Authored By: Sneha Kumari
Amity Law School, Amity University Patna
ABSTRACT
This paper provides a critical analysis of the transition from the Indian Penal Code (IPC), 1860, to the Bharatiya Nyaya Sanhita (BNS), 2023, examining the rationale behind replacing a colonial-era legal framework with a more contemporary, indigenous model. The study begins by introducing the BNS and delving into the historical, legal, and socio-political imperatives that catalyzed the shift. It explores how the BNS aims to modernize India’s criminal justice system by emphasizing transparency, accountability, and citizen-centric justice. Particular focus is placed on reforms designed to improve procedural efficiency, such as strict investigation timelines, the integration of technology in legal processes, and enhanced protection of individual rights. Through a comparative lens, the paper contrasts key features of the IPC and BNS, highlighting progressive elements in policing, investigation, and judicial procedures. While recognizing the BNS as a step toward decolonizing India’s legal system, the paper also critically evaluates the challenges and limitations of its implementation, including concerns around federalism, enforcement capacity, and safeguarding civil liberties. Ultimately, the study offers a balanced perspective on the BNS’s potential to reshape criminal justice in India, while acknowledging the complexities of translating legislative intent into effective practice.
INTRODUCTION
The 1Bharatiya Nyaya Sanhita 2023 came into effect on July 1, 2024. Before the BNS 2023, the Indian Penal Code was applicable within the territory of India. The IPC was created or established during the rule of the British in India because before the IPC, there was no such 2codified criminal law made or enforced in India. The IPC was officially enacted on October 6, 1860, and came into force on January 1, 1862.As When we discuss the origins of the Indian Penal Code (IPC), we always remember3 Lord Macaulay, who played a crucial role in its formation. He led a legal committee of experts who worked on drafting the law. The basis From Colonial Legacy to Contemporary Justice : Analyzing the transition from IPC 1860 to the BNS 2023 of the IPC was to bring 4uniformity to the Indian criminal justice system, as the IPC was applicable throughout India. Primary Reasons for Repealing IPC and bringing BNS was to modernize the criminal codified law and align it according to the needs of the society or use the basis of contemporary issues like the increase of offenses related to 5online scams, cybercrime6, and bullying7, etc. Even IPC was very outdated and inadequate. Its language was very complex to understandable for the layman. While it was also crafted during the colonial 8period which seeks to understand that although after getting independence from the colonial rule we are still following their legacy. So, the government should take the initiative to bring a new version of codified criminal law by repealing 9the previous and modifying it according to the need and for the overall development of the society. So one of the major change that we will discuss the impact of bringing BNS 2023. By discussing about Police and Procedural 10reforms in BNS 2023.
Examining the BNS role in Advancing transparency and accountability at grassroot level
In this, we will understand what reforms are being made to enhance the police to be accountable and transparent.
E- FIR or Complaint – This is a new concept which was not in IPC but introduced in BNS, which meant that individuals can register their complaints through electronic means.
From Colonial Legacy to Contemporary Justice : Analyzing the transition from IPC 1860 to the BNS 2023
This initiative was taken to make access to justice easier. As many times we have seen that police refuse to register complaints.
Zero FIR– The BNS allows any person or individual to register the first information. report can be filed at any police station, regardless of 14 jurisdiction. Many individuals get confused about which police station 15has the jurisdiction over a case. Through the Zero FIR initiative, the police will transfer the case to the police station with original jurisdiction16.
Time Information for Victims: Victims must be given timely information. Under Section 193(3)(h)(i), 17police are required to inform complainants or victims about the progress of the investigation. This promotes transparency in the investigation and keeps victims informed about the process.
Community Service – Punishment: This means that if an individual who has committed minor offenses will not be sent to prison. Instead, the punishment 18will be that they have to perform community service without remuneration. The aim of community service 19is to focus on reformative justice20.
Mandatory Videography of Investigation: The sections of BNS 10521, 17322, 176 23and 180 24mandate that police had to record all the things while in the during their investigation process like witness examination25, crime scenes evidence 26etc. While after recording they had to upload it via the eSakshya 27mobile application linked to special FIR related to the case.
