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A Guide to India's New Criminal law:
Understanding Bharatiya Nyaya Sanhita (“BNS”)
Anhad Law
India July 23 2024
The Bharatiya Nyaya Sanhita,2023 (BNS), which has come in force since July 01,2024 to
replace the Indian Penal Code,1860 (IPC), has brought about several significant changes to the
Indian criminal justice system.
BNS consists of 358 sections enumerated under 20 chapters as compared to 511 Sections of IPC
in 23 Chapters. Further, definitions scattered from section 6 to section 52 of IPC have also been
brought under two sections viz. Section 2 on ‘definitions’ and Section 3 on ‘general
explanations’ under Chapter I of BNS.
Though the BNS retains most offences from the IPC, the significant changes are as follows:
1. Deletion of Definitions under IPC:
In the BNS, many definitions have been merged and are listed alphabetically under clause 2 of
BNS. Gender has been redefined and in addition to male and female gender, transgender has
even been transgender has been included in the definition of ‘Gender’ under Section 2(10) of
BNS. Changes have been made in definitions for e.g. the word ‘British Calander month or
year’ has been changed to ‘Gregorian Calander month or year’ in BNS, the word ‘corporeal’
used in IPC has been deleted in BNS; the word ‘juryman’ has been removed as jury system no
longer exists in India. The definition of expressions like – queen, British India, servant of
Government, and Government of India as defined in IPC have been deleted from BNS as they
are not used anywhere in the IPC. The word ‘document’ mentioned in Section 2(8) of BNS has
been newly defined in consonance with the definition of the word ‘document’ in clause 2(c) of
the Bharatiya Sakshya Adhiniyam, 2023.
1.1. Deletion of Old Offences under IPC:
Sedition (Section 124A IPC): Sedition is no longer an offence under the BNS. Instead,
there are new offences under Section 152 and Section 197 (1)(d) of BNS for the
following acts:
(i) exciting or attempting to excite secession, armed rebellion, or subversive activities,
(ii) encouraging feelings of separatist activities, or
(iii) endangering the sovereignty or unity and integrity of India.
(iv) false or misleading information which has tendency to jeopardise the sovereignty,
unity, integrity or security of India
These offences may involve exchange of words or signs, electronic communication, or use of
financial means. Words “or through electronic communication” as the mode of spreading
specified activities have been newly added.
Decriminalizing adultery (Section 497 IPC): Adultery is no longer an offence under the
BNS. Earlier, in the judgement of Joseph Shine v. Union of India, 2018 the Supreme
Court struck down section 497 of IPC as it violated Articles 14, 15, and 21 of the
Constitution.
However, a new offence has been added in BNS by way of Section 84 of the BNS which
penalises a man for enticing the wife of another man so that she may have illicit intercourse
with any person.
Unnatural Sexual Offences (Section 377 IPC): Offence dealing with unnatural sexual
offences has been deleted under the BNS. In Navtej Singh Johar v. Union of India (2018)
case, a five-judge bench of the Supreme Court unanimously held that section 377 of IPC
is in violation of Articles 14, 15, 19, and 21 of the Constitution of India. Provisions of
section 377, however, remained applicable in cases of non-consensual carnal intercourse
with adults, all acts of carnal intercourse with minors, and acts of bestiality. However, in
the BNS, there is no provision for non-consensual sexual offence against male, female,
transgender and for bestiality has been made which means that unnatural sexual offences
against person (sodomy) or animal (bestiality) is no longer offences under BNS.
Attempt to Commit Suicide (Section 309 IPC): The offense of 'attempt to commit
suicide' has been deleted in the BNS. This brings the law in line with the Mental
Healthcare Act, 2017, which recognizes that suicide is a mental health issue rather than a
criminal offense. However, a new offence has been added under section 226 of BNS,
which penalises attempt to commit suicide with the proven intention of compelling or
restraining any public servant from performing their official duties.
