||Black and White Digital News ||

||September 05,2024 ||

The Bhartiya Nyaya Sanhita (BNS), 2023, has introduced a significant reform in the Indian criminal justice system by unifying “organised crime” under Section 111. Previously scattered across state-specific laws and special acts like the Maharashtra Control of Organised Crime Act (MCOCA) and the Gujarat Control of Terrorism and Organised Crime Act (GCTOCA), BNS aims to standardize the approach to tackling organised crime nationwide. While this seems like a step towards streamlining legal provisions, several ambiguities and conflicts arise that could hinder its effectiveness.

Key Provisions and Overlaps:

The BNS adopts a definition of “organised crime” similar to MCOCA and GCTOCA. The scope of organised crime under BNS is broad, including offenses like robbery, kidnapping, extortion, human trafficking, and economic offenses. However, several terms used under Section 111, such as “hawala transactions,” “mass marketing fraud,” and “trick theft,” remain undefined within the Act, raising concerns about interpretational clarity. These offences are defined elsewhere in special laws, such as the Prevention of Money Laundering Act (PMLA), Information Technology Act (for cyber-crimes), and state laws on land grabbing.

The BNS attempts to integrate existing laws but fails to address overlaps with established state-specific laws like MCOCA and GCTOCA, creating confusion in terms of jurisdiction, punishment, and trial proceedings. For example, MCOCA and GCTOCA have special provisions for trials in designated courts, but the BNS mandates that organised crime cases be triable in sessions courts, potentially undermining the efficacy of the special courts established for these offences.

Challenges in Clarity and Jurisdiction:

One of the critical issues is the potential conflict between the BNS and existing special laws, especially those with non-obstante clauses like MCOCA, which allows organised crime cases to be exclusively tried in special courts. The broader question arises: Can state-specific laws override a national law like BNS in their respective jurisdictions? Generally, special laws prevail over general laws, but this undermines the BNS’s objective of unification. Additionally, since both MCOCA and BNS classify organised crime as non-bailable offences, courts may face challenges in determining which law to apply in individual cases, leading to inconsistency in legal outcomes.

Need for Definitions and Clarification:

Several terms integral to organised crime remain undefined in the BNS. Special laws, such as the Foreign Exchange Management Act (FEMA) and the Immoral Traffic Prevention Act (ITP Act), clearly define offences like hawala transactions and human trafficking, but the BNS leaves these ambiguities unresolved. Moreover, offences like “mass marketing fraud” and “trick theft” have no corresponding definitions in any law, creating a legal void that could be exploited by those charged under such provisions.

Forum for Trial:

The question of which forum should handle organised crime cases is another significant issue. Under the BNS, these cases would be tried in a sessions court, whereas special acts like MCOCA and GCTOCA assign jurisdiction to special courts. This discrepancy could cause delays in trials, as determining the appropriate forum for such cases could become contentious.

While the Bhartiya Nyaya Sanhita, 2023, aims to provide uniformity in addressing organised crime across India, it lacks clarity in crucial areas. Undefined terms, conflicts with state-specific special laws, and issues related to jurisdiction may hinder its effectiveness. To rectify these issues, the Act should be amended to define the vague terms comprehensively, ensure coordination between the BNS and special laws, and clarify the applicable forums for organised crime trials. Without these clarifications, the BNS’s noble intent to streamline the legal process might lead to more confusion and inefficiencies in practice.