Revisiting Criminal Law Reform: The Bharatiya Nyaya Sanhita, 2023 in Theory and Practice An Assessment of Substantive Changes, Continuities, and Constitutional Implications
By Guru Legal
Keywords
Bharatiya Nyaya Sanhita 2023; BNS; Bharatiya Nagarik Suraksha Sanhita 2023; BNSS; Bharatiya Sakshya Adhiniyam 2023; BSA; Indian Penal Code 1860; criminal law reform; sedition; Section 152 BNS; organised crime; terrorism; Article 19; Article 21; Justice Malimath Committee; decolonisation; criminal justice
Abstract
The enactment of the Bharatiya Nyaya Sanhita 2023 (BNS), the Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS), and the Bharatiya Sakshya Adhiniyam 2023 (BSA), which came into force on 1 July 2024, represents the most comprehensive formal overhaul of India’s criminal law architecture since the enactment of the Indian Penal Code 1860 by the colonial administration. The stated objectives of the reform the decolonisation of criminal law, the prioritisation of justice over punishment, and the modernisation of the criminal justice system have been widely welcomed in principle. This article critically examines the substantive changes introduced by the BNS in the areas of sedition, organised crime, terrorism, and procedural reform; evaluates the extent to which the new criminal law represents genuine decolonisation or a structural continuity with its colonial predecessor; analyses the constitutional implications of specific provisions including Section 152 BNS (acts endangering sovereignty or unity), Section 111 BNS (organised crime), and Section 113 BNS (terrorist act); and advances a critical assessment of the reform’s achievements and missed opportunities.
I. Introduction
The Indian criminal justice system, constituted for over a century and a half by the Indian Penal Code 1860 (IPC), the Code of Criminal Procedure 1973 (CrPC), and the Indian Evidence Act 1872 (IEA), has long been criticised as reflecting the priorities of a colonial administration more concerned with the maintenance of imperial order than with the fair and humane treatment of accused persons and the delivery of substantive justice. The Justice Malimath Committee Report of 2003, the Law Commission of India’s numerous reports on criminal law reform, and a vast body of academic literature have catalogued the deficiencies of India’s colonial criminal law inheritance: the absence of a right to speedy trial in the statute; the overreach of vague offences such as sedition; the treatment of the accused as an object of investigation rather than as a rights-bearing subject; and the systemic disadvantage of marginalised communities in the criminal justice process.
The Bharatiya Nyaya Sanhita 2023, the Bharatiya Nagarik Suraksha Sanhita 2023, and the Bharatiya Sakshya Adhiniyam 2023 collectively, the new criminal law trilogy were enacted by Parliament and received the President’s assent in December 2023, coming into force on 1 July 2024. The legislation was presented by the government as a historic decolonisation of Indian criminal law, replacing British-era statutes with laws that reflect Indian constitutional values and the needs of contemporary Indian society. This article critically examines these claims.
This article proceeds as follows. Part II analyses the key substantive changes introduced by the BNS, including the abolition of sedition as an offence, the introduction of organised crime and terrorist act provisions, and the treatment of offences against women. Part III evaluates the extent of genuine decolonisation versus structural continuity. Part IV examines the constitutional implications of specific BNS provisions. Part V advances reform recommendations. Part VI concludes.
II. Substantive Changes in the Bharatiya Nyaya Sanhita, 2023
The BNS introduces several substantive changes to the criminal law framework that warrant careful analysis. The most widely discussed is the omission of Section 124A IPC (sedition) from the BNS. Sedition under Section 124A IPC criminalised any act or expression that excited disaffection towards the Government established by law, and was extensively criticised as an instrument of repression used against journalists, activists, and political opponents. The Supreme Court in S.G. Vombatkere v. Union of India (2022) 9 SCC 1 ordered a de facto moratorium on the prosecution of sedition cases pending reconsideration of the provision’s constitutional validity.
In place of Section 124A IPC, the BNS introduces Section 152, which criminalises acts that endanger the sovereignty, unity and integrity of India, defined to include acts that excite secession, armed rebellion, subversive activities, or feelings of separatist activities, or endanger India’s sovereignty or unity and integrity. The penalties under Section 152 BNS are significantly more severe than under Section 124A IPC imprisonment for life or imprisonment for a term which may extend to seven years, compared to transportation for life under Section 124A. Importantly, Section 152 BNS extends to electronic media and social media communications, which Section 124A IPC did not explicitly cover.