Thug (Section 310 IPC) has been deleted in BNS. Under the IPC, whoever shall have
been habitually associated with any other or others for the purpose of committing robbery
or child-stealing by means of or accompanied with murder, is a thug.
Lurking House Trespass by Night (Section 444 IPC) has been deleted in BNS.
Housebreaking by Night (Section 446 IPC) has been deleted in BNS.
Section 53A of IPC dealing with construction of reference to transportation has been
deleted in BNS.
2. Introduction of New Offences under BNS:
The BNS has also introduced several new offences, including:
Snatching: Section 304 of BNS states that theft is snatching if, in order to commit theft,
the offender suddenly or quickly or forcibly seizes or secures or grabs or takes away from
any person or from his possession any movable property.
Sexual Intercourse by employing deceitful means is a new offence introduced in
Section 69 of the BNS. Deceitful means shall include inducement for, or false promise of
employment, promotion or marrying by suppressing identity.
Negligence of a doctor is a new offence under BNS which specifically punishes death
caused by negligence of a “registered medical practitioner” while performing a medical
procedure. The erstwhile section 304A of IPC generally dealing with negligence did not
specifically mention doctor.
Terrorism: This offence is defined as an act that intends to threaten the unity, integrity,
and security of the country, intimidate the general public or disturb public order.
Organised crime: This offence includes crimes such as kidnapping, extortion and cyber-
crime committed on behalf of a crime syndicate.
Petty organised crime : Petty organised crime is also an offence now. It provides that
whoever, being a member of a group or gang, either singly or jointly, commits any act of
theft, snatching, cheating, unauthorised selling of tickets, unauthorised betting or
gambling, selling of public examination question papers or any other similar criminal act,
is said to commit petty organised crime.
Mob lynching: Murder by a group of five or more persons on grounds of certain identity
markers such as caste, language or personal belief will be an offence with penalty of life
imprisonment or death and also fine.
Printing or publishing trial court proceeding relating to sexual offences without
permission of court : Section 73 of BNS provides that printing or publishing any matter
in relation to any proceeding before a Court with respect to offence relating to rape,
sexual intercourse by husband upon his wife during separation, sexual intercourse by
person in authority, Sexual intercourse by employing deceitful means, etc, gang rape,
without the previous permission of such Court shall be punished with imprisonment of
either description for a term which may extend to two years and shall also be liable to
fine.
Hiring, employing or engaging a child to commit a crime is a new offence in BNS.
Under IPC, there was no provision to prosecute a person who employ or engage a child
for the purpose of committing offences. A new section 95 of BNS has been introduced to
make hiring, employing, engaging or using a child for committing offences including
sexual exploitation or pornography offence as if such person himself has committed the
offence.
Abetting commission of an offence in India while being outside India is a new offence
in BNS.
Murder by life convict is a new offence in BNS. The Supreme Court had struck down
existing section 303 of IPC pertaining to punishment for murder by life-convict on the
ground that it provided for only single punishment of death and the court had no
discretion. Now, two alternate punishments of death or imprisonment for life have been
provided to remove the said infirmity under Section 104 of BNS.
3. Gender Neutrality under BNS:
The BNS has introduced gender neutral term ‘whoever’ instead of ‘any man who’ used in
Sections 354 B and 354C of IPC for offences such as assault or use of criminal force to woman
with intent to disrobe her and Voyeurism under Sections 76 and 77 of the BNS respectively. In
offences relating to harbouring deserter, the word “wife” is replaced by “spouse” in the
exception of this section thereby made gender neutral.
The offence relating to importation of a person from foreign country has been made gender
neutral to cover both boys and girls in Section 141 of the BNS as compared to the word
‘importation of girl from foreign country’ as used in Section 366B of IPC.
