MAJOR CHANGES BROUGHT IN THE BNS 2023
The main object of the Bharatiya Nyaya Sanhita, 2023 was to get India legal system free from the colonial influence deep-rooted in our judicial structure. To fulfil this object the new substantive law has made several major and minor changes despite the fact that more than ninety percent provisions of the Indian Penal Code, 1860 have been retained in the BNS, 2023. Changes made or new provisions added in the BNS have gone through scrutiny by various luminaries of legal fraternity as it having been passed when 144 parliamentarians, members of both houses, were suspended over a different issue. Chief Justice of India DY Chandrachud praised new laws calling them a “significant step”[1].
A major change, inter alia, brought in the Bharatiya Nyaya Sanhita, 2023 is the insertion of the word ‘Nyaya’(Justice) instead of word ‘Penal’ as placed in the IPC,1860. The government propagated this idea with the assurance that new law has been drafted keeping in mind the delivery of justice unlike IPC, 1860 which was drafted with the intent of punishing. Though, this rhetoric can be good for oratory but mere nomenclature, sometimes, does not do justice with the contents coming after the title.
Community Service- a new punishment- The Bharatiya Nyaya like the IPC provides for punishments to which offenders are to held liable. Section 4[2] of the BNS, corresponding section of section 53[3] of the IPC, provides for types of punishments. The reformative approach to punishment should be the object of criminal law for sake of social justice[4]. As per section 53 of the IPC,1860 offenders could be held liable for Death, Imprisonment for life. Imprisonment of two descriptions, namely (a) rigorous and (b) simple, Forfeiture of property and Fine. The BNS follows its predecessor except with one deviation that is ‘community service’ as form punishment. however, it has been left at the discretion of the judge to decide whether to sentence the accused with community service or not. Persons accused of minor offence or himself being a minor are to be given priority while imposing community service. Although, days before the BNS came into effect, courts have been directing the accused to render community service. In many cases even before the BNS and after it, courts have imposed community service as a punishment on the accused.
- Offences against woman and child- The BNS codifies offences against woman and child in one chapter that is Chapter V covering sections 63 to 99 whereas under the IPC,1860 they were spread over different chapters. However, this move can only be for the purpose of convenience.
- Mob Lynching- There has been a lot of talk about mob lynching[5]. Pursuant to the instructions delivered by the Hon’ble Supreme Court in the case of Tehseen S. Poonawalla v. Union of India & Others[6] the BNS has included mob lynching as separate offence under section 103(2) realizing the seriousness of the crime[7]. Though, section 103(2) does not explicitly mention the phrase ‘mob lynching’ but from the language of it has used the legislative intent can be extracted. The said section clarifies that to constitute the offence of mob lynching minimum five persons are required who have committed murder acting in concert meaning thereby to achieve a common goal. The incident of mob lynching can happen on the ground of race, caste, community, sex, place of birth, language personal belief or any other similar ground.
The mentioning of ‘or any other similar ground implies that list of grounds mentioned in the section is not exhaustive and can be extended to any similar grounds which may arise. All efforts to deal mob lynching separately was made with the motive of curbing the increasing social unrest.
- Hit-and-Run offence- As figures suggest, India stands among most infamous nations when it comes to the incidents of road accident. The BNS has given more attention to this issue than its predecessor. Section 106(2)[8] stipulates the imprisonment of either description of a term which may extend to ten years, and shall also be liable to fine. The said section states if death of a person is caused due to rash and negligent driving of vehicle which does not constitute culpable homicide and the driver flees without informing a police officer or a Magistrate shall attract punishment of this section. However, if the driver reports to a police officer or a Magistrate about the incident soon after it takes place, he shall be tried under section 106(1).
The National Crime Records Bureau reported 47,806 cases of hit-and-run incidents which resulted in the deaths of 50,815 people in 2022 alone[9]. Due to this provision, nationwide protests were called on by transporters and commercial drivers. Though, due to the widespread protests against the said provision, Section 106(2) has been put on hold by the government but the concern of the stakeholders is that this provision leaves them completely at the mercy of either police or uncontrollable crowd. Most of the time vehicle driver flees after the accident fearing brutal treatment in the hands of violent public.
- Terrorist act- After having been revised the BNS broadened the meaning of terrorism, including threat to economic security[10]. The BNS has included the terrorist act as an offence despite the fact that issue is already dealt under the Unlawful Activities (Prevention) Act, 1967 [11]which is a special law. Section 113 of the BNS defines the terrorist and also provides the punishment for the said offence[12]. Further, to clarify and for the removal of doubts, Explanation to section 113 of the BNS provides that the officer not below the rank Superintendent of Police shall decide either to proceed with BNS or UAPA. Both of the statutes give almost similar sentence to the convict that is death sentence or imprisonment for life and he shall also be liable to fine.