From Colonial Legacy to Contemporary Justice : Analyzing the transition from IPC 1860 to the BNS 2023
Use of Technology in the proceedings: BNS provisions encourages to use of the technology all the stage of criminal proceeding to enhance the efficiency and to reduce the delays in the legal proceedings28.
Balancing Police Power and Individual Rights under BNS 2023:
So looking at the provision of BNS and BNSS 2023 we can understand that they had tried to balance the power between the police and an individual so we will discuss the police power and safeguards for individual rights provided.
Police Power under BNS
Extended Police custody– The BNS permits that during the investigation29, the police can keep the accused in police custody 30for 15 days. It means if they take the accused in custody for the period between 60 to 90 days initially, the police can take the accused for the custody for 4 days or 5 days under 15 days but in IPC provision the police had to take the accused in custody in one go of 15 days.
Power to Attach Property. Section 107 of BNSS31 grants a police authority to attach property of the individual if they think there is reason to believe that the property is derived from deceitful 32or criminal activity. This power can lead to the target or harass 33the individual without sufficient means.
Safeguards for Individuals under Arrest
Right to inform family members or friends: The arrested person has the right to inform their family or friends. A memorandum of arrest must be made, which includes the fact that the arrested person must be informed. This should be done in the presence of at least one independent witness (a family member, friend, or any respectable person of the locality) and countersigned by the arrested person. This is mentioned under section 36 34of the Bharatiya Nagarik Suraksha Sanhita (BNSS] From Colonial Legacy to Contemporary Justice : Analyzing the transition from IPC 1860 to the BNS 2023
Comparative study of BNSS and IPC (Indian Penal Code): Police and Procedure reform.
1 Police Power – In IPC, the police have broad discretionary 35powers such as preventive detention36, custodial torture37, and abuse, which sometimes leads to the death of individuals. While in BNS 2023, provisions for police power have been elaborated, including the procedure of arrest with mandatory information of the grounds and the rights for the arrested person. It introduces video recording during investigation and interrogation38, medical examination of the arrested person, and also providing legal aid to curb torture.
2) FIR registration and Investigation – In police, they had the power to register the FIR, but sometimes they did not register the complaint of the victim. Even if they had registered the complaint, they used to delay the investigation, which was common. While in BNS, it has been mandated to register complaints and FIR39s, and they have introduced the concept of Zero FIR and the provision of BNS also contains a duration for the investigation and chargesheet40 submission. As the ANS provision leads to understand us that it has been tried to be made for transparency and enhance victim protection predation.
3) Trial Delays41 – In IPC it has lengthy trials with huge backlog as number of cases has been left pending due to trial delays and procedural inefficiencies as BNS introduces times for correct forwarding and investigation to reduce delay and backlog.
Challenges and Drawbacks.
1 Retention of sedition – As the government BNS has repealed the section 124 A of IPC (sedition42) and introduces section-152 which criminalizes acts endangering the sovereignty, unity, and integrity of India, but critics argue that it still has the essence of colonial era law as the definition is still not clarified which can lead to further misuse.
2 Overly broadening the terrorism provisions: It had added vague terms like economic security to which may lead to further misuse and overreach.
3 Community service: This provision has not been clearly defined in the definition which loose can lead to problematic or in sentencing decision or punishment or taking decision.
From Colonial Legacy to Contemporary Justice : Analyzing the transition from IPC 1860 to the BNS 2023
4 Terrorism provision in UAPA & BNS: As this term is given in both the for UAPA43 and BNS but it has not clearly differentiate between the terms in both the laws which can lead to confusion.
5 Police to decide the enforcement of laws: As it means that police has the power to apply BNS or UAPA in Terrorism according to the gravity of offense which may lead to arbitrariness.
6 Gender neutral – The section of law which defines rape has not been made in view of gender neutrality. As we know through Navtej Singh Johar v. Union of India (2018)44 Sec 377 of IPC was decriminalized to protect the gender equality and safety for the betterment and upliftment of LGBTQ individuals but there might be chances the rape offense can be happen with minor age boy or even with a major age boy where they will seek for justice the BNS 2023 must could have brought certain section for the men as it may lead to gender biasness.
