From Penal Code to Nyaya Sanhita: A Critical Study of India's Legislative Shift in Criminal Law

Paper Code: AIJACLAV23RP2025

Category: Research Paper

Date of Publication: Nov 19, 2025

Citation: Sushanth S Anchan & Namrata Gupta, “From Penal Code to Nyaya Sanhita: A Critical Study of India's Legislative Shift in Criminal Law", 5, AIJACLA, 250, 250-260 (2025), <https://www.aequivic.in/post/from-penal-code-to-nyaya-sanhita-a-critical-study-of-india-s-legislative-shift-in-criminal-law>

Author Details: Sushanth S Anchan & Namrata Gupta, Student, 4th Year B.L.S. L.L.B. Thakur Ramnarayan College of Law, University of Mumbai, Mumbai, Maharashtra, India

Download PDF

Abstract

This paper provides a detailed analysis of the major reforms in India's criminal law introduced through the enactment of the Bharatiya Nyaya Sanhita, 2023. Replacing the colonial-era Indian Penal Code, this law marks a transformative phase in the progression of India’s legal system. This study conducts a comparative assessment of the old and new legislations, by critically analyzing the reordering of structural frameworks, key inclusions and exclusions and significant advancements brought forth by this law. It dissects how these legislative changes have been framed to address the changing needs of contemporary Indian society. It outlines the legislative intent behind the removal of outdated provisions on sedition, adultery, and homosexuality, reflecting a shift towards synchronization with modern legal principles. By examining the historical roots of these reforms, the paper aims to contextualize the reasoning behind the changes. Furthermore, it conducts a critical assessment of the impact of these changes on policing by introducing new offenses such as mob lynching, organized crime, sexual intercourse by deceitful means, and terrorist acts. The paper also examines key aspects of the BNS, including the introduction of community service, age uniformity, and gender neutrality. By conducting a doctrinal and analytical study of these reforms, the paper seeks to evaluate whether the BNS makes a valuable addition to a more responsive criminal justice system in India while also examining whether the increase in punishments will serve as a deterrent to criminals before committing the crime in society.

Keywords:- Mob-lynching; Organized crime; Terrorist Act; Gender neutrality; Punishment; Bhartiya Nyaya Sanhita.

Paper Code: AIJACLAV23RP2025

Introduction

Thomas Macaulay’s Indian Penal Code of 1860 (IPC) is often regarded as a visionary legislative masterpiece[1]. However, no legal code can maintain eternal and universal relevance. Despite inherent inconsistencies the IPC has demonstrated its longevity in the Indian subcontinent and has also influenced numerous criminal codes worldwide. The making of IPC took more than two decades to formulate a near perfect penal law shaped by Benthamite philosophy. The first Law Commission, chaired by Macaulay submitted the Draft Penal Code in 1837 followed by   reviews in 1846 and 1851. The Indian Penal Code Bill was subsequently presented for a second reading in 1856, with additional deliberations taking place in 1857. It was eventually approved by the Legislative Council and received the Governor General’s assent on October 6, 1860. The post-independence reform of India’s penal law encountered similar delays. The 42nd Report of the Law Commission[2] recommended reforms, leading the government to introduce the Indian Penal Code (Amendment) Bill in 1972. However, disagreements over the Bill required its reintroduction in 1978. Despite these efforts, the reform process was abruptly stalled, and the Bill was never enacted.

Nearly five decades later, the Bharatiya Nyaya Sanhita, 2023 (BNS) replaced the IPC by removing 19 sections and adding 10 new sections along with 16 sub-sections[3]. Additionally, several major and minor modifications were made, resulting in a reorganization of chapters and sections. The BNS, with 20 chapters and 358 sections (compared to the IPC’s 23 chapters and 511 sections), introduces new offenses, modifies sentencing durations, and increases penalties, especially for contemporary issues such as cybercrime and terrorism. Important changes in the BNS include revised definitions of "child" and "gender," expanded interpretations of "document" to encompass electronic records, and the criminalization of offenses like organized crime and mob lynching.

