Introduction
The Bharatiya Nyaya Sanhita 2023 (hereinafter ‘BNS 2023’) is the most comprehensive overhaul of India’s criminal law since the Indian Penal Code 1860 (hereinafter ‘IPC 1860’) was enacted under colonial rule. Intended to decolonise criminal justice and shift its emphasis from punishment to rehabilitation, the BNS 2023 introduces reforms of genuine significance. However, the legislation is not uniformly progressive. Alongside its genuine advances, the BNS 2023 contains provisions that raise serious constitutional concerns — particularly the erosion of judicial discretion through mandatory minimum sentences, the inclusion of vague definitional language that risks overbroad enforcement, and persistent gaps in gender and minority protections. This blog argues that while the BNS 2023 marks a meaningful step forward, its legislative gaps undermine its reformative promise and demand parliamentary attention.
From Retribution to Restoration: Genuine Reforms in the BNS 2023
The punitive architecture of the IPC 1860 was rooted in colonial logic. Section 53 of the IPC prescribed five categories of punishment — death, transportation, imprisonment, forfeiture of property, and fine[1] — with no provision for restorative or community-based sanctions. The BNS 2023 departs from this framework in a meaningful way. Section 4 of the BNS 2023 introduces community service as a recognised form of punishment,[2] reflecting an acknowledgement that incarceration is not always the most effective or proportionate response to minor offences.
The practical significance of this reform is illustrated by Section 303 of the BNS 2023, which governs theft.[3] A first-time offender who commits petty theft and returns the item may now be directed to perform community service rather than face imprisonment. Under the IPC, such an offender would have faced incarceration alongside habitual criminals — a circumstance well-documented as a driver of recidivism.
Similarly, the repeal of Section 124A of the IPC — the colonial-era sedition provision — and its replacement by Section 152 of the BNS 2023 represents a constitutionally significant development. The Supreme Court’s concern with the breadth of Section 124A, as articulated in Kedar Nath Singh v State of Bihar,[4] and the Supreme Court’s subsequent decision in S G Vombatkere v Union of India,[5] which placed all proceedings under Section 124A in abeyance recognising its incompatibility with constitutional values, underscored the provision’s chilling effect on constitutionally protected expression. Section 152 of the BNS 2023 confines its scope to acts threatening India’s sovereignty, integrity, or unity through violence or armed insurrection, explicitly excluding peaceful criticism of the government from its ambit. This narrowing of the offence is a constitutionally welcome correction.
Organised Crime Provisions: The Cost of Mandatory Minimum Sentences
Despite these reforms, the BNS 2023 introduces provisions that raise significant constitutional concerns. Section 111, which codifies organised crime, prescribes mandatory minimum sentences of five years’ imprisonment, extendable to life, for offences committed by criminal syndicates.[6] While the objective of targeting organised crime networks is beyond reproach, the elimination of judicial discretion in sentencing is constitutionally problematic.
The Supreme Court has consistently held that the power to calibrate punishment to the facts of individual cases is an essential attribute of judicial independence. In Mithu v State of Punjab,[7] the Court struck down the mandatory death penalty under Section 303 of the IPC on the ground that it removed the court’s capacity to consider mitigating circumstances and thereby violated Articles 14 and 21 of the Constitution. The same constitutional logic applies with equal force to Section 111 of the BNS 2023. A coerced participant in a criminal enterprise — a driver compelled through threats of violence to transport contraband — occupies an entirely different moral and culpable position from the syndicate’s organiser, yet Section 111’s mandatory minimum structure treats both identically.
Section 112, which governs ‘petty organised crime’, compounds this concern.[8] The provision prescribes imprisonment between one and seven years for a range of specified acts — vehicle theft, pickpocketing, illegal ticket resale, and unauthorised betting — but then extends its scope to ‘any other similar criminal act’ without defining what similarity entails. This open-ended formulation contravenes the established constitutional principle of void-for-vagueness. When a penal provision fails to demarcate clearly the boundary of prohibited conduct, it confers on enforcement authorities a discretion so wide as to invite arbitrary and selective application — the precise evil that Article 14’s guarantee of equality before the law is designed to prevent.
Terrorism and Separatism: An Insufficiently Demarcated Boundary
A related drafting concern arises from the interaction between Sections 113 and 152 of the BNS 2023.[9] Section 152 targets acts endangering India’s sovereignty, unity, or integrity and carries a maximum sentence of seven years. Section 113, which codifies the offence of terrorism, attracts life imprisonment or death. The severity of the differential — from seven years to capital punishment — demands a correspondingly clear and precise line of demarcation between the two offences.