As both boys and girls are procured for sexual exploitation, the word “minor girl” in section
366A of IPC has been replaced with the word “child” in Sections 93 to 99 of BNS to cover both
male and female children below the age of 18 years and the offence of procurement has been
made punishable. Uniformity has been introduced in the use of expression ‘child’ throughout
the BNS which is achieved by replacing the expression ‘minor’ and ‘child under the age of
eighteen years’ with the word ‘child’.
4. Increased Penalties/fines/introduction of mandatory minimum punishment under BNS:
The BNS has also increased punishment of imprisonment in 33 offences, including:
Murder: As per Section 103 of the BNS, whoever commits murder shall be punished
with death or imprisonment for life which means imprisonment for the remainder of a
person's natural life and shall also be liable to fine.
Causing death by rash or negligent act-106 (1) of BNS: The maximum penalty for this
offence has been increased from two years to five years imprisonment. However, if such
death is caused by a registered doctor, then the punishment is imprisonment up to 2 years.
Hit and run cases- Under Section 106(2) of BNS, if a driver causes the death of a person
by rash and negligent driving and “escapes without reporting it to a police officer or a
Magistrate soon after the incident, shall be punished with imprisonment of either
description of a term which may extend to ten years, and shall also be liable to fine.” The
said section is kept in abeyance at present.
Grievous Hurt which results in persistent vegetative state or in permanent disability
- 117(3) of BNS: A new provision has been introduced in the BNS to provide stringent
punishment for such acts of grievous hurt which results in persistent vegetative state or in
permanent disability, it will attract higher punishment of rigorous imprisonment for a
term which shall not be less than ten years but which may extend to imprisonment for life
(remainder of that person’s natural life) as against up to 7 years imprisonment for
grievous hurt earlier in IPC.
The BNS has increased punishment of fine in 83 offences. Fine of 10/-, 100/-, 200/-, 250/-500/-
etc. have been enhanced to 1000/-, 2500/-, 5000/-,10,000/- etc.to make the fine
contemporaneous.
The BNS has introduced mandatory minimum punishment in 23 offences including buying
child for the purpose of prostitution, organised crime, terrorist act, hurt to deter public servant
from his duty, personating a public servant, theft etc.
5. Community Service as a Punishment under BNS:
The BNS has introduced community service as a form of punishment under section 4(f) of BNS
for the first time for the six offences of: (i) Public Servant unlawfully engaging in trade under
section 202 of BNS (ii) Non-appearance in response to a proclamation published under sub
section (i) of section 84 of BNSS is punishable under section 209 of BNS (iii) Attempt to
commit suicide to compel or restrain exercise of lawful power of public servant under section
226 of BNS (iv) Petty theft on return of theft money and a person is convicted for the first time
under section 303(2) of BNS (v) Misconduct in public by a drunken person under section 355
of BNS (vi) Defamation under section 356 of BNS. However, the BNS does not offer any
explanation or clarification of what constitutes ‘community service’, even though it provides for
community service as a penalty for aforesaid six minor offences.
6. Other significant changes under BNS:
The BNS has also made a number of other changes, including:
Replacement of the words:
1. BNS has replaced the expression ‘Night’ used in IPC with ‘after sunset and before
sunrise’. Under Section 41 of BNS, fire has been expanded to include mischief by
fire or any explosive substance. ‘Wife’ is replaced with ‘spouse’ at several places.
Words “Court of justice” are replaced with “Court”. Words “insane person” are
replaced with “person of unsound mind”. Word “Goa” is replaced by “country X”
in illustration of Abetment in India of offences outside India. Word “military” is
replaced with “army”.
2. Under Sec 2 (21) of BNS, movable property includes property of every description
which means tangible as well as intangible property.
3. In offences relating to mischief by injury, inundation, fire or explosive substance,
etc., words “light house or other light used as sea marks or any sea mark or buoy”
are replaced by “any sign or signal used for navigation of rail, aircraft, or ship,”
thus the scope is widened immensely.
4. In offences relating to forgery of record of Court or of public register, etc, the
words “Court or an identity document issued by the government, including a voter
identity card or Aadhaar card,” has been added, and “baptism” is excluded.
