Published on: 11th June 2026
Authored by: Isha Kumari
ITM University, Raipur
INTRODUCTION
One can find a phrase often mentioned in the beginnings of the latest legal frameworks in India: the act of removing colonial influences. The Bharatiya Nyaya Sanhita, 2023[1] – which replaced the IPC of 1860 on July 1, 2024 – was built around the promise of shedding colonial-era legal architecture and replacing it with a structure that embodies India’s current constitutional philosophy. In many respects, that promise holds. The BNS streamlines offences, introduces community service as an alternative sentence, strengthens victim participation, and reorganises chapters in ways that reflect decades of law reform recommendations.
But within the BNS’s 358 sections[2], there is one provision that quietly carries a weight far beyond its neighbours: Section 113, which defines and punishes the offence of “terrorist act.” What makes this unremarkable-sounding provision significant is not just what it says, but what it represents structurally. For the first time in India’s legal history, the power to charge someone with terrorism has been placed directly inside the country’s ordinary general penal code — the same statute that governs theft, assault, and cheating. Every local police station in India now has the legal authority to register a terrorism case. That is not decolonisation. That is a transformation of the relationship between police power and the ordinary citizen that deserves far more scrutiny than it has received.
This article examines Section 113 — what it says, what problems it creates, how it sits alongside the existing Unlawful Activities (Prevention) Act, 1967 (UAPA, and what the Supreme Court’s evolving bail jurisprudence tells us about the direction in which this intersection might travel. The argument made here is that Section 113 represents a genuine legislative puzzle: its inclusion in the BNS is constitutionally questionable, practically duplicative, and structurally risky in ways that neither the legislative debates nor the official commentaries have adequately addressed.
The Text and Scope of Section 113
Section 113(1) of the BNS establishes a terror attack as any act done with the intent to threaten or likely to threaten the nation’s stability and safety, or with the intent to foster terror or possibly foster terror in the people or any section of the people, by using explosives, firearms, hazardous substances, or any other means, causing death, injury, or destruction of property, or disrupting essential services or supplies.[3]
A few things about this definition deserve immediate attention. First, the phrase “likely to threaten” and “likely to strike terror” introduces a remarkably low threshold. A person need not have successfully threatened national security or actually created mass fear — the mere likelihood, assessed by a prosecuting officer, that their act could have that effect is enough. Second, the phrase “any other means of whatever nature” is breathtakingly open-ended. Third, and perhaps most strikingly, the definition explicitly covers threats to the “economic security” of India, which includes the circulation of high-quality counterfeit currency. Read literally, this means that a person running a fake currency racket — however serious that crime may be — is exposed to the same terrorism charges as someone who places a bomb in a public space.
The punishment framework calibrates penalty to outcome. Where a terrorist act results in death, the criminal may face the ultimate penalty or life imprisonment. In other cases, the minimum sentence is five years, extendable to life. Conspiracy, facilitation, recruitment, membership of an organisation involved in terrorist acts, and harbouring of a terrorist each carry their own penalty provisions under sub-sections (3) through (7).
One procedural safeguard does appear within the provision itself: the explanation to Section 113 states that an officer not below the rank of Superintendent of Police must decide whether a case should be registered under Section 113 of the BNS or under the UAPA[4]. This is not a trivial requirement. A Superintendent of Police is a senior district-level officer. The requirement is meant to prevent a local sub-inspector from casually attaching a terrorism label to a routine case. But whether that procedural safeguard is sufficient — given the breadth of the substantive definition — is a question the courts will have to answer.
The Duplicative Problem: BNS Section 113 and the UAPA
India is already equipped with an exclusive anti-terrorism act. The Unlawful Activities (Prevention) Act enacted in 1967, with significant amendments in 2004, 2008, and 2019, specifies acts of terrorism with definitions that are almost the same as Paragraph 113 found in the BNS. The UAPA’s Section 15[5] covers the same territory – risks to harmony, wholeness, national unity, and security; deployment of munitions, explosive devices, or various options; motive to create panic; dislocation of important services. The overlap is not approximate. It is precise enough that legal commentators have described Section 113 BNS as a “mirror image” of UAPA’s terrorism provisions.