7 Constitution and Judicial Contest: The BNS reforms must be evaluated against basic constitutional principles and SC judgements.
Maneka Gandhi v. Union of India (1978)45: In this case the SC gave judgement that any deprivation of liberty must be established following a procedure that is just, fair and reasonable. BNS has introduced Timelines for investigation, laws and victim protection, but lack of judicial oversight mechanisms, which are crucial for procedure fairness.
DK Basu Guidelines 46– In this case, the Supreme Court gave a judgement , issued guidelines for the protection of rights related to arrested persons. However, many of these guidelines are forced only by the BNS, but the challenges remain for its practical enforcement.
Conclusion
The Bharatiya Nyaya Sanhita (BNS), 2023, marks a significant attempt to modernize India’s criminal justice system by replacing the Indian Penal Code of 1860. It introduces important changes, including faster investigation processes and the incorporation of digital technology. However, the law continues to grant broad authority to law enforcement agencies without establishing adequate oversight mechanisms. This absence of strong accountability, along with insufficient safeguards for individuals in custody, raises concerns about potential human rights violations such as custodial deaths. These issues indicate that, although the BNS is a progressive initiative, it does not fully resolve the systemic challenges within the justice From Colonial Legacy to Contemporary Justice : Analyzing the transition from IPC 1860 to the BNS 2023system. Continued reforms will be essential to close these gaps and ensure justice is served in an equitable and transparent manner. Still, the BNS represents a foundational move toward a legal framework that is more aligned with modern 47democratic values and less rooted in colonial-era governance.
REFERENCE(S)
- The Bharatiya Nyaya Sanhita, No. 45 of 2023, § 2, Acts of Parliament, 2023 (India).
- The Bharatiya Nagarik Suraksha Sanhita, No. 46 of 2023, §§ 35–38, Acts of Parliament, 2023 (India).
- Transforming Criminal Justice System, Daily Excelsior (Jan. 2, 2024),https://www.dailyexcelsior.com/transforming-criminal-justice-system/.
- Delhi Notifies Community Service Guidelines for Minor Offences Under New Laws, Times of India (June 6, 2025), https://timesofindia.indiatimes.com/city/delhi/delhi-notifies-community service-guidelines-for-minor-offences-under-new-laws/articleshow/121656003.cms.
- Eyeing Transparency, Police To Get 1.5k Bodycams, Times of India (May 11, 2025), https://timesofindia.indiatimes.com/city/delhi/eyeing-transparency-police-to-get-1-5k bodycams/articleshow/121064685.cms.
- New Criminal Laws: Shah Calls for E-Summons Directly From Courts, Times of India (May 5, 2025), https://timesofindia.indiatimes.com/city/delhi/new-criminal-laws-shah-calls-for-e summons-directly-from-courts/articleshow/120908789.cms.
- Bharatiya Nyaya Sanhita: Decolonising or Reinforcing Colonial Ideas?, National Law School of India University Blog (Jan. 25, 2024), https://www.nls.ac.in/blog/bharatiya-nyaya-sanhita decolonising-or-reinforcing-colonial-ideas/.
- https://www.drishtijudiciary.com/editorial/drawbacks-of-bharatiya-nyaya-sanhita-2023
- Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 (India), available at https://indiankanoon.org/doc/168106766/ (last visited June 10, 2025).
- Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 (India).
- D.K. Basu v. State of W.B., (1997) 1 SCC 416 (India).
- Maneka Gandhi v. Union of India, (1978) 1 SCC 248 (India PWOnlyIAS, IPC Full Form, https://pwonlyias.com/ipc-full-form/
1 Bharatiya Nyaya Sanhita, No. 45 of 2023, § [section number], Gazette of India, pt. II, sec. 1 (Dec. 25, 2023) (India).
2John Austin, The Province of Jurisprudence Determined 25 (1832) (describing codification as the formal process of arranging laws into a written code).
3Indian Penal Code, Act No. 45 of 1860 (India); see generally Thomas Babington Macaulay, Draft of the Indian Penal Code (1837) (unpublished draft).
44Indian Penal Code, Act No. 45 of 1860 (India) (enacted to establish uniform criminal law throughout British India).
