Published on: 11th June 2026
Authored by: Swapnil Raj
Chanakya National Law University
INTRODUCTION:
For more than 160 years, the framework of the Indian criminal justice system was built around three laws introduced during the British colonial period these were the, Indian Evidence Act (“IEA”), 1874, the Indian Penal Code (“IPC”), 1860 and the Criminal Procedure Code (“CrPC”), 1974. The IPC was a document prepared about Lord Macaulay, in a totally different sociopolitical context during British colonial rule, and the revisions it inevitably involved were inevitably in the interests of colonialism not of the aims or ideals of the Indian people. The mismatch in design and aspiration for a democratic form of government after independence brought the need for the sweeping change to the fore. Recognising this urgent need, the Indian Government initiated a programme for “Indianizing” the legal system with the objective of ensuring that criminal laws are, “citizen-centric, protect constitutional ideals, and confront new issues like organized crime, terrorism, and cybercrimes”. The result was the enactment of the BNS, 2023, the BNSS, 2023, and the BSA, 2023, which came into force on 1 July 2024, replacing the IPC, CrPC, and IEA respectively.
This article analyses the legal significance of this transition in the criminal codes. It also examines the strategic re-structuring of the BNS, it’s most consequential substantive reforms, and the judicial landscape that shapes its interpretation drawing on primary authority and the critical scholarly analysis of the BNS’s impact on Indian criminal laws in India.
LEGAL ANALYSIS:
Structural Rationalisation: Fewer Sections, Greater Clarity
The most important change is the reduction of the IPC’s 511 sections to 356 sections, under BNS. This project aimed to eliminate unnecessary components, remove obsolete clauses and reform offences into a more logical and user-friendly system that covers the same range of offences, but in a more clear and precise manner. The BNS also uses a new method to translate the text into Hindi terminology replacing colonial terms and reducing reliance on technical jargon with the goal of improving public comprehension and access to criminal law.
Sedition Repealed: Section 124A IPC and Section 152 BNS:
Among the most debated changes is the repeal of Section 124A IPC.[1] The provision’s colonial lineage was definitively identified by the SC in Kedar Nath v State of Bihar[2], where the Court upheld the section only insofar as it involved incitement to violence or public disorder establishing the constitutionally permissible boundary of the offence. This Kedar Nath test, will be used to restrict the range of offenses as BNS abolishes sedition but substitutes clauses that make threats to national unity and sovereignty illegal.
The BNS substitutes Section 152, which criminalises acts endangering the sovereignty, unity, and integrity of India. The central tension, although the word “sedition” has been dropped, the new clause still focuses on preserving national unity, prompting questions about whether the reform’s ethos actually promotes freedom of speech and expression. This concern is reinforced by Shreya Singhal v Union of India,[3] where the SC struck down Section 66A of the Information Technology Act, 2000[4] on the ground that ambiguous statutory language criminalising speech had a chilling effect on Article 19(1)(a) rights.[5] Courts will likely apply the Shreya Singhal proportionality analysis to any expansive prosecution under Section 152 BNS.
New Offences: Organised Crime, Terrorism, and Mob Lynching:
The BNS introduced provision which is dedicated on organised crime (Section 109) and terrorism (Section 113) offences previously governed by the UAPA, 1967[6] and state-level statutes. The BNS bring counterterrorism within ordinary criminal law, nationalizing its scope of application and giving it a uniform legal basis. However, BNS’s definition of terrorism remains general and ambiguous which raises the risk of arbitrary interpretations and inconsistent court decisions.
Of same importance is the criminalisation of mob lynching as a specific offence making it an offence of grave magnitude as it recognises mob violence as a serious menace to the society as a whole and also attempts to harshly punish the perpetrators of such violence. It closes another evident vacuum in the IPC, not having a specific provision on the syndicated communal violence. The BNSS has implemented a number of procedural safeguards that have the support of the courts, including mandatory forensic investigation of these offences carrying seven years and more imprisonment, and formalized witness protection.