This raises an immediate question of legislative intent that the BNS does not satisfactorily answer: what does Section 113 add? The BNS itself acknowledges the coexistence of these regimes: Section 1(6)[6] states that the BNS operates as a general code subject to special laws, and the UAPA is explicitly a special law. The applicable principle of statutory interpretation is Generali specialises non derogate — general laws do not override special laws. In RS Raghunath v State of Karnataka[7], the Supreme Court held that a later general law may override a special law only if it explicitly manifests legislative intent to do so. The BNS does not explicitly override the UAPA. Which means that in any terrorism prosecution, the UAPA remains the dominant legal instrument, and Section 113 sits alongside it in an uncertain, somewhat redundant position.
The practical consequence of this uncertainty cuts in a troubling direction. A Superintendent of Police who decides to register a case under Section 113 BNS rather than UAPA avoids a significant constraint: under the UAPA, prior sanction from the central or state government is required for prosecution in many circumstances, and the investigation must be conducted by officers of specific seniority[8]. Section 113 BNS, being part of the general penal code, carries no such institutional gatekeeping. This means that by routing a terrorism charge through Section 113 rather than UAPA, prosecutors can sidestep the procedural protections that Parliament deliberately built into the UAPA after the abuses of TADA and POTA[9]. Whether this was the legislature’s intention is unclear. The effect, however, is very clear.
Constitutional Dimensions: Fundamental Rights Under Strain
- The Overbreadth Problem along with subsection 19
The Indian law charter grants each person the right to freedom of speech, the right to peaceful assembly, and through Article 21 the right to life and personal liberty[10]. Each of these liberties are directly implicated by a counter-terrorism measure that is characterized in expansive terms to cover a wide range of political and social activity. A labour union that organises an extended strike affecting essential services, a protest that disrupts traffic for days, a journalist who writes about insurgency funding — each of these, without much imaginative strain, could be brought within the literal reach of Section 113 if a sufficiently motivated prosecuting officer chose to invoke it.
The apex court has, over many years of terrorism law, insisted that the divides between right to dissent and criminal behaviour must be drawn carefully and consciously. In Kartar Singh v State of Punjab[11], the Court affirmed the constitutionality of TADA but stressed that the very breadth of anti-terror provisions made judicial supervision necessary as a counterweight. In People’s Association for Civil Rights against Union of India[12], the Court reaffirmed that counter-terrorism measures must remain within constitutional limits even when the country’s security is at risk. These court findings created a legal precedent that necessitates diligence in the lexical assignments of terror legislation.
2. Bail, Liberty, and the Article 21 Dimension
Perhaps the most practically urgent constitutional concern raised by Section 113 is its relationship to pre-trial detention. The UAPA regime has a notoriously restrictive bail provision. Under Section 43D (5) of the UAPA, bail cannot be granted if the court is satisfied, on a perusal of the case diary, that there are reasonable grounds for believing that the accusation against the accused is prima facie true. The Supreme Court’s ruling in Zahoor Ahmad Shah Watali[13] effectively converted this into a near-absolute bar on bail in many terrorism cases, requiring courts not to undertake detailed evidence analysis at the bail stage but simply to assess whether the prosecution’s accusations appeared broadly credible — a standard that almost always favours the state.
The BNS has no equivalent bail bar. There is no provision in Section 113 or elsewhere in the BNS that restricts bail on terms as stringent as UAPA Section 43D (5). This creates a doctrinal tension that prosecutors will inevitably try to resolve in the state’s favour. As legal commentators have noted, Public Prosecutors in BNS terrorism cases have begun attempting to import UAPA bail jurisprudence — particularly the Watali standard — into BNS hearings, arguing that the nature of the offence demands the same restrictive approach regardless of the statutory label on the charge sheet. Courts have not yet definitively resolved this question. The Supreme Court’s more recent and encouraging intervention in March 2025[14], which reaffirmed that bail is the rule and jail the exception even in cases involving serious special legislation, provides some counterweight. But the question of which bail standard applies to a Section 113 BNS case is one of the most pressing unresolved issues in India’s post-BNS criminal jurisprudence.