Legal scholars have observed that Section 152 BNS, far from abolishing sedition, effectively re-enacts it in a broader and more severe form. The vagueness of terms such as subversive activities and feelings of separatist activities mirrors the vagueness of disaffection in Section 124A, which the Supreme Court in Kedar Nath Singh v. State of Bihar AIR 1962 SC 955 held to be constitutional only when confined to acts or words that have a tendency to incite violence or public disorder. Whether Section 152 BNS will receive a similarly restrictive judicial construction remains to be determined.
The BNS also introduces for the first time within the penal code framework provisions on organised crime (Section 111) and terrorist acts (Section 113), bringing within the main criminal law statute offences that were previously governed exclusively by special legislation such as the Unlawful Activities (Prevention) Act 1967 and the Maharashtra Control of Organised Crime Act 1999. Section 111 BNS defines organised crime as any continuing unlawful activity including kidnapping, robbery, extortion, fraud, cybercrime, or land-grabbing carried out by an individual, singly or jointly, as a member of an organised crime syndicate. Section 113 BNS defines terrorist act in broad terms encompassing acts done with intent to threaten or likely to threaten the unity, integrity, sovereignty, security, or economic security of India.
III. Decolonisation or Structural Continuity?
The government’s claim that the BNS represents a fundamental decolonisation of Indian criminal law merits critical scrutiny. At the level of form, the renaming of statutes from colonial-era English titles to Sanskrit-derived names, the renumbering of sections, and the partial reorganisation of the code’s structure are changes that, while symbolically significant, do not in themselves alter the substantive content of the criminal law.
At the level of substance, the evaluation is more nuanced. The BNS retains the fundamental architecture of the IPC, including its general principles of criminal liability (Chapter II), the defences to criminal liability (Chapter IV), and the structure of offences against persons and property. The definition of murder under Section 100 BNS (formerly Section 300 IPC), culpable homicide under Section 99 BNS (formerly Section 299 IPC), and theft under Section 303 BNS (formerly Section 378 IPC) are substantively unchanged. The general exceptions and the provisions on abetment, common intention, and criminal conspiracy are similarly continuous with their IPC counterparts.
The genuinely new provisions in the BNS Sections 111 and 113 on organised crime and terrorism represent an expansion rather than a decolonisation of criminal law, incorporating into the penal code framework powers that were previously exercised exclusively through special legislation with enhanced safeguards and oversight. The re-enactment of sedition-equivalent provisions as Section 152 BNS, with enhanced penalties and extended scope, is widely regarded as a regression from the constitutional aspirations that animated the Supreme Court’s moratorium on Section 124A IPC prosecutions in Vombatkere.
IV. Constitutional Implications of Key BNS Provisions
Section 152 BNS raises constitutional concerns analogous to those raised by Section 124A IPC. The vagueness of its operative terms subversive activities and feelings of separatist activities may not satisfy the constitutional requirement of sufficient definiteness in penal provisions, which is implicit in the guarantee of personal liberty under Article 21. The Supreme Court’s jurisprudence on the void-for-vagueness doctrine, while less developed in India than in the United States, provides a potential basis for constitutional challenge to Section 152 BNS if its terms are not judicially construed to require a specific and substantial threat to national security.
Section 113 BNS raises concerns about the overlap with the UAPA, which provides a more detailed framework for terrorism-related offences and has been subject to significant judicial scrutiny. The incorporation of a terrorism offence into the main penal code, without the procedural safeguards applicable to UAPA proceedings, may result in a reduction in the protections available to persons accused of terrorism-related offences.
The BNSS 2023 introduces several important procedural changes, including mandatory video recording of search and seizure proceedings under Section 105, a maximum period of ninety days for the production of the chargesheet in serious cases under Section 187, and provisions for trial of certain offences in absentia under Section 356. These procedural reforms are constitutionally significant, as they address long-standing concerns about the right to a speedy trial under Article 21 and the systemic delays in the Indian criminal justice system.
V. Reform and Recommendations
The enactment of the criminal law trilogy represents an important legislative reform that, while falling short of the fundamental transformation it claims, provides an opportunity for judicial and legislative elaboration that can give the new statutes a more genuinely constitutional character.
First, the Supreme Court should issue guidelines on the application of Section 152 BNS, requiring prosecution authorities to demonstrate a clear and present danger to national security before invoking the provision, consistent with the constitutional principle that penal provisions restricting free expression under Article 19(1)(a) must be supported by evidence of a direct causal nexus between the expression and a substantial threat to public order or national security.
