section 412 in the IPC, which deals with dishonestly receiving property stolen in the commission of a dacoity. The Government claims that the proposed Sanhita aims to make criminal law more clear, concise, and consistent with constitutional values and human rights standards.

The New Defamation

The entire media suffers from wrong and harassing cases with political vendettas. IPC Section 500 lays down the punishment for defamation: “Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.”

What happens now under the new BNS, 2023? The proposed new Sanhita does not have Section 499. The offense of defamation is covered under Section 354 (1) of the new Sanhita. Section 354(2) of the proposed Sanhita describes the defamation punishment, including “community service”. It says: “Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both or with community service.”

The problem is clandestinely presenting the increase in the ‘fine’, causing more money-related difficulties.

Disclaimer: The opinion in the article are of the writer M Sridhar Acharyulu, Prof. Mahindra University Hyderabad