Section 111 and the Organised Crime Dimension
Section 113 does not stand alone within the BNS. Section 111[15] introduces the offence of “organised crime” — defined as any continuing unlawful activity by a group of three or more persons, acting in concert, using violence or intimidation, or any other unlawful means, for financial gain or to achieve dominance. Before the BNS, organised crime was addressed primarily through state-level legislation — Maharashtra’s MCOCA, Karnataka’s KCOCA [16]— which existed precisely because the central IPC lacked provisions adequate to deal with criminal syndicates.
The BNS’s introduction of both organised crime and terrorism into the general penal code creates a new convergence risk. A criminal network engaged in extortion or contract violence could, on a particular set of facts, find itself simultaneously exposed to Section 111 (organised crime) and Section 113 (terrorism, if the activity is framed as threatening economic security) and the UAPA. This potential for charge-stacking is not a hypothetical concern — it reflects standard prosecutorial practice. Defendants facing three overlapping terrorism-adjacent charges from a single set of facts, across two different statutory regimes with different procedural rules and different bail standards, are in an extraordinarily disadvantaged position before trial has even begun.
The democratic and rule-of-law concern here is fundamental. The power to invoke terrorism law has always been understood to be a serious state action — one that attracts public stigma, indefinite pre-trial detention, and the full weight of the national security apparatus. Placing that power in the ordinary penal code, without the procedural architecture that special legislation required, risks converting a genuinely extraordinary legal instrument into a routine tool of law enforcement.
Judicial Precedents and the Road Ahead
The courts have not yet produced a definitive ruling on the constitutional validity of Section 113 BNS. What the Supreme Court has offered, across a sequence of judgments over the past several years, is a set of constitutional guardrails within which any terror provision must operate.
In Mohammed Ajmal Kasab v State of Maharashtra[17], the Court affirmed the gravity of terrorism as an offence and the legitimacy of severe punishment where evidence is overwhelming and the facts are not in dispute. That case, however, involved the most extreme factual circumstances imaginable and cannot be read as general endorsement of expansive definitional approaches to terrorism charges. The Court was endorsing the outcome of a specific prosecution, not the architecture of terrorism law generally.
More relevant to the Section 113 question is Union of India v KA Najeeb[18], where the Supreme Court held that even within the UAPA framework — with its stringent bail restrictions — constitutional courts retained the power to grant bail where prolonged incarceration without trial violated Article 21’s guarantee of personal liberty. That ruling recognises that no statutory scheme, however serious the offence, can simply suspend the right to liberty indefinitely. By implication, any attempt to apply UAPA-style bail restrictions to BNS Section 113 cases — without the statutory basis for doing so — would be constitutionally suspect.
The procedural remedy currently available to an accused charged under Section 113 without proper SP-level authorisation is a petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita[19] — the new CrPC equivalent — to the High Court for quashing of the FIR on the ground of jurisdictional error. That route has promise, but it requires resources, access to legal representation, and time — things that accused persons in terrorism-labelled cases, who are typically in pre-trial custody, frequently lack.
CONCLUSION
Section 113 of the Bharatiya Nyaya Sanhita is a provision with an identity problem. Placed in a general penal code that governs the daily criminal law of a nation of 1.4 billion people, it carries a definition of terrorism so broad that it extends from bomb attacks to counterfeit currency to anything done by “any other means” likely to threaten economic security. It duplicates provisions already found in the UAPA without the procedural safeguards that Parliament designed for the UAPA regime. And it places in the hands of every local police station in India an instrument that was previously reserved for specialised national security agencies.
