Author: Akhila Johny

Author’s Note

I am currently pursuing my LL.B. at Government Law College, Thiruvananthapuram, and have a keen interest in the evolution of criminal jurisprudence and legislative reform in India. This paper is an academic attempt to critically evaluate the transition from the Indian Penal Code, 1860, to the Bharatiya Nyaya Sanhita, 2023—a shift that marks one of the most significant overhauls in Indian criminal law since independence. While acknowledging the government’s effort to decolonize legal structures, this paper seeks to assess whether the reform is genuinely transformative or merely terminological. I hope this analysis contributes meaningfully to ongoing debates in the field and invites broader engagement from the academic and legal communities.

Abstract
The Bharatiya Nyaya Sanhita, 2023 marks a historic attempt to replace the colonial-era Indian Penal Code, 1860 with a modern, indigenous framework for substantive criminal law. This legislative analysis explores the major structural changes, substantive reforms, and doctrinal shifts introduced by the BNS. It highlights key expulsions such as sedition and adultery, new additions including terrorism and mob lynching, and a reoriented penal philosophy that leans toward restoration and efficiency. The paper critically evaluates whether these changes amount to genuine reform or symbolic repackaging. In doing so, it examines constitutional implications under Articles 14, 19, and 21, and situates the BNS within the broader goal of Indianizing the justice system. The analysis concludes that while the BNS offers an important departure from colonial constructs, it remains a work in progress—requiring continued judicial scrutiny, legislative refinement, and societal engagement.

Author’s Note

This article critically examines the judicially evolved Essential Religious Practices (ERP) doctrine and argues for its replacement with a more constitutionally consistent and rights-based approach—the doctrine of proportionality. By drawing from key judgments of the Supreme Court of India and comparative constitutional principles, the article seeks to contribute to the ongoing discourse on reconciling religious freedom with equality, dignity, and the transformative vision of the Indian Constitution.

The views expressed herein are entirely those of the author and have not been published or submitted elsewhere for publication. The author is grateful to the faculty of Government Law College, Thiruvananthapuram, for their constant encouragement in pursuing academic research.

Abstract

The doctrine of essential religious practices (ERP) has long guided Indian courts in delineating the boundary between religious freedom and constitutional morality. However, landmark cases such as Indian Young Lawyers Association v. State of Kerala (Sabarimala case) and Shayara Bano v. Union of India have sparked renewed debates on the validity and relevance of ERP in a modern secular democracy. This article critically examines the origins, development, and contradictions within the ERP doctrine, arguing that it often places the judiciary in a theological role, inconsistent with constitutional secularism. Through an analysis of evolving jurisprudence and comparative perspectives, the article explores whether the time has come to replace ERP with a rights-based proportionality approach that aligns with constitutional morality and gender justice.

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