Reorganisation of Statutory Chapters: Honouring the Past, Shaping the Future

As stated above, the BNS explicitly outline its objectives of establishing a legal framework that is more citizen centric and therefore, prioritizes the life and liberty of the citizens rather than solely focusing on the protection of the State and its property. The primary objective of amending the IPC was to refine and simplify the provisions concerning offences and punishments. To effectuate this, the majority of the sections have been rearranged, new chapters have been added and the outdated provisions have been deleted. For the first time, a separate chapter on ‘Offences Against Women and Children’ has been introduced, consolidating provisions scattered into a single, comprehensive section. Notably, the strategic placement of this after the section on inchoate crimes can be interpreted as a reflection of the Government’s commitment of zero tolerance towards the crimes against the women and children acknowledging their vulnerable status in the society. A significant aspect of this reorganization is the integration of ‘inchoate crimes,’ where all three offences attempt, abetment, and criminal conspiracy have been consolidated into a single chapter. Moreover, the BNS consolidates all definitions under one section in alphabetical order. Repealed sections have been removed, and integration of judicial recommendations have been made. However, it is an indisputable fact that while reordering sections may cause confusion among legal professionals and the public, the IPC itself has evolved through 78 amendments, 11 before Independence and 12 afterward. While critics argue that the reorganization has disrupted section numbering, but keeping in view the opportunity at hand, it seems logical to streamline the diverse sections and renumber both previously amended sections and newly introduced ones. Though adaptation may take time, judicial interpretations remain applicable where there is no change made in the definitional aspects of the offences.

Decolonial Reforms: A Shift Away from Victorian Jurisprudence

One of the key objectives behind repealing and reenacting the IPC as BNS[4] was to eliminate the colonial influence from our India’s criminal justice system. However, decolonisation does not necessarily doesn’t require a complete revamp of the existing three laws. While introducing the new Bills in the Lok Sabha, the Union Home Minister emphasized that these laws were intended to replace the colonial-era legislation and was envisioned to be a shift from ‘danda’ to ‘nyaya’ as reflected in the name of the new penal Code. The name of any legislation signifies the intent and purpose of the legislators behind its enactment. In this case, the objective appears to ensure ‘nyaya’ to the victim, to the society and also to the first time offenders who commit petty crimes. While this may seem like a minor alteration, it changes the entire perspective towards the justice delivery system. In order to achieve above mentioned objectives, a number of major as well as minor changes have been introduced which includes the deletion of all references made to Her Majesty, Queen, British India, British Calendar, etc to the major reforms such as removal of offences relating to Sedition, Adultery, Homosexuality, attempt to suicide etc. The BNS has completely excluded the offence of sedition. While presenting the new Bills in the Lok Sabha, the Union Home Minister emphasized that these laws were intended to replace the colonial-era legislation. Furthermore, mens rea has been introduced as a special ingredient in section 152 which remained absent in section 124A, IPC. Therefore, the concerns surrounding section 152 to be invoked to curb freedom of speech or to suppress dissent appears mere speculation and lacks substantial basis. 

The BNS decriminalizes the offence of attempt to commit suicide, aligning with the Mental Healthcare Act of 2017, which had already removed criminal liability under Section 309 of the IPC. Previously, the Law Commission had repeatedly recommended for its repeal, deeming it outdated and inhumane. While attempt to commit suicide is no longer a criminal offence under the BNS, but using it to threaten or obstruct a public servant in performing their duties remains punishable. Notably the IPC classified attempt to commit suicide under offences affecting the human body (Chapter XVI), whereas the BNS places it under contempt of public authority (Chapter XIII), shifting its focus from self-harm to coercion. This marks a significant shift in decolonizing penal law, yet the retention of ‘criminal conspiracy’ reflects colonial influence. Initially, IPC recognized conspiracy[5] only for abetment or specific offences, but a 1913 amendment made it an independent offence, primarily to suppress dissent against the ruling government.

Transformation in Punishment Methods: From Deterrence to Reformation

One of the most awaited reforms in the BNS was in the realm of punishment. Broadly, five key changes in the domain of punishment have been identified in the BNS which includes the introduction of community service as a form of punishment, more with mandatory minimum punishment, longer imprisonment terms, increase in amounts of fine, and expanded scope of the death penalty. The inclusion of ‘community service’ in six offences reflects a shift towards reformative justice. Further, it is seen that in several cases either the term of imprisonment has been extended or the amount of fine has been raised. Additionally, inclusion of mandatory minimum punishment for several offences raises concerns as it limits the discretion of the sentencing court as well as restricts the accused from availing certain legal benefits. While it seeks a balance between ‘deterrence’ and ‘retributive’ approach with a reformative perspective, it firmly establishes that the death penalty will remain. Despite global opposition and Law Commission recommendations, the BNS expands capital punishment to 15 offences from 11 in the IPC. However, such an increase is due to the incorporation of offences of ‘organised crime’ and ‘terrorist act’ which were already punishable with death sentence under the special laws.  The terminology ‘imprisonment for life for remainder of a person’s natural life’ was first introduced through the Criminal Law (Amendment) Act 2013 for selective offences and were expanded in 2018. Under the BNS, this form of punishment has been designated for offences like grievous hurt resulting in permanent vegetative state or permanent disability. Notably, the above mentioned terminology signifies a more severe sentence, effectively placing it beyond the purview of government remission. It reflects the intent to impose stricter and more stringent penalties for such grave offences.

