Authored By: Rushikesh Shivkumar Joshi
Manikchand Pahade Law Collage
Introduction
On 1 July 2024, India’s principal substantive criminal law changed after more than 160 years. The Bharatiya Nyaya Sanhita, 2023 (‘BNS’) replaced the Indian Penal Code, 1860 (‘IPC’), subject to the statutory exception concerning section 106(2). The change was presented as a move towards a criminal justice framework suited to contemporary India and less dependent on colonial-era legislation.
The replacement is significant because a penal code does more than list offences and punishments. It determines the boundaries of state power over individual liberty, regulates conduct affecting society, and influences how police, prosecutors and courts respond to crime. The BNS therefore deserves to be assessed by more than its new terminology or the number of provisions that have been altered.
This article argues that the BNS is a meaningful but incomplete reform. It modernises parts of criminal law by recognising organised crime and terrorism as general penal offences, introducing community service as a punishment, and expressly addressing certain forms of group-based murder. Yet the statute also retains substantial continuity with the IPC and creates difficult constitutional questions in areas such as speech, national security and prosecutorial discretion. The replacement of sedition with section 152 illustrates this tension particularly clearly. Early judicial decisions under sections 111 and 152 already indicate that courts are likely to insist upon careful statutory application.
The article first outlines the principal legal changes. It then examines emerging judicial interpretation, evaluates the BNS against constitutional and practical concerns, and proposes reforms aimed at making the new framework more certain, proportionate and accountable.
Legal Framework: What Has the BNS Changed?
The BNS is not a wholly new body of criminal law. It repeals the IPC through section 358, but many familiar offences and general principles continue in substantially recognizable form. The more accurate description is therefore a reconstruction of the central penal statute, combined with selected substantive changes.
Community service
Section 4 of the BNS lists community service among the punishments available under the Sanhita. This is a notable departure from the IPC’s traditional sentencing structure. Community service can be particularly valuable for minor offending because it avoids treating imprisonment as the default response to every form of criminality.
The reform also reflects a broader concern with rehabilitation. A short custodial sentence can disrupt employment, family life and social ties without necessarily addressing the causes of offending. A properly supervised community-service order can impose a consequence while allowing the offender to remain connected with the community. Its effectiveness, however, depends on clear sentencing standards and an administrative mechanism capable of supervising compliance.
Organised crime and petty organised crime
Section 111 introduces a general offence of organised crime, while section 112 addresses petty organized crime. The legislation seeks to respond to criminal networks whose activities may involve violence, intimidation, coercion, extortion, kidnapping, cyber-related conduct or other unlawful means used for material advantage.
The inclusion of organised crime in the general penal code is practically significant. Before the BNS, several States relied upon special laws to address organised criminal activity. The new provision creates a nationwide offence within the principal criminal statute. At the same time, section 111 is severe: depending upon the consequences and the accused’s role, punishment can extend to life imprisonment and, where death results, the statute permits the death penalty. Such severity makes the statutory safeguards and threshold requirements especially important.
Terrorist acts
Section 113 creates a specific offence of terrorist acts. This is another major structural change because terrorism had principally been dealt with through special legislation, particularly the Unlawful Activities (Prevention) Act 1967 (‘UAPA’). The BNS provision raises an important question of legislative overlap. A general penal provision can improve accessibility, but duplication between the BNS and a special national-security statute may also produce uncertainty about which legal regime should apply.
Group-based murder
Section 103(2) provides enhanced punishment where a group of five or more persons commits murder on specified grounds, including race, caste or community, sex, place of birth, language or personal belief. The provision gives express statutory recognition to the particular gravity of identity-based group violence. It is therefore a useful response to a form of criminality that is difficult to capture fully through general provisions on murder and unlawful assembly.
Section 152 and the replacement of sedition
The most constitutionally sensitive change concerns offences against the State. The BNS does not reproduce IPC section 124A, commonly known as sedition. Instead, section 152 penalises conduct that, among other things, purposely or knowingly excites or attempts to excite secession, armed rebellion or subversive activities, encourages separatist feelings, or endangers the sovereignty, unity and integrity of India.
The removal of the word ‘sedition’ is significant, but constitutional analysis cannot stop at nomenclature. The relevant question is whether the new offence establishes a sufficiently clear boundary between legitimate political expression and punishable conduct. That question has already reached the Supreme Court and High Courts.
