This article is written by Divyanshu Tyagi, B.A. LL.B. (Hons.) student at Chhatrapati Shahu Ji Maharaj University, Kanpur.
Key Words—Bhartiya Nyaya Sanhita 2023, Indian Penal Code 1860, Criminal Law Reforms, Smart Justice, Restorative Justice
Abstract
The Bharatiya Nyaya Sanhita, 2023 (BNS), replacing the colonial-era Indian Penal Code (IPC) of 1860, marks one of the most significant legislative overhauls in India’s criminal justice framework in over a century and a half. Alongside the Bharatiya Nagarik Suraksha Sanhita (BNSS) and the Bharatiya Sakshya Adhiniyam (BSA), projected as a cornerstone of “Smart Justice”, a system envisioned to be faster, more transparent, technology-enabled, and citizen-centric.
The abstract purpose of the reform is compelling: moving away from archaic British laws designed to serve imperial interests toward a justice framework reflecting India’s democratic values, human rights commitments, and technological aspirations.
The new criminal law framework comprising the Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA) introduces several reforms, including recognition of organized crime and terrorism as distinct offences, community service for certain minor offences, greater use of technology in criminal procedure, expanded recognition of electronic evidence, and increased reliance on forensic investigation in serious crimes.
However, this ambitious narrative invites critical examination. Many provisions in the BNS are direct reproductions of the IPC with mere renumbering and minor rewording. The sedition law, although nominally replaced, reappears under a new guise, targeting acts endangering sovereignty and integrity, raising concerns about potential misuse. Moreover, while the legislation demands high-tech integration in investigation and evidence collection, the current state of forensic infrastructure, digital literacy among law enforcement, and the rural–urban digital divide present significant challenges.
From a “Smart Justice” perspective, the BNS seeks to move justice delivery away from being purely punitive toward a mix of deterrence, rehabilitation, and procedural efficiency. Its vision aligns with global shifts toward restorative justice models and technology-led transparency. Yet, the depth of change will hinge less on statutory language and more on its real- world implementation, the capacity of police forces, courts, and forensic labs to adapt, and the political will to fund, train, and monitor these systems.
Through a section-by-section analysis, it evaluates the historical necessity of reform, dissects the substantive and procedural changes, examines their alignment with the ideals of “Smart Justice,” and identifies gaps that could hinder transformation. It also draws on comparative insights from other jurisdictions that have undertaken similar modernisations, exploring what lessons India might adopt.
It is a complex blend: part modern vision, part recycled legacy whose transformative potential depends on implementation, institutional reform, and sustained political and social commitment. Whether it becomes a milestone in India’s journey toward efficient, equitable justice or simply a repackaged colonial scaffold will be determined not in legislative halls, but in police stations, courtrooms, and the lived experiences of citizens.
Introduction
Since ancient times, the Indian criminal justice system has had numerous advancements. Nonetheless, during the colonial era, many improvements were implemented.
The Indian Law Commission was founded by the East India Company in 1834 with the intention of creating a thorough penal code. The commission was headed by British imperialist and parliamentary member Lord Thomas Macaulay.
One of the crucial tasks leading to the IPC’s passage in 1860 was drafting it. The IPC was enacted to create a uniform penal code applicable across British India and has served as the foundation of the country’s criminal law framework for over 160 years. In August 2023, the Bharatiya Nyaya Sanhita (BNS) Bill was presented to the Lok Sabha, opening the door for the ultimate replacement of the IPC. The BNS suggests several improvements, such as gender-neutral laws, enhanced protections and penalties for crimes against women and children, and community service for small infractions. By creating new crimes with harsh punishments, it also tackles emerging issues like organised crime and terrorism. Additionally, the BNS emphasises the reformative idea of punishment, which places greater focus on rehabilitation than retaliation. The Indian criminal justice system, until recently, rested on three colonial pillars:
(i) Indian Penal Code, 1860 (IPC)
(ii) Code of Criminal Procedure, 1973 (CrPC)
(iii) Indian Evidence Act, 1872 (IEA)
These laws were not merely outdated; they were born from an imperial context aimed at control rather than citizen welfare. Over time, amendments were added, offences were expanded, and punishments altered, but the structural skeleton remained Victorian.
