Bharatiya Nyaya Sanhita: Reflections on a Lecture by Hon’ble Mrs. Justice Revathi Mohite Dere
The lecture hall of the Bombay Bar Association was already humming with a quiet, anticipatory energy when Hon’ble Mrs. Justice Revathi Mohite Dere took the podium to speak on the Bharatiya Nyaya Sanhita (BNS).
What followed was not merely a technical exposition of a new penal code. It was a lucid, candid, and at times disquieting conversation about the architecture of criminal law, the persistence of the Indian Penal Code (IPC) in our courtrooms, and the immense responsibility that the new framework places upon police, prosecutors, and judges alike.
A Judge Returns to a Familiar Bar
Justice Dere began with a note of warmth and nostalgia. She thanked the Bombay Bar Association for organising a lecture on the BNS—a topic she admitted she had not expected, especially from the original side of the court. The surprise, however, was a pleasant one.
She spoke affectionately of having “the best of both worlds”: practising on the appellate side and later sitting on the original side, and of the rituals of a young lawyer—waiting anxiously in the corridors, accompanied by the comfort of a regular coffee from the Bar. The hall, she confessed, was laden with memories. It was a return not just to a place but to an earlier version of herself.
From that personal note, she moved seamlessly to the present: a packed audience, many from the criminal side but strikingly, a large number from the original side as well. That very composition of the room, she observed, was evidence that the BNS had captured the collective curiosity of the legal fraternity.
The BNS: Old Wine in a New Bottle, But With New Spices
At the outset, Justice Dere dispelled the popular misconception that the BNS is a radical departure from the IPC. In substance, a little over ninety per cent of the provisions of the Indian Penal Code have been retained—though rearranged into new chapters and sections.
What has changed, however, is not insignificant:
- Several fines have been enhanced.
- Imprisonment terms for approximately 33 offences stand increased.
- Mandatory minimum sentences have now been introduced in about 20-odd provisions.
The structure has thus become, in many places, more severe and less forgiving.
An important drafting choice is that most definitions now stand consolidated in section 2 of the BNS. This has had the effect of reducing the overall number of sections, but not necessarily the complexity of the law.
She made an engaging aside: the layperson’s association with “302” and “420”—murder and cheating—was so entrenched in public imagination that these numbers themselves had acquired a kind of cultural life. Films, conversations, even colloquial abuses turned on them. Under the BNS, those familiar numbers have disappeared: murder is now section 103, cheating finds its place in a new scheme. The legal and cultural language of “302” and “420” will soon become historically dated, even as the underlying concepts live on.
The Repealed: Sedition, Suicide, Unnatural Offences, Adultery
Justice Dere then turned to the list of provisions the BNS consciously leaves behind. Approximately forty-four sections of the IPC stand repealed, some of them carrying immense historical and political weight.
Notably repealed are:
- Section 124A – Sedition
- Section 309 – Attempt to commit suicide
- Section 377 – Unnatural offences
- Section 497 – Adultery
Along with these, certain cheating and trademark-related provisions and specific forms of criminal trespass have been omitted or restructured.
But to imagine that sedition has simply vanished from the statute-book would be naïve. In its place emerges Section 152 of the BNS, which criminalises acts endangering the sovereignty, unity and integrity of India. It is drafted with a far wider sweep than the old 124A, covering spoken and written words, signs, visible representations, electronic communications, financial means and other modes that may excite secessionist or separatist activities. The punishment ranges up to life imprisonment.
Here, Justice Dere’s tone became noticeably cautious. The issue, she remarked, would not only be the language of the statute but its implementation: how the police choose to invoke it, how FIRs are registered—perhaps even on the basis of tweets—and how courts will respond. The question is not abstract; it is deeply practical.
The Newly Added: A New Grammar of Crime
The BNS also brings, for the first time, a cluster of new offences—some reflecting contemporary realities, others systematising issues that had long troubled courts.
Among the new provisions Justice Dere highlighted were:
- Section 48 – Abetment outside India of an offence committed within India.
- Section 69 – Sexual intercourse by “deceitful means” (distinct from rape).
- Section 95F – Hiring, using or engaging a child for the commission of an offence.
- Section 103(2) – Mob lynching.