III. Judicial Interpretation: From the IPC to the BNS
Because the BNS is relatively new, its early case law is particularly important. Courts are beginning to determine how far earlier criminal-law principles can be carried into the new statutory framework and where the new wording requires a different approach.
Section 111: The need for a statutory threshold
Section 111 is deliberately stringent. It does not treat every group of offenders as an organised crime syndicate. The provision contains requirements concerning continuing unlawful activity and previous charge-sheets and cognisance within the specified period. These requirements matter because the offence carries substantially greater consequences than ordinary offences.
In K Revathi v State of Andhra Pradesh, the Andhra Pradesh High Court emphasised that section 111 should not be invoked mechanically. The Court held that earlier charge-sheets and cognisance may be relevant only in the circumstances specified by the provision and cautioned police and courts to verify the statutory requirements before invoking the offence. It ultimately quashed the section 111(2)(b) proceedings against the petitioners while permitting investigation into other alleged offences.
The significance of this decision extends beyond its facts. It demonstrates that the BNS cannot be treated as a licence to attach the label of ‘organised crime’ to ordinary criminal allegations. Where Parliament has created a heightened offence with severe punishment, the statutory ingredients must be established with corresponding care.
Section 152: Constitutional scrutiny of the new State-security offence
The judicial treatment of section 152 is even more important because it directly engages Article 19(1)(a) of the Constitution. The Supreme Court’s earlier jurisprudence on sedition provides the constitutional background. In Kedar Nath Singh v State of Bihar, the Court upheld section 124A of the IPC only by confining its operation to conduct involving incitement to violence or a tendency to create public disorder. Later, in S G Vombatkere v Union of India, the Supreme Court directed that proceedings under section 124A be kept in abeyance while the constitutional challenge to sedition remained pending.
Section 152 is drafted differently from section 124A, but the constitutional problem has not disappeared merely because the terminology has changed. In August 2025, the Supreme Court in Abhisar Sharma v Union of India issued notice on a challenge to the constitutional validity of section 152. The Court also granted interim protection enabling the petitioner to seek appropriate relief before the High Court. The proceeding is important not because the Court has already declared section 152 unconstitutional—it has not—but because the provision is now subject to direct constitutional scrutiny.
High Court decisions have also shown a cautious approach. In Riyaz v State, the Allahabad High Court observed that mere expression of support for Pakistan, without the necessary connection to the conduct criminalised by section 152, would not by itself establish the offence. The broader principle is that political expression must not be converted into criminality without examining the statutory ingredients and constitutional protection.
These decisions suggest that section 152 will require a narrow and context-sensitive application. The State has a legitimate interest in protecting sovereignty and territorial integrity, but that interest does not eliminate the constitutional protection for criticism, dissent and political discussion.
Critical Evaluation: Does the BNS Deliver Genuine Reform?
The BNS contains genuine improvements, but its reform credentials should not be overstated. Three issues are particularly important: continuity with the IPC, breadth of State protective offences, and implementation.
Reform versus continuity
The political and institutional appeal of replacing a colonial-era statute is understandable. Nevertheless, decolonisation cannot be measured simply by changing the name of the penal code. A substantial part of the IPC’s substantive architecture survives in the BNS. Many familiar offences remain, often with revised numbering or wording rather than a fundamentally different legal concept.
Continuity is not necessarily a weakness. Criminal law should not be changed merely for symbolic reasons. Established doctrines can provide certainty, and retaining workable provisions avoids unnecessary disruption. The difficulty arises when the rhetoric of complete transformation creates an expectation that the new law has solved problems that actually remain.
The more convincing measure of reform is whether the BNS strengthens constitutionalism, clarity and proportionality. On this measure, the statute is mixed. Community service and new offences addressing contemporary criminal activity are positive developments. But broad offences concerning State security require strong interpretive safeguards.
The danger of overbroad criminalisation
The strongest criticism concerns the possibility of expansive application. Section 152 is a useful example. Protecting sovereignty and integrity is a legitimate legislative purpose. However, words, signs and electronic communications form the ordinary means through which citizens participate in public debate. If an offence is invoked without a clear connection between expression and the harm identified in the statute, criminal law can chill legitimate speech.
