Abstract
India replaced its three principal criminal statutes in 2023. The Bharatiya Nyaya Sanhita (BNS) took the place of the Indian Penal Code, 1860; the Bharatiya Nagarik Suraksha Sanhita (BNSS) replaced the Code of Criminal Procedure, 1973; and the Bharatiya Sakshya Adhiniyam (BSA) replaced the Indian Evidence Act, 1872. The stated purpose behind the exercise was to modernise the criminal justice system, make better use of technology and give victims a stronger place in the process.¹
Yet a new statute does not, by itself, produce a new system. Police stations, forensic laboratories, courts, prosecutors and legal-aid machinery must be able to implement what Parliament has enacted. This article asks whether the new laws actually strengthen constitutional governance and make State authorities more answerable for the way they use their powers. Using doctrinal research, it examines constitutional provisions, statutory changes and important Supreme Court decisions.
The laws do contain promising features: clearer recognition of electronic records, forensic investigation in serious cases, and time limits for certain procedures. But these gains may remain uneven if police discretion is not checked, infrastructure is inadequate, privacy is not protected, or digital processes exclude those without access to technology. The argument here is that the BNS, BNSS and BSA create real opportunities for reform, but their constitutional value will depend on implementation and on the willingness of courts and institutions to enforce safeguards in practice.
Introduction
Criminal law places extraordinary power in the hands of the State. The police may investigate, arrest and detain; prosecutors may frame charges; and courts may deprive a person of liberty after trial. These powers are necessary, but they are also dangerous when exercised carelessly or in bad faith. A criminal justice system must therefore do more than punish the guilty. It must restrain arbitrary action, protect the innocent and ensure that victims are not reduced to bystanders in their own cases.
Against this background, Parliament enacted the BNS, BNSS and BSA in 2023. The new laws came into force on 1 July 2024, subject to the notified commencement arrangements.¹ The government described them as a departure from colonial-era legislation and as a step towards a more efficient, accessible and technology-driven criminal justice system.
The question, however, is not whether the laws sound modern. It is whether they will change the experience of justice on the ground. A statutory requirement for forensic examination means little if laboratories are overburdened. A timeline for investigation or trial does not help much if police stations, prosecution offices and courts remain understaffed. Digital procedures may speed up paperwork, but they can also exclude people who lack internet access, devices or digital literacy.
This article therefore looks at the new criminal laws through a constitutional lens. It does not assume that replacing old legislation automatically amounts to progress. Instead, it asks whether the reforms improve State accountability, protect fundamental rights and respond to the practical difficulties that have long affected Indian criminal justice.
Research Problem and Question
The central problem addressed in this study is the gap between legal text and lived experience. Legislatures can create new procedures, but those procedures matter only if the institutions responsible for applying them have the capacity, willingness and supervision needed to follow them.
The main research question is whether the BNS, BNSS and BSA strengthen constitutional governance and State accountability, or whether their effect will remain limited by the structural weaknesses of the criminal justice system.
The article also considers whether the new laws offer adequate protection against arbitrary State action, whether they make investigation more transparent, and whether they improve access to justice for victims as well as accused persons.
Objectives
- To examine the constitutional principles that govern criminal justice in India.
- To identify the principal changes introduced by the BNS, BNSS and BSA.
- To assess their likely effect on State accountability, transparency and access to justice.
- To identify implementation challenges and suggest practical safeguards.
Methodology
The study adopts a doctrinal approach. It relies primarily on the Constitution of India, the BNS, BNSS and BSA, and relevant Supreme Court judgments. It also refers to parliamentary committee reports and legislative analyses, including material published by PRS Legislative Research.¹³⁻¹⁶
The method is analytical rather than empirical. Because the laws are relatively recent, this article does not claim to measure their success through field data. Its purpose is to examine what the legislation provides, interpret its constitutional implications, and identify the institutional conditions required for it to work as intended.
Constitutional Governance as the Benchmark
Criminal justice powers must operate within constitutional limits. Article 14 guarantees equality before the law and prohibits arbitrary State action. Article 21 protects life and personal liberty. Article 22 lays down safeguards concerning arrest and detention, while Article 20 protects a person from retrospective punishment, double jeopardy and compelled self-incrimination. Article 39A adds another important dimension by directing the State to secure equal justice and free legal aid.² ³
These provisions matter because the stakes in criminal proceedings are high. An unlawful arrest, a careless investigation or an endless trial can damage a person’s liberty, reputation and livelihood long before guilt or innocence is finally decided.
The Supreme Court has repeatedly emphasised these limits. In Maneka Gandhi v Union of India, the Court held that any procedure affecting personal liberty must be fair, just and reasonable.⁴ In D K Basu v State of West Bengal, it laid down safeguards to curb custodial abuse.⁵ In Hussainara Khatoon v State of Bihar, it linked a speedy trial to the protection of life and personal liberty under Article 21.⁶
These decisions continue to matter after the new laws. Parliament may rewrite procedure, but it cannot legislate away constitutional requirements. A provision does not become acceptable merely because it appears in a recently enacted statute.
