BHARATIYA NYAYA SANHITA 2023: A TRUE REFORM OR JUST A RENAME OF IPC?

INTRODUCTION:

On August 11, 2023, Parliament passed three Bills that together replaced India’s entire colonial-era criminal law framework:  the Bharatiya Nyaya Sanhita, 2023 (BNS), the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), and the Bharatiya Sakshya Adhiniyam, 2023 (BSA).  These replaced the Indian Penal Code, 1860, the Code of Criminal Procedure, 1973, and the Indian Evidence Act, 1872, respectively.  All three came into force on July 1, 2024.

The Indian Penal Code had a long and complicated history.  It was drafted by Thomas Babington Macaulay under British colonial rule and brought into force in 1862.  It was designed less to deliver justice and more to maintain order in a colonised society.  For over 163 years, India has used this law almost unchanged in its fundamental character, though amendments have been made here and there.  The Malimath Committee Report of 2003 and multiple Law Commission Reports over the decades had flagged the urgent need for reform, but little happened at the legislative level.

When the Indian Parliament passed the Bharatiya Nyaya Sanhita, 2023 (BNS) to replace the Indian Penal Code, 1860 (IPC), it was presented as a historic moment, a free India finally shedding a law written by a British civil servant in the 1800s.  And in some ways, it is.  But in many more ways, if you read the BNS, it looks remarkably familiar.  This article takes a close look at what has changed, what has been renumbered, and what should have changed but did not.  The conclusion is not entirely unkind to the BNS.  There are genuine improvements, but the grand claim of decolonisation deserves to be tested honestly against the law itself.

BACKGROUND:  WHY THE IPC NEEDED TO GO?

To understand whether the BNS is a genuine reform, it helps to understand just how problematic the IPC had become.  Many of its provisions were openly colonial in character.  Section 124A of the IPC on sedition was used repeatedly, not against genuine threats to national security, but against journalists, students, activists, and opposition politicians.  Section 377of the IPC on ‘unnatural offences’ was used to criminalise LGBTQ+ individuals for decades.  Section 499 of the IPC on criminal defamation was a tool to drag critics into court.

It fell largely to the judiciary, not the legislature, to address these problems.  In Navtej Singh Johar vs. Union of India (2018), the Supreme Court read down Section 377 to decriminalise consensual same-sex relations between adults.  In S.G. Vombatkere vs. Union of India (2022), the Court stayed Section 124A, noting it was a matter of serious concern.  That a colonial-era sedition law had to be suspended by the judiciary in 2022, 75 years after Independence, says something important about how long reform was overdue.

The BNS came in at this moment of accumulated pressure.  The question was whether Parliament would seize the opportunity to do something genuinely bold or settle for tinkering at the edges while calling it a revolution.

STRUCTURAL COMPARISON:  IPC VS BNS

On the surface, the numbers look like they have changed.  The BNS has 358 sections, whereas the IPC had 511sections.  A reduction of over 150 sections sounds significant.  But when you sit down and compare the two texts, the picture changes.  Around 80% of BNS provisions are either copied word-for-word or near verbatim from the IPC.  The core concepts, such as mens rea, actus reus, general exceptions, abetment, and criminal conspiracy, remain exactly as they were.  In many sections, even the punctuation and archaic Victorian phrasing have been preserved.

What the BNS has done is reorganise and renumber.  Murder, which was Section 302 in the IPC, is now at Section 101 in BNS.  Rape, which was Section 376 IPC, is now Section 64 on BNS.  Some of this reorganisation makes thematic sense; offences against women and children have been moved to the front of the Code, signalling their importance.  But for practitioners, this renumbering is a real headache.  Decades of case law, legal textbooks, court pleadings, police FIRs, and law school education are all indexed to IPC numbers.  That institutional memory does not simply reset because Parliament passed a new law.  The honest structural verdict is that the BNS has reorganised the furniture, repainted the walls, and changed the nameplate on the door.  The building is largely the same.