The constitutional standard is not whether an individual dislikes a statement, but whether the restriction falls within the limits permitted by Article 19(2). The Supreme Court’s decision in Shreya Singhal v Union of India is relevant because it distinguished protected discussion and advocacy from incitement, emphasising the importance of a proximate connection before speech can be criminally restricted. Although Shreya Singhal concerned section 66A of the Information Technology Act 2000, its reasoning provides a useful constitutional lens for evaluating vague restrictions on expression.
The same principle should inform section 152. Investigating agencies should identify the precise statutory ingredient alleged, the factual material supporting it, and the connection between the conduct and the prohibited consequence. A mere assertion that speech is ‘anti national’ should have no independent legal significance.
Community service: promising, but institutionally incomplete
Community service is one of the BNS’s more progressive features, but its success depends on implementation. The Parliamentary Standing Committee had raised concerns about the absence of a definition of community service in the BNS and recommended clarification. The procedural law now contains a definition, but sentencing practice still requires consistent judicial standards and effective supervision.
Without such infrastructure, community service may become unpredictable. One court may impose a meaningful rehabilitative order while another may treat it as an informal alternative without adequate monitoring. The reform therefore needs sentencing guidelines, supervision mechanisms and periodic evaluation of compliance.
Organised crime: necessary offence, serious safeguards
The creation of section 111 responds to a genuine need. Criminal syndicates can operate across districts and States and may use violence, intimidation and economic networks that ordinary offences do not capture adequately. A general offence can make prosecution more coherent.
The danger lies in using the provision too broadly. The Andhra Pradesh High Court’s approach in K Revathi demonstrates why the statutory threshold matters. The offence should remain directed at structured and continuing criminal activity rather than becoming an additional charge in ordinary criminal cases.
This is particularly important because special criminal provisions can have a stigmatic effect even before trial. Once an accused is labelled as involved in organised crime, bail, investigation and public perception may all be affected. Strict compliance with the statutory prerequisites is therefore not a technical formality; it is a safeguard for liberty.
Implementation and legal transition
The BNS also creates a practical challenge for the legal profession. Lawyers and judges have spent decades developing case law around the IPC. Where BNS language substantially corresponds with the old provision, earlier precedents may remain persuasive, but they cannot automatically control the interpretation of materially different wording.
The transition therefore requires careful mapping between the two codes, judicial training and reliable legal databases. The Ministry of Home Affairs has acknowledged implementation as a major component of the new criminal-law framework and has undertaken training for police and prison personnel. However, training should extend beyond section-number familiarisation. Officers must understand constitutional limits, evidentiary requirements and the consequences of invoking aggravated offences without sufficient material.
The long-term success of the BNS will depend less on the novelty of its text than on the quality of its everyday application.
Recommendations: Making the BNS More Certain and Rights-Compatible The first priority should be interpretive clarity. Courts should develop clear standards for section 152 that distinguish protected criticism, discussion and advocacy from conduct amounting to incitement, separatist activity or a genuine threat to sovereignty and integrity. This would reduce arbitrary application while preserving the State’s legitimate security interests.
Second, section 111 should be applied only after the statutory requirements are independently verified. Police should record the material relied upon to establish continuing unlawful activity and the relevant previous charge-sheets and cognisance. The approach directed by the Andhra Pradesh High Court provides a useful practical model.
Third, community service should be supported by sentencing guidelines and supervision. The punishment should be meaningful but proportionate, with safeguards ensuring that it does not become humiliating or discriminatory.
Fourth, Parliament should periodically review overlap between section 113 of the BNS and the UAPA. A person should not face uncertainty about which offence or procedural regime applies merely because similar conduct falls within two statutes. Clear prosecutorial guidance and, where necessary, legislative clarification would improve consistency.
Finally, implementation of the BNS should be evaluated through empirical data. Parliament and State authorities should examine how often new offences are invoked, how many prosecutions succeed, how frequently courts reject charges for failure to satisfy statutory ingredients, and whether particular provisions have disproportionate effects on protected expression or vulnerable groups. Criminal-law reform should be measured by outcomes rather than by legislative symbolism.
Conclusion
The Bharatiya Nyaya Sanhita is neither a complete departure from the IPC nor a purely cosmetic replacement. It occupies a middle ground. The statute retains substantial continuity with the earlier penal framework while introducing provisions designed to address organised crime, terrorism, group-based violence and non-custodial punishment.
Its most important test, however, lies in the exercise of State power. Sections 111 and 152 illustrate the point from different directions. Section 111 can be a necessary tool against structured criminal enterprises, but its severe consequences justify strict adherence to its statutory conditions. Section 152 can legitimately protect national sovereignty, but its application must respect the constitutional space for political criticism and dissent.