State accountability is equally central. When police officers arrest someone, seize property, record evidence or delay a case, they must be able to explain and justify what they have done. Proper documentation, access to counsel, judicial supervision and meaningful remedies are not procedural luxuries. They are the mechanisms through which official power becomes visible and contestable.
The BNS: Substance, Discretion and Proportionality
The BNS replaces the IPC while retaining much of its underlying structure. It also introduces or reorganises provisions dealing with organised crime, terrorist acts and snatching. It recognises community service as a punishment for certain specified offences.⁷
These changes suggest an attempt to respond to newer forms of criminality and, in limited situations, to move away from imprisonment as the default response. Community service may be appropriate where the offence is not grave and where punishment can remain proportionate to the harm caused.
But adding new offences or changing statutory language does not ensure fair enforcement. Much depends on how broadly a provision is drafted, how police officers interpret it, and whether courts insist on proof of every ingredient of the offence beyond reasonable doubt.
Vague or expansive language can create space for selective enforcement. Where the State has wide discretion, the risk is not merely inconsistent application; it is the possibility that criminal law becomes a tool of harassment rather than a shield against wrongdoing.
The BNS should therefore be judged not only by the reforms it announces but by how it operates in practice. Courts must continue to protect the presumption of innocence, insist on reliable evidence and ensure that punishment remains proportionate. These are old principles, but they remain indispensable.
The BNSS: Speed, Technology and Institutional Capacity
The BNSS introduces several procedural changes. It provides for electronic communication and audio-video processes, requires forensic investigation in certain serious cases, and sets timelines for specified stages of criminal proceedings. These measures are clearly intended to reduce delay and improve case management.⁸
The forensic provision is particularly important. Where an offence carries a punishment of seven years’ imprisonment or more, scientific investigation may reduce overdependence on oral testimony or confessions. Proper forensic examination can also make evidence more reliable and help prevent wrongful conviction.
Yet the promise depends on capacity. Forensic science requires trained personnel, functioning laboratories, secure storage, proper collection methods and timely reporting. If these are missing, a legal requirement becomes a formality rather than a safeguard.
The BNSS also retains safeguards relating to the recording of information, arrest and the production of an arrested person before the appropriate authority. But the existence of a safeguard is not the same as its effective use. Consider an arrested person who cannot afford a lawyer, does not know the grounds of arrest, or does not understand how to approach a magistrate. On paper, the law may offer protection; in reality, that person may be unable to invoke it.
Digitalisation raises similar concerns. Electronic communication and digital records can make processes easier to track, but they presuppose reliable connectivity, suitable devices and basic digital competence. These assumptions do not hold equally across India, especially in rural areas and among economically disadvantaged communities.
There is also a privacy dimension. Digital systems collect, transmit and store sensitive information. Without strong data-protection practices, the same technology that improves efficiency can expose individuals to surveillance, leakage or misuse. Digital justice must therefore include accessible offline alternatives, adequate training and safeguards against unauthorised access.
The BSA: Electronic Evidence and Fair Trial
The BSA modernises the law of evidence by expressly recognising electronic and digital records. This is a necessary change. Criminal investigations now routinely involve CCTV footage, call records, chats, emails, location data and other digital material.⁹
Recognising electronic evidence is only the first step. The court must still ask whether the material is authentic, whether it has been altered, and whether it was collected and preserved properly. A message recovered from a phone may be relevant, but relevance alone does not make it reliable.
Chain of custody becomes especially important in digital cases. Unexplained gaps in handling, cloning, transfer or storage can seriously undermine the evidentiary value of electronic material. Courts must therefore scrutinise not only the content of digital evidence but also the process by which it reached the courtroom.
The defence must also have a real opportunity to test this evidence. Digital material is often technical, and an accused person without access to competent experts may be disadvantaged. If the prosecution can deploy forensic resources while the defence cannot, the appearance of technological progress may conceal an inequality of arms.
The BSA can help courts deal with modern evidence, but technology should assist the search for truth rather than replace judicial evaluation. The court’s task remains to decide whether the material before it is trustworthy.
Statutory and Judicial Analysis
The new laws must be read alongside the Constitution. Articles 14 and 21 require fairness and restraint in the exercise of State power. Articles 20 and 22 impose specific limits on punishment, self-incrimination, arrest and detention.²
Earlier Supreme Court decisions remain directly relevant. In Selvi v State of Karnataka, the Court held that involuntary administration of narco-analysis, polygraph and brain-mapping tests violated protections relating to personal liberty and testimonial compulsion.¹⁰ The message is clear: investigative convenience cannot override fundamental rights.
In Arnesh Kumar v State of Bihar, the Court warned against mechanical arrests and stressed compliance with statutory safeguards.¹¹ That warning remains important under the BNSS. Arrest should not become the automatic first response to every allegation.