GENIUNE REFORMS:  WHAT THE BNS ACTUALLY GETS RIGHT

Organised crime gets a national definition.

Before the BNS, there was no national-level provision in IPC that addressed organised crime as a category.  States like Maharashtra dealt with it through their own legislation, the Maharashtra Control of Organised Crime Act, 1999.  But there was no uniform national framework.  Section 111 BNS changes this by defining organised crime as continuing unlawful activity carried out by an individual or syndicate involving violence, intimidation, or coercion for financial gain.  This is a genuinely useful addition.  Criminal networks do not respect state boundaries, and having a central law to address them makes practical sense.

Terrorism enters the general criminal law.

Section 113 BNS brings terrorism into the general criminal law for the first time.  Until now, terrorism has been handled almost exclusively under the Unlawful Activities (Prevention) Act, 1967 and its predecessors.  The UAPA,1967, remains the primary legislation, but acknowledging terrorism as an offence within the framework of ordinary criminal law, not just in a special, draconian statute, is a meaningful step.  It signals that the state can respond to terrorism through the regular justice system, without always reaching for extraordinary powers.

Hit-And-Run:  A Provision with Real Purpose.

Section 106(2) BNS created significant controversy when it came into force.  It provides for up to 10 years imprisonment for drivers who cause death by rash or negligent driving and then flee the scene without informing the police.  Drivers across the country went on strike, arguing the punishment was too harsh.  The backlash was loud.  But the underlying problem the provision addresses is real.  India has one of the world’s highest road accident death rates, and impunity for hit-and-run drivers is a genuine and persistent issue.  The provision’s intent deserves credit even if its implementation and the quantum of punishment remain debatable.

New provision on offence against women.

Section 69 BNS codifies the offence of sexual intercourse obtained through deceit or a false promise of marriage or employment.  Courts had been handling such situations through judicial interpretation for years; putting it in statute brings legal clarity, though critics rightly point out that poorly drafted provisions in this area can end up criminalising consensual relationships that simply did not last.  Section 70 extends gang rape provisions to adult victims with stricter mandatory sentences, a response to the gaps exposed by the 2012 Nirbhaya case and the public outcry that followed.

Community service:  a new addition in BNS.

Perhaps the most genuinely forward-looking change in the BNS is the introduction of community service as a non-custodial punishment for certain minor offences, which includes, public servant trading unlawfully (section 202), non-appearance in court (section 209), attempted suicide to obstruct justice (section 226), first-time petty theft below Rs.5,000 (section 303(2)), Drunken misconduct (section 355) and defamation (section 356(2)).  This is a small but real step towards restorative justice.  Penologists have advocated for decades that punishment should serve rehabilitation rather than mere retribution.  The BNS, in this small corner, listens.

WHAT REMAINS UNCHANGED:  THE MISSED OPPORTUNITIES

Sedition is not gone; the name has been changed.

The Government said it was scrapping sedition.  That claim deserves to be tested.  Section 124A IPC, the colonial sedition provision, is indeed absent from the BNS.  But Section 152 BNS criminalises acts that endanger the sovereignty, unity, or integrity of India, and the language is arguably broader than Section 124A ever was.  Legal scholars and civil liberties groups have pointed out that Section 152 of BNS could easily be applied in the same situations where Section 124A of IPC was misused against journalists covering sensitive stories, activists organising protests, or opposition politicians making speeches.

The Supreme Court’s concern in S.G. Vombatkere (2022) was not just about the name of the provision but also about vague, overbroad language that gives law enforcement unchecked discretion.  Section 152 of BNS does not cure that problem.  It relocates it.  Calling it decolonisation while preserving the same legal mechanism for suppressing dissent is, at best, incomplete reform.

Marital rape:  the exception that should not exist.