- Acid attack- The offence of acid attack still remains a curse on our society and this issue was dealt under the IPC, 1860 as well. After the recommendation of the J.S. Verma committee, which was constituted in response to the Nirbhaya case, under the general exceptions of the IPC, to cause death in apprehension acid attack was inserted under section 100 as an act of private defence. Previously, the IPC, 1860 provided punishment for acid attack, however, the BNS, 2023 has provided for more stringent punishment for the said offence. Section 124[13] of the new law provides in the bold statement that causing permanent or partial damage or deformity to, or burn or maim or disfigurement or disablement, any part of parts of the body of a person or causing grievous hurt by the use of acid shall attract the imprisonment of either description which shall not be less than ten years and may also extend to imprisonment for life, and with fine. Fine imposed must be sufficient to meet medical expenses of the victim and the said fine shall be paid to the victim. Person attempting to commit said offence using acid shall be liable to be punished with imprisonment of either description of for a term not less than five years which may also extend to seven years, and shall also be liable to fine. Here, intention has been made essential to establish the offence.
- Act endangering sovereignty, unity and integrity of India-The law of sedition appears to be colonial in nature and was introduced with a sole objective of suppress the dissent[14]. The provision of sedition has been completely omitted by the BNS instead a new provision, widening the scope the concept, has been added under section 152[15] with the marginal note ‘Act endangering sovereignty, unity and integrity of India. The Apex Court in the case of S.G. Vombatkere v. Union of India[16] had directed the government to refrain from invoking sedition law under section 124A of the IPC calling it to be not in sync with the social background. Sedition was not included in the original text of the IPC, 1860 and it came only into effect in 1870 to silence the voice advocating for toppling colonial regime.
By not deviating from the Supreme Court directions, government abstained from including sedition in the BNS explicitly, but section 152 of the new substantive law has not only widened the scope of sedition without mentioning the name but also enhanced the punishment. A person having been convicted under section 152 of the BNS could be awarded with imprisonment for life or with imprisonment which may extend to seven years, and shall also be liable to fine. However, the Supreme Court in Kedar Nath Singh vs State of Bihar[17] held mere criticism of government or of its policies would not under the purview of sedition.
- Organized crime- The IPC did not have any provision for organized crime. But the BNS has included organized crime a s new offence under section 111 stating that any continued unlawful activity including kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offence, cyber-crimes, trafficking of persons, drugs, weapons or illicit goods or services, human trafficking for prostitution or ransom, by any person or a group of persons acting in concert, singly or jointly, either as a member of an organized crime syndicate, by use of violence, threat of violence, intimidation, coercion, or by any other unlawful means to obtain direct or indirect material benefit including a financial benefit, shall constitute organized crime.[18] Here the phrase used ‘organized crime syndicate’ implies a group of at least two persons acting in concert, either acting singly or jointly.
Result of the organized crime is very important for the purpose of ascertaining the punishment as based on the different outcomes of the said offence the penalties also vary. For example, if the offence results in the death of victim, punishment either may be death sentence or may be imprisonment for life and the offender shall also be liable to fine which shall not be less than ten lakh rupees. If such offence does not result in the death of any person, the minimum punishment shall be not less than five years imprisonment which may extend to imprisonment for life with the fine of five lakh rupees.
- Sexual harassment- The BNS, seemingly determined to curbing the offences against women more effectively than its predecessor, has included sexual harassment as a separate offence under section 75.[19] The said offence was at discussed in detail in Vishaka & Ors. vs State of Rajasthan[20], however, under the BNS the offence still continues as gender specific making male as the sole offender regardless of the fact that sexual offence is no longer a gendered wrong. Unfortunately, in our society, victim of a sexual offence, especially of rape, is treated worse than the perpetrator of the crime[21].