Addressing Modern Crimes: The Need for New Offences

The enactment of the Bharatiya Nyaya Sanhita, 2023 (BNS) and the repeal of the Indian Penal Code, 1860 (IPC) signify a pivotal shift in India’s legal history. The BNS broadens the ambit of criminal liability by equilibrating the eliminating certain offences by introducing new ones. Some of these additions are entirely original, while others derive from existing State laws or special laws. Notably, offences already covered under State or special laws have been incorporated into the BNS with prominent modifications. The BNS draft emerged from consultations held by the Government of India with key stakeholders, incorporating recommendations from the Department-Related Parliamentary Standing Committee on Home Affairs, among others. Its primary objective is to create a citizen-centric legal framework , catering to the evolving needs and aspirations of Indian society. In pursuit of this, the Government has endeavored to strengthen the law and order situation, to simplify the legal procedure to enhance greater accessibility to the common man, to make the existing legal framework relevant to the contemporary situation and to expedite the delivery of justice. This brief analysis provides our initial, well-founded perspective into the significant reforms introduced by the BNS, their influence on criminal law in both substance and practice, and the potential challenges that may arise in its implementation[6].

1.    Community Service as a Punishment

For the first time, Section 4(f) of the BNS introduces community service as a form of punishment for criminal offences. The government has introduced this legislative amendment with an objective to advance the reformative approach to punishment, which is a commendable step taken by the government. Community service is provided as a possible punishment for only six minor offences in the BNS. However, the allowance of unguided judicial discretion to determine both (a) what constitutes community service and (b) the term for which a sentence of community service may legally extend, is likely to present significant challenges for the realization of the government’s aspirations in a predictable, uniform and smooth manner.

2.    Defence of Duress

Section 32 of the BNS provides for the general defence of duress by threats. It is a whole-scale reproduction of Section 94 of the IPC. It exempts individuals who commit an offence, excluding murder and offences against the State punishable with death, when acting under the threat of immediate death to themselves. The principle of strict interpretation of criminal statutes prohibits Courts from extending this defence to those coerced by threats to another person’s life, even if it similarly impairs their judgment. Inasmuch such a formal, pedantic approach fails to give full effect to the rationale behind enacting the said defence, in practice, it may be challenged for being arbitrary, irrational and unjustified in its scope.

3.    Offences Against Women and Children (Chapter V)

A.    Sexual Offences Related to Consent & Deception

Crimes against women and children have been prioritized, with crucial offences being specifically addressed in this area. The increasing instances of sexual relations obtained through false promises of marriage or identity concealment have now been criminalized. While it may be perceived as restricting a woman's sexual autonomy, the law ensures that the choice to initiate criminal proceedings lies with the victim only if she believes she was ‘duped’ into engaging in sexual intercourse can she seek legal recourse. 

B.    Exploitation of Children for Crimes

Furthermore, Section 95 of the BNS aims to curb instances where children are exploited for committing crimes. Under the Juvenile Justice (Care and Protection of Children) Act, 2015, children in conflict with the law are protected from the adult court and prison system. As a result, criminal groups and gangs have often manipulated children into committing offences. Interestingly, this issue was also addressed in the Indian Penal Code (Amendment) Bill, 1978. The criminalization of such exploitation is a commendable step towards safeguarding children from being lured into criminal activities by organized groups. Chapter V of the BNS introduces a new approach by consolidating all offences against women and children. The organization and labelling of offences has a far-reaching impact on the public mind particularly in conveying the wrong sought to be penalised thereunder. Further, the structure of a legislative chapter is an important interpretative tool, which is frequently referred to by Courts in order to resolve ambiguities on the scope and nature of the provisions contained therein, and, therefore, the organization of a statute ought to be fundamentally sound. For example, Sections 74 and 76 of the BNS penalize acts of "assault" or "criminal force"[7] when committed with the intent to outrage a woman's modesty or to disrobe her, as specified in the provisions. However, these key terms are only defined later in Sections 128 to 130 of the BNS.

