The Bharatiya Nyaya Sanhita, 2023: Transforming Indian Criminal Justice Or Reinventing Old Bottles.

ABSTRACT

The enactment of the Bharatiya Nyaya Sanhita, 2023 (BNS) marks one of the most significant reforms in India’s criminal law framework since the adoption of the Indian Penal Code, 1860. Introduced with the stated objective of decolonising criminal law and ensuring a justice system responsive to contemporary social realities, the BNS has generated intense debate within the legal fraternity. While the statute introduces provisions addressing emerging offences such as terrorism, organised crime, and mob lynching, as well as incorporating victim-centric measures like community service and electronic filing of complaints, it also retains a substantial portion of the IPC’s structure. This continuity raises questions about whether the reform represents substantive transformation or a symbolic repackaging of colonial codes. The constitutional implications are equally pressing, particularly concerning freedom of speech, due process, and equal protection under Articles 19, 21, and 14 of the Constitution. This paper undertakes a critical analysis of the BNS in historical, comparative, and constitutional contexts, drawing on judicial precedents and scholarly discourse. It argues that while the BNS signifies progress towards modernisation, its efficacy will depend on clarity in drafting, infrastructural readiness, and consistent judicial interpretation.

INTRODUCTION

The codification of Indian criminal law has historically been rooted in the colonial legacy of the Indian Penal Code, 1860 drafted under the chairmanship of Lord Macaulay. For over one and a half centuries, the IPC, together with the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872 has constituted the foundation of the Indian criminal justice system. While these statutes endured extensive amendments over time, their essential framework remained largely colonial in character, raising concerns of adequacy in addressing modern socio-legal challenges.

The Supreme Court of India has consistently underscored the need for laws to adapt to evolving societal realities. In State of Punjab v. Dalbir Singh, the Court observed that criminal law must remain dynamic to meet the needs of contemporary society. Similarly, in Maneka Gandhi v. Union of India, the Court broadened the interpretation of Article 21 of the Constitution, emphasizing fairness, reasonableness, and non-arbitrariness as essential components of criminal procedure. These decisions highlight the judiciary’s insistence that statutory frameworks evolve in step with constitutional mandates.

It is against this backdrop that the Bharatiya Nyaya Sanhita, 2023 , along with its procedural and evidentiary counterparts, has been enacted. Coming into force in July 2024, the BNS represents an ambitious attempt to overhaul India’s criminal law system by introducing provisions on terrorism, mob lynching, and organised crime, while simultaneously seeking to address concerns of victim-centric justice. However, as noted in Kartar Singh v. State of Punjab, the introduction of stringent criminal provisions must always be balanced against the preservation of constitutional safeguards. This article, therefore, undertakes a critical examination of the BNS to determine whether it embodies genuine legal transformation or merely repackages the colonial edifice under a modern guise.

HISTORICAL CONTEXT AND NEED FOR REFORM

The Indian Penal Code, drafted under the chairmanship of Lord Thomas Babington Macaulay, was primarily designed to serve the interests of colonial administration and consolidate imperial authority. While it has undergone numerous amendments, its structural core has remained largely intact, reflecting priorities of the nineteenth century rather than the socio-legal realities of independent India.

Post-independence, scholars and jurists repeatedly criticised the IPC for its inability to respond adequately to emerging forms of criminality. The rise of globalisation, technological innovation, and socio-political shifts exposed the IPC’s limitations in tackling contemporary challenges such as cybercrime, financial fraud, terrorism, and organised offences. Judicial interpretation partially addressed these gaps, yet piecemeal reforms could not overcome the inherent rigidity of the colonial framework.

It is within this context that the Government of India undertook the introduction of the Bharatiya Nyaya Sanhita, 2023. The BNS was projected not merely as a statutory reform but as a conscious step in the larger national vision of decolonising Indian legal systems. Its objectives included replacing archaic colonial constructs, “Indianising” criminal law, and incorporating contemporary realities. Among its most notable innovations are provisions on mob lynching, terrorism, and offences against women and children. Thus, the BNS is presented as both a historical rupture with colonial legacies and a forward-looking reform intended to harmonise criminal law with constitutional morality and societal aspirations.

KEY FEATURES OF THE BHARATIYA NYAYA SANHITA

The Bharatiya Nyaya Sanhita, 2023, introduces a series of substantive and procedural reforms designed to modernise India’s criminal justice framework. These provisions reflect a conscious move towards recognising contemporary forms of crime while ensuring justice is more accessible, efficient, and victim-centric.

Recognition of New Offences: One of the most significant aspects of the BNS is the codification of offences such as mob lynching, terrorism, and organised crime, alongside enhanced provisions for crimes against women and children. By doing so, the statute directly addresses the lacunae in the IPC, which lacked clarity and uniformity in dealing with such crimes.

