Author: Sahajal Meena, Dharmashastra National Law University
To the Point
Colonial Laws Replaced: On July 1, 2024, India repealed the Indian Penal Code (1860), Code of Criminal Procedure (1973) and Evidence Act (1872) and replaced them with three new laws – “the Bharatiya Nyaya Sanhita (BNS) 2023, Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, and Bharatiya Sakshya Adhiniyam (BSA) 2023.”
Citizen-Centric Reforms: The government touts these as “citizen-centric” reforms (PIB/Ministry release) prioritizing crimes against women and children and modernizing punishments. For example, all offences against women and children are now in one chapter with harsher penalties (e.g. gang-rape of a minor can attract life or death imprisonment). Many provisions are now gender-neutral (e.g. women can receive summons for a family member).
Controversies & Concerns: Critics charged the overhaul was rushed through without adequate debate. Opposition leaders warned of “disarray” and confusion in trials. Some provisions (like a new Section 152 BNS on secession) sparked fear of revived sedition-type laws. Nonetheless, supporters (including CJI Chandrachud) call it a “watershed moment” moving India away from colonial codes.
Key Legal Changes: Major procedural and substantive changes include:
Undertrial Bail (BNSS §479): Caps on pre-trial detention (half of maximum sentence; only one-third for first-time offenders), applied retrospectively to all existing undertrial cases.
FIR and Investigation (BNSS §173 & §175): Unlike old CrPC §154, BNSS §173 now mandates a preliminary inquiry for offences punishable 3–7 years. BNSS §175 (vs. CrPC §156(3)) requires magistrates to hear police objections and issue reasoned orders before ordering an investigation.
Custodial Limits (BNSS §187): Police custody (15 days max) must be sought within the first 40 days of investigation for offences up to 10 years.
Expanded Rights: SC has held that BNSS/CrPC arrest and bail safeguards apply even to arrests under GST and Customs Acts. Anticipatory bail is available in these tax cases as well.
Judicial Oversight: In its first year, the Supreme Court has begun interpreting these statutes. Notable rulings include applying the new bail provisions in money-laundering cases, closing outdated challenges (such as the summons case rendered moot by BNSS), and emphasizing free speech limits (e.g. applying a “reasonable person” standard to BNS §196 promoting enmity cases).
Use of Legal Jargon
Cognizable Offence:A cognizable offence is a crime for which police can register a case and arrest the accused without prior approval from a magistrate.Under BNSS, lower offences (3–7 years) may first require a preliminary inquiry (per §173(3)).
Bail is the temporary release of an accused person from custody, usually under certain conditions and with a guarantee to appear in court when required.
Cognizance: Formal acceptance of a charge by a court. BNSS §223(1) (new) and its proviso mandate that in PMLA cases the accused must be heard before cognizance.
Prima Facie Case: The initial evidentiary threshold. Under BNSS §173(3), police may make a 14-day inquiry (with a senior officer’s permission) to decide if a prima facie case exists, before registering an FIR.
Quash/Challenge: To invalidate a proceeding or law. The Supreme Court has quashed FIRs for lack of fair hearing (e.g. Kushal Kumar Agarwal v. DE) and closed petitions rendered infructuous by the new codes (e.g. challenge to CrPC §64 on summons).
Substantive vs Procedural Law: Substantive law defines offences and punishments (e.g. BNS defines crimes and penalties), whereas procedural law (BNSS, BSA) governs how trials proceed. Both aspects were overhauled simultaneously by Parliament.
Section Citations: We refer to provisions of the new laws and their old counterparts.
The Proof
The legal changes are grounded in official law texts and authoritative statements. The Ministry of Home Affairs explicitly states that the new laws “provide accessible and affordable justice” and create a more “citizen-centric” structure by repealing the colonial codes. The above three Acts [IPC, CrPC, Evidence Act] have been repealed and replaced by… BNS, BNSS, and BSA, respectively. In the new BNS, offences against women and children are given special emphasis (Chapter V), with significantly harsher punishments . Many old offences have been modernized: for instance, BNS introduces a new offence of sexual exploitation by false promise of marriage or employment, and completely omits the colonial-era sodomy law (Section 377 IPC).