C.     Kidnapping & Abduction of Children

Likewise, Section 97 of the BNS[8] criminalizes the act of kidnapping or abducting a child under ten years of age with the intent to steal from them, without first establishing the fundamental elements of these underlying offences. The offences of kidnapping and abduction have only been defined in the subsequent Sections 137 and 138 of the BNS. The lack of cross-referencing may cause confusion among legal professionals and the public. It is also surprising to note that Sections 139 (Kidnapping or maiming a child for purposes of begging), 141 (Importation of girl or boy from foreign country) and 144(1) (Exploitation of a trafficked person) of the BNS, which penalize offences against children, are not included in Chapter V. The reasons behind such exclusion are incomprehensible. Further, it is noteworthy that all the offences against children contained in Chapter V of the BNS are completely gender neutral in their identification of the class of both potential offenders and victims. Whereas, Sections 98 (Selling child for purposes of prostitution, etc.) and 99 (Buying child for purposes of prostitution, etc.) of the BNS are gender neutral, Explanation I appended thereto is restricted to females under the age of 18 years (just as in the case of Explanation I appended to the corresponding Sections 372 and 373 of the IPC). Such an inconsistent understanding of the class of victims is bound to create great ambiguity as regards the scope and nature of the said provisions, and it may consequently present an unwarranted impediment in the crusade against child prostitution in all forms.

D.    Offences Relating to Marriage

Two gender-neutral offences, i.e. those contained in Sections 82 (Marrying again during lifetime of husband or wife) and 83 (Marriage ceremony fraudulently gone through without lawful marriage) of the BNS, have been perniciously categorized as offences against women by their placement in Chapter V[9]. Such a flawed classification is likely to communicate a patently wrong message to the public about their nature and scope as it goes against the express language employed in the said enacting provisions.

The placement of Sections 80 (Dowry death) and 85 (Husband or relative of husband of a woman subjecting her to cruelty) within a sub-chapter dealing with offences relating to marriage related offences. Under the IPC, their corresponding provisions dealing with these offences i.e. Section 304B and 498A, were placed under Chapter XVI (Of offences affecting the human body sub-chapter ‘Of offences affecting life’) and Chapter XXA (Relating to cruelty by a husband or his relatives). Consequently, under the IPC, these offences were conceptualized as wrongs primarily against a woman’s body, mind and autonomy. The IPC’s appreciation of the nature of wrong penalised by these offences has enabled the Supreme Court to expansively interpret the class of victims whose interests are protected thereunder. In the case of Reema Aggarwal[10], the Supreme Court, considering the intent behind the enactment of Section 304B and 498A of the IPC, along with Section 113B of the Indian Evidence Act, 1872, ruled that “anyone who has undergone some or other form of marriage and thereby assumed for himself the position of husband to live, cohabit and exercise authority as such husband over another woman” can be prosecuted. Therefore, women in a second marriage with a man who is already legally married can also seek protection under Sections 304B and 498A of the IPC. Categorising these offences as ‘Offences against marriage’ within Chapter V of the BNS expressly goes against the settled interpretation of the wrong punished in these offences by the Supreme Court, and such a categorization would most likely have an adverse impact on the liberal interpretation of the class of persons who can be prosecuted and protected thereunder. This change contradicts well-established judicial interpretations and could create challenges in prosecution, ultimately undermining the principles of justice, fairness, and legal clarity.[11]

E.    Decriminalization of Unnatural Offences

In a presumably indefensible move, the BNS fails to incorporate a provision analogous to Section 377 (Unnatural offences) of the IPC. While this move may have been influenced by the Supreme Court's ruling in Navtej Singh Johar[12], it is important to note that Section 377 was only partially struck down, specifically to the extent that it penalized consensual sexual acts in private between adults, regardless of their sexual orientation. Section 377 remained applicable to non-consensual sexual acts involving adults, all instances of carnal intercourse with minors, and acts of bestiality. Therefore, in effect, these acts (except carnal intercourse against minors) are now decriminalised under the BNS. By not including a similar provision, the BNS fails to penalise all forms of sexual assault against males and animals. Merely by broadening the definition of “gender” in Section 2(10) is insufficient, especially since Chapter V of the BNS primarily protects women. Therefore, in order to provide for gender justice on equal terms to transgender persons, Chapter V of the BNS needs to be comprehensively restructured inasmuch as Section 18 of the Transgender Persons (Protection of Rights) Act, 2019, which penalises acts of sexual abuse when committed by any individual (“whoever”) against a transgender person, is wholly inadequate in this regard. This is because (a) it does not define the scope of the key term “sexual abuse” either exhaustively or illustratively, and (b) subjects it to a disproportionately low punishment as compared to that prescribed in the IPC or in the corresponding provisions of BNS for similar offences when they are committed against women. A separate provision dealing with the offence of bestiality may also be required. Exception 2 to Section 63 (Rape) of the BNS upholds the marital rape exemption. While it has been redrafted to align with the ruling in Independent Thought vs. Union of India and Anr[13],  it upholds a husband’s immunity from prosecution for sexual acts and intercourse with an adult wife. The constitutionality of the said provision is a debatable issue and is presently sub judice before the Supreme Court.