5 Cybercrime Laws, 15 U.S.C. § 1343 (2020) (defining online scams as fraudulent internet schemes to deceive for financial gain).
6 Computer Fraud and Abuse Act, 18 U.S.C. §§ 1030 et seq. (1986) (criminalizing unauthorized computer access and cybercrime).
7 Megan A. Moreno et al., Cyberbullying and Adolescent Health, 10 J. Adolesc. Health 165, 167 (2015) (describing cyberbullying as digital harassment).
8 Ranajit Guha, Dominance Without Hegemony: History and Power in Colonial India 24 (1997) (discussing the colonial period and its legal impact).
9 Legislative Repeal Act, 2 U.S.C. § 181 (1954) (explaining the formal revocation of laws).
10 Erwin Chemerinsky, Procedural Justice in Legal Systems 101 (2010) (defining procedural reforms to improve fairness).
11 National Crime Records Bureau, E-FIR Guidelines (2021) (describing electronic filing of First Information Reports).
12 Fed. R. Crim. P. 3 (outlining the filing of formal complaints initiating legal proceedings).
13 Police Reform Act, § 12 (2020) (describing zero FIR as police reports filed regardless of jurisdiction).
14 Restatement (Second) of Conflict of Laws § 38 (1971) (defining jurisdiction as legal authority over cases).
15 Police Act § 4 (2006) (defining police stations as law enforcement facilities).
16 Fed. Judicial Ctr., Jurisdiction Primer (2018) (explaining original jurisdiction as power to hear cases first).
17 BNS Act § 193(3)(h)(2) (2023) (criminalizing false evidence during judicial proceedings).
18 Penal Code § 5 (2020) (defining punishment as penalty for crime).
19 18 U.S.C. § 3563(b)(16) (2010) (authorizing community service as a sentencing option).
20 John Braithwaite, Crime, Shame and Reintegration 15 (1989) (explaining reformative justice focused on rehabilitation).
21 BNS Act § 105 (2023) (governing preventive detention).
22 BNS Act § 173 (2023) (regulating police investigation and charge sheets).
23 BNS Act § 176 (2023) (covering witness protection procedures).
24 BNS Act § 180 (2023) (authorizing search and seizure powers).
25 Evidence Act § 135 (2020) (governing witness examination).
26 Fed. R. Evid. 401 (defining evidence as proof supporting claims).
27 Digital Justice Initiative, E-Sakshya Mobile (2023) (describing a legal documentation app).
28 Civil Procedure Code § 2 (2018) (defining legal proceedings).
29 Police Manual § 10 (2019) (defining investigation processes).
30 Code of Criminal Procedure § 167 (1973) (describing police custody of suspects).
31 BNS Act § 107 (2023) (authorizing preventive action against threats).
32 Black’s Law Dictionary 520 (11th ed. 2019) (defining deceitful conduct).
33 Anti-Harassment Act § 2 (2015) (defining harassment as repeated intimidation).
34 BNSS Act § 36 (2023) (criminalizing cyber harassment).
35 Law § 3 (2015) (describing discretionary power).
36 Preventive Detention Act § 5 (2020) (governing preventive detention).
37 U.N. Convention Against Torture art. 1 (1984) (defining custodial torture).
38 Police Manual § 8 (Administrative 2019) (defining interrogation).
39 Criminal Procedure Code § 154 (1973) (describing First Information Report).
40 Criminal Procedure Code § 173 (1973) (outlining chargesheet filing).
41 Speedy Trial Act, 18 U.S.C. §§ 3161 et seq. (1974) (addressing trial delays).
42 Penal Code § 124A (2018) (defining sedition).
43 Unlawful Activities (Prevention) Act, No. 37 of 1967 (India) (UAPA) (criminalizing terrorism and unlawful activities).
44 Navtej Singh Johar v. Union of India, (2018) 10 S.C.C. 1 (India).
45 Maneka Gandhi v. Union of India, (1978) 1 SCC 248 (expanding interpretation of fundamental rights).
46 D.K. Basu v. West Bengal, (1997) 1 SCC 416 (establishing guidelines against police custodial torture).