Section 75 outlines the list of acts amounting to sexual from clause (i) to (iv) of sub-section (1). Acts which amount to sexual harassment are as follows- a. physical contact and advances involving unwelcome and explicit sexual overture, b. a demand or request for sexual favours, c. showing pornography against the will of the woman, d. making sexually coloured remarks. A man found having committed any of the acts specified in clauses (i) to (iii) shall be punished with rigorous imprisonment for a term which extend to one, or with fine, or with both. A man convicted of offence specified in clause (iv) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
- Hate speech- As visible due to easy access of technology, hate speech has become tool for promoting hatred among different groups. Section 196[22] of the BNS, 2023 deals with issue not explicitly using the phrase ‘hate speech’ instead using a long marginal note to widen the applicability of the section which reads as ‘Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc, and doing acts prejudicial to maintenance of harmony. The said section penalizes the person promoting or attempting to promote hatred among people, through words either spoken or written, or by signs or by visible representations or through electronic communication or otherwise, on various grounds such as religion, race, place of birth, residence, language, caste or community or any other grounds. Organising any exercise, movement, drill with the aim to promote disharmony has also been made under this section. Punishment for the offence mentioned above shall be imprisonment which may extend to three years, or with fine, or with both. However, committing such offence in a place of worship or at a religious gathering shall be punishable with five year and shall also be liable to fine. Recently, Justice Shekhar Kumar Yadav, a sitting judge of the Allahabad High Court, on 8th December, 2024, made a controversial statement targeting a religious group at a gathering of Vishwa Hindu Parishad. Amid growing of the removal of Justice Shekhar, by the opposition members, Rajya Sabha chairman, Jagdeesh Dhankhar, said only parliament had authority to deal with the issue[23]. The question raised by this issue is that when a sitting judge of a higher judiciary makes mockery of the of the Constitutional values with such confidence how would it impact sections already radicalised?
- Attempt to commit suicide- A major shift from the IPC, 1860 made under the BNS, 2023 is that latter has made the provision relating to attempt to commit suicide less stringent. Section 226[24] of the BNS, 2023 takes reformative measures while dealing with the issue of attempt of suicide. Section 309 of the Indian Penal Code punishes the person attempting to commit suicide. As per the verdict of the Supreme Court of India, right to life does not include right to die[25]. The Mental Healthcare Act, 2017 decriminalizes the attempted suicide for all purposes. The rationale behind the decriminalization of attempted suicide is that a person willing to take away his own life needs care rather than punishment. Only a person suffering from any kind of distress or mental problem will attempt to end his life. Section 226 of the BNS states if a person attempts to commit suicide with the intent of compelling or restraining a public servant from discharging his lawful duty shall be punished with simple imprisonment which may extend to one year, or with fine, or with both, or with community service. On reading section 226, it can be understood that if a person attempts to commit suicide without the intent mentioned under the said section will not be liable to any penalty.
- Snatching- Snatching has been dealt separately under new substantive law declaring the offence a specific form of theft. Section 304 of the BNS states with regard to the said offence that, theft is “snatching” if, in order to theft, the offender suddenly or quic
kly or forcibly seizes or secures or grabs or takes away from any person or from his possession any moveable property[26]. Any person found guilty of the offence provided under section 304 of the BNS, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
- Mere having counterfeit coin or currency note is not an offence- Chapter X of the BNS encompassing sections 178 to 188 deals with the offences relating to coin, currency-notes, bank-notes, and government stamps. Section 180 of the said statute criminalises the possession of any forged or counterfeit coin, Government stamp, currency-notes or bank-notes if the person in possession of these things has an intention to use the same as genuine despite knowing it to be forged or counterfeit[27]. Punishment shall be imprisonment of either description for a term which may extend to seven years, or with fine, or with both. Further, explanation to this section provides that where the person in possession of any of abovementioned things establishes that he has got these things from a lawful source, shall not be liable to any punishment. Now, it is clear that mere possession of forged or counterfeit coin, Government stamp, currency-notes or bank-notes is not an offence.
Besides the provisions mentioned above, there have been made several other major and minor changes in the BNS which relate to the offences against woman, child, etc. A thorough reading of the BNS suggests that new law could have been made more updated. Changes done are so minimal that it could have been done by amending the IPC instead of replacing it. One of the biggest flaws of the new law is that it has failed to make various offences gender-neutral. However, for voyeurism in the BNS, which was more gender specific offence under the IPC, it has been placed under section 77 [28]that perpetrator of any gender.
Now, the provisions of unnatural offences| and adultery have been completely omitted. The apex court, in the case of Navtej Singh Johar vs Union of India[29], partly decriminalized section 377 of the IPC explicitly dealing with homosexuality while not touching the other part of the said section. In its landmark judgement delivered in the case of Joseph Shine vs Union of India[30], the Supreme Court had struck down section 497 of the IPC. Though, the BNS has completely omitted these provisions.
Judicial system of India, being more adversarial in practice, has been suffering from delayed delivery of justice. “Our criminal justice system is often seen as slow, ineffective, and tilted against the marginalized, requiring urgent reform to ensure fairness and efficiency”[31]. The BNS was promised by the government would remove loopholes of IPC, marking a new path to the justice system. Getting separated from more than one and half century old legal scriptures was undoubtedly a positive move towards the modernization of legal system but things would have been different and more beneficial if such an important legislation had been passed taking into consideration the views of all stakeholders.