- Section 106(1) – Causing death by negligence by a registered medical practitioner.
- Section 106(2) – Causing death by rash and negligent driving, with aggravated punishment where the accused flees the scene (presently kept on hold).
- Section 111 – Organised crime.
- Section 112 – Petty organised crime.
- Section 113 – Terrorist acts.
- Section 304 – Snatching.
- Section 358C – Forging Voter ID and Aadhaar cards.
- Section 358(1) – Repeals and savings, preserving rights, liabilities and proceedings under the old Code.
What emerged from her exposition was a clear pattern: the statute attempts to respond to contemporary anxieties— economic offences, organised criminal networks, terrorism, mob violence, sexual exploitation by deceit, and identity-document fraud.
Organised Crime: Section 111 and the Shadow of MCOCA
One of the most compelling segments of the lecture was Justice Dere’s comparison of Section 111 of the BNS with the Maharashtra Control of Organised Crime Act, 1999 (MCOCA).
Section 111 introduces, for the first time in central law, the offence of organised crime. It defines organised crime as any continuing unlawful activity by a person or group, acting singly or jointly, as members of an organised crime syndicate, using violence, threat, intimidation or other unlawful means, with the object of securing direct or indirect material— especially financial—benefit.
The explanation explicitly includes economic offences: criminal breach of trust, counterfeiting of currency and government stamps, hawala transactions, mass marketing frauds, schemes to defraud multiple persons, and frauds upon banks and financial institutions. This drafting, she observed, overlaps significantly with areas already addressed by special laws such as the Maharashtra Protection of Interest of Depositors (MPID) Act and the Prevention of Money Laundering Act (PMLA).
MCOCA, a special statute, already defines “continuing unlawful activity”, “organised crime”, and “organised crime syndicate”, and prescribes severe punishments—including death or life imprisonment where death results. But what distinguishes MCOCA from section 111 of the BNS is not merely definition; it is safeguard.
MCOCA:
- Permits confessions to a police officer of a certain rank to be admissible in evidence (a marked departure from the Indian Evidence Act).
- Provides witness protection, including in-camera proceedings and anonymisation of witness identities and addresses.
- Extends the permissible period for filing a chargesheet up to 180 days, subject to stringent conditions.
- Bars anticipatory bail for offences under the Act.
- Imposes twin conditions for grant of regular bail.
- Requires prior approval and sanction by senior police officers before registration and cognizance of offences.
By contrast, section 111 of the BNS, though covering much of the same ground in terms of activity, does not import these specialised procedural safeguards and restrictions. The consequence, as Justice Dere pointed out, is an inevitable overlap between BNS 111 and MCOCA—and a looming question: which law will be invoked, when, and by whom?
This, she said with deliberate understatement, “is where the real challenge is going to be.”
Petty Organised Crime: The Puzzle of Section 112
Turning to Section 112, Justice Dere described it as an entirely new creature: petty organised crime. The provision covers gangs or groups engaging in acts such as theft, snatching, cheating, unauthorised betting and gambling, sale of leaked public examination papers, and similar activities, when carried out in a coordinated manner.
The punishment—imprisonment of at least one year, extendable up to six years, and fine—signals that the law is now consciously targeting the “lower rung” of organised criminality: pickpockets, card-thieves, shoplifters, trick thefts in crowded public spaces and business premises, and small but systematic cheating rackets.
What left the audience particularly thoughtful was her observation on cheating. Under section 112, cheating in an organised, petty form is treated as a petty organised crime. Yet the old “420”—now reincarnated under the BNS—is a scheduled offence under the PMLA, triggering the jurisdiction of the Enforcement Directorate in appropriate cases. The same conceptual conduct can thus be simultaneously classified as “petty” in one context and as the gateway to serious money-laundering proceedings in another. The law, she implied, will find itself negotiating these internal tensions in the years to come.
Terrorism: Section 113 and Its Dance with UAPA
The analysis moved next to Section 113, which criminalises terrorist acts under the BNS. Its language is familiar: acts intended to threaten the unity, sovereignty, security, or economic security of India, or intended to strike terror in the people, by use of bombs, explosives, chemicals, and other dangerous means, causing death, injury, loss or destruction of property, disruption of essential supplies, or damage to monetary stability.