That line, however, is insufficiently drawn. Section 152 targets acts that disrupt the constitutional order through violence or armed force; Section 113 targets acts intended to threaten state security or strike terror in the public. The distinction between an ‘act’ causing disruption and conduct ‘intended’ to cause terror may appear clear in the abstract, but its application is susceptible to inconsistency. Courts deciding whether political violence is separatism or terrorism must make fine judgements on contested facts — with the difference in outcome being between seven years’ imprisonment and death. The Supreme Court established in Superintendent, Central Prison, Fatehgarh v Ram Manohar Lohia,[10] that the nexus between an impugned act and its legal consequence must be proximate, not remote.
Gender Justice: Commendable Penalties, Structural Gaps
The BNS 2023 takes a stronger position on gender-based violence than the IPC 1860 in several respects. Section 70 prescribes a minimum sentence of life imprisonment for gang rape, and Section 103(2) prescribes the death penalty for murder committed in the course of gang rape.[11] These provisions reflect a legislative recognition of the severity of sexual violence as a crime against human dignity.
However, the BNS 2023 fails to address two structural gaps that have attracted sustained judicial and academic criticism. First, the definition of sexual assault in Section 63 of the BNS 2023 remains framed in binary gendered terms — male perpetrator, female victim — thereby excluding male survivors and transgender individuals from its protective scope. The Supreme Court’s recognition in Navtej Singh Johar v Union of India[12] of the constitutional personhood of persons of diverse sexual orientations and gender identities makes the BNS 2023’s failure to extend gender-neutral sexual assault protections a matter of constitutional concern rather than mere policy preference.
Second, the BNS 2023 retains the marital rape exception. Exception 2 to Section 63 provides that sexual intercourse by a husband with his wife does not constitute rape, provided the wife is not below eighteen years of age. The Supreme Court’s decision in Independent Thought v Union of India[13] struck down the exception insofar as it applied to wives between fifteen and eighteen years of age, but the broader exception for adult wives remains intact under the BNS 2023. A legislative framework that simultaneously prescribes the death penalty for gang rape and immunises spousal rape from criminal liability embodies a contradiction that neither constitutional principle nor empirical evidence of domestic violence can justify.
Conclusion
The Bharatiya Nyaya Sanhita 2023 represents a genuine and important departure from the colonial criminal law it replaces. The introduction of community service as a sanction, the narrowing of the sedition-adjacent offence, and the enhancement of penalties for gender-based violence are reforms of real constitutional significance.
However, the BNS 2023’s reformative promise is undermined by three structural failures: the erosion of judicial discretion through mandatory minimum sentences that the Supreme Court has previously found constitutionally infirm; the inclusion of vague definitional language in Sections 111 and 112 that invites arbitrary enforcement; and the retention of gendered limitations on the right to protection from sexual violence. Legislative reform is not measured solely by what it changes, but equally by what it fails to correct. If the BNS 2023 is to fulfil its stated aim of a justice system oriented toward rehabilitation and constitutional values, Parliament must address these gaps through targeted amendment before courts are compelled to do so through constitutional adjudication.
Author(s) Name: Thamodarankumar C. (School of Law, Joy University)
References:
[1]The Indian Penal Code 1860, s 53 (India).
[2]The Bharatiya Nyaya Sanhita 2023, s 4 (India).
[3]The Bharatiya Nyaya Sanhita 2023, s 303 (India).
[4]Kedar Nath Singh v State of Bihar AIR 1962 SC 955 (India).
[5]S G Vombatkere v Union of India (2022) SCC OnLine SC 640.
[6]The Bharatiya Nyaya Sanhita 2023, s 111 (India).
[7]Mithu v State of Punjab AIR 1983 SC 473 (India).
[8]The Bharatiya Nyaya Sanhita 2023, s 112 (India).
[9]The Bharatiya Nyaya Sanhita 2023, ss 152, 113 (India).
[10]Superintendent, Central Prison, Fatehgarh v Ram Manohar Lohia AIR 1960 SC 633 (India).
[11]The Bharatiya Nyaya Sanhita 2023, ss 70, 103(2) (India).
[12]Navtej Singh Johar v Union of India (2018) 10 SCC 1.
[13]Independent Thought v Union of India (2017) 10 SCC 800 (India).