BNS And BNSS - A Feeble Attempt At Decolonizing India's Criminal Laws

Author: LawSphereX

Category: Criminal Law

Published: 2026-08-23T18:32:41.453Z

Updated: 2026-08-30T07:12:05.834Z

BNS AND BNSS: A FEEBLE ATTEMPT AT DECOLONIZING

INDIA'S CRIMINAL LAWS

Karan Dhoria, BLS LLB, Government Law College, Mumbai, India

ABSTRACT

The newly enacted Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Sanhita (BSS) aim to replace India’s colonial-era criminal laws—the Indian Penal Code (IPC), Code of Criminal Procedure (CrPC), and Indian Evidence Act. The government claims these changes will decolonize and modernize India’s criminal justice system. However, the modified provisions are minimal, leaving most colonial elements intact. Key changes include broadening definitions for organized crime and sedition, introducing zero FIRs and discretionary preliminary inquiries, and consolidating anti-terrorism laws despite overlaps with existing statutes like UAPA. The laws grant significant discretion to law enforcement, including powers for arbitrary arrests and extended detentions, which may conflict with constitutional safeguards under Articles 14 and 21.

For instance, the BNS ambiguously defines organized crime, potentially enabling arbitrary charges. Additionally, the BNSS allows preliminary inquiries before FIR registration, undermining the Lalita Kumari ruling mandating immediate registration for cognizable offenses. The BNS reintroduces sedition, with an expanded scope that could restrict free speech. Overall, these reforms appear superficial and risk perpetuating colonial-era police powers, raising concerns about judicial oversight, personal liberty, and procedural fairness. This article critically examines these changes, questioning their impact on individual rights and alignment with the Constitution.

1. Introduction

July 1, 2024, marked the enforcement of the 3 new criminal laws, overhauling the criminal justice system of the country. The Indian Penal Code, 1860 has been replaced with the Bharatiya Nyaya Sanhita (BNS), the Code of Criminal Procedure, 1973 with the Bharatiya Nagarik Suraksha Sanhita (BNSS), and the Indian Evidence Act, 1872 with the Bharatiya Sakshya Sanhita (BSS). When introducing these laws in the Parliament in 2023, the Home Minister hailed the new enactments as an attempt to get rid of the yoke of the colonial era. Article 21 of the Indian Constitution guarantees that no person shall be deprived of their right to life and personal liberty except according to the procedure established by law. The newly enacted criminal laws fall squarely within this fold, as they directly affect an individual’s right to life and liberty.

Under the erstwhile criminal laws, the Indian Penal Code (IPC) curtailed personal liberty upon committing an offence. The Code of Criminal Procedure (CrPC) provided the procedure for trials, ensuring the procedure was prescribed by law, while the Evidence Act governed the manner in which facts were proved for conviction. Thus, these three laws collectively formed the bedrock of legal procedures that determined how a person’s fundamental rights under Article 21 can be restricted. With the introduction of the new criminal laws, the question of their conformity to the constitutional guarantee under Article 21 becomes crucial, as they embody the procedures established by law to regulate the deprivation of liberty. It is reflected that 90-95% of the provisions of the IPC, the CrPC, and the Evidence Act have been retained in the new laws.

Only 5-7% of the provisions have been altered, and these changes have been the subject of substantial debate and controversy. For example, the IPC had

511 sections divided into 23 chapters. In the newly enacted BNSS, 18 chapters have been cut

and pasted from the IPC without any revision. Although the changes are nominal, the critical question remains - do these changes truly eliminate the vestiges of the colonial rule? Furthermore, the procedure for enacting these new laws is rather contentious as they never saw the face of the Law Commission of India. The Law Commission, consisting of eminent jurists and legal scholars, is conferred with the sole responsibility to advise the government on revising and reforming laws, ensuring that any amendments are thoroughly examined and that they align with the tenets the Constitution seeks to uphold. However, the Law Commission was bypassed and instead, professors from certain universities were entrusted to frame the new laws.

This deviation from the established procedure raises concerns about whether the changes are genuinely transformative or categorically superficial, a frail attempt to proliferate political support and garner international laudation. This article aims to critically analyze the changes introduced by the newly enacted BNS and BNS, and assess their implications on individual rights.

