A Comparative Analysis of the Indian Penal Code, 1860 and the BharatiyaNyaya Sanhita, 2023

Introduction  

For more than 160 years, the Indian Penal Code, 1860 (IPC) stood as the primary substantive  criminal law in India. Drafted during colonial rule under the chairmanship of Lord Macaulay,  it was revolutionary for its time, as it consolidated criminal law into a single code applicable  across British India. Yet, like many colonial statutes, the IPC reflected the political and  administrative priorities of its drafters — maintaining law and order under imperial authority.  

In December 2023, the Parliament of India repealed the IPC and enacted the Bharatiya Nyaya  Sanhita, 2023 (BNS), which came into force in July 2024. The government justified this  replacement as part of an effort to “decolonize Indian criminal law”, simplify outdated  provisions, and ensure that law reflects contemporary Indian values and constitutional  principles.  

This article undertakes a comparative analysis of the IPC and the BNS, focusing on their  structure, substantive provisions, reforms introduced, and the broader implications for India’s  legal system.  

Historical Background  

IPC, 1860  

The IPC was created in 1860 and came into effect in 1862. It contained 511 sections covering  general principles of criminal liability, punishments, general exceptions, and specific offenses  such as offenses against the State, public tranquility, human body, property, and women. While  the code was progressive in introducing uniform criminal law across India, many provisions  were drafted in colonial language and some became outdated with time. 

BNS, 2023  

The Bharatiya Nyaya Sanhita was passed along with two other codes — the Bharatiya Nagarik  Suraksha Sanhita (BNSS) (replacing the Code of Criminal Procedure, 1973) and the Bharatiya  Sakshya Adhiniyam (BSA) (replacing the Indian Evidence Act, 1872). The BNS consolidates  provisions, reduces the total sections to 358, introduces new offenses, modernizes definitions,  and aims to make the law more victim-centric and speedy.  

Structural comparison  

Aspect IPC, 1860 BNS, 2023  Total Sections 511 358  

Drafting Style Colonial English, archaic  terminology  

Simplified language,  Indianized expressions  

Orientation State-centric, punitive Victim-centric, justice and  reform oriented  

Key Areas of Substantive Reform  

1. Sedition Replaced by Treason  

IPC, Section 124A: The sedition law, which criminalized any expressions or actions  that caused “hatred, contempt, or disaffection” towards the government, was known for  being vague and often used to suppress political opposition. 

BNS, Section 150: The sedition law has been removed and replaced with provisions  that criminalize acts that threaten the sovereignty, unity, and integrity of India.  

This change focuses on punishing violent or separatist actions, thereby protecting freedom of  expression while addressing genuine threats to national security.  

Significance: This reform is significant as it marks a shift from a colonial-era approach that  curbed dissent to a modern legal framework that supports and protects constitutional  democracy.  

2. Offenses Against Women and Children  

Under the Indian Penal Code (IPC): Provisions for rape, dowry death, cruelty, and  outraging modesty were in place, but the definitions were often outdated or too narrow.  For example, marital rape was not recognized as a crime, except in cases where the wife  was under the age of 15.  

Under the Bharatiya Nyaya Sanhita (BNS):  

A broader definition of sexual assault was introduced, along with higher  minimum penalties.  

The provisions for gang rape were made stronger, with punishments ranging  from life imprisonment to the death penalty in cases involving minors.   Electronic stalking and digital harassment were recognized as punishable  offenses.  

The law now requires that investigations and trials in cases against women and  children be completed within a specified time frame.  

Significance: The BNS reflects the evolving social landscape, addressing crimes enabled by  technology and emphasizing the need for swift justice for victims.  

3. Terrorism and Organized Crime  

IPC: Terrorism and organized crime were not defined within the IPC. Authorities relied  on special laws like the Unlawful Activities Prevention Act (UAPA), 1967 or state specific statutes like MCOCA. 

BNS: Introduces specific provisions defining terrorism, organized crime, and economic  frauds. By incorporating these offenses into the general penal code, the BNS reduces  over-reliance on fragmented special laws.  

4. Mob Lynching and Hate Crimes  

IPC: There is no specific law addressing mob lynching directly, but courts have used  provisions related to murder and rioting to deal with such cases.  

BNS, Section 103: This section identifies mob lynching as a severe type of murder,  particularly when it is motivated by discrimination based on factors like caste, religion,  gender, or language.  

Significance: This reflects the growing concern over hate-driven group violence, showing  recognition of this serious modern issue.  

5. Community Service as Punishment  

IPC: In the past, punishments were restricted to imprisonment, fines, seizure of  property, or the death penalty.  

BNS, Section 4: This section introduces community service as an alternative form of  punishment for minor offenses.  

Significance: This reform represents a shift towards restorative justice, aligning India’s penal  system with international standards.  

6. Procedural Integration with BNSS  

Although the substantive law is outlined in the BNS, it operates together with the BNSS (new  CrPC).  

Importantly:  

The requirement to record video footage of crime scenes in cases of serious offenses.   The use of electronic systems for filing FIRs and conducting witness examinations.   Set time limits for trials in cases involving women and children. 

These rules directly influence how the substantive law under BNS is applied and carried out.  Continuities Between IPC and BNS  

Even after major reforms, several key principles remain similar:  

1. Fundamental crimes such as theft, robbery, murder, and cheating are mostly retained with  slight changes.  
2. Common exceptions like insanity, accident, intoxication, and the right to self-defense are  still in effect.  
3. The idea of giving different punishments based on how serious the crime is continues to be  an important rule.  

This consistency shows that although the IPC was based on colonial laws, its legal framework  was well-structured and still applicable in many ways today.  

Critical Appraisal  

Strengths of BNS  

1. Decolonization: Eliminates colonial terminology and unjust clauses such as sedition.  
2. Modernization: Includes new categories like cybercrime, organized crime, terrorism, and  mob lynching.  
3. Victim-Centric Approach: Introduces measures for quicker trials, stricter penalties for crimes  against women and children, and community service for less severe offenses.  
4. Simplification: Reduces the total number of sections from 511 to 358, combining similar  provisions to make the law more organized and easier to understand. 

Weaknesses and Concerns  

1. Implementation Challenges: Police officers, legal experts, and judges will require thorough  training to fully grasp and correctly apply the new code.  
2. Retained Death Penalty: While many countries have abolished the death penalty, the BNS  continues to include it.  
3. Overlap with Special Laws: Despite the new code covering matters like terrorism and  organized crime, there are still specific laws, such as the UAPA, in effect. This could create  confusion regarding the consistency of legal application.  
4. Undefined Terms: Some sections, including those on community service, lack clear  definitions. This may lead to different interpretations and uneven enforcement.  

Conclusion  

The replacement of the Indian Penal Code, 1860 by the Bharatiya Nyaya Sanhita, 2023 is not  merely a legislative update but a symbolic assertion of India’s sovereignty and constitutional  values. The IPC, though a landmark in codification, was rooted in colonial governance. The  BNS represents a step forward by introducing modern, victim-centric, and restorative elements  while streamlining the structure of criminal law.  

However, successful implementation will depend on judicial interpretation, training of  enforcement agencies, and public awareness. If effectively enforced, the BNS has the potential  to create a more responsive, humane, and contemporary criminal justice system for India.