For the first time, Section 69 of the BNS provides a legislative definition for the offence of engaging in consensual sexual intercourse through deceitful means or under a false promise of marriage. The Government’s efforts in penalising sexual intercourse obtained by an accused person through the use of deceptions other than those involved in the making of a false promise of marriage are remarkably praiseworthy for realistically appraising the various factors capable of diminishing a woman’s sexual autonomy. However, as currently drafted, the provision has two structural deficiencies. Firstly, by not requiring a direct causal link between a woman’s consent and the use of deceitful means (such as falsely promising marriage), the provision allows for the punishment of the accused even when the prosecutrix consented to sexual intercourse for entirely valid reasons unrelated to any deception by the accused. In such a situation, the wrong sought to be penalised by Section 69 of the BNS is not easily identifiable. Secondly, unlike the second part of Section 90 of the IPC which includes the words ‘knows’ or ‘has reason to believe’, Section 69 of the BNS postulates no mens rea requirement, only upon the fulfilment of which an accused person can be found guilty of the said offence. Additionally, categorising the offence under Section 69 as a distinct, less-serious sexual offence than that compared to rape may also create misleading distinctions about the violation of a woman's sexual autonomy.[14]

Sections 88 to 92 of the BNS, which deal with the offences relating to the causing of miscarriage, need to be expeditiously amended to align with the Medical Termination of Pregnancy Act, (MTP) Act 1971. Such an amendment is imperative in order to give due effect to Sections 1(6) and 2(30) of the BNS read together with Sections 3(1) and 8 of the MTP Act, 1971, which embody the Latin maxim generalia specialibus non derogant, i.e., general laws do not prevail over the provisions of special laws. Inconsistencies between these laws create legal ambiguity, discouraging doctors from performing lawful abortions due to fear of criminal prosecution. An amendment of the BNS is essential in order to secure a woman’s right to privacy, her bodily integrity, and decisional autonomy by ensuring access to safe medical abortions performed in accordance with the MTP Act, 1971. 

4.    Offences Affecting The Human Body (Chapter VI)

A.    Exception 1: Section 101 of the BNS

Exception 1 to Section 101 (Murder) of the BNS deals with the special defence of grave and sudden provocation, which when proved reduces the offence from one of murder to that of culpable homicide not amounting to murder. The Government has missed the opportunity to reassess its scope or introduce a special exception for death caused by women, on account of the sustained provocation suffered by them as a result of the cruel, atrocious conduct of their husbands/partners or his relatives[15]. The Madras High Court in the landmark case of Suyambukkani[16] recognized sustained provocation as an exception analogous to Exception 1 of Section 300. Remarkably, the same approach has been endorsed in the later cases of Sumathi[17] and Sathiya[18] as well. However, the Gauhati High Court in Manju Lakra[19] was declined towards such an approach as in its opinion it amounts to impermissible judicial legislation. However, it acknowledged that continuous provocation over a period of time (i.e., sustained provocation) could make the provocateur’s final act sufficiently “grave and sudden” to invoke the exception.

B.    Section 103 (2) and 117 (4): Special Provisions on Mob Lynching and Mob Violence

For the first time, Sections 103(2) and 117(4) of the BNS specifically penalize mob lynching and grievous hurt caused by mob violence. These provisions recognize the aggravated nature of murder and voluntarily causing grievous hurt when perpetrated by five or more individuals due to factors like race, caste, sex, language or belief. However, the absence of religion as an explicit ground in is unjustifiable, given its role in many lynching cases. While courts may interpret “other similar grounds” to include religion, the lack of clear enumeration creates ambiguity and risks inconsistent rulings. Moreover, another issue is that the prescribed punishment death or life imprisonment for mob lynching (Section 103) and up to seven years for grievous hurt (Section 117) remains identical to those for individual offences. This contradicts proportional sentencing principles, as mob crimes involve collective intent and should warrant stricter punishment.