In 2023, the Government of India replaced these three statutes with: Bharatiya Nyaya Sanhita, 2023 (BNS), Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), and Bharatiya Sakshya Adhiniyam, 2023 (BSA).
The government’s pitch? A justice system that’s “citizen-centric, technology-driven, and rooted in Indian ethos” an embodiment of Smart Justice. Yet, beneath the announcements and new numbering lies the central question: Is this a true paradigm shift or a mere cosmetic overhaul of the old system?
The Need for Reform in the Transition from Colonial Codes to Indianized Criminal Law
Many provisions criminalized dissent and prioritized state security over individual liberties. For decades, legal scholars, jurists, and activists called for a homegrown code reflecting democratic values. Key drivers for reform included:
(i) Socio-political shifts— A post-colonial society requires laws that reflect constitutional morality.
(ii) Technological evolution—Cybercrime, digital fraud, and electronic evidence demand updated legal frameworks.
(iii) Victim-centric justice—Colonial laws focused heavily on the punishment of the offender, often sidelining victim rights.
(iv) Speed of justice—Judicial backlog necessitates structural reform for efficiency.
While some of these needs have been addressed in amendments over the years, the government argued that piecemeal patchwork could not replace the need for a comprehensive rewrite.
The demand for comprehensive criminal law reform was not new. Various expert bodies, including the Malimath Committee on Reforms of the Criminal Justice System (2003), highlighted the need to modernize criminal laws, improve victim participation, strengthen investigative mechanisms, and enhance efficiency within the justice delivery system. The enactment of the BNS, BNSS, and BSA may therefore be viewed as part of a broader and long-standing reform process rather than an entirely new initiative.
Key Substantive Changes in the BNS: Innovations or Old Wine in New Bottles?
The BNS adds several clauses that are novel in form, if not always in intent: A move toward rehabilitation is shown in the introduction of community service as a punishment alternative for minor infractions. Offences related to terrorism and organised crime that were previously dispersed among specific statutes such as MCOCA and UAPA have been incorporated into the main penal code.
Stricter penalties and expedited trial requirements for crimes against women and children. Increased Hit-and-Run Liability: Serious consequences for escaping accident scenes.
Sedition Recast: Acts “endangering sovereignty, unity, and integrity of India” are now the focus of provisions that replace Section 124A of the IPC. This is a repackaged sedition clause, according to critics. Despite several new provisions, a significant number of offences and foundational principles contained in the BNS continue to resemble corresponding provisions of the IPC, leading some commentators to characterise the reform as evolutionary rather than revolutionary.
Implementation Hurdles: Law on Paper vs. Law in Action
The majority of the BNS’s provisions are continuations of the IPC. Certain offences are acceptable, but others that are left out could be harmful to the prevention and regulation of legalised activities, creating a significant loophole that is vulnerable to abuse and avoidance of responsibility for criminal activity.
First, Section 4(f) of the BNS now includes community service as a new type of penalty. Nevertheless, the Sanhita makes no mention of or provision for the kinds of actions that would be considered “community service.”
Second, while some offences in the BNS are gender neutral, there is no suitable process for achieving gender neutrality in rape and sexual assault cases. The idea that the legal system should acknowledge that rape can be committed by men, women, and transgender people, as well as against these groups, is known as gender neutrality in laws about rape and sexual assault. However, only women are recognised as the victims of sexual assault and rape crimes by the BNS and IPC, which define men as the perpetrators of these crimes. According to Section 375, raping a woman is against the law.
Third, the omission of Section 377 of the IPC from the BNS has generated considerable legal debate. Following the decision in Navtej Singh Johar v. Union of India (2018), consensual same-sex relations between adults ceased to be criminal offences. However, concerns have been raised by legal scholars regarding the extent of protection available in cases involving non-consensual sexual acts against adult male victims and certain forms of sexual misconduct that were previously prosecuted under Section 377. The practical implications of this omission are likely to remain a subject of judicial and legislative scrutiny.
