Recasting the Criminal Code: A Legislative Analysis of Bharatiya Nyaya Sanhita, 2023 in Place of the Indian Penal Code, 1860

Introduction

India’s criminal justice system has long operated under the framework of the Indian Penal Code, 1860, a statute shaped by colonial priorities and Victorian morality. While the IPC served as the bedrock of penal law for over 160 years, critics have repeatedly pointed out its outdated language, rigid classifications, and its disconnection from the realities of a democratic, constitutional republic. With time, the need for a more relevant, indigenous legal code became evident.

In 2023, the Government of India enacted the Bharatiya Nyaya Sanhita (BNS), signaling a major legislative shift in the country’s approach to criminal law. Presented as part of a larger reform package alongside procedural and evidentiary laws, the BNS aims to replace colonial constructs with a legal framework that reflects Indian values, contemporary crimes, and constitutional aspirations.

Unlike the IPC, the BNS introduces several modern innovations: a clearer structure, fewer sections, simplified language, and new offences like terrorism, mob lynching, and organised crime. It also removes provisions like sedition and adultery, which had either been struck down by courts or had become incompatible with present-day jurisprudence. Yet, despite these reforms, the BNS has drawn scrutiny over certain omissions—such as the continued exclusion of marital rape—and concerns about potential executive overreach.

This legislative analysis compares the IPC and BNS to explore whether the transition represents a true reform or a cosmetic repackaging. It aims to evaluate the additions, deletions, and constitutional implications of the new penal code, while offering a grounded critique of its legal philosophy and practical impact.

Historical Context of Indian Criminal Law

The origins of Indian criminal law can be traced back to the mid-19th century, when the British colonial administration, seeking uniformity across its territories, commissioned the drafting of a penal code. Spearheaded by Lord Macaulay and the First Law Commission, the Indian Penal Code, 1860 was enacted with the objective of codifying criminal law in a manner consistent with colonial interests. It reflected the administrative needs of an empire rather than the cultural or societal values of India, prioritizing authority and order over individual rights.

Despite its foreign roots, the IPC remained remarkably durable, surviving India’s transition from a colony to a sovereign democratic republic. While amendments and judicial interpretations updated portions of the code over the decades, its fundamental structure and many provisions remained largely intact. Repeated recommendations from Law Commissions, academic circles, and judicial opinions pointed to the need for comprehensive reform—but none were implemented in full.

Recent Criminal Law Reforms

In 2023, the Government of India introduced a set of three criminal law reform bills: the Bharatiya Nyaya Sanhita (replacing IPC), the Bharatiya Nagarik Suraksha Sanhita (replacing CrPC), and the Bharatiya Sakshya Adhiniyam (replacing the Indian Evidence Act). The stated goal was to decolonize Indian criminal law and align it with constitutional ideals such as justice, liberty, and dignity. After parliamentary debate, all three bills were passed and received Presidential assent in December 2023.

The legislative process, however, was not without controversy. Critics pointed out the limited public consultation, fast-tracked parliamentary procedure, and the potential for vague or overly broad provisions. Still, the enactment of the BNS marks a historic departure from colonial-era criminal law and opens a new chapter in India’s legal landscape.

One of the most notable features of the Bharatiya Nyaya Sanhita, 2023 is the selective removal of provisions from the Indian Penal Code, 1860 that were either declared unconstitutional by the judiciary, considered socially regressive, or deemed obsolete in modern criminal jurisprudence. These expulsions signal a deliberate attempt to realign substantive penal law with constitutional principles and societal needs.

1. Sedition (Section 124A IPC)

   Among the most significant deletions, the sedition law has been omitted in its colonial form. Section 124A of the IPC penalized speech or expression that brought hatred or contempt against the government. Long criticized for its misuse and vagueness, the provision faced judicial scrutiny and was effectively put on hold by the Supreme Court in 2022. In the BNS, it has been replaced by a narrower provision—Section 150, which penalizes “acts endangering the sovereignty, unity and integrity of India.” This shifts the focus from disloyalty to national security, though concerns of overbreadth remain.

2. Adultery (Section 497 IPC)

   Struck down by the Supreme Court in Joseph Shine v. Union of India, the adultery provision was held to be arbitrary and violative of Articles 14 and 21 of the Constitution. The IPC provision treated women as property of their husbands and penalized only men. The BNS does not revive or revise this offence, aligning with the Court’s ruling and a broader shift toward gender equality in criminal law.

3. Unnatural Offences (Section 377 IPC)

   While the IPC’s Section 377 criminalized all non-peno-vaginal sexual acts, the Supreme Court in Navtej Singh Johar v. Union of India read down the section to decriminalize consensual same-sex relations. In BNS, this section has not been retained in its original form. Non-consensual acts and acts involving animals remain punishable under separate provisions, but consensual private acts between adults have been excluded from criminal sanction.