The question is not whether terrorism should be punished severely — it self-evidently should be, and India’s experience of terrorist violence makes that imperative beyond argument. The question is whether embedding terrorism law in the general penal code, without adequate definitional precision, without the procedural gatekeeping that special legislation required, and without a coherent account of its relationship to the UAPA, advances the rule of law or undermines it.
The Supreme Court has consistently held — from Kartar Singh to Najeeb — that national security and individual liberty are not opposites between which a legal system must choose but values that a properly designed legal order must hold in balance. Section 113 BNS, as currently enacted, tips that balance in ways that deserve urgent legislative attention and rigorous judicial scrutiny. The decolonisation that India’s new criminal codes promised was supposed to mean freedom from the arbitrary exercise of state power. Whether Section 113 delivers on that promise, or quietly expands the state’s capacity to invoke the most stigmatising legal label in the criminal calendar, is the most important question in Indian criminal law that almost nobody is asking.
REFERENCES
[1] Bhartiya Nyaya Sanhita 2023 (India)
[2] Bhartiya Nyaya Sanhita 2023 (India) S 113
[3] Bhartiya Nyaya Sanhita 2023 (India) S 113(1)
[4] Bhartiya Nyaya Sanhita 2023 (India) S 113 Explanation (Providing that an officer not below the rank superintendent of police shall decide whether to register a case under S 113 BNS or under the Unlawful Activities (Prevention) Act 1967
[5] Unlawful Activities (Prevention) Act 1967 (India) S 15 (defining terrorist acts)
[6] Bhartiya Nyaya Sanhita 2023 (India) S 1(6) (providing that BNS operates general code subject to special laws)
[7] RS Raghunath v State of Karnataka (1992) 1 SCC 335 (Supreme Court of India)
[8] Unlawful Activities (Prevention) Act 1967 (India) S 43D (Prescribing condition for bail in terrorist offence cases)
[9] Terrorist and Disruptive Activities (Prevention) Act 1987 (India) (repealed 1995); Prevention of Terrorism Act (India) Act 2002 (repealed 2004)
[10] Constitution of India arts 19(1)(a) (freedom of speech and expression), 19(1)(b) (right to assemble peaceably), 21 (right to life and personal liberty)
[11] Kartar Singh v State of Punjab (1994) 3 SCC 569 (Supreme Court of India) (upholding constitutional validity of TADA while insisting on judicial oversight as a safeguard against misuse)
[12] People’s Union for Civil Liberties v Union of India (2004) 9 SCC 580 (Supreme Court of India) (reaffirming that counter-terrorism measures must remain within constitutional limits even when national security is at stake)
[13] Zahoor Ahmad Shah Watali v Union of India (2019) 5 SCC 1 (Supreme Court of India) (establishing that courts at bail stage under UAPA shall not undertake a detailed analysis of evidence but may only assess if the prosecution’s case is prima facie true).
[14] Supreme Court of India In Re: To Issue Certain Guidelines Regarding Inadequacies’ and Imbalance in Criminal Trial (March 2025) (reaffirming that “bail is the rule and jail is the exception” extends even to cases involving serious special legislation where fundamental rights are engaged)
[15] Bhartiya Nyaya Sanhita 2023 (India) S 111 (defining and penalising organised crime as any continuing unlawful activity by a group of three or more persons acting in concert)
[16] Maharashtra Control of Organised Crime Act 1999 (Maharashtra); Karnataka Control of Organised Crime Act 2000 (Karnataka)
[17] Mohammed Ajmal Kasab v State of Maharashtra (2012) 9 SCC 1 (Supreme Court of India)
[18] Union of India v KA Najeeb (2021) 3 SCC 713 (Supreme Court of India) (holding that prolonged incarceration without trial can justify bail even under UAPA in protection of Article 21 rights).
[19] Bhartiya Nagarik Suraksha Sanhita 2023 (India) S 528 (Providing remedy by way of application to the High Court for Quashing of proceeding)