Mere moving away from nomenclature might be looking fascinating but real test lies in the main texts of a statute which convey legislative intent behind enactment. One of the biggest concerns of the people of India still remains the delayed trial. Despite several reminders of the courts, our judicial system is too taking to be tolerated. Deepak Mishra J., opined, “No civilised system can permit an accused to die awaiting trial. Expeditious justice is a fundamental right.”[32]
At some places, the BNS apparently seems it has taken reformative move to liberalise criminal legal system like it has omitted provision which would criminalize attempt to commit suicide. The punishment of criminals should serve as a deterrent, but not be severe as to degrade human dignity.[33] The retention of provisions of the IPC in the BNS suggests rather than abolishing the latter has consolidated the former. Due to non-retrospective application of criminal laws as mandated under clause (1) of article 20 of the Constitution, majority of the criminal matters pending before various courts across the country are being dealt under the IPC, 1860.
[1] Vivek Kumar, “Chief Justice of India DY Chandrachud Praises New Criminal Laws, Calls Them a ‘Significant Step’ for Justice System,” India Today (Apr. 2, 2024), https://www.indiatoday.in/law/story/chief-justice-of-india-dy-chandrachud-new-criminal-laws-modernise-justice-system-2521979-2024-04-02 (last visited Feb 10, 2025).
[2]Bharatiya Nyaya Sanhita (Act 45 of 2023), s. 4
[3] Indian Penal Code (Act 45 of 1860), s 53
[4]Narotam Singh vs State of Punjab, AIR 1978 SC 1542.
[5] HT Correspondent, “BNS Bill Introduces Death Penalty for Mob Lynching in Overhaul of Indian Penal Code: Amit Shah,” Hindustan Times (Aug. 11, 2023), https://www.hindustantimes.com/india-news/bns-bill-introduces-death-penalty-for-mob-lynching-in-overhaul-of-indian-penal-code-amit-shah-101691761684265.html (last visited Feb. 12, 2025).
[6] (2018) 9 SCC 501
[7]Bharatiya Nyaya Sanhita (Act 45 of 2023), s. 103(2)
[8]Bharatiya Nyaya Sanhita (Act 45 of 2023), s. 106(2)
[9]Concerns Over Hit-and-Run Law, Drishti IAS (Feb. 14, 2024), https://www.drishtiias.com/daily-updates/daily-news-analysis/concerns-over-hit-and-run-law (last visited Jan. 21, 2025)
[10] ET Online, “Redrafted Bills Broaden Definition of Terrorism, Include Threat to Economic Security,” The Economic Times (Dec. 13, 2023), https://economictimes.indiatimes.com/news/defence/redrafted-bills-broaden-definition-of-terrorism-include-threat-to-economic-security/articleshow/105952521.cms (last visited Jan. 25, 2025).
[11] Unlawful Activities (Prevention) Act (Act 37 of 1967)
[12]Bharatiya Nyaya Sanhita (Act 45 of 2023), s. 113
[13]Bharatiya Nyaya Sanhita (Act 45 of 2023), s. 124
[14] Upendra Baxi, The Crisis of the Indian Legal System, 74-78 (Vikas Publishing House, New Delhi, 1stedn. 1982).
[15]Bharatiya Nyaya Sanhita (Act 45 of 2023), s. 152
[16] (2022) 7 SCC 433
[17] AIR 1962 SC 955
[18]Bharatya Nyaya Sanhita (Act 45 of 2023), s. 111
[19]Bharatiya Nyaya Sanhita (Act 45 of 2023), s. 75
[20] AIR 1997 SUPREME COURT 3011
[21] Nipun Saxena vs Union of India, AIR 2018 SC 826
[22]Bharatiya Nyaya Sanhita (Act 45 of 2023), s.196
[23] Satya Prakash, VP: Only Parliament Entitled to Deal with Justice Yadav’s Removal, The Tribune (Feb. 26, 2025), https://www.tribuneindia.com/news/india/vp-only-parliament-entitled-to-deal-with-justice-yadavs-removal/ (last visited Feb. 30, 2025).
[24]Bharatiya Nyaya Sanhita (Act 45 of 2023), s. 226
[25]Gian Kaur v. State of Punjab, AIR 1996 SC 946, 1996 SCC (2) 648
[26]Bharatiya Nyaya Sanhita (Act 45 of 2023), s. 304
[27]Bharatiya Nyaya Sanhita (Act 45 of 2023), s. 180
[28]Bhartatiya Nyaya Sanhita (Act 45 of 2023), s. 77
[29] AIR 2018 SC 4321
[30] (2019) 3 SCC 39, AIR 2018 SC 4898
[31] V.R. Krishna Iyer, Equal Justice and Forensic Process: Truth and Myth, 15 (Eastern Book Company, Lucknow, 1stedn. 1986).
[32] Hussain &Anr vs Union of India, (2017) 5 SCC 702
[33] James Fitzman Stephen, A History of the Criminal Law of England, 81 (Macmillan, London, 1883).