2 Key Features of the BNS

i. Organized Crime: The preamble of the BNS states that it is an act to consolidate penal provisions. 1 The framers have incorporated certain penal provisions from special statutes such as the Maharashtra Control of Organized Crime Act (MCOCA) and Andhra Pradesh Control of Organized Crime Act (APCOCA) which penalize organized crime. The definition provided in Section 111 of the BNS are verbatim the same as stipulated in the special statutes. Although the BNS consolidates provisions from these special statutes, the statutes have not been repealed, meaning both frameworks remain in force.

The practical effect of this consolidation is that law enforcement agencies now have the discretion to apply either the BNS or the relevant special enactments, creating a dual framework where different procedures may apply to the same offences leading to jurisdictional problems between different agencies. Section 111 defines organized crime and encompasses a range of offences, including kidnapping, extortion, contract killing, land grabbing, economic offences, and cybercrimes committed by organized crime syndicates. 2 The maximum prescribed punishment for these offences is either death or life imprisonment. 3 However, the definition relies on broad and ambiguous terms such as land grabbing, contract killing, and cybercrimes, which are not defined anywhere in the BNS.

The use of such catchall phrases leaves ample room for unfettered discretion and arbitrariness on part of law enforcement agencies, enabling them to prosecute individuals based on loosely

1 The Bharatiya Nyaya Sanhita, 2023.

2 The Bharatiya Nyaya Sanhita, 2023, §111 (1).

3 The Bharatiya Nyaya Sanhita, 2023, §111 (2) (a).

interpreted terms. ii. Petty Organized Crime: Section 112 of the BNS defines petty organized crime and includes offences like trick theft, pickpocketing, card skimming, and unauthorized selling of tickets. Oddly, the offence of cheating, which was an independent offence under Section 420 of the IPC, now falls under the umbrella of petty organized crime. 4 The punishment for these offences ranges from 1 to 7 years of imprisonment. 5 These terms are also not clearly defined, rendering them vague and open to subjective interpretation. Additionally, the inclusion of the clause - ‘any other similar criminal act’ further expands the scope of the offence without providing articulate definitions. iii. Terrorism: Section 113 of the BNS pertains to terrorism and the definition is the same as the one stated in the Unlawful Activities (Prevention) Act (UAPA).

6 Therefore, it is unclear why the BNS introduces this offence, especially when the UAPA provides for a more comprehensive framework tailored for dealing with terrorism. According to the established legal maxim of Generalis Specialibus Non Derogant, if an offence qualifies as a terrorist act under both the BNS and the UAPA, the special statute (UAPA) should take precedence, making the BNS provisions redundant. Granting the police the liberty to book an offender under either the BNS or the UAPA can lead to inconsistencies and arbitrariness in applying the law, as the procedural safeguards under the two statutes differ. This situation echoes the concerns raised in State of West Bengal v.

Anwar Ali Sarkar where the Supreme Court struck down a UAPA exposes individuals to arbitrary prosecution without well-laid-out guidelines, violating the principle of equal protection of the law as guaranteed by Article 14. iv. Sedition: Historically viewed as a retrograde provision used by the British to suppress dissent during the colonial era, sedition has been highly criticized by the Supreme Court in Kedarnath Singh v. State of Bihar. However, the offence of sedition has been considerably expanded in scope under Section 152 of the BNS. While the term ‘sedition’ is no longer explicitly used, it covers a broader range of activities than the former Section 124A of the IPC.

Under Section 152, whoever by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial means, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India shall be punished with imprisonment for life or with imprisonment which may extend to seven years, and shall also be liable to fine. 7 What distinguishes Section 152 from the old sedition law is its vast reach. It envelops not only spoken or written words but also electronic communications and the use of financial means. This exceeds the framework of Section 124A of the IPC, retaining the colonial-era intent under a more modern guise, raising concerns over potential misuse and infringement on free speech. v.

Mob Lynching: In response to the rising instances of mob lynching and hate crimes across the country, the BNS has introduced a specific provision under Section 103(2) to prescribe punishment for murder in cases of mob lynching. The provision states that where a group of five or more acting in concert commits murder on grounds of race, caste or community, sex, place of birth, language, personal belief or any other similar ground then each member of such group shall be punished with death or with imprisonment for

7 The Bharatiya Nyaya Sanhita, 2023, §152.

life, and shall also be liable to fine.8 vi. Solitary Confinement: Section 11 of the BNS grants courts the authority to sentence a convict to solitary confinement for parts of their punishment. In today’s context, solitary confinement cannot continue as a form of punishment. It should be abolished, especially considering the significant advancements in human rights and the protections guaranteed under Article 21 of the Constitution, which include the right to live with dignity, civil liberties, the rights of prisoners and the increased emphasis on mental health9.