Victim-Centric Reforms: The BNS departs from the offender-centric model of the IPC by incorporating measures for victim compensation, witness protection, and mechanisms to ensure speedy trials. These reforms aim at restoring confidence in the criminal justice process by prioritising the rights and safety of victims.

Procedural Innovations: In order to keep pace with technological advances, the statute mandates electronic recording of evidence, the facility of registering e-FIRs, and strict timelines for filing charge sheets. These provisions are expected to reduce procedural delays and improve accountability within the system.

Sentencing Reforms: Marking a shift towards restorative justice, the BNS explicitly recognises community service as a form of punishment. This demonstrates a move away from a purely retributive model of justice and acknowledges the rehabilitative potential of non-custodial sentences.

COMPARATIVE ANALYSIS WITH IPC

The Bharatiya Nyaya Sanhita, while celebrated as a watershed reform in India’s criminal justice framework, substantially mirrors the structural and substantive content of the Indian Penal Code (IPC), 1860. The claim of a transformative departure from colonial criminal law thus requires scrutiny.

At a structural level, the BNS has undertaken an extensive renumbering and reclassification of offences. However, the underlying definitions, ingredients of offences, and sentencing patterns remain largely consistent with those of the IPC. Scholars have observed that more than 80 per cent of the IPC’s provisions have been transplanted with minimal substantive alteration, thereby raising concerns about the extent of genuine innovation in this reform initiative.

One of the most prominent shifts is the replacement of Section 124A of the IPC, which criminalised sedition, with a newly framed offence relating to “acts endangering the sovereignty, unity, and integrity of India.” On the surface, this marks an effort to distance Indian criminal law from its colonial misuse against nationalist movements. However, critics argue that the terminology of the new provision remains vague and susceptible to similar misuse against political dissent. The jurisprudence of the Supreme Court in Kedar Nath Singh v. State of Bihar had already narrowed the scope of sedition to incitement of violence or public disorder, but the BNS’s rephrasing, while abandoning the term “sedition,” arguably retains comparable prosecutorial potential.

Similarly, the BNS has eliminated certain archaic provisions such as offences relating to “unnatural offences” and expressions embedded with colonial morality. These changes indicate a step towards decolonisation and alignment with constitutional morality, particularly post-Navtej Singh Johar v. Union of India where Section 377 of the IPC was partially struck down. Nevertheless, the broader codification continues to rely on colonial-era drafting techniques, thereby diluting claims of a complete paradigm shift.

In addition, the introduction of new offences, such as those addressing mob lynching, terrorism, and organised crime, reflect an acknowledgment of contemporary social realities. Yet, questions arise as to whether these could have been addressed through targeted amendments to the IPC rather than through the enactment of an entirely new penal statute. The continuity in definitions of theft, assault, and property-related crimes between the IPC and BNS illustrates that much of the substantive law has not been reimagined but merely transposed.

The comparative framework also highlights sentencing reforms under the BNS. The recognition of community service as a form of punishment introduces an element of restorative justice absent in the IPC. However, this remains an exception rather than a systemic overhaul of the punitive framework. The absence of comprehensive sentencing guidelines continues to leave judicial discretion broad, potentially undermining consistency in sentencing outcomes.

In sum, while the BNS represents a symbolic gesture towards decolonisation and modernization of criminal law, its comparative analysis with the IPC reveals more continuity than rupture. The statute largely repackages existing provisions under the guise of reform, with innovation limited to selected domains such as recognition of new offences and minor sentencing reforms. The fundamental question that emerges is whether the BNS truly embodies transformative legal reform or merely constitutes a cosmetic restructuring of a colonial legacy.

CONSTITUTIONAL AND HUMAN RIGHTS CONCERNS

The Bharatiya Nyaya Sanhita (BNS) invites constitutional scrutiny on multiple grounds.

First, Article 21 guarantees the right to life and personal liberty, which includes the right to a fair and speedy trial. The BNS introduces promises of time-bound investigation and trial, yet concerns remain regarding procedural safeguards. The Indian judiciary is already overburdened with pendency, and imposing strict timelines without enhancing infrastructure could compromise due process. In Hussainara Khatoon v. State of Bihar, the Supreme Court stressed that a speedy trial is an integral facet of Article 21[1]. However, if timelines under the BNS are not supported by resources, they may risk perfunctory justice instead of substantive fairness.

Second, under Article 14, which mandates equality before the law, the classification of certain offences, such as mob lynching, raises questions of legislative coherence. While recognising lynching as a distinct category is socially necessary, its overlap with provisions on murder, rioting, and unlawful assembly under the IPC/BNS may generate interpretative confusion. As held in State of West Bengal v. Anwar Ali Sarkar, classification must not be arbitrary or discriminatory. Without clear legislative intent, the BNS could face similar constitutional challenges.