4. Attempt to Commit Suicide (Section 309 IPC)

   Though never vigorously enforced, the criminalization of attempted suicide under the IPC was long viewed as insensitive to mental health concerns. The Mental Healthcare Act, 2017 effectively decriminalized the act, and BNS has accordingly omitted any equivalent provision.

5. Obsolete or Redundant Offences

   Several minor offences that reflected colonial anxieties or had become functionally redundant have been discarded. These include provisions dealing with offences like “dacoity on high seas” or “unnatural lust with animals,” which are now either covered under specific laws or reclassified in broader terms within the BNS. Additionally, references to offences like “begging” or “touting,” considered socially exclusionary, have been removed.

6. Definitional and Punitive Adjustments

   In many instances, while the underlying conduct remains criminalized, the legal framing or terminology has been modified to reflect contemporary sensibilities. For example, “grievous hurt” and “hurt” retain their presence but with nuanced definitional changes. Similarly, terms such as “life imprisonment” and “death sentence” are now rephrased as “imprisonment for life” and “punishment of death,” in line with plain-language drafting.

These expulsions demonstrate a clear effort to modernize India’s penal code by removing outdated, discriminatory, and constitutionally problematic provisions. However, some critics argue that mere removal without deeper systemic reform risks leaving interpretative ambiguities, especially in areas like speech, identity, and personal liberty.

Reduction and Reorganization of Sections

The most visible reform is the reduction in the number of sections from 511 in IPC to 358 in BNS. This has been achieved by merging overlapping provisions, removing obsolete offences, and simplifying procedural clauses. Chapters have been reorganized for better thematic coherence. For instance, offences against women and children are now grouped together, reflecting a more victim-centric legislative approach.

Simplification of Language and Terminology

BNS adopts plain-language drafting, replacing archaic British legal terminology with simpler, Indianized phrases. Terms such as “offence” are used more consistently in place of “crime,” and references to “King’s peace” or “Her Majesty” are entirely removed. This shift enhances accessibility for legal professionals and laypersons alike.

Shifting Penal Philosophy: From Retribution to Restoration

The inclusion of community service as a form of punishment for petty offences, and the emphasis on alternative dispute mechanisms, marks a philosophical departure from purely retributive justice. This move aligns with global trends toward restorative justice, which focus on reform, accountability, and reconciliation over incarceration in non-violent cases.

Doctrinal Continuities and Incomplete Breaks

While several changes suggest reform, BNS retains certain doctrinal limitations from the IPC era. For example:

• The definition of rape remains gender-specific, excluding male and transgender victims.
• Marital rape is still not criminalized, except in cases where the wife is below 18 years of age.
• Blasphemy-type offences, like hurting religious sentiments, continue to exist in reworded form.

These continuities reflect a cautious approach—attempting reform without overhauling foundational doctrines that are still socially or politically sensitive.

Selective Gender Neutrality and Modern Crime Coverage

Some provisions, such as those related to sexual harassment or stalking, are now more inclusive, but others remain narrowly defined. Similarly, while the law introduces new offences like terrorism or snatching, it still lacks detailed treatment of cybercrimes, AI-related offences, or data protection violations, indicating the need for supplementary legislation in the future.

In sum, BNS represents a structurally leaner and terminologically cleaner code. It shows early signs of a more balanced penal policy—one that attempts to align with India’s constitutional framework and social realities. However, the doctrinal foundation is not radically overhauled, and critical reforms in gender rights, privacy, and digital law remain aspirational rather than achieved.

The Bharatiya Nyaya Sanhita, 2023, was introduced with the declared objective of aligning penal law with the values of the Indian Constitution. In principle, it seeks to enhance individual liberty, promote procedural fairness, and decolonize criminal law. However, its actual alignment with constitutional guarantees is a matter of legal and scholarly debate. This section evaluates how BNS fares against key fundamental rights.

Article 14 – Equality Before Law and Equal Protection of Laws

The Constitution mandates equal treatment before the law. While BNS introduces partial gender-neutrality in select provisions, it falls short of fully embracing inclusivity:

• Rape continues to be defined as a male-on-female offence, excluding male and transgender victims.
• Marital rape remains non-criminal, despite judicial and academic consensus on its violation of bodily autonomy and equality.

Thus, while some progress is evident, the retention of gender-specific language in sexual offences suggests a formalistic approach to equality, not a substantive one.

Article 19(1)(a) – Freedom of Speech and Expression

The repeal of Section 124A (Sedition) from the IPC is seen as a victory for free speech. However, its replacement—Section 150 of BNS—penalizes acts that threaten the “sovereignty, unity and integrity of India.” This broader language may invite subjective interpretation, potentially chilling legitimate dissent or political criticism, especially in the absence of clear judicial guidelines.