The provision is strikingly akin to Section 15 of the Unlawful Activities (Prevention) Act, 1967 (UAPA). It is supplemented by sub-provisions punishing conspiracy, abetment, advocacy, recruitment, organisation of training camps, membership of terrorist organisations, harbouring of offenders, and enjoyment of proceeds of terrorism.
Yet once again, the distinction lies in structure and safeguards. Under UAPA:
- Sanction of the appropriate government is mandatory before cognizance.
- There are stringent twin conditions for bail, heavily constraining judicial discretion.
- Witness protection and other procedural safeguards have been consciously built in.
Under the BNS, section 113 does not explicitly incorporate these safeguards nor the same statutory constraints on bail. There is also no prior-approval mechanism equivalent to that found in MCOCA.
Justice Dere left no doubt that this overlapping jurisdiction—between BNS 113 and UAPA—will be a fertile ground for legal controversy. Which statute will be invoked in a given case? Who will decide? On what principles? And will the absence of strict safeguards in section 113 lead either to under-protection of witnesses or to easier grant of bail in grave matters, or conversely, to inconsistent application?
“Only time will tell,” she remarked, with the kind of weary realism that comes from years on the criminal side.
Sexual Offences and “Deceitful Means”: Section 69
From terror and organised crime, Justice Dere moved to the intimate and often agonising realm of sexual offences.
She recalled that after the 2013 amendments, the minimum sentence for rape under the IPC had been raised to ten years, with limited judicial discretion to go below that threshold. That regime has been largely carried into the BNS: rape attracts a minimum of ten years’ imprisonment, more in aggravated cases.
What is new, however, is Section 69, which penalises sexual intercourse by deceitful means—even where the act does not amount to rape under the conventional understanding of lack of consent.
The explanation to section 69 includes, within “deceitful means”:
- False promises of employment or promotion,
- False promise of marriage, and
- Sexual relations obtained by concealing or misrepresenting identity.
Anyone who has sat in a criminal court, she observed, is familiar with these cases: young women in long-standing relationships, often living with the man for years, who then find themselves abandoned when the promise of marriage evaporates. Historically, such cases oscillated between accusations of rape and cheating, with courts forced to scrutinise the intention at the inception of the relationship.
By carving out a separate offence, the BNS acknowledges the moral and social harm of such deceit, without shoehorning every such situation into the strict framework of rape. At the same time, it opens a new field of evidentiary and interpretive difficulty: what is genuine change of heart, what is calculated deceit, and how does one prove the difference?
Snatching and Negligent Death: Sections 304, 106(1) and 106(2)
The lecture then turned to everyday, street-level offences that are nonetheless deeply disruptive of public safety.
Section 304 defines snatching as a form of theft in which the offender suddenly seizes and grabs movable property— chain-snatching, mobile phones pulled from one’s hand on trains or streets. Under the IPC, such acts were typically prosecuted under generic theft or robbery provisions; the BNS chooses to name and isolate snatching as a distinct offence, recognising its prevalence in urban life.
On negligent death, the old Section 304A IPC, which punished causing death by a rash or negligent act, has been split and refined:
- Section 106(1) deals with causing death by negligence, with a specific focus on registered medical practitioners whose negligent procedures result in death.
- Section 106(2) (presently kept in abeyance) targets causing death by rash and negligent driving, with a far more severe punishment—up to ten years and fine—where the driver flees the scene and fails to report the accident to the police or magistrate.
Justice Dere was nuanced here. On the one hand, the provision reflects legitimate outrage at hit-and-run incidents where victims are abandoned to their fate. On the other, it does not fully account for the reality that drivers may sometimes flee in fear of mob violence or immediate reprisal. The law, in its current form, imposes a strict duty to report; failure to do so dramatically elevates the sentence.
Mob Lynching and Identity Fraud: Naming Contemporary Horrors
Few parts of the BNS feel as morally necessary as Section 103(2), which specifically criminalises mob lynching by a group of five or more persons, where murder is committed on grounds of race, caste, community, sex, place of birth, language, personal belief, or any other ground. Each member of the mob may face death or life imprisonment and fine.