C.     Section 104: Punishment for Murder by Life Convict

Section 104 of the BNS prescribes the penalty for murder when perpetrated by an individual already serving a life imprisonment sentence. Its predecessor, Section 303 of the IPC, was struck down as unconstitutional in the landmark case of Mithu[20] where the Supreme Court struck down Section 303 of for imposing a mandatory death sentence without judicial discretion. Further, the Court ruled it is harsh, unjust and arbitrary, and thereby it violates Articles 14 and 21 , as it deprived convicts of procedural safeguards under Sections 235(2) and 354(3) of the CrPC. Additionally, the Court ruled that the classification created by Section 303 of the IPC (for the purpose of mandatorily imposing death penalty) between murder as committed by life-convicts and murder committed in any other case, is not based on any rational criteria and is unreasonable. This is because (a) no scientific data suggests that life convicts are inherently dangerous, (b) life imprisonment under the IPC applies to various offences, meaning there is no inherent link between a prior offence and a subsequent murder, as they may arise from different motives and circumstances, and (c) the motives for murder can exist regardless of whether the person is a life convict. Such an amendment of Section 104 now allows for either the death penalty or life imprisonment without remission, creating a stricter punishment for such cases while preserving judicial discretion. However, a life sentence without remission, like the death penalty, effectively eliminates any possibility of rehabilitation. Moreover, the provision fails to address the Supreme Court’s concern about the arbitrary classification of life convicts for harsher penalties. [21]

D.    Section 106:  Causing Death by Rash or Negligent Act

Section 106 of the BNS deals with the offence of causing death by a rash or negligent act. It seeks to fundamentally restructure Section 304A of the IPC in three ways firstly, by increasing the maximum imprisonment from two to five years with a mandatory fine, prescribing a lower penalty (up to two years) for deaths caused by medical practitioners negligence, and, thirdly, introducing a harsher penalty (up to ten years) for fleeing after causing death by rash or negligent driving. The first change likely responds to Supreme Court concerns over road accident fatalities, though the blanket increase in punishment is debatable since the offence lacks mens rea. The lower penalty for doctors is problematic, as it creates ambiguity on whether gross negligence, as established in Jacob Mathew[22], remains the standard or if simple negligence suffices. At most, the condition under which the offence is committed, including the offender’s status and the exacting demands of his/her work can be considered as a mitigating circumstance to be appropriately weighed together with other relevant facts for determining the sentence to be awarded. Finally, the rationale behind the prescription of a higher penalty in Section 106(2) of the BNS on an accused person (who causes death by rash and negligent driving) for fleeing the crime scene without informing a police officer or Magistrate about the incident soon after the incident is constitutionally suspect because it potentially curtails the accused person’s right against self-incrimination.[23]

E.    Section 109: Definition & Punishment for Organized Crime

For the first time, Section 109 of the BNS defines the offence of organised crime in the general criminal law applicable throughout the territory of India. While, the Government aims to effectively combat through deterrent punishment under this section, the absence of supplementary procedural and evidentiary provisions such as (a) special courts, (b) investigative powers; (c) witness protection; (d) special public prosecutors; (e)evidentiary rules, (f) presumptions (g) interception of communications etc lacks special legislations to deal with organized crime will face insurmountable challenges in the successful prosecution of offences penalized under Section 111. Consequently, such States may struggle with effective prosecution under Section 111, whereas States with special laws will continue relying on them. This makes the standalone enactment of Section 111 largely ineffective in practice.

Section 109 of the BNS is drafted ambiguously, raising concerns about its constitutional validity. It defines organised crime by first explaining “continuing unlawful activity” and includes offenders as “any person or group acting in concert, singly or jointly, as part of or on behalf of an organised crime syndicate.” The phrase “acting in concert” creates uncertainty whether a common intention for the specific unlawful act is required or if a general unlawful objective suffices for conviction under Section 111. Given that common intention requires a prior meeting of minds, it can be argued that “acting in concert” is merely one of its essential elements.[24]

Section 109(2) of the BNS prescribes punishment for organised crime under Section 109(1). If the crime results in death, Section 109(2)(a) mandates the death penalty or life imprisonment with a minimum fine of ₹10 lakh. Imposing such severe punishment without requiring intent or knowledge of causing death contradicts fundamental principles of Indian criminal jurisprudence, which limit liability to those sufficiently culpable for their actions.

