BNS 2023 and the Future of Criminal Justice in India: Reform or Rebranding?

Author: Kanishka Panwar, NMIMS, Navi Mumbai

To the Point

India has replaced its colonial-era criminal laws — the Indian Penal Code (IPC) of 1860, Code of Criminal Procedure (CrPC) of 1973, and Indian Evidence Act of 1872 — with three new codes:
Bharatiya Nyaya Sanhita, 2023 (BNS)
Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
Bharatiya Sakshya Adhiniyam, 2023 (BSA)
These laws, in force since 1st July 2024, promise a criminal justice system that is “Indian in spirit” and rooted in technology, victim-centricity, and time-bound processes. However, while they introduce progressive provisions, concerns remain over terminological rebranding, police empowerment, and civil liberties.

Use of Legal Jargon

Mens rea – Mental element of crime
Procedural Due Process – Fair legal procedures
Custodial Torture – Abuse during police custody
Zero FIR – FIR lodged at any police station irrespective of jurisdiction
Digital Summons – Service of legal notice through electronic means
Presumption of Innocence – A foundational principle in criminal law
Adversarial System – A system where prosecution and defence contest
Inquisitorial Elements – Judge plays an active role in investigation
Victim-centric Justice – Focus on victim rights and rehabilitation
Reformative Theory of Punishment – Focus on reformation, not retribution

The Proof: Legislative Background

The Criminal Justice Reforms of 2023 stem from decades of recommendations:
Law Commission Reports (42nd, 156th, 177th, 243rd)
Justice Malimath Committee Report (2003)
Justice Verma Committee Report (2013)
Parliamentary Standing Committee on Home Affairs (2023)
The Government of India introduced the bills in August 2023, passed them in December 2023, and enforced them from 1st July 2024.

Abstract

This article provides a critical assessment of the three new criminal codes enacted in 2023, replacing archaic laws from colonial India. While the BNS, BNSS, and BSA promise a reformed legal structure with modern tools and victim-centricity, several provisions mirror earlier laws with minimal substantive change. The article assesses whether these reforms genuinely overhaul India’s criminal justice system or simply rebrand the old machinery.

Detailed Analysis of the Three Codes

1. Bharatiya Nyaya Sanhita, 2023 (BNS)
Replaces: Indian Penal Code, 1860
Total Sections: 358 (IPC had 511)
Key Additions:
Section 111: Mob Lynching – Now a separate offence (life imprisonment/death).
Section 113: Organised Crime – Punishable with life imprisonment or death.
Section 69: Terrorism – Defined and penalised for the first time in general penal law.
Section 86: Snatching – Defined separately from theft.
Section 20: Community Service – New mode of punishment for minor offences.
Section 73: Sedition removed? – IPC Section 124A scrapped, but replaced by Section 150 criminalising “acts endangering sovereignty, unity and integrity of India.”
Critical View:
Terminological change but conceptual retention: “Sedition” replaced, but vague language remains.
Expansion of offences: More granular definitions but risk of over-criminalisation.
Community service – Promising shift to reformative justice.
Concerns: Ambiguous terms like “subversive activities,” potentially prone to misuse.

2. Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
Replaces: Code of Criminal Procedure, 1973
Total Sections: 531 (CrPC had 484)
Key Provisions:
Zero FIR (Section 173): Valid across jurisdictions — a victim-friendly innovation.
Forensic Mandate (Section 176): Videography of crime scenes and compulsory forensic teams in heinous crimes.
E-Summons & Digital FIRs (Section 63): Moves toward paperless procedures.
Custody: Police custody can be split over 15 days during the first 40 or 60 days of remand.
Trials: Time limits for filing chargesheet (90 days), trials (2 years), and judgments (45 days from trial conclusion).
Victim Rights: Statements must be recorded within 30 days; victim’s presence during proceedings is ensured.
Critical View:
Greater police powers without equal safeguards.
Digital process may marginalise digitally illiterate persons.
Extended custody may conflict with Article 21 (right to life and liberty).
Positives: Timeline-bound trials, support for victims, and better evidence collection standards.

3. Bharatiya Sakshya Adhiniyam, 2023 (BSA)
Replaces: Indian Evidence Act, 1872
Total Sections: 170 (IEA had 167)
Key Provisions:
Admissibility of Electronic Evidence: Section 61 presumes authenticity of certified digital records.
Inclusion of Modern Evidence: DNA, voice samples, metadata, cloud data, CCTV footage — all now admissible.
Digital Certification: Chain of custody and source authentication formalised.
Witness Protection: No specific law, but emphasis on timely and secure testimonies.
Critical View:
Presumptions around digital records may affect presumption of innocence.
Risk of privacy violation in absence of a Personal Data Protection law.
Forensics as a double-edged sword – Reliable but needs proper regulation.

Comparative Snapshot: Old vs New

Parameter
Colonial Laws (IPC/CrPC/IEA)
New Codes (BNS/BNSS/BSA)
Language
Colonial English
Indianized and simplified
Victim rights
Neglected
Recognised and supported
Digital evidence
Limited treatment
Extensive recognition
Trial deadlines
Absent
Legally mandated
Police accountability
Minimal
Slightly increased
Sedition
Explicitly present
Implicitly retained
Mob lynching
No provision
Specifically penalised
Community service
Not recognised
Introduced


Case Laws & Legal Interpretation

Maneka Gandhi v. Union of India (1978) – Expanded Article 21; any procedure must be “just, fair and reasonable.”

D.K. Basu v. State of West Bengal (1997) – Safeguards against custodial torture; crucial in interpreting extended custody.

Selvi v. State of Karnataka (2010) – Forensic tests (like narco-analysis) without consent violate privacy.

State of Punjab v. Baldev Singh (1999) – Right against illegal search and seizure, relevant for new forensic laws.

Bachan Singh v. State of Punjab (1980) – “Rarest of rare” doctrine, still applicable under BNS for capital punishment.

Conclusion

The Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya Adhiniyam represent a momentous shift in Indian criminal law. While the intent to reform is evident through digitisation, inclusion of forensic tools, and victim-centric procedures, much of the structural and substantive law remains unchanged. The risk is that these reforms could become superficial rebranding unless complemented by:
Training of police and judiciary
Data protection laws
Judicial oversight and safeguards
Public legal education
India stands at the cusp of a criminal justice transformation. Whether it walks the path of true reform or cosmetic revision depends on execution, jurisprudence, and civil society vigilance.

FAQS

1: When did the new criminal laws come into effect?
– 1st July 2024.

2: Which laws have been replaced?
– IPC (1860) → BNS (2023)
– CrPC (1973) → BNSS (2023)
– Indian Evidence Act (1872) → BSA (2023)

3: Has sedition been abolished?
– The word “sedition” is omitted, but Section 150 of BNS introduces a similar offence for acts endangering sovereignty — this remains controversial.

4: What are the major innovations in BNSS?
– Zero FIR, e-FIR, mandatory forensics, split custody, and time-bound trials.

5: How are digital records treated under the BSA?
– They are admissible as evidence with presumptive authenticity, subject to digital certification.

6: Is this a complete reform of criminal law?
– Partially. While there are new mechanisms and terminology, core structures and challenges especially police discretion and due process gaps – largely persist.