Gender Justice, Victim Rights, and Restorative Sentencing:
The BNS includes additional safeguards for women and children including the new definition of sexual offence under the Criminal law (Amendment) Act, 2013[7] (from Section 63). The death penalty for rape to the extent that it caused death, which was affirmed by the SC in Mukesh v State (NCT of Delhi)[8] remains in Section 66 BNS as it criminalises sexual intercourse obtained via ‘deceitful means’ referred to under this section provides for the crimes which had been tried inconsistently by courts in the past. The provisions are in concert with the Protection of Children from Sexual Offences Act, 2012[9], and the special court jurisdiction over such cases is not abated by these provisions.
BNS represents a change from purely punitive sentencing to more corrective and rehabilitative approach and community service is now an option under BNS for minor offence, novel among Indian statutory criminal law. The BNS also inculcates the citizen-centric approach by acknowledging the role of victims in the criminal process and ensuring their participation in rehabilitation and compensation process which is a significant shift from the IPC where the State is the only actor.
Technology, Digital Evidence, and the BSA
The BNS, read alongside the BSA, embraces digital modernity. The BSA elevates electronic records to primary evidence status, resolving the considerable litigation generated by Section 65B IEA. In Arjun Panditrao Khotkar v Kailash Kushanrao Gorantyal,[10] SC clarified, “the strict procedural requirements for admissibility of electronic records requirements whose rigidity had produced technicality-based acquittals”. The BSA simplifies this framework which reduce such outcomes. BNS includes provisions to address technology-driven offenses including “identity theft, cyber fraud, and tampering with electronic evidence, addressing a significant vacuum in the IPC”.
The BNSS makes electronic filing of FIRs and introduces the provisions for the audio-video recording of crime scenes and search-and-seizure operations, emphasizing the need for constitutionally guaranteed custodial safeguards as outlined in DK Basu v State of West Bengal[11] and the privacy rights established in Justice KS Puttaswamy v Union of India.[12] If put into practice successfully, these changes in procedures will lead to an increase in scientific rigor of crime investigation and decrease the delays in the justice delivery system.
Critical Concerns
Despite its forward-looking aspects, the BNS has its drawbacks. The three major issues, are:
(1) vague and general language, such as in the definitions of terrorism, which can be interpreted differently;
(2) the danger of abuse and discretionary power due to the lack of clear procedures to be followed for national security cases by investigating agencies; and
(3) the absence of clear guidance on sentencing, which can lead to judicial inconsistencies across courts.
A comparative analysis with the United Kingdom’s Terrorism Act 2000 and the Criminal Code Act 1995 of Australia, suggests that the latter have more legislative terminology and more developed and structured systems of independent review institutions to prevent the executive from overreaching its powers, which India should adopt.
SUPPORTING AUTHORITY:
The constitutional validity and interpretive framework of the new criminal laws will be shaped by an extensive body of judicial precedent and statutory authority. The following table summarises the key cases and instruments:
Kedar Nath Singh v State of Bihar: Established the incitement-to-violence test for sedition; foundational benchmark for interpreting s 152 BNS and restricting its scope to acts of actual threat.[13]
Shreya Singhal v Union of India: Mukesh v State (NCT of Delhi) (2017) 6 SCC 1 Struck down s 66A IT Act for chilling effect on Art 19(1)(a); proportionality framework applicable to challenges against s 152 BNS.[14]
Mukesh v State (NCT of Delhi): Affirmed death penalty for rape causing death; penalty structure retained in ss 66 and 70(2) BNS.[15]
Arjun Panditrao Khotkar v Kailash Kushanrao Gorantyl: Clarified s.65B IEA admissibility requirements; resolved by BSA’s reformed primary-evidence framework for electronic records.[16]
Maneka Gandhi v Union of India: Established just, fair and reasonable procedural due process under Art 21; applicable to mandatory forensic and electronic FIR provisions of BNSS.[17]
DK Basu v State of West Bengal: Mandated custodial safeguards; now reinforced by mandatory audio-video recording of searches and crime scenes under BNSS.[18]
People’s Union for Civil Liberties v Union of India: Affirmed procedural safeguards against surveillance; benchmark for privacy protection in digital enforcement under BNS/BNSS.[19]
Justice KS Puttaswamy v Union of India: Right to privacy as fundamental right; proportionality doctrine applicable to national security provisions in BNS and surveillance under BNSS.[20]
International authority also plays an interpretive role. The ICCPR,[21] to which India is a signatory, provides that restrictions on freedom of expression (Article 19, ICCPR) must be necessary and proportionate a standard against which Section 152 BNS and analogous provisions will be assessed in any challenge before international human rights bodies.