This is perhaps the most difficult part of the BNS to defend.  Exception 2 to Section 375 IPC, which said that a husband cannot be prosecuted for raping his wife, has been copied into Section 63 BNS with minimal change.  The Supreme Court in Independent Thought v. Union of India (2017) had at least raised the minimum age of the wife to 18.  But the exception itself, the idea that marriage is a blanket consent to all sexual acts, survives.

This is not a minor omission.  Over 130 countries have criminalised marital rape.  The Delhi High Court gave a divided verdict on the issue in 2022, sending it to the Supreme Court.  In the middle of this ongoing national conversation about a woman’s bodily autonomy within marriage, the BNS simply reproduced the old exception and moved on.  It is hard to call a law that does this ‘justice-centric’ with a straight face.

Expanding the death penalty instead of reviewing it.

The Law Commission’s 262nd Report in 2015 recommended abolishing the death penalty for all offences except those related to terrorism.  The Commission documented in detail how arbitrarily capital punishment is applied in India, how outcomes depend more on the quality of legal representation and the composition of the bench than on the nature of the crime.  The BNS not only ignores this recommendation but goes in the opposite direction, expanding the death penalty to gang rape of a woman under 18 (Section 70).  No one minimises the horror of gang rape.  But the question is whether expanding capital punishment, in a system where its application is arbitrary and disproportionate, deters crime or merely provides the appearance of a harsh response.  The BNS did not engage with this question at all.

The colonial provisions that were simply left in.

Criminal defamation under Section 356 BNS (the old Sections 499-500 IPC) remains intact, still a cognisable offence, still capable of being weaponised against journalists and critics.  The adultery provision is absent from the BNS, which is good, but the Supreme Court had already struck it down in Joseph Shine vs.  Union of India (2018), so the BNS deserves no credit for its removal.  It would have been unconstitutional to include it.

REFORM OR REBRANDING? AN HONEST ASSESSMENT.

Stepping back from the individual provisions, a pattern emerges.  The BNS introduces meaningful reforms in areas where the Government felt politically comfortable making changes, such as organised crime, terrorism, and hit-and-run, etc.  It avoids reform in areas that would have required more political courage, such as marital rape, the death penalty, and the actual removal of sedition.  And it copies the rest of the IPC almost unchanged, while calling the whole exercise a decolonisation.

Decolonisation of law cannot simply mean translating statute names and titles from English into Sanskrit-derived names.  Real decolonisation means asking hard questions about which provisions exist to protect the people and which exist to control them.  The BNS does not consistently ask that question.  A law that keeps the marital rape exception, retains an overbroad sedition replacement, and expands capital punishment without examining its arbitrariness has not truly broken with the colonial logic of criminal law; it has just put new letterhead on it.

The process of enactment also leaves something to be desired.  These Bills, which together rewrote the entirety of criminal law, were passed without referral to a Parliamentary Standing Committee.  Normally, significant legislation is examined by such committees, which take evidence from experts, practitioners, and affected communities.  That process did not happen here, and it shows in the gaps the BNS leaves behind.

For Advocates, lawyers, judges, and law students, the wholesale renumbering of sections adds a layer of immediate practical inconvenience without a corresponding substantive benefit.  Every citation in every judgment delivered under the IPC, every legal textbook, and every law school note refers to IPC section numbers.  Rebuilding that institutional knowledge around a new numbering system when the underlying law is 80% the same is a cost with uncertain returns.

HOW THE COURTS ARE RESPONDING.

Since the BNS came into force in July 2024, courts have had to grapple with transitional questions that any wholesale legislative replacement creates.  The most immediate is this:  if an offence was committed before July 1, 2024, and was registered as an IPC case, does it continue under the IPC or move to the BNS? The principle emerging from early High Court decisions is that pre-July 2024 cases continue under the IPC, while new cases fall under the BNS.  This creates the unusual situation of two parallel criminal codes operating simultaneously in Indian courts for years to come.