3 Key Features of the BNSS

i. Registration of FIR: Section 173 of the BNSS introduces a significant change by allowing an FIR to be registered irrespective of the area where the offence was committed. 10 This addition to Section 154 of the Criminal Procedure Code (CrPC) introduces the concept of Zero FIR, where an FIR can be lodged in any state, even if the crime was committed in another. As a result, investigative procedures, including arrests, can be carried out across state lines without jurisdictional restrictions. While this provision aims to expedite the registration of FIRs and investigative processes, it raises serious constitutional concerns, particularly with respect to India's federal structure.

Police and public order are primarily state subjects under the 7th Schedule of the Constitution11, and empowering police from one state to conduct investigations and make arrests in another appears to infringe upon the state's jurisdiction. This is further complicated by Section 183 of the BNSS, which states that a confession will be recorded by the magistrate where the FIR is registered, not where the crime occurred. 12 Correspondingly, the trial procedures enumerated in sections 197-209 of the BNSS remain consistent with Sections 177-189 of the CrPC. Section 197 of the BNS

8 The Bharatiya Nyaya Sanhita, 2023, §103 (2).

9 SHARON SHALEV, A SOURCEBOOK ON SOLITARY CONFINEMENT 15-20 (2008).

10 The Bharatiya Nagarik Suraksha Sanhita, 2023, §173 (1).

11 India Const. art. 246, cl. 3.

12 The Bharatiya Nagarik Suraksha Sanhita, 2023, §183 (1).

states that offences should be tried by a court within whose local jurisdiction the offence was committed. 13 The lack of continuity in the changes leads to a dichotomy in the application of jurisdiction and procedural clarity. For instance, while the investigation and arrest may be conducted by police from one state, the trial must still be conducted by the court in the jurisdiction where the crime occurred. This leaves room for many unanswered questions such as - Which state’s court will have the authority to grant bail? When will the papers and evidence be transferred to the competent court where the offence was committed, and how will this impact the timeliness and continuity of legal proceedings? ii.

Preliminary Enquiry: Section 173(3) of the BNSS allows the officer in charge to conduct a preliminary inquiry, within fourteen days, to determine if a prima facie case exists for proceeding with a complaint related to a cognizable offence punishable by three to seven years of imprisonment. 14 The scope of this inquiry is limited to assessing whether a case is made out, but even at this stage, the police have the authority to examine the veracity of the allegations. This provision contradicts the Supreme Court’s ruling in Lalita Kumari vs State of UP, which mandated that when a person approaches the police with a complaint disclosing a cognizable offence, the police are obligated to register an FIR immediately, without any preliminary inquiry.

Under Section 173(3), however, the police now have the discretion to conduct a preliminary inquiry before registering an FIR and can decline to do so if they determine no case is made out. If the police conclude that no case is made justification. By granting the police such power to determine the merit of a case before formally registering it, this provision undermines the protective intent of the guidelines laid down in the Lalita Kumari judgement, making it easier for complaints to be dismissed without due process. iii. Police Custody and Bail: Section 167 of CrPC allowed the police to arrest an individual on suspicion and detain them in police custody for up to 15 days if the investigation cannot be completed within the initial 24 hours of arrest. Following this period, the magistrate could have extended the detention by remanding the accused to judicial custody.

This could last up to 90 days for offences punishable by death, life imprisonment, or imprisonment exceeding

10 years, and up to 60 days for other offences.15 This is the true ghost of colonialism

and has been criticized by the CJI and other Supreme Court Judges for being disproportionately applied to deny bail in a lion’s share of the country’s criminal cases. This provision, rooted in the British era, is indeed draconian for allowing extended police custody instead of simply prosecuting individuals once sufficient evidence is gathered. The recent overhaul of India's criminal laws presented an opportunity to discard this colonial relic. However, this provision has not only been retained under Section 187 of the BNSS but has been further broadened. Now, an arrested person can be detained for 15 days wholly or partly at any time during the initial 40 days or 60 days out of the detention period of 60 days or 90 days, as the case may be. 16 As it stands, bail is often denied within the first 15 days, with the justification that further investigation is required.

Under the new provisions, this justification will be extended, effectively ensuring that bail is denied for at least 40 days in cases requiring a 60-day investigation period, and 60 days in cