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White Black Legal – International Law Journal · ISSN 2581-8503
Bharatiya Nyaya Sanhita,2023: A New Paradigm or a Continuation of the Past?
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Abstract
ABSTRACT:
The age-old colonial criminal law
drafted by Lord Thomas Babington
Macaulay and team which was enacted in the year 1860 during the reign of
Britishers was considered as the strongest substantive Criminal law in India
with certain amendments from time to time to address emerging legal issues and
societal changes. Even after the Indian independence, the same criminal law was
continued till the enactment of the new Statute, The Bharatiya Nyaya Sanhita,
2023 by the Indian government on July 1 2024 after being passed by the
parliament in the year 2023 after 76 years of Indian independence. The new Act
and the Indian Penal Code when compared, no much difference is found in the
general principles of crime and the general exceptions. But there are certain
new crimes added in the BNS whereas certain crimes
which are not in existence is excluded in the new statute. The question arises
as to the need of repealment of the code. Is it a new legislation which have
replaced the provisions of IPC or just the name of the statute and the number
of provisions are changed with minor alterations? Is it an old wine in a new
bottle? The author gives a brief overview of the new legislation and makes a
comparative analysis of the Indian Penal Code and The Bharatiya Nyaya Sanhita,
2023 in the paper by providing in- depth analysis of the new legislation.
Key Words: Indian Penal Code, Bharatiya Nyaya
Sanhita, mens rea, crime
Introduction
The Indian Penal Code, (IPC) 1860, until
the enactment of the new criminal law, The Bharatiya Nyaya Sanhita,
(BNS) 2023 was the basic substantive criminal law in India to deal with various criminal offences and their
corresponding penalties which was enacted in 1860 during the British colonial
rule and has undergone several amendments to reflect the changing socio-legal
landscape of the country. The IPC served as the foundation for substantive
criminal law in India and provided a comprehensive framework for the
prosecution and punishment of offences. The offences were neatly categorised
and was included in the XXIII chapters and 511 sections under various headings
to include all types of crime under the single code. It has gone through
extensive amendments from time to time so as to include all types of crime
under its purview. There are several exclusive laws which are enacted referring the provisions of IPC as a foundation. The maximum punishment
prescribed for every offence was mentioned under the code. The age – old law
enacted during the period of Britishers prevailed in India until the enactment
of the new Act BNS,2023. But the basic concept of crime and criminal law and
the general exceptions of crime was borrowed from the IPC to the new Act. What are the
changes that are brought in the new code and what other alterations and
additions made in the new Act is discussed in the paper. The new Act by the government of India
is an old wine in a new bottle? Or there are substantial changes in the code is
discussed by the way of comparative analysis of both the code.
Concept of crime
There cannot be a crimeless society. Human
beings are involved in the commission of crime in one or the other way. May be by chance or choice humans commit a
crime either petty or serious. As the crime is considered as right in rem, it
effects the society at large and has a great impact on the society. The concept
and variations of crime changes according to the changing needs and
circumstances. The journey of concept of crime from retributive theory to
reformative theory is a remarkable change that took place in the field of crime
in India. Before the enactment of IPC, 1860 there was no any codified law
dealing with crimes as such and the rulers and the kings would follow their own
principles according to the customs and traditions prevailing in their religion
and society which was not uniform in nature. This created a lot of confusion
among the people of those days. The religious and superstitious beliefs played
an important role in awarding the punishment. There was no any logic or purpose
in awarding punishment. Retributive and deterrent theory of punishment was
followed those times in which the people suffered a lot and were punished in a
cruel manner for the petty offences. It is a known fact that no man is a born
criminal and it is the situation and circumstances will make them to commit a
crime. There was no any logical formula to deal with the crime and criminals
and was no uniformity in awarding punishment due to which there were so many
disparities in dealing with the crime and criminals in an efficient manner. All
these problems were put to an end after the enactment of IPC, 1860 which is a
codified criminal law under the British rule.
The human beings, mens rea, actus reus and the injury being the
four major elements of crime played an important role in awarding punishment to
the culprit of the crime and reduce the criminal activity in a society.[1]
Indian Penal Code, 1860
The Britishers entered India in the name of
trade and commerce, but by witnessing the rich natural resources of India they
wanted to conquer and acquire India and as a result they achieved their goal
and ruled India over 200 years. The turmoil caused to the Indians during their
reign in India is unimaginable and unforgettable. The struggle for Indian
independence by the Indian freedom fighters is unimaginable during the British
rule where many have sacrificed their lives for the nation. On the other side,
they brought certain developments in our country not for the benefit of us but
for their own administration purpose such as banks, setting up of railways,
roadways, etc. They brought several codified laws to be made applicable in
India for maintaining uniformity in the country. As a result, several
enactments were passed by the Britishers during their rule in India and the
Indian Penal code is a substantive criminal law passed by the Britishers to
define various offences and to prescribe punishment for the same. Indian penal
code was enacted in such a way where the crown was given much importance and
the benefit was provided to the crown in every matter. The code was divided
into XXIII chapters with 511 sections. After the Britishers left our country,
the codified law of the Britishers was retained by the Indian government by
making certain changes according to Indian needs. The criminal law is amended
from time to time according to the need of the society to include all the new
crimes committed in the society under the purview of the Indian Penal Code,
1860. There are some minor as well as major changes made by the State in order
to regulate the crime and criminals in a society.[2]
Bharatiya Nyaya
Sanhita, 2023:
It is the new statute enacted by the Indian
government on 25th of December 2023 by replacing the age old
colonial Indian Penal Code with the main motto of providing justice and not the
punishment. The Act is made applicable to whole of India with effect from 1st
of July 2024. The new Act gave priority to the women and children as well as
weaker section of the society. The provisions which are repealed in the Indian
Penal Code is not included in the new Act. The new type of punishment
“Community service” is added in the new law along with other type of punishment
mentioned under IPC, 1860. It is believed that these initiatives will help in
providing justice to the people and not the punishment as the only motive which
will help in the development of the country. The old practise of reformative
theory of punishment followed in the IPC, 1860 is also followed in the new Act.
The number of sections
is reduced to 358 from 511 as that of Indian penal code. The general explanation chapter in the new Act is
removed and added in the introductory chapter under Section 2. Whereas the
general exception which is considered as the soul of the criminal code is
retained as it is without any kind of alterations. Sedition is removed
which was present in the old legislation. The new types of crimes like mob lynching, terrorist activity, etc are
added with the prime object to reduce such crimes from the society and to make
a society free in terms of crime.
Object of repeal of any
Statute:
Repeal
means to revoke, abrogate or cancel particularly a statute. Any statute may be
repealed in whole or in part, either expressly or impliedly by enacting matter
contrary to and inconsistent with the prior legislation.
Under
Section 6 of the General Clauses Act, 1897, “Repeal" connotes abrogation
or obliteration of one statute by another, from the statute book as completely
"as if it had never been passed." When an Act is repealed "it
must be considered (except as to transactions past and closed) as if it had
never existed." Just as the Legislature has the power to enact laws,
similarly it has the power to repeal laws.
Consequently,
the legislative power to repeal prior laws is not inhibited by any
constitutional prohibitions, but exists as a necessary part and increment of
the legislative power and function. No statute can make itself secure against
repeal.[3]
The
main purpose of enacting any law is for the smooth functioning of the society.
when the law do not meet the requirements for what is enacted, the government
should review the law and suggest any amendments that is required to refine the
existing law. Under certain circumstances, when the amendment becomes illogical
or there are many changes to be brought in the present statute, the repealing
of the statute is carried on. As the repealing of any statute is not a simple
process, it takes lot of time and energy to repeal the statute which will incur
huge expenditure and man force for the same
Comparative analysis of the old law vis a vis the new
legislation:
The
IPC contained 511 sections with various amended sections from time to time
where the provisions are reduced to 358 in BNS. The general explanation chapter
which consisted of section 6 to 52 A in the IPC is clubbed into a single
section in new legislation under section 2. At present section 2 gives the
definition and explanation of terms used in a statute in an alphabetical order
except the omission of section 50 which defined the term ‘Section’ as it is of
the opinion that there is no need to give any explanation to the word section
because of its common usage in any statute.[4]
The
new definition of child and transgender in the definition of ‘gender’ is added
under section 2(3) and section 2(10 ) respectively. The month and year which is
defined under section 49 was according to the British Calendar under IPC,1860
which is now replaced by Gregorian Calendar under section 2(20) of BNS.
Moveable property which included only corporeal property under section 22 of
IPC is substituted by both corporeal as well as incorporeal which includes
Intellectual Property Rights under section 2(21) of BNS. Public servant
definition under section 21 of the IPC which has a reference to juryman is
removed under the new act where all other definition of public servant remains
the same under section 2(28) of BNS. The punishment section under 52 of IPC
which is replaced by section 4 of BNS has added community services as a new
form of punishment which is the least punishment after fine and also made
several changes in the concept of punishment along with increase in the amount
of fine in the present legislation. Section 103 of IPC dealt about right of
private defence of the property extends to cause death included house breaking
by night which is replaced with house breaking after sun set and before sunrise
under the new Act of BNS under section 41 IPC.[5]
Section
48 of BNS deals with abetment outside India for offence in India which deals
with abetment by a person outside India is an offence which allows prosecution
of a person in a foreign country.
The
concept of rape with a wife without her consent above the age of 15 years is
not rape according to old law which is replaced by 18 years in new law. Few
changes have been introduced in rape where a sexual intercourse caused due to
deceitful means is also added as a new provision under section 69 of BNS.
However marital rape is still silent in the new code. The offences against
women which were implemented in the Criminal Amendment Act, 2013 after the
Nirbhaya rape case has been retained in the new law whereas only man was made
liable under these crimes but under BNS it is replaced by term whoever which
includes any gender. Offences against the child is given much importance and
has been gathered from section 91 to section 97 of BNS which exclusively deals
with the crime committed against child. The new crime mob lynching is added in
section 103(1) which was not directly found in IPC. In few of the crimes there
is a slight variation in the amount of punishment provided under both the
codes. Section 111 of BNS deals with organised crime which is not found in the
IPC. The terrorist act is added in the BNS under section 113. Sedition is
removed keeping in mind the freedom of speech and expression whereas the
section 124 A of IPC had certain exceptions for the offence of sedition so as
to not tamper the freedom of speech and expression of any individual provided
under Article 19(1) (a) the fundamental right of the Indian Constitution.
Is BNS an old wine in a new bottle?
By
making a comparative analysis of both the provisions of IPC and BNS, it is very
clear that there are no much changes that are made in the new Act when compared
it with IPC. No doubt few of the new provisions are added and some have been
deleted and altered, still there is no major changes that is found in the new
code of BNS. The basics of criminal law have not been touched by the new
drafting committee where they tried to retain all the basic explanations and
general exceptions without major changes. The general explanation chapter under
chapter II of the IPC which included from section 6 to 52 A is clubbed together
under section 2 of the new act deleting all the provisions which were not in
use in the present day. The concept of mensrea, good faith, benefit of
doubt has the same meaning and content in the new Act.[6]
The general exceptions chapter which is mentioned under Chapter IV of IPC from
section 76 to 106 have been completely retained except changes in the number of
sections. No doubt few of the new provisions is added under the new BNS which
is otherwise found either directly or indirectly in the old legislation of IPC
with changed nomenclature. For example, under the concept of house breaking by
night which is mentioned under IPC is replaced by house breaking after sunset
and before sunrise whereas under Indian penal Code night is referred as the
period between after sunset and sunrise.[7]
The concept of terrorism and terrorist activity is added in the new Act whereas
it is already present under section 121 to 130 of IPC under chapter- Of
offences against the State.
The
reformative theory of punishment followed under the IPC is also followed in the
new BNS. The community service as a form of punishment which is claimed to be
new is followed even in the old IPC where the inmates of prison are allowed to
do certain community services inside the prison. Keeping in mind the increase
in number of criminal cases, it is changed from inside the prison to outside
the prison. Depending upon the value of money, the fine amount is increased in
the new Act in par with old IPC. Even though the new legislation has stressed
the importance to be given to offences against women and child, from time to
time there are several exclusive legislations enacted for the protection of
women and child apart from amendments made in the IPC for the protection of
them. Laws like POSH, POCSO, and other legislations are enacted in order to
protect the women and child against any offences, the amendments brought in IPC
specifically stressed on the matter relating to child and women especially
under the Criminal Amendment Act, 2013.[8]
With all these analysis it is clearly understood that only the name and the
number of sections are changed in the new Act which clearly suggests that there
was no any necessity to repeal the whole legislation and get the new one. When
there is no basic provision that can be retained in the new act, the repeal is
viable. But when the basic provision does not change and when the law permits
to amend the clauses, it is better to do the amendment rather than repealing
the age-old law.[9] No doubt even though these
laws are not of Indian origin, still for 163 years it has really regulated the
criminal law in India in a best possible manner. So, repealing the basic laws
would create lot of confusions among the stakeholders including the judges.
Hence it is rightly said that BNS is an old wine in a new bottle. It is a
continuation of the old Indian Penal code with certain amendments
Conclusion:
The
BNS, 2023 is a new initiative taken by the Indian government to reform the
criminal laws in India including other 2 criminal laws. Perhaps, there was a
huge difference of opinion among the people about repealing of the 3 criminal
laws are concerned. No doubt the BNS added various new offences under its
statute which were not found in the old code. It is a strong truth that laws
are not static and dynamic in nature and hence it should change according to
the changing needs and circumstances. But the idea of repealing the whole law
where there was possible to refine the criminal law with certain amendments
would be much greater step then the repealing of the whole Act by retaining all
the basic provisions. India is a country which welcomes all the ideas, values,
etc which would be better for the country to amend the laws as accordingly
which is carried by the government from past 163 years. The main motto behind
this is to reduce the crime in a society and make a society crime free. It is
the wait and watch period for all of us to check the implications of the new
law and to observe the positive impact of the new code with decreased crime
rate in India. It is a sad truth that crime rate is not measured only by the
effective criminal laws in a State rather it is governed through various
external factors like influence, bribe, etc. It is a time for all of us to
watch whether the new act will bring positive changes in a society and play an
important role in the development of the society as such.
References
(1) Diyajain,
‘Comparative Analysis Between Indian Penal Code, 1860 and Bharatiya Nyaya
Sanhita, 2023’. Available at: https://www.legalserviceindia.com/legal/article-13254-comparative-analysis-between-indian-penal-code-1860-and-bharatiya-nyaya-sanhita-2023.html
(Accessed: 26 April 2026)
(2) Gandhi
B..M. (2010) Indian Penal Code. 3rd edn. Lucknow: Eastern Book Company.
Lok
Sabha Secretariat No. 10/RN/Ref./February/2016 Available at: repeal.pdf
(loksabhadocs.nic.in) (Accessed: 23 April 2024)
(3) Mishra, S.N. (2018) Indian Penal Code. 21st
edn. Allahabad: Central Law Publications.
(4) Ratanlal & Dhirajlal. (2018) The Indian Penal
Code. 35th edn. Gurgaon:
Lexis Nexis.
(5) Taxmann,
‘Comparative Study – Bharatiya Nyaya Sanhita 2023(BNS) & Indian Penal Code
1860 (IPC)’. Available at: https://www.taxmann.com/post/blog/comparative-study-bharatiya-nyaya-sanhita-bns-indian-penal-code-ipc
( Accessed: 25 April 2026)
* Assistant Professor, SDM Law
College, Mangalore, Karnataka, India E-mail- annapurnashet@gmail.com
[1] Ratanlal &
Dhirajlal , The Indian Penal Code (35th edn. Gurgaon: Lexis Nexis 2018) 16
[3] Lok Sabha
Secretariat No. 10/RN/Ref./February/2016 Available at: repeal.pdf
(loksabhadocs.nic.in)
(Accessed: 23 April 2026)
[4] S.N Mishra, Indian Penal Code. 21st
edn. (Allahabad: Central Law Publications, 2018) 17
[5] B.M. Gandhi, Indian Penal Code. (3rd edn.
Lucknow: Eastern Book Company, 2010) 228
[6] Diyajain, ‘Comparative
Analysis Between Indian Penal Code, 1860 and Bharatiya Nyaya Sanhita, 2023’.
Available at: https://www.legalserviceindia.com/legal/article-13254-comparative-analysis-between-indian-penal-code-1860-and-bharatiya-nyaya-sanhita-2023.html (Accessed: 26
April 2024)
[8] Taxmann, ‘Comparative
Study – Bharatiya Nyaya Sanhita 2023(BNS) & Indian Penal Code 1860 (IPC)’.
Available at: https://www.taxmann.com/post/blog/comparative-study-bharatiya-nyaya-sanhita-bns-indian-penal-code-ipc ( Accessed: 25
April 2026)
[9] Ibid
How to Cite This Article
DR. ANNAPOORNA SHET, Bharatiya Nyaya Sanhita,2023: A New Paradigm or a Continuation of the Past?., White Black Legal – International Law Journal, ISSN: 2581-8503, Vol. Volume 4, Issue VOLUME 4 ISSUE 2, October 2026, pp. 280-290. Available at: https://www.whiteblacklegal.co.in/details/bharatiya-nyaya-sanhita2023-a-new-paradigm-or-a-continuation-of-the-past
Author & Publication Record
Authors: DR. ANNAPOORNA SHET
Registration ID: 107141 | Published Paper ID: WBL7141
Year: Oct- 2026 | Volume: 4 | Issue: 2
Approved ISSN: 2581-8503 | Country: Delhi, India A
Page No.: 280-290
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