CONCLUSION:
The BNS along with the BNSS and BSA is the most extensive revolution in the Indian criminal justice system since independence. The BNS is a much more modern form of legislation that would deal with organised crime, cybercrime and victim rights than anything the IPC ever had the ability to do. This shift has hard law result as well. Practitioners need to deal with provisions that have been renumbered, and must use IPC case law as precedents. It is imperative on the courts to bring in the necessary adaptations to the precedent laid down by the Kedar Nath incitement test for the Maneka Gandhi due process standard. The introduction of the forensic procedures, the usage of E-FIR and audio-video recording systems by the BNSS holds the promise of making the investigative process much more scientific and transparent, if the police force is provided with enough resources and training.
However, the BNS’s effectiveness largely rely on how it is used in practice and how the courts interpret it. Lack of defined sentencing guidelines and scope of executive discretion in national security remain vulnerabilities in Section 152 BNS. But the SC’s proportionality jurisprudence as evolved in Puttaswamy and Shreya Singhal, offers constitutional red lines that will stop the government from overreaching.
If they are applied honestly and interpreted in a constitutional manner, the new criminal laws, when properly put into practice, can give the criminal justice system its rightful place and redefine it as an instrument of justice, liberty, equality and fraternity enshrined in the Constitution of India. The legislature must also provide for regular review mechanisms that are able to catch up with the changing threats, especially in the areas of cybercrime and digital surveillance, keeping the BNS as a living statute and making it relevant to the needs of the twenty first century India.
REFERENCES:
[1] Indian Penal Code 1860 (Act 45 of 1860) §124A.
[2] Kedar Nath Singh v State of Bihar, AIR 1962 SC 955.
[3] Shreya Singhal v Union of India, (2015) 5 SCC 1.
[4] Information Technology Act 2000, § 66A.
[5] Constitution of India 1950, art 19(1)(a).
[6] Unlawful Activities (Prevention) Act 1967.
[7] Criminal Law (Amendment) Act 2013, (Act 13 of 2013).
[8] Mukesh v State (NCT of Delhi), (2017) 6 SCC 1.
[9] Protection of Children from Sexual Offences Act 2012, (Act 32 of 2012).
[10] Arjun Panditrao Khotkar v Kailash Kushanrao Gorantyal, (2020) 7 SCC 1.
[11] DK Basu v State of West Bengal, (1997) 1 SCC 416.
[12] Justice KS Puttaswamy v Union of India, (2017) 10 SCC 1.
[13] Kedar Nath Singh v State of Bihar, AIR 1962 SC 955
[14] Shreya Singhal v Union of India, (2015) 5 SCC 1.
[15] Mukesh v State (NCT of Delhi), (2017) 6 SCC 1.
[16] Arjun Panditrao Khotkar v Kailash Kushanrao Gorantyal, (2020) 7 SCC 1.
[17] Maneka Gandhi v Union of India, (1978) 1 SCC 248.
[18] DK Basu v State of West Bengal, (1997) 1 SCC 416.
[19] People’s Union for Civil Liberties v Union of India, (2003) 4 SCC 399.
[20] Justice KS Puttaswamy v Union of India, (2017) 10 SCC 1.
[21] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976), 999 UNTS 171.