Previously, such incidents were prosecuted primarily under generic murder provisions. By explicitly naming mob lynching, the BNS acknowledges a grim contemporary phenomenon and provides a focused legislative response.
Similarly, Section 358C, which makes the forging of Voter ID and Aadhaar cards a specific offence, reflects an embrace of modern identity infrastructure—and the dangers of its abuse.
Community Service and Probation: The Possibility of Mercy
One of the more hopeful innovations, in Justice Dere’s view, is the introduction of community service as a recognised form of punishment.
Under the earlier IPC framework, judges would sometimes, informally and creatively, direct young or first-time offenders in minor matters to do something useful—clean a beach, work at an old-age home, or contribute to the community—though the law did not expressly speak of “community service”.
The BNS now formally recognises community service as a form of punishment, particularly for certain petty offences: minor thefts of small amounts in first-time cases, non-appearance, public misconduct while drunk, interference with public servants, and similar low-level misconduct.
This, she suggested, is a welcome move. It allows offenders to:
- Acknowledge wrongdoing,
- Make constructive amends, and
- Avoid incarceration for trivial offences that do not warrant the full machinery of prison.
Yet there is a “flip side”. The BNS does not clearly define what community service entails, nor whether a sentence of community service will still carry the stigma of conviction in the same manner as a traditional sentence.
Here Justice Dere drew attention to the long-standing Probation of Offenders Act, under which certain offenders— especially young people and women convicted of less serious offences—can be released on probation of good conduct without suffering the social brand of a criminal conviction. She lamented how rarely this extremely humane statute is actually invoked by the Bar.
She narrated a case from her own court: a man charged with drunk driving, with no accident or injury, who had already spent a few days in custody and was then sentenced to imprisonment. On appeal, the High Court set aside the sentence and extended him the protection of probation, taking note of his employment with a multinational company and the devastating consequences that a conviction would have on his life.
The message to the practitioners in the room was unmistakable: Use the tools of mercy that the law already provides. The BNS, with its community service and continued space for probation, does not only harden the penal landscape; it also preserves and expands spaces for rehabilitation.
IPC Is Not Dead: A Dual-Law Future
Perhaps the most sobering part of the lecture was Justice Dere’s reminder that, for all the attention on the BNS, the IPC will remain very much alive in the courts for years—indeed decades—to come.
Appeals arising from offences committed in the 1980s and 1990s are still pending. Trials under the IPC will continue for all pre-BNS offences. Old cases will not magically transform into BNS prosecutions.
For the present generation of lawyers, therefore, the task is not to discard the IPC in favour of the BNS, but to master both and to understand them comparatively. Law colleges, she suggested, will have to teach the two in tandem. The practising bar cannot afford to treat the IPC as redundant or obsolete; it will remain a daily reality in appellate work and in criminal practice for a long time.
Promise, Peril, and the Burden on Institutions
Justice Dere concluded with a reflection that was at once legal and philosophical.
Every new penal provision, she said, comes with a laudable object—to protect women, to combat terrorism, to tackle organised crime, to prevent financial fraud. Yet Indian legal history teaches us that benevolent provisions are not immune from misuse. She recalled how Section 498A IPC, originally introduced to protect women from cruelty and dowry harassment, soon began to be alleged indiscriminately, with entire families—sometimes living abroad or far away—roped into FIRs.
The BNS is no different. Its fate will depend less on the elegance of its drafting and more on:
- How police decide to register offences,
- How prosecutors choose to invoke special or general statutes, and
- How judges exercise their power to interpret, restrain, and balance.
There is, she emphasised, a great onus on both the police and the judiciary to ensure that these provisions are applied for the purposes for which they have been enacted, and not weaponised beyond their intent.
As she ended her address, thanking the Bombay Bar once again, the room seemed to hold a shared, quiet understanding: the Bharatiya Nyaya Sanhita is not merely a new book of sections. It is a test—of the wisdom, restraint, and integrity of every actor in the criminal justice system.
And sitting in that hall, watching her speak with a rare combination of precision, candour and human concern, I could not help but feel that this transition—from IPC to BNS—is not simply a legislative event. It is a generational moment, demanding of all of us—lawyers, judges, students and citizens—a renewed seriousness about how we use the immense power of criminal law.