F.     Section 110: Petty Organised Crime

Section 110 of the BNS introduces, for the first time, a separate offence of petty organised crime, distinct from organised crime under Section 109 and various special State legislations. It criminalizes acts committed by individuals who, as a member of a group or gang, including sale of public examination question papers. However, penalizing the act while ignoring the root issue of paper leaks weakens its effectiveness. Ambiguities in terms like “public examinations,” “trick theft,” “illicit ticket sales,” and “unlawful betting or gambling” raise concerns over legality and interpretation. The vague phrase “any other similar criminal act” further complicates its scope. Such vagueness around the essential ingredients of the offence of petty organised crime is likely to engender numerous challenges as regards its constitutional vires, nature, and scope.

G.    Section 113: Terrorist Act

Section 111 of the BNS marks the first instance of defining the offence of a terrorist act within India's general substantive criminal law largely based on Section 15 of the UAPA. However, the inclusion of any act intended or likely to threaten, among other things, India's economic security as a terrorist act under Section 111(1) raises concerns. The words “economic security” are inherently vague in nature, and, as the BNS and the BNSS fails to provide no clear criteria for defining it fairly, creating a risk of unwarranted prosecutions that could infringe on individual liberty and lead to frequent acquittals.[25]

The Explanation appended to Section 111 of the BNS brings to the forefront the most prominent concern with this provision is that it may potentially reduce Section 111 to having a merely ornamental presence in the legal domain. It empowers Superintendent of Police the authority to decide whether a case falls under the BNS or UAPA, underscores the overlap between the two laws in addressing terrorism. Unlike the UAPA, which includes procedural safeguards for fair trials such as (a) investigation authority; (b) taking cognizance of an offence ; (c) Evidentiary provisions;  (d) protection of witnesses etc. The BNSS fails to enact in parallel special procedural and/or evidentiary rules in order to ensure efficient prosecution for the offence of terrorist act and allied offences made punishable under Section 111 of the BNS.

5.    Section 150: Acts Endangering Sovereignty, Unity, and Integrity of India

In a surreptitious move, the Government has chosen to re-cast the offence of sedition (earlier criminalised under Section 124A of the IPC) in Section 150 of the BNS under a different name (“Acts endangering sovereignty, unity and integrity of India”), although it is arguably reflective of the same spirit and rationale behind criminalisation. Prima facie, Section 150 of the BNS seems to introduce four major changes to the definition of the offence of sedition under the IPC, namely – (i) unlike Section 124A of the IPC, it expressly stipulates the mens rea required to commit the offence by using the words ‘purposely or knowingly’; (ii) it expands the means by which the said offence may be committed by making reference to electronic communication and the provision of financial support; (iii) it completely alters the description of the prohibited actions and the object to which they are directed, and (iv) it enhances the minimum term of imprisonment awardable thereunder from three to seven years. Out of these, points (iii) and (iv) raise critical concerns, both at the theoretical and practical level. 

Conclusion:

This paper unveils the legislature intent from the Penal Code to Nyaya Sanhita emphasizing its objective of delivering true “Nyaya” (justice) to the people of India. The Government has undertaken a major step in revisiting the major criminal laws. The act of decolonising the penal law needs to be understood as a shift in perspective from ‘colonial criminal values’ to ‘Constitution oriented criminal values.’ It never meant to reject Macaulay’s fine work in totality rather, the effort appears to make it relevant to contemporary developments. Several offences carrying the impression of ‘Victorian morality’ have been deleted from the BNS. Additionally, the introduction of ‘community service’ as a punishment further demonstrates the shift from a ‘deterrence’ to a ‘reformative’ approach to punishment, which was never an aim of the British Raj. The substantive changes brought about by the Bhartiya Nyaya Sanhita, it ultimately remains considerable confusion regarding the Practical implication and implementation of this laws, especially with the change in the age-old scheme and chronology of the sections, it’s only the test of time, which will determine the success of the BNS.

References:-

1.     Bharatiya Nyaya Sanhita, 2023 (Act No. 45 of 2023) https://www.mha.gov.in/sites/default/files/250883_english_01042024.pdf, accessed 24 March 2025.

2.     Bharatiya Nagarik Suraksha Sanhita, 2023 (Act No. 46 of 2023) https://prsindia.org/files/bills_acts/bills_parliament/2023/Bharatiya_Nagarik_Suraksha_Sanhita%2C_2023.pdf, accessed 24 March 2025.