Fourth, the offence of sedition under Section 124A of the IPC has been replaced by Section 152 of the BNS, which criminalizes acts endangering the sovereignty, unity, and integrity of India. While the Government has described this as a substantive reform, critics argue that the provision may retain certain features associated with the earlier sedition framework. The use of electronic communication, financial means, “subversive activities,” sentiments of “separatist activities,” or endangering India’s sovereignty, unity, or integrity are all included in Section 152, which broadens the definition of the offense’s seriousness.
Fifth, references to some crimes that are also addressed and punished by current special laws are included in the Bharatiya Nyaya Sanhita (BNS), which is the main criminal code that addresses a variety of offences. This leads to a duplication of legal provisions. For example, Sections 111 to 113 of the BNS list offences about “organised crime” and “terrorism.” However, specific laws that have their own unique criminal procedures, strict protections, and required procedural knowledge already address these crimes. This circumstance results in needless overlap and could cause future disputes. Another illustration is that, according to BNS Clause 114, which also intersects with the Bonded Labour System (Abolition) Act of 1976, unlawful compulsory labour is fatal.
Critical Perspectives: Reform, Continuity, and Controversy
Legal academics have mixed views:
(i) Pro-reform camp: Argues that consolidating terrorism laws into the BNS, removing sedition, and introducing community service are meaningful changes.
(ii) Critical camp: Points out the sedition-like replacement, unchanged archaic provisions (like criminal defamation), and inadequate focus on police reform.
(iii) Human rights concerns: Fear of misuse of broad national security provisions against dissent.
9iv) The BNS’s symbolic value: that India now has an “Indian” penal code is significant. But symbolic nationalism cannot substitute for institutional efficiency.
Comparative experiences from other jurisdictions demonstrate that criminal law modernization extends beyond legislative amendments. Countries such as Singapore have invested heavily in digital justice infrastructure and technology-driven case management systems, while Estonia has integrated e-governance into judicial administration. These examples suggest that statutory reform alone cannot achieve meaningful transformation unless accompanied by institutional capacity building and technological readiness.
The Road Ahead: What Would Make BNS a True Paradigm Shift?
To genuinely transform justice delivery:
(i) Massive infrastructure upgrades, especially forensic labs and courtroom tech. Training & sensitisation of police, prosecutors, and judges in tech and victim rights, Citizen access to user-friendly portals, multilingual legal information.
(ii) Independent oversight to prevent misuse of expanded national security clauses.
(iii) Integration with other reforms, witness protection, prison reform, and legal aid modernisation.
Only when these elements converge will the BNS evolve from a legislative facelift into a functional revolution.
Conclusion
The Bhartiya Nyaya Sanhita is not a clean break from the past, but it is a political and symbolic leap. It repackages much of the IPC while adding notable modern elements. In the language of tech, it’s less a brand-new operating system and more a heavily patched upgrade. The danger lies in the gap between promise and execution. The BNS, therefore, is a beginning, not an end. Whether it marks a paradigm shift or remains a makeover will be judged not by lawyers or legislators, but by ordinary citizens seeking timely, fair justice.
Due to different developmental factors, it is usually preferable to enact new laws or change current ones in light of the evolving society. Nonetheless, the shortcomings of the previous laws will be addressed by the new enactments, and appropriate steps will be taken to ensure their successful implementation. With the release of the new laws, the criminal justice system in India has experienced revolutionary changes due to the Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA). It won’t do anything to repeal the colonial-era laws with the modern ones. In light of the recommendations, the Bharatiya Nyaya Sanhita’s shortcomings must be filled in order for it to be implemented effectively, and the clauses that violate the Indian Constitution must be fixed.
Furthermore, the effectiveness of the new criminal law framework will ultimately depend upon judicial interpretation. Courts will play a critical role in determining the scope of newly introduced provisions relating to organized crime, terrorism, electronic evidence, and offences affecting national security. The evolution of judicial precedent may therefore prove as significant as the legislative reforms themselves in shaping the future of criminal justice in India.