In Zahira Habibulla H Sheikh v State of Gujarat, the Court emphasised fair trial as a constitutional value.¹² A fair trial protects the accused, but it also serves the victim and society by making the outcome credible.
These cases show that fairness cannot be reduced to statutory wording. It depends on how police exercise discretion, how magistrates supervise investigation, how prosecutors present evidence, and whether both sides receive a genuine opportunity to be heard.
Procedural safeguards become meaningful only when supported by accurate records, accessible legal aid, independent scrutiny and consequences for serious misconduct. Without these, constitutional rights may remain formally recognised but practically unavailable.
Findings
The analysis supports the following observations:
- The BNS, BNSS and BSA introduce meaningful reforms, especially in relation to electronic evidence, forensic investigation and certain procedural timelines.⁷⁻⁹
- These reforms may improve investigation and case management, but their impact cannot be assumed from the text of the statutes alone.
- State accountability requires more than rules; it requires oversight, documentation, legal assistance and effective remedies.
- Digitalisation and forensic science can improve the quality of evidence, but only where infrastructure, trained personnel and privacy safeguards exist.
- Victims’ rights and accused persons’ rights must be strengthened together. Improving the position of victims should not dilute the presumption of innocence or the prosecution’s burden of proof.
- Because the laws are new, their long-term effect should be assessed using reliable data on investigation, trial delay, forensic capacity and compliance with safeguards.
Conclusion and Suggestions
The BNS, BNSS and BSA represent a significant moment in India’s criminal justice history. They attempt to respond to contemporary investigative needs, recognise digital evidence and streamline certain procedures. These are genuine advances.⁷⁻⁹
But legislation alone cannot solve delayed trials, weak forensic capacity, inadequate legal aid or inconsistent police conduct. These problems require institutional reform alongside statutory change.
First, Adequate Funding and Infrastructure
First, police stations, forensic laboratories, prosecution offices and courts need adequate funding, staffing and technology. Without these, many of the laws’ promised benefits will remain difficult to realise.
Second, Transparency and Public Data
Second, governments should publish dependable data on investigation periods, case disposal, forensic capacity, custodial complaints and compliance with procedural safeguards. Public information is one of the simplest ways to expose implementation gaps.
Third, Accessible Digital Justice
Third, digital procedures must not become a barrier to justice. Those without internet access, devices or digital skills need practical alternatives, assistance and language support.
Fourth, Accountability and Independent Oversight
Fourth, there must be effective mechanisms to examine complaints against officials who misuse power, make unlawful arrests or mishandle evidence. Judicial oversight, independent scrutiny and meaningful remedies are essential if accountability is to be more than a slogan.
Finally, Legal Aid and Defence Training
Finally, legal-aid lawyers and defence counsel need training and resources to handle electronic and forensic evidence. Courts, for their part, must continue to apply constitutional safeguards while interpreting the new provisions.
The success of the new criminal laws will not be measured by the fact that old statutes were replaced. It will be measured by how individuals are treated during investigation, whether arrests are properly justified, whether evidence is reliable, and whether trials are fair and timely. In the end, constitutional governance depends on whether the State can exercise its powers effectively without betraying the rights it is constitutionally bound to protect.
Bibliography
Legislation
- Constitution of India.
- Bharatiya Nyaya Sanhita, 2023.
- Bharatiya Nagarik Suraksha Sanhita, 2023.
- Bharatiya Sakshya Adhiniyam, 2023.
- Indian Penal Code, 1860.
- Code of Criminal Procedure, 1973.
- Indian Evidence Act, 1872.
Cases
- Arnesh Kumar v State of Bihar (2014) 8 SCC 273.
- D K Basu v State of West Bengal (1997) 1 SCC 416.
- Hussainara Khatoon v State of Bihar (1980) 1 SCC 81.
- Maneka Gandhi v Union of India (1978) 1 SCC 248.
- Selvi v State of Karnataka (2010) 7 SCC 263.
- Zahira Habibulla H Sheikh v State of Gujarat (2004) 4 SCC 158.
Reports and Secondary Sources
- Department-related Parliamentary Standing Committee on Home Affairs, 246th Report on the Bharatiya Nagarik Suraksha Sanhita, 2023 (Rajya Sabha Secretariat, 2023).
- Department-related Parliamentary Standing Committee on Home Affairs, 247th Report on the Bharatiya Sakshya Bill, 2023 (Rajya Sabha Secretariat, 2023).
- PRS Legislative Research, Legislative Brief: The Bharatiya Nagarik Suraksha Sanhita, 2023 (2023).
- PRS Legislative Research, Legislative Brief: The Bharatiya Sakshya Bill, 2023 (2023).
- Law Commission of India, Report No. 268: Amendments to Criminal Procedure Code, 1973—Provisions Relating to Bail (2017).