Article 21 – Right to Life and Personal Liberty

Article 21 protects individual liberty and the right to a fair trial. The BNS introduces provisions that raise both advancements and concerns:

• Community service as a punishment supports progressive, rehabilitative justice models.
• However, trial in absentia (Section 356), though aimed at fugitives, may undermine fair trial standards if misapplied, especially in politically sensitive or terror-related cases.

Moreover, the absence of express safeguards or judicial review mechanisms within such provisions can lead to executive overreach.

Judicial Decisions and Interpretive Tensions

BNS has deliberately left out provisions struck down by the courts—such as adultery and criminalization of homosexuality—thereby affirming judicial supremacy in constitutional interpretation. However, it stops short of implementing progressive readings from other judgments, such as the Supreme Court’s observations in Justice K.S. Puttaswamy v. Union of India on privacy and bodily autonomy.

Balancing Security and Rights

The inclusion of terrorism and organized crime as general penal offences reflects a security-oriented shift in criminal law. While necessary in today’s climate, these provisions require strict procedural safeguards to prevent abuse. The BNS currently leaves much to executive discretion, risking dilution of civil liberties unless checked through interpretive restraint by courts.

In sum, while the BNS attempts to modernize the penal law landscape, it leaves open important constitutional questions. Its success in aligning with fundamental rights will depend not only on textual clarity, but also on judicial interpretation, implementation fidelity, and legislative responsiveness to evolving societal norms.

Critical Assessment

The Bharatiya Nyaya Sanhita, 2023 represents a bold legislative step toward decolonizing Indian criminal law. Its simplification of language, reorganization of provisions, and removal of outdated offences such as sedition and adultery are commendable. The codification of emerging crimes—like terrorism and mob lynching—reflects responsiveness to present-day concerns.

However, the reform remains incomplete in both scope and substance. While symbolic colonial terms are discarded, deeper systemic issues such as marital rape, overcriminalization, and disproportionate punishment remain unresolved. Gender neutrality is inconsistently applied, and some new provisions—like trial in absentia—raise concerns about fair trial rights.

Moreover, the legislative process lacked broad consultation, and the rushed enactment may affect judicial clarity and implementation. In many respects, BNS repackages rather than reimagines the IPC. Its true impact will depend on how courts interpret it and how faithfully institutions uphold constitutional safeguards.

Conclusion

The Bharatiya Nyaya Sanhita, 2023 is a significant step in India’s legal evolution, aiming to shed colonial legacies and align criminal law with contemporary realities. Its structural streamlining, removal of archaic offences, and inclusion of modern crimes signal progress. Yet, the reform is only partial. Doctrinal gaps, gender bias, and limited public engagement reveal that symbolism has, at times, overtaken substance.

Whether the BNS ushers in real change or serves as a cosmetic exercise will depend not merely on legislative text, but on constitutional interpretation, judicial oversight, and institutional commitment. True reform demands more than replacement—it requires reimagination. The BNS offers a beginning, but not the destination.

References:

1. Bharatiya Nyaya Sanhita, 2023, Ministry of Home Affairs, Government of India.
2. Law Commission of India, 42nd Report on the Indian Penal Code (1971).
3. Joseph Shine v. Union of India, (2019) 3 SCC 39.
4. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
5. Ratanlal & Dhirajlal, The Indian Penal Code, 36th ed., LexisNexis, 2023.
6. K.D. Gaur, Textbook on Indian Penal Code, 7th ed., Universal Law Publishing, 2022.
7. Abhinav Sekhri, “The Unmaking of Sedition but at What Cost?”, The India Forum (Oct. 2023).
8. Vibhute & Kelkar, Criminal Law, 8th ed., Eastern Book Company, 2023.
9. Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
10. Lok Sabha Debates, Criminal Law (Reform) Bills, 2023 Session.

End-Notes:

1. Bharatiya Nyaya Sanhita, 2023, Bill No. 73 of 2023, introduced in Lok Sabha on August 11, 2023.
2. Historical Evolution and Legislative Process
   • Lok Sabha Debates, Parliamentary Session on Criminal Law Reform Bills, August–December 2023.
3. Expulsions: Provisions Removed in Bharatiya Nyaya Sanhita, 2023
   • Joseph Shine v. Union of India, (2019) 3 SCC 39; Navtej Singh Johar v. Union of India, (2018) 10 SCC
   • Bharatiya Nyaya Sanhita, 2023, Sections 103(2), 113, 302(2), 356.
4. Structural and Doctrinal Shifts in the Penal Code
   • Bharatiya Nyaya Sanhita, 2023, Preamble and Chapter Outline (as published by the Ministry of Law & Justice).
5. Constitutional and Human Rights Implications.