The government also “gender-neutralised” various procedural provisions. The CrPC’s former Section 64 (service of summons on a male family member) has been replaced in BNSS §66 by “some adult member”. “Women have been recognized as an adult member of [the] family who can receive summons,” the MHA states. “Some adult member” has been used in place of the previous reference to “some adult male member.” Additional victim-centric measures were also included, such as the need that victim statements be captured on audio and video and, in the event of rape, preferably by female magistrates. Section 152 BNS now criminalizes secession/armed rebellion and subversive acts (reviving sedition in new form), though without using the word “sedition”. Critics warn this has “reintroduced” sedition in effect.
Procedure-wise, the BNSS adds explicit safeguards against arbitrary action. For example, BNSS §175(3) (replacing CrPC §156(3)) requires that if a complaint is refused FIR-registration by police, an application must first go to the Superintendent of Police (with affidavit) and the magistrate must consider the police officer’s written submissions. The Supreme Court emphasized that this empowers magistrates to inquire and give a fully reasoned order, not simply rubber-stamp a police request. Crucially, BNSS §173(3) mandates a 14-day preliminary inquiry to determine whether a case may move forward for infractions carrying a maximum sentence of seven years. This is a marked departure from CrPC §154 (which required mandatory FIR registration without prior inquiry). The Supreme Court (CJI-led benches) has been careful to uphold constitutional safeguards under the new codes.
In Radhika Agarwal v. Union of India (2025), the Court held that arrest and bail rights of the Code (now BNSS) apply equally to arrests under the GST and Customs Acts. It reiterated that even tax authorities must respect people’s liberty – for example, anticipatory bail is available under these Acts too.
Meanwhile, the courts have also given life to Section 479 BNSS. Section 479 caps undertrial detention: no one can be held beyond half the maximum sentence (one-third for first offenders) without bail. This was applied retroactively by the SC to all cases filed prior to July 1, 2024. Jail authorities were ordered to identify eligible prisoners (especially women) for release under §479. In Badshah Majid Malik v. Enforcement Directorate (2024), the SC granted bail in a PMLA case because the accused had served over one-third of his max sentence, as per the new BNSS §479(1) proviso.
Not all changes have been challenged or fully tested yet. For example, a PIL seeking to re-criminalize consensual homosexual acts (based on the omission of old IPC §377) was dismissed; the Court held it could not direct Parliament to legislate new offences. And in Re-Inhuman Conditions in 1382 Prisons (2024), the SC applied §479 BNSS nationwide to decongest jails. Other cases clarified procedural transitions: e.g. Ambadkar v. Maharashtra (2025) noted that BNSS requires magistrates to “apply mind” and issue reasoned orders under the new Section 175(3), closing abuse of mechanical FIR orders.
Taken together, these legal provisions and court rulings “prove” that India’s criminal law is undergoing a deep transformation. They show both the novel content of the new codes (as per official reports) and the judiciary’s interpretation of them (as per recent judgments).
Abstract
In mid-2025, India’s criminal justice system faces a historic shift. On July 1, 2024 the government replaced all colonial-era criminal laws with three new Acts – the Bharatiya Nyaya Sanhita (substantive offences), Bharatiya Nagarik Suraksha Sanhita (criminal procedure) and Bharatiya Sakshya Adhiniyam (evidence). The impact of these measures in the first year is examined in this article. It outlines the key changes (strengthened women’s protections, new bail rules, updated provisions on offences like secession/sedition and hate speech), the controversies they sparked (criticism over rushed enactment and potential rights gaps), and how courts have applied them. We examine relevant statutes and landmark case law, highlighting how provisions like BNSS §479 (capping undertrial detention) and BNSS §175 (FIR-refusal safeguards) are being operationalized. The article aims to provide a thorough legal overview – including statutory citations and SC decisions – so that readers understand both the substance of the new laws and their unfolding jurisprudence. In conclusion, we assess the benefits and challenges of this legislative overhaul and answer frequently asked questions on the topic. The analysis relies on official releases (Ministry and PIB reports) and recent judgments to ensure accuracy.