Removal of age based parameters: Age based parameters for differential punishment
(for gang rape of a minor girl) has been removed and now Section 70(2) of BNS
prescribes life imprisonment (till remainder of that person’s natural life) or death for gang
rape of a woman below the age of 18 years.
Expanding the scope of theft: The scope of the offence of theft has been expanded to
cover theft of intangible items, such as intellectual property. Further, Section 380 of IPC
relating to ‘theft in dwelling house etc.’ has been expanded in Section 305 of BNS to
cover theft of idol or icon, government property, theft of vehicle and theft of any
article/goods from the vehicle.
Replacement of word Unsound Mind with Mental Illness: Section 84 of the IPC
provides that any act performed by a person of unsound mind cannot constitute an
offence. The BNS while retaining the provision in Section 22 of BNS has replaced the
term ‘unsound mind’ with ‘mental illness’ as the definition of mental illness is considered
wider compared to unsound mind, as it includes conditions such as mood swings or
voluntary intoxication.
Adoption of technology and digital media: Section 2(39) of the BNS states that all
words or expressions with regards to technology and digital media in general, shall have
the same meanings as those given in the Information Technology Act, 2002, as well as the
Bharatiya Nagarik Suraksha Sanhita, 2023.
Murder or attempt to murder by a life convict: Section 303 of IPC imposed death
penalty as a punishment for the offence of murder committed by a life convict which was
held unconstitutional by Supreme Court of India in Mithu v. State of Punjab case (1983).
The BNS reintroduced the said provision by adding life imprisonment as one of the
penalties (in addition to the death penalty) for murder or attempt to murder by a life
convict.
Clubbing of provisions of Criminal breach and cheating: Criminal breach of trust as
provided under Sections 406 – 409 of IPC are clubbed in one provision under Section 316
of BNS. Similarly, all forms of cheating under IPC in Sections 417, 418 and 420 are
clubbed in one provision under Section 318 of BNS.
Transgender: A transgender has been included in the definition of ‘Gender’ under
Section 2(10) of BNS to have the meaning assigned to it in clause (k) of section 2 of the
Transgender Persons (Protection of Rights) Act, 2019 which means a person whose
gender does not match with the gender assigned to that person at birth and includes trans-
man or trans-woman (whether or not such person has undergone Sex Reassignment
Surgery or hormone therapy or laser therapy or such other therapy), person with intersex
variations, genderqueer and person having such socio-cultural identities as kinner, hijra,
aravani and jogta.
Calander: In clause 2(20) of BNS, the reference to the month and year has been changed
from British calendar month or year to Gregorian calendar month or year.
Imprisonment for life: Imprisonment for life has been elaborated as imprisonment for
remainder of a person’s natural life under various Sections of BNS.
forged or counterfeit currency-notes or bank-notes: Section 489A of IPC has been
amended and introduced as Section 180 of BNS to protect the public who are merely in
possession of forged or counterfeit currency-notes or bank-notes etc. BNS now qualifies
the section with the words “knowing or having reason to believe the same to be forged or
counterfeit” and provides that possession of counterfeit currency note has to be
accompanied by the intention to use the same as genuine.
Mischief: The offence of mischief in the relevant sections of IPC has been expanded and
causing loss or damage to any property including the property of Government or Local
Authority has been made punishable with imprisonment extendable up to one year, or
with fine, or with both (as against just 6 months or with fine, or both for offence of
mischief presently).
Age of sexual consent raised for married women: The Supreme Court in the judgment
of Independent Thought v. Union of India case (2017) had read down the section 375 of
IPC as far as the age of sexual consent for married women is concerned and had also
raised the same to 18 years in conformity with Protection of Children from Sexual
Offences (POCSO) Act. The BNS has raised the age of sexual consent for married
women provided from 15 to 18 years.
