LEGAL REPRESENTATION SENT TO PRESIDENT, PRIME MINISTER, HOME MINISTER, LAW MINISTER AND LAW COMMISSION OF INDIA SEEKING URGENT AMENDMENT OF SECTIONS 64(1) & 68 OF BHARATIYA NYAYA SANHITA (BNS), 2023. EXPRESSION “RIGOROUS IMPRISONMENT OF EITHER DESCRIPTION” USED THEREIN IS LEGALLY SELF-CONTRADICTORY AND ALSO INCONSISTENT WITH BNSS, 2023 FIRST SCHEDULE ENTRIES
Face2News/Chandigarh :
Exactly two years after India’s three new criminal laws came into force, a Chandigarh-based advocate has urged the Union Government to immediately rectify what he describes as a “serious legislative drafting discrepancy” in the Bharatiya Nyaya Sanhita (BNS), 2023, relating to punishment for rape and sexual intercourse by a person in authority.
Advocate Hemant Kumar, practising in the Punjab and Haryana High Court, has submitted a detailed legal representation to the Hon’ble President of India, the Prime Minister, the Union Home Minister, the Minister of State (Independent Charge) for Law & Justice and the Chairperson of the Law Commission of India, seeking an urgent amendment to Sections 64(1) and 68 of the BNS.
According to the representation, the expression “rigorous imprisonment of either description”, appearing in both provisions, is legally inconsistent because the phrase “of either description” itself denotes that imprisonment may be either rigorous or simple. Consequently, once the legislature has specifically prescribed rigorous imprisonment, the subsequent words “of either description” become internally contradictory and legally meaningless.
Hemant has pointed out that Section 4 of the Bharatiya Nyaya Sanhita recognises only two kinds of imprisonment—rigorous imprisonment and simple imprisonment. Therefore, he argues, the phrase “rigorous imprisonment of either description” combines two mutually inconsistent concepts within the same sentence.
“If Parliament intended to prescribe only rigorous imprisonment, the words ‘of either description’ ought to be deleted. Conversely, if imprisonment of either description was intended, the word ‘rigorous’ should not precede it,” the representation states.
The Advocate has further highlighted that the contradiction becomes more apparent because the First Schedule to the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which classifies offences and their punishments, consistently describes the punishment under the corresponding offences simply as ‘Rigorous Imprisonment’, without using the disputed expression.
Tracing the legislative history, Kumar has explained that the anomaly did not originate with the BNS. The same wording first appeared in the Criminal Law (Amendment) Act, 2013, enacted after the nationwide outrage following the December 2012 Nirbhaya incident, when Sections 376(1) and 376C of the Indian Penal Code were amended. The inconsistency, he says, survived the Criminal Law (Amendment) Act, 2018, and has now been reproduced in the entirely new criminal code enacted in 2023.
Calling the issue one of legislative precision rather than semantics, Hemant has stated that criminal statutes, particularly those prescribing punishment for grave offences against women, must be drafted with absolute clarity to eliminate avoidable ambiguity and ensure consistency within the statutory framework.
In his representation, Hemant has appealed to the Union Government to immediately examine the discrepancy through the Ministry of Home Affairs, the Ministry of Law & Justice and, if considered appropriate, the Law Commission of India, and thereafter introduce a Bharatiya Nyaya Sanhita (Amendment) Bill to delete the contradictory expression from Sections 64(1) and 68.
Significantly, the representation has been submitted on July 1, 2026, the day marking two years since the Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita and Bharatiya Sakshya Adhiniyam replaced the colonial-era criminal laws across the country.
Hemant has expressed hope that the issue, raised in the interest of legislative clarity and the sound administration of criminal justice, will receive urgent consideration from the Union Government and Parliament.