Second, Parliament should reconsider the introduction of organised crime and terrorist act offences into the general penal code without the procedural safeguards applicable to special legislation. If these provisions are to remain in the BNS, they should be accompanied by a dedicated oversight mechanism, including a requirement of prior sanction for prosecution and judicial review of the decision to charge a person under these provisions.
Third, the government should establish an independent Criminal Law Reform Commission, with diverse membership including legal academics, practitioners, civil society representatives, and former judges, to undertake a comprehensive, evidence-based review of the BNS and make recommendations for further reform within a specified period. Such a commission would provide the systematic and expert engagement with criminal law reform that the legislative process alone cannot deliver.
VI. Conclusion
The Bharatiya Nyaya Sanhita 2023 and its companion statutes represent a significant formal transformation of India’s criminal law architecture. The renaming and renumbering of statutes, the introduction of new provisions on organised crime and terrorism, the explicit inclusion of electronic offences, and the procedural reforms of the BNSS collectively represent an important legislative exercise. Yet the central claim of decolonisation that the new criminal law embodies fundamentally different values from its colonial predecessor is difficult to sustain in the face of the substantive continuities, the re-enactment of sedition-equivalent provisions in Section 152 BNS, and the constitutional concerns raised by the vagueness of key operative terms.
True decolonisation of criminal law requires more than renaming: it demands a fundamental reorientation of the criminal justice system towards the rights of the accused, the speedy delivery of justice, and the structural dismantling of the colonial mechanisms of state control that continue to shape police, prosecutorial, and judicial practice in India. The BNS is a beginning, not an end, of that necessary journey.
Frequently Asked Questions
Q1. Has the Bharatiya Nyaya Sanhita 2023 abolished the offence of sedition?
Section 124A IPC (sedition) has been omitted from the BNS. However, Section 152 BNS introduces a broadly framed offence of acts endangering sovereignty, unity, and integrity of India, which encompasses subversive activities, separatist activities, and armed rebellion. Legal scholars argue that Section 152 BNS effectively re-enacts sedition in a broader and more severe form, with enhanced penalties and extension to electronic and social media communications.
Q2. What are the key substantive changes introduced by the BNS over the IPC?
Key substantive changes include: the omission of Section 124A IPC and its replacement by Section 152 BNS; the introduction of organised crime offences under Section 111 BNS and terrorist act under Section 113 BNS; the broadening of sexual offences to include new categories; and the explicit criminalisation of conduct involving electronic means. The general principles of criminal liability, the structure of offences against persons and property, and the major criminal defences are substantially continuous with the IPC.
Q3. What constitutional concerns does Section 152 BNS raise?
Section 152 BNS uses vague terms such as subversive activities and feelings of separatist activities, which may not satisfy the constitutional requirement of sufficient definiteness in penal provisions under Article 21. The provision may also impose disproportionate restrictions on free expression under Article 19(1)(a) unless judicially construed to require a direct causal nexus between the impugned expression and a substantial and proximate threat to national security or public order.
Q4. What procedural reforms does the BNSS 2023 introduce?
The Bharatiya Nagarik Suraksha Sanhita 2023 introduces several significant procedural reforms, including mandatory video recording of search and seizure proceedings (Section 105), a ninety-day maximum period for production of the chargesheet in serious cases (Section 187), provisions for trial in absentia in specified cases (Section 356), and enhanced victim participation rights in criminal proceedings. These reforms address long-standing concerns about the right to a speedy trial under Article 21.
Q5. Does the BNS represent genuine decolonisation of Indian criminal law?
The BNS represents significant formal changes, including renaming, renumbering, and the introduction of new provisions. However, the substantive architecture of criminal liability, the structure of major offences, and the general principles of Indian criminal law are substantially continuous with the colonial IPC. The re-enactment of sedition-equivalent provisions and the absence of fundamental procedural reform in areas such as police accountability and state power suggest that genuine decolonisation remains an aspirational goal rather than an accomplished fact.
Bibliography
Primary Sources
Bharatiya Nyaya Sanhita, 2023, Sections 100, 111, 113, 152.
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Constitution of India, 1950, Articles 19, 21.
SG Vombatkere v Union of India (2022) 9 SCC 1.
Kedar Nath Singh v State of Bihar AIR 1962 SC 955.
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Maneka Gandhi v Union of India (1978) 1 SCC 248.
Hussainara Khatoon v State of Bihar (1980) 1 SCC 81.
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