Section 152 BNS, the new sedition-equivalent, is widely expected to face a constitutional challenge before the Supreme Court.  Civil liberties organisations and legal scholars have already raised the potential conflict with Article 19(1)(a) of the Constitution, which protects free speech, read alongside the permissible restrictions under Article 19(2).  Given the Court’s clear discomfort with Section 124A IPC, it seems unlikely that Section 152 BNS will escape judicial scrutiny.

WHAT SHOULD HAPPEN NEXT.

The BNS is not the end of the road; it can and should be improved.  Some specific reforms that deserve urgent attention:

1. Criminalise marital rape.  There is no defensible justification in 2024 for the view that marriage suspends a woman’s right to bodily autonomy.  Section 63 BNS should be amended to remove this exception.
2. Narrow Section 152.  The provision on acts endangering sovereignty and integrity must be given clearer definitional boundaries, with explicit carve-outs for political speech, journalism, and peaceful protest.
3. Reconsider the expansion of capital punishment.  Rather than extending death penalty provisions, Parliament should engage seriously with the Law Commission’s 262nd Report and the documented arbitrariness of capital punishment in India.
4. Establish a permanent Criminal Law Review Commission.  Criminal law should not be reformed once every 160 years in a hurried parliamentary sitting.  A standing body of legal experts should review criminal legislation and enactments continuously and transparently.
5. Expand community service provisions.  The BNS’s introduction of community service is its most philosophically progressive feature.  It should be extended to a wider range of minor and non-violent offences, making rehabilitation not just punishment, a genuine goal of the criminal justice system.

CONCLUSION.

The Bharatiya Nyaya Sanhita, 2023, is not a fraud, but it is not the revolution it was sold as either.  It is a mixed document that makes real improvements in some areas while leaving far too much of the IPC’s architecture untouched and, in some respects, making things worse.  The organised crime provision is useful.  Community service is genuinely progressive.  But when a law retains the marital rape exception, replaces sedition with something equally broad, expands capital punishment against expert advice, and renumbers 80% of its provisions without changing them, calling it decolonisation requires a generous imagination.

The Bharatiya Nyaya Sanhita, 2023, is neither a complete failure nor the transformative achievement its proponents claim.  It is, at its core, a restatement of the Indian Penal Code dressed in new constitutional and cultural garb.  The replacement of English-derived section numbers and titles with Sanskrit nomenclature does not alter the substantive law that governs the liberty of Indian citizens.  The spirit of Macaulay’s code, punitive, state-centric, and structurally colonial, lives on in the BNS.

True decolonisation of criminal law is not about what you call the statute.  It is about whether the law treats every person regardless of gender, religion, caste, or political opinion as a full citizen deserving of dignity and protection.  The IPC often failed that test, whereas the BNS, in too many places, continues the failure under a new name.  It acknowledges that criminal law is not sacred and cannot be immune from change.  The conversation that has started about what kind of criminal justice system India wants is one worth having seriously.  The hope is that the courts, legal scholars, civil society, and a future Parliament will push that conversation further than the BNS itself has managed to go.

REFERNCE(S):

1. Statutes

• Bharatiya Nyaya Sanhita, 2023 
• Indian Penal Code, 1860
• Unlawful Activities (Prevention) Act, 1967
• Maharashtra Control of Organised Crime Act, 1999

2. Case Laws

• Bachan Singh v. State of Punjab, AIR 1980 SC 898
• Independent Thought v. Union of India, (2017) 10 SCC 800
• Joseph Shine v. Union of India, (2019) 3 SCC 39
• Navtej Singh Johar v. Union of India, (2018) 10 SCC 1

3. Reports and Secondary Sources

• Law Commission of India, 262nd Report on Death Penalty (2015)
• Law Commission of India, 42nd Report on Indian Penal Code (1971)
• Committee on Reforms of Criminal Justice System (Malimath Committee Report), Government of India, Ministry of Home Affairs (2003)
• PRS Legislative Research, The Bharatiya Nyaya Sanhita, 2023: A Comparison with the Indian Penal Code, 1860 (2023)