3.     Bharatiya Sakshya Adhiniyam, 2023 (Act No. 47 of 2023) https://www.mha.gov.in/sites/default/files/Bharatiya_Sakshya_Adhiniyam_2023.pdf, accessed 24 March 2025.

4.     Taxmann's Editorial Board, Understanding New Criminal Laws (Taxmann Publications, 2024).

5.     Professional’s New Criminal Laws Criminal Manual (Professional Book Publishers, 2024).

6.     K.N. Chandrasekharan Pillai, General Principles of Criminal Law (3rd edn, Eastern Book Company, 2024).

7.     Kumar Askand Pandey, B.M. Gandhi Indian Penal Code (IPC) (4th edn, Eastern Book Company, 2022).

8.     Lexis Nexis’s Criminal Manual (BNSS, BNS, and BSA) (Lexis Nexis, 2024).

9.     K.D. Gaur, Commentary on The Indian Penal Code (2nd edn, Central Law Publications, 2022).

10.      K Sudhakar, Commentary on New Criminal Major Acts (3rd edn, Deccan Law House, 2024).

11.      Ramesh S Prabhu and Vinay Thyagaraj, New Criminal Major Acts (Deccan Law House, 2024).

12.      A K Sharma, Criminal Legal Drafting as per New Criminal Acts: BNS, BNSS, BSA (Whitesmann, 2025).

13.      Lexis Nexis’s Criminal Manual (BNSS, BNS, and BSA) (Lexis Nexis, 2024).

14.      Justice Khastgir, New Criminal Major Acts: BNS, BNSS, BSA (1st edn, Universal Law Publishing, 2024).

[1] ⁠Thomas Macaulay, The Making of the Indian Penal Code (Oxford University Press 2013) 42.

[2] ⁠Law Commission of India, Report on the Indian Penal Code Reform (1972).

[3] Union Home Ministry, ‘New Bharatiya Nyaya Sanhita Enacted’ (The Hindu, 15 March 2023) <https://www.thehindu.com> accessed 30 March 2023.

[4] Ibid

[5] G. Singh, Evolution of Indian Penal Law (Cambridge University Press 2016) 89.

[6] A. Kumar, ‘Reorganisation of Statutory Provisions: A Critical Analysis’ (2018) 25 Indian Journal of Legal Studies 112.

[7] R. Das, Reformative Justice in India: New Trends (SAGE Publications 2020) 155.

[8] P. Sharma, ‘Decolonising the Penal Code: The Shift to Nyaya Sanhita’ (2023) 40 Modern Law Review 315.

[9] S. Rao, ‘Modern Crimes and Legislative Responses in India’ (2023) 32 Journal of Contemporary Legal Issues 47

[10] Reema Aggarwal vs Anupam And Ors 2004 CR LJ 892 (SC)

[11] M. Gupta, ‘Evolving Defences: Duress and Mens Rea in the BNS’ (2022) 18 Indian Law Review 203

[12] Navtej Singh Johar and Others vs. Union of India 2018 7 S.C.R. 379

[13] Independent Thought vs. Union of India and Anr 2017 13 S.C.R. 821

[14] L. Verma, ‘Categorisation of Offences against Women: Reforms in the BNS’ (2023) 27 Feminist Legal Studies 98

[15] D. Banerjee, Legislative Drafting and Legal Modernisation (Oxford University Press 2019) 134

[16] Suyambukkani vs. State of Tamil Nadu 1989 L.W. (Crl) 86

[17] Sumathi vs. State MANU/TN/9642/2006

[18] Sathiya vs. State, Represented by the Inspector of Police 2022 SCC OnLine Mad 3969

[19]Manju Lakra vs. State of Assam 2013 SCC OnLine Gau 207

[20] See paragraphs 12, 24 and 25 of Mithu v. State of Punjab (1983) 2 SCC 277

[21] S. Patel, ‘Judicial Challenges in Implementing the Bharatiya Nyaya Sanhita’ (2023) 22 Law and Society Review 76

[22] Jacob Mathew vs. State of Punjab and Another (2005) 6 SCC 1

[23] A. Reddy, ‘The Transformation of Punishment: From Deterrence to Reformation’ (2022) 15 International Journal of Penal Law 61

[24] B. Mehta, ‘Contemporary Interpretations of Sedition and National Security in India’ (2023) 19 Asian Journal of Political Science 89

[25] C. Joshi, ‘Challenges in the Implementation of New Penal Provisions in India’ (2023) 10 Law Commission Bulletin 45