The early case law is encouraging in one respect: courts have begun to insist that the new provisions be applied according to their actual ingredients rather than their labels. The Supreme Court’s constitutional scrutiny of section 152 and the Andhra Pradesh High Court’s caution concerning section 111 demonstrate why judicial oversight will be central to the success of the new code.
The central conclusion is therefore that the BNS should be judged by constitutional values rather than by the fact of legislative replacement. If implemented with precision, proportionate sentencing and effective safeguards, it can modernise important parts of India’s criminal law. If broad provisions are applied mechanically, however, the change in statutory name will not amount to meaningful reform. The next stage of criminal-law reform must consequently focus not only on what Parliament has enacted, but on how the criminal justice system uses that power.
Footnote(S):
Ministry of Home Affairs, Gazette Notification S.O. 850(E), 23 February 2024. 2. Bharatiya Nyaya Sanhita 2023, s 358.
Bharatiya Nyaya Sanhita 2023, s 4(f).
Bharatiya Nyaya Sanhita 2023, ss 111–112.
Bharatiya Nyaya Sanhita 2023, s 111(2).
Bharatiya Nyaya Sanhita 2023, s 113.
Bharatiya Nyaya Sanhita 2023, s 103(2).
Bharatiya Nyaya Sanhita 2023, s 152.
Bharatiya Nyaya Sanhita 2023, s 111(1).
K Revathi v State of Andhra Pradesh, Criminal Petition No 13648 of 2025 (APHC, 5 January 2026), paras 12–15.
Kedar Nath Singh v State of Bihar AIR 1962 SC 955.
S G Vombatkere v Union of India, Writ Petition (Civil) No 682 of 2021 (SC, 11 May 2022).
Abhisar Sharma v Union of India, Writ Petition (Criminal) No 338 of 2025 (SC, 28 August 2025).
Riyaz v State (Allahabad HC, 11 July 2025).
PRS Legislative Research, ‘The Bharatiya Nyaya Sanhita, 2023’ (Legislative Brief, 2023). 16. Shreya Singhal v Union of India (2015) 5 SCC 1.
Department-related Parliamentary Standing Committee on Home Affairs, Two Hundred Forty-Sixth Report on the Bharatiya Nyaya Sanhita, 2023 (Rajya Sabha, 2023).
K Revathi (n 10) paras 12–15.
Ministry of Home Affairs, Government of India, ‘Training of State Police and Prison officers and staff of all States and UTs on new aspects of the three new criminal laws’ (30 April 2024).
K Revathi (n 10) paras 12–15.
References and Bibliography
PRIMARY LEGISLATION
Bharatiya Nyaya Sanhita 2023.
Constitution of India 1950.
Information Technology Act 2000.
Unlawful Activities (Prevention) Act 1967.
CASES
Abhisar Sharma v Union of India, Writ Petition (Criminal) No 338 of 2025, Supreme Court of India, order dated 28 August 2025.
Kedar Nath Singh v State of Bihar AIR 1962 SC 955.
K Revathi v State of Andhra Pradesh, Criminal Petition No 13648 of 2025, Andhra Pradesh High Court, order dated 5 January 2026.
Navtej Singh Johar v Union of India (2018) 10 SCC 1.
Riyaz v State, Allahabad High Court, order dated 11 July 2025.
S G Vombatkere v Union of India, Writ Petition (Civil) No 682 of 2021, Supreme Court of India, order dated 11 May 2022.
Shreya Singhal v Union of India (2015) 5 SCC 1.
GOVERNMENT AND PARLIAMENTARY MATERIALS
Department-related Parliamentary Standing Committee on Home Affairs, Two Hundred Forty Sixth Report on the Bharatiya Nyaya Sanhita, 2023 (Rajya Sabha, 2023).
Ministry of Home Affairs, Government of India, ‘New Criminal Laws’.
Ministry of Home Affairs, Government of India, Gazette Notification S.O. 850(E), 23 February 2024.
SECONDARY SOURCES
PRS Legislative Research, ‘The Bharatiya Nyaya Sanhita, 2023’ (Legislative Brief, 2023). M Suresh Babu, ‘Community Service Sentences under the Bharatiya Nyaya Sanhita, 2023’ (2024) 1 MSLJ 59.
