Terrorist Acts Under BNS

The President of India assented to the Bhartiya Nyaya (second) Sanhita Bill 2023 on December 25, 2023. The Bhartiya Nyaya Sanhita Bill 2023 (BNS) is one of three criminal bills submitted by the Union Government to replace the 1860 Indian Penal Code (IPC). These three laws go into effect on July 1, 2024.

Terrorist acts under BNS

Section 113 of the BNS proposes to create a new offense of “terrorist act” because the IPC (its predecessor) did not include a provision for this.

The Unlawful Activities (Prevention Act) (UAPA) already defines charges relating to “terrorist acts,” which raises concerns.

The BNS’ definition of a “terrorist act” is identical to the UAPA’s definition. This makes the law more prone to abuse, as a superintendent of police will now have the power to book a person under either the UAPA or BNS.

The suspension of 97 members of parliament during the adoption of the three new criminal codes greatly reduced the opportunity for debate, discussion, and reflection on these legislative initiatives. As a result, there was no legislative debate on the insertion of Section 113, during which the government may have been asked to present arguments for the probable redundancy.

This leaves us with just one option: “second-guessing” the motivation behind this legislative action.

• First, it may indicate an attempt by the government to change procedural features involving investigating agencies in cases involving terrorist acts.
• If this were the case, a more prudent strategy would be to address areas that require revisions or enhancements to the UAPA. Amending the existing law would eliminate the need for unnecessary legislative duplication, preserving the integrity and efficacy of the established legal framework given by the UAPA.
• Another possibility is that the government is realising the potential for abuse of the draconian UAPA and so putting “terrorist acts” into ordinary law, allowing them to be addressed by local state police processes described in the BNSS (successor to the CrPC).

However, if this were the goal, one would expect a fair discussion and advertisement of the government’s plan to include Section 113 in the BNS. The little discourse surrounding this issue raises serious concerns about the clarity and communication of the government’s objective behind this legislative effort.

Insertion into the chapter on the ‘human body’

The penal code divides crimes into categories. Historically, terrorism-related acts were classified as “offenses against the state” under a chapter. Surprisingly, the “terrorist act” is included as a new offense under the BNS under the chapter dealing with “offenses affecting the human body”.

Terrorism frequently involves acts that go beyond causing direct physical harm to individuals and include greater risks to national security, public order, and societal stability. In actuality, the BNS definition of “terrorism” is based on the UAPA term, which does not limit the offense to the body.

Duplication or duplicity

As previously indicated, it is unclear why the BNS includes a new offense of terrorist acts. Why was there a need for duplication when the UAPA, a specific statute, already covers terrorist acts?

The striking closeness in the terminology used to define a ‘terrorist act’ in both acts raises serious questions about the motive behind such a move. In modern criminal law jurisprudence, the criminal justice system often strives for precision and clarity while crafting legislation to avoid uncertainty and ensure consistent interpretation.

The existence of this redundant term in both the UAPA and the BNS would create ambiguity in interpreting its legislatively intended scope and applicability. Furthermore, the rationale for this duplication needs to be clarified because the Parliamentary Standing Committee on Home Affairs does not explain such a legislative step.

The doctrine of harmonious construction

Courts have repeatedly used the “rule of harmonious construction” to address problems between the general and special provisions of ‘conflicting’ statutes. This legal maxim states that where there appears to be a conflict between two independent provisions of law, the provision of the special law takes precedence over the provision of the general law.

The UAPA is a particular law that handles terrorism, whereas the BNS is a generic statute that addresses all offenses.

The rule of harmonious construction is invoked in a situation involving both a general law and a special law addressing a specific aspect (in this case a terrorist act) that is covered by the general law (in this case the BNS), and the special law prevails over the general.

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