Author: Sneha Chauhan, Institute of law and Research
Abstract
The Bhartiya Nyaya Sanhita, 2023 (BNS) signifies a monumental shift in India’s criminal legal framework, replacing the colonial-era Indian Penal Code, 1860 (IPC) after over 160 years. Conceptualized to align with contemporary realities and constitutional mandates, BNS emphasizes victim-centricity, digitization, procedural transparency, and indigenous jurisprudence. With an eye on global best practices and the evolution of crime in a digital society, the Sanhita restructures definitions, introduces reformative penal mechanisms, and removes redundant colonial legacies. This blog critically examines whether the BNS heralds a true revolution in Indian criminal jurisprudence or remains a well-intentioned but partial reform.
Introduction
The enactment of the Indian Penal Code in 1860 was a defining moment in colonial India’s legal history. Drafted by Thomas Babington Macaulay, the IPC was designed for a colonial state and reflected British priorities rather than Indian socio-legal realities. Over time, attempts were made to modernize it, but its foundational spirit remained rooted in colonial administration. The BNS 2023 breaks away from that legacy. The Bhartiya Nyaya Sanhita came as part of a broader legislative reform, alongside the Bhartiya Nagarik Suraksha Sanhita (replacing CrPC) and Bhartiya Sakshya Adhiniyam (replacing Indian Evidence Act). The BNS attempts to balance deterrence with justice, retribution with reform, and sovereignty with freedom—hallmarks of a maturing legal system in the world’s largest democracy.
Key Reforms and Structural Changes in the BNS
1. De-Colonization of Law
The BNS begins by replacing archaic colonial terminology with accessible and locally relevant expressions. For example, “proclaimed offender” becomes “declared fugitive.” It purges the penal code of British hangovers such as sedition and provides laws that reflect India’s constitutional, social, and cultural evolution.
2. Victim-Centric and Survivor-Sensitive Provisions
The shift from an accused-centric to a more victim-sensitive justice system is perhaps the most notable transformation. Key changes include:
Mandatory medical examinations for rape victims within 24 hours.
Victim’s right to be informed and participate in legal proceedings.
Fast-track mechanisms for certain crimes against women and children.
These provisions reflect India’s obligations under international human rights instruments such as CEDAW and the UN Declaration of Basic Principles of Justice for Victims.
3. Reduction of Judicial Delay
Time-bound investigations and trials aim to mitigate India’s chronic pendency problem. By mandating:
FIR registration within a specified time.
Charge sheet submission within 90 days.
Completion of trial for crimes against women within 30 days post charge-framing.
the BNS intends to improve the efficacy of justice.
4. Embracing Technology in Criminal Justice
Digital transformation is a major highlight of the BNS:
Summons and warrants can be served through electronic means.
Audio-video recording of search and seizure is permitted.
Use of digital evidence is formalized.
Trials through video conferencing, where appropriate, are allowed.
This not only enhances efficiency but also reduces opportunities for procedural abuse.
5. Mob Lynching and Hate Crimes Recognized
For the first time, mob lynching finds mention in a statutory framework. BNS defines this as a separate, punishable offence with stringent penalties. This is a crucial recognition of rising mob violence in India and aligns with recommendations by the Supreme Court in Tehseen Poonawalla v. Union of India (2018).
6. Community Service and Alternatives to Imprisonment
Community service as a penal consequence signals a pivot toward reformative justice, especially for non-violent and petty offences. The shift resonates with global criminological trends and aims to reduce prison overcrowding.
7. Modernized Definitions and Expansions
Terrorism is more precisely defined, borrowing from international law standards (e.g., UN Global Counter-Terrorism Strategy). Organized crime, cyber-crimes, and deepfake technology are now specifically addressed.
Sexual offences adopt a broader framework, although critiques remain about gender inclusivity.