Offences relating to Elections retained: Sections 169 to 177 in Chapter IX of BNS
dealing with the offences relating to elections have been retained in BNS despite
objections that the special Act i.e Representation of People Act, 1951 (“RP Act”), deals
with election offences in detail and should be incorporated suitably in the RP Act. It is
possibly on the ground that the RP Act applies only to Parliament and Legislative
Assemblies elections whereas the offences listed under Chapter IX of BNS apply to all
elections which include Municipal elections and Panchayat elections.
Fake news: Section 197 of BNS provides that whoever makes or publishes false or
misleading information, jeopardising the sovereignty, unity and integrity or security of
India shall be punished with imprisonment which may extend to three years or with fine
or with both.
Key Issues in BNS:
Overlapping of offences: Several offences of BNS overlap with special laws such as
terrorist acts are dealt under BNS as well as the Unlawful Activities (Prevention) Act,
1967 (UAPA). Organised crime is covered by BNS as well as state laws such as the
Maharashtra Control of Organised Crime Act, 1999 (MCOCA), and similar laws enacted
by Karnataka, Gujarat, Uttar Pradesh, Haryana and Rajasthan. In many cases, both carry
different penalties or provide for different procedures. This may lead to multiple
regulatory regimes, additional costs of compliance and possibility of levelling multiple
charges.
Reintroduction of Adultery: Though Adultery defined under Section 498 of the IPC has
been removed from BNS, however Section 84 of BNS reintroduces the offence indirectly
by providing punishment to a man for enticing the wife of another man so that she may
have intercourse with any person.
Scope of Community Service unclear: The BNS introduces community service as a
punishment, however, the scope and mode of community service has been left unclear.
Definition too broad: Terrorism has been defined too broadly under BNS.
Definition lacks clarity: The definition of petty organised crime under BNS lacks clarity.
It is unclear what is meant by terms such as “being a member of group or gang”,
“unauthorised selling of tickets”, “unauthorised betting or gambling” or “any other
similar criminal act”.
Age threshold varies: Age threshold of the victim for similar offences against children
varies in BNS. For gang rape in Section 70 of BNS, the imprisonment differs based on
whether the victim is above or below 18 years of age. However, for rape under Section
64 and 65 of BNS, the imprisonment is different based on whether the victim’s age is
below 12 years, between 12 and 16 years, or above. This is inconsistent with the POCSO
Act, which classifies all individuals below the age of 18 as child and provides separate
punishments for sexual assault, penetrative sexual assault and aggravated sexual assault.
Duplication of offences: There is duplication of offences under BNS with other special
laws such as the Food Safety and Security Act, 2006, the Drugs and Cosmetics Act, 1940,
the Bonded Labour System (Abolition) Act, 1976, the Juvenile Justice Act, 2015 and the
Motor Vehicles Act, 1988.
Unnatural Sexual Offences unclear: The BNS does not retain Section 377 of IPC
dealing with unnatural sexual offences. This implies that rape/sodomy of an adult man
will not be an offence under the BNS, neither will having intercourse with an animal.
However, under Section 38 of BNS, the right of private defence of body extending to
causing death includes an assault with intention of gratifying unnatural lust, which means
though sodomy is no offence but a person being/apprehended being sodomised can cause
death of the perpetrator.
Mob lynching confusion: Mob lynching has been defined to mean offence of murder by
a group of five or more persons on grounds of certain identity markers such as caste,
language or personal belief. Significantly, the section specifies identity markers such as
caste and language but does not specify religion.
Anhad Law’s Perspective
In conclusion, notwithstanding the aforesaid issues, the BNS represents a significant step
forward in reforming India's criminal justice system. Despite its progressive provisions, the
success of BNS will depend on effective implementation and continuous evaluation to ensure it
meets the evolving needs of society. Besides the training and sensitization of law enforcement
agencies, judiciary, and legal practitioners, adequate resources and infrastructure are also
essential to support the new legal framework.
Anhad Law - Manishi Pathak and Ranjan Jha