Third, Article 19(1) (a) guarantees freedom of speech and expression, but the BNS’s replacement of sedition with the offence of “acts endangering sovereignty, unity, and integrity of India” retains vague terminology. Critics argue that this broad framing risks a chilling effect on free speech, similar to the issues raised in Shreya Singhal v. Union of India regarding Section 66A of the IT Act. Vague restrictions on speech are constitutionally vulnerable because they do not satisfy the test of proportionality under Article 19(2). Commentators have highlighted that while the nomenclature has changed, the State retains wide powers to curb dissent

In sum, while the BNS is framed as a progressive reform, its constitutional soundness depends on careful judicial scrutiny. If procedural safeguards, clarity of classification, and proportionality in restrictions are not ensured, the BNS risks replicating the constitutional infirmities that plagued the IPC.

CRITICISM AND CHALLENGES AHEAD

Despite its promise, the Bharatiya Nyaya Sanhita (BNS), 2023, faces several criticisms that raise questions about whether it represents genuine reform or merely a repackaging of the Indian Penal Code 1860.

1. Continuity over change:

One of the most significant critiques is that more than 80% of the provisions in the BNS are a replication of the IPC, with only cosmetic changes to terminology or structure. Critics argue that such continuity undermines the claim of modernisation and fails to address pressing criminal justice issues, such as prison overcrowding, delays, and systemic discrimination. Scholars note that criminal law reform should be substantive, not symbolic, citing examples such as the UK and South Africa, which revised their codes to reflect contemporary realities.

2. Implementation hurdles:

Even if the BNS introduces new provisions, its success hinges on effective enforcement. Implementation requires massive investment in judicial infrastructure, police reforms, digitisation, and awareness campaigns. Without capacity building, the law risks remaining a paper reform. Experiences from other large-scale legislative changes, such as the Criminal Law (Amendment) Act, 2013, demonstrate that mere statutory amendments cannot change ground realities unless backed by structural improvements.

3. Over-criminalisation:

Another concern is the broadening of offence categories, such as the inclusion of mob lynching and terrorism, while already existing provisions under the IPC and special laws cover similar conduct. This creates overlapping jurisdictions and risks of double jeopardy. Moreover, expanding the scope of offences, particularly vague or broadly worded ones, risks over-criminalisation, leading to misuse against vulnerable populations and dissenters. Human rights organisations warn that criminal law, if excessively punitive, can shift from being a protective mechanism to a tool of repression.

4. Lack of clarity and potential misuse:

Perhaps the most contentious issue is the replacement of sedition with provisions criminalising acts “endangering the sovereignty, unity, and integrity of India.” While framed as a reformative step, the vague wording leaves wide discretion with law enforcement authorities, raising fears of arbitrary application against free speech. The Supreme Court in Shreya Singhal v. Union of India struck down Section 66A of the IT Act, 2000, precisely because of such vagueness. Without clear definitions and safeguards, the BNS risks replicating the chilling effect on free expression that sedition laws historically produced.

CONCLUSION

The Bharatiya Nyaya Sanhita, 2023 marks a significant attempt to move beyond colonial-era codifications and reframe India’s criminal law. By introducing provisions on cybercrimes, terrorism, organised crime, and victim rights, it reflects an acknowledgment of the evolving nature of criminality in a digital and globalised age. However, its transformative potential is limited by two critical factors: first, its heavy reliance on the structural and substantive framework of the Indian Penal Code, 1860, which it claims to replace; and second, the persistence of vague and overbroad drafting that risks constitutional challenges and arbitrary application. Legislative reform, without parallel systemic reform in policing, investigation, and judicial efficiency, risks reducing the BNS to a cosmetic exercise rather than a paradigm shift. Ultimately, while the BNS offers a forward-looking legislative step, its success will depend on interpretation, enforcement, and whether it can genuinely deliver justice in a modern constitutional democracy.

Referance 

 Gautam Bhatia, Offend, Shock, or Disturb: Free Speech Under the Indian Constitution (OUP 2016).

 Aparna Chandra, “Criminal Law and Free Speech in India: Old Wine in a New Bottle” (2024) 12(2) Indian Constitutional Law Review 55.

 Amnesty International, Tackling Over-Criminalisation: Human Rights Perspective (AI Policy Paper, 2022).

 B.B. Pande, “Over-Criminalisation in India: A Critical Appraisal” (2021) 63(3) Journal of the Indian Law Institute 341.

 Jinee Lokaneeta, The Truth Machines: Policing, Violence, and Scientific Interrogations in India (University of Michigan Press, 2020).