Comparative Table
ELEMENTS
IPC ,1860
BNS , 2023
Sedition
Punishable under Sec
124 A
Repealed , Replaced
With Sovereignty based
offence
Rape Trials
No Fixed Timelines
Must conclude within
30 days
Mob Lynching
No Specific provision
Explicitly define and penalized
Community
Service
Not Recognized
Introduce for petty Offences
Digital Evidence
Fragmented
Recognized and
Integrated
Victim
Rights
Limited Participation
Mandated Participation
And timely updates
Critical Analysis and Limitations
Despite its progressive intentions, the BNS is not free of shortcomings:
1. Vague Terminology
The “sovereignty offence” replacing sedition still lacks the precision necessary to prevent state overreach. Legal experts warn this could stifle legitimate dissent.
2. Gender Neutrality: A Work in Progress
While some provisions are gender-neutral, others retain binary assumptions. For example, the definitions of sexual offences still primarily consider women as victims and men as perpetrators, marginalizing LGBTQIA+ narratives.
3. Over criminalization Risks
Expanding the scope of criminal offences without adequate legal safeguards might lead to over-policing or selective enforcement, especially in digital contexts.
4. Capacity and Implementation Deficit
The success of BNS depends on the training of judges, police officers, and prosecutors. Technological provisions mean little if there’s a digital divide at the law enforcement level.
Relevant Case Laws and Interpretations
1. Kedar Nath Singh v. State of Bihar (1962)
Set limits on the sedition law, laying the groundwork for its eventual removal.
2. Bachan Singh v. State of Punjab (1980)
Propounded the “rarest of rare” doctrine—this remains intact under the BNS for capital punishment.
3. D.K. Basu v. State of West Bengal (1997)
Guidelines against custodial torture gain relevance in BNS’s push for more accountability in criminal proceedings.
4. Tehseen Poonawalla v. Union of India (2018)
Mandated legal recognition and punishment for mob lynching, which the BNS now codifies.
Conclusion
The Bhartiya Nyaya Sanhita, 2023 is more than just a legislative exercise; it is a symbolic and functional overhaul of India’s criminal justice architecture. Its real test lies not in the black-letter provisions but in the ecosystem that supports its application.
If India can address training deficits, infrastructure gaps, and judicial accountability while respecting civil liberties, the BNS may indeed mark the beginning of a new era. But if these reforms remain confined to paper, the promise of revolution will remain unfulfilled.
FAOs
1. What is the Bhartiya Nyaya Sanhita (BNS), 2023?
The BNS is a new criminal code enacted by the Indian Parliament to replace the colonial-era Indian Penal Code, 1860. It aims to modernize, simplify, and Indianize the criminal law system by addressing contemporary crimes, ensuring faster justice, and enhancing victim rights.
2. Why was the Indian Penal Code, 1860, replaced?
The IPC was drafted during British rule and carried colonial overtones. Many provisions were outdated or irrelevant in today’s context. The BNS replaces such provisions with progressive laws that align with constitutional principles and Indian societal realities.
3. Has sedition been removed under the BNS?
Yes. Section 124A of the IPC, which criminalized sedition, has been repealed. It has been replaced with a provision punishing acts endangering the sovereignty, unity, and integrity of India, but this new clause has also raised concerns about potential misuse due to vague language.
4. Is BNS more victim-friendly than IPC?
Yes. BNS mandates time-bound trials (e.g., for rape cases), recognizes victims’ rights to information and participation, and emphasizes sensitivity in handling crimes against women and children. It also promotes restorative justice by introducing community service for minor offences.
5. How does the BNS address digital and cybercrimes?
The BNS includes explicit provisions to handle modern crimes like cyberbullying, online impersonation, deepfake technology, and data theft. It also formally recognizes electronic records and digital evidence for trial purposes.
6. What is the significance of including community service in sentencing?
Community service offers a reformative alternative to imprisonment, especially for first-time and non-violent offenders. This aligns with global trends and helps reduce the burden on India’s overpopulated prisons.