Case Laws
Re: Inhuman Conditions in 1382 Prisons v. DG of Prisons (SC 2024, Writ Petition (C) No. 406/2013): decided that the bail limitations in BNSS §479 are retroactive. All undertrial prisoners in cases registered before July 1, 2024 become eligible for release under the new law.
Pooja Sharma v. Union of India (SC 2024, W.P.(Crl.) No. 398/2024): PIL seeking to criminalize sexual acts omitted by BNS (e.g. consensual gay sex, bestiality) was refused. The Court (Chandrachud, Pardiwala, Misra) reiterated it cannot direct Parliament to create new offences.
Badshah Majid Malik v. Directorate of Enforcement (SC 2024, Special Leave Petition): Applied BNSS §479 to a PMLA money-laundering case. Since Malik had been detained beyond one-third of the max sentence, the Court granted bail under §479’s first proviso, analogizing old CrPC §436A jurisprudence to BNSS. This affirmed that BNSS bail provisions extend to special statutes.
In re: Inhuman Conditions (1382 Prisons) [Women’s Release] (SC 2024, WP(C) 824/2020): SC directed jail superintendents to identify female prisoners eligible for release under BNSS §479. The Court noted §479 is gender-neutral but emphasized actively freeing women (e.g. where charges were later reduced).
Kush Kalra v. UoI (SC 2024, S.L.P. (Crl.) 13154/2022): Petition challenging Section 64 CrPC (summons to male family member) was dismissed as “infructuous” because BNSS §66 already removed the male-only rule. The bench observed Parliament “redressed” the grievance in the new law.
Hyder Ali v. State of Karnataka (SC 2025, Special Leave Petition): SC upheld Karnataka HC’s interpretation of BNSS §187: 15-day police custody for offences up to 10 years must be applied within the first 40 days of investigation. This means custody cannot be granted beyond Day 40. The state’s SLP was dismissed.
Imran Pratapgadhi v. State of Gujarat (SC 2025): In a Section 196 (promoting enmity) BNS case, the Court quashed an FIR arising from a political poem. It held that words must be judged by the standard of a “reasonable, firm individual,” not an “insecure” person who sees criticism as a threat. The judges reiterated the importance of free speech (citing the Constitution and Preamble) and noted that for BNS §196 offences (3–7 year cases), a preliminary inquiry under BNSS §173(3) should precede any FIR.
Kushal Kumar Agarwal v. Directorate of Enforcement (SC 2025): The Court held that under BNSS the special PMLA court must give the accused an opportunity to be heard before taking cognizance of an ED complaint (per the BNSS §223(1) proviso). It quashed a cognizance order because no hearing was given, stressing that this pre-cognizance hearing duty did not exist under old law. (The Court cited Tarsem Lal v. ED (2013) to analogize with CrPC §§200–204.)
Conclusion
India’s mid-2020s criminal law revision is a daring endeavor to restart a century of jurisprudence. The new BNS/BNSS/BSA are comprehensive and reformist: they strengthen protections for vulnerable victims, emphasize humane bail and custody norms, and remove blatantly archaic provisions. In their first year, courts have been instrumental in “fine-tuning” this reboot – expanding benefits to undertrials, clarifying procedural safeguards, and guarding constitutional rights under the new regime. Simultaneously, the transition has been tumultuous. Legal practitioners note confusion where old and new systems coexist, and some argue the reforms were “cut-and-paste” and poorly debated. Critics point out potentially overbroad clauses (e.g. the new sedition-like §152 BNS) and lament delayed or uneven implementation (several States were slow to apply §479 benefits). Such concerns underscore that mere enactment of laws is not enough; consistent judicial oversight and administrative action are needed to realize their promise. In summary, a year on the overhaul has yielded significant jurisprudence and begun delivering relief (e.g. faster releases for deserving undertrials) while also inviting scrutiny. The overall impact remains under observation. As more cases come up, the Supreme Court and High Courts will further interpret these statutes, shaping the practical future of India’s criminal justice. This article has detailed the current legal landscape – statutes and decisions – so readers can track how India’s new criminal laws evolve beyond their first anniversary.
FAQS
Q: What exactly changed on July 1, 2024?
A: India replaced the Indian Penal Code, CrPC, and Evidence Act with three new Acts – the Bharatiya Nyaya Sanhita (offences), Bharatiya Nagarik Suraksha Sanhita (procedure), and Bharatiya Sakshya Adhiniyam (evidence). These modernize and consolidate criminal law after decades of piecemeal changes. The government says this was to make justice “accessible and affordable” and “citizen-centric”.
Q: How do punishments for sexual offences change?
A: The new BNS prioritizes crimes against women and children (one chapter). It raises maximum penalties. Some new offences are added (e.g. sex by false promise). Importantly, BNS did not reinstate the old immoral law on homosexuality (Section 377 IPC); that remained removed (following Navtej Johar). A recent SC case noted BNS contains no offence for consensual homosexual acts and refused to direct Parliament to criminalize them. Q: Is there still a sedition law? A: The colonial IPC sedition clause (Section 124A) was repealed, but BNS introduced Section 152, which punishes secession, armed rebellion and “subversive activities”. In practice, this is widely seen as a rebranded sedition law. Section 152 is reportedly broader/more stringent than the old sedition provision. Its future will be shaped by challenges and jurisprudence.
Q: What is BNSS §479 and who benefits?
A: BNSS §479 is a new provision limiting how long an undertrial can be held without bail. It caps detention at half the maximum sentence for that offence (one-third for first-time offenders). The Supreme Court applied this rule retroactively to undertrials whose cases began before July 2024. This means many long-detained prisoners become eligible for bail. For example, under §479, the Court mandated that prisons identify women who qualify for release. Any undertrial (in any criminal category) who has served the appropriate fraction of the sentence may apply for release.
Q: How have courts interpreted these new laws so far?
A: The Supreme Court’s early decisions have clarified key points. It ordered the release of qualified undertrials and confirmed that the bail conditions of BNSS §479 apply even in PMLA (money-laundering) proceedings. It held magistrates must apply the BNSS FIR provisions (e.g. §175) to police refusal cases and ensure reasoned orders. It extended CrPC/BNSS arrest protections to GST/Customs laws. It also quashed FIRs that violated the new rules – e.g. quashing an FIR under BNS §196 (hate speech) on grounds that a “reasonable person” test should apply, and quashing a PMLA cognizance for failure to give a hearing under BNSS §223(1) proviso.
Q: What happened to the old CrPC procedures?
A: Many old sections have direct successors. For instance, BNSS §175 replaces CrPC §156(3), but adds requirements to involve senior police and give the accused’s side. BNSS §173(1) is like old CrPC §154 (FIR recording), but BNSS §173(3) newly allows a limited preliminary inquiry for certain offences. CrPC §§200–204 (trial of complaint) have equivalents in BNSS. Overall, investigations and trials now follow the BNSS procedures; however, SC has held that pending cases can still use old CrPC for matters up to cognizance, except where expressly changed.
Q: How do these laws affect arrest and bail in practice?
A: The new law codified many rights of the accused. For example, the SC reiterated in Radhika Agarwal that arrests under GST/Customs must follow the “reason to believe” standard (per Arvind Kejriwal v. ED), and anticipatory bail is available. Arrested persons now explicitly have access to legal aid (BNSS §168), medical assistance (BNSS §169), and prompt forwarding (BNSS §170) akin to old CrPC rights. Many of these protections were already in CrPC and remain under BNSS. On the flip side, police power to detain pre-trial was expanded (BNSS allows up to 60 days police custody in some cases), so bail rules like §479 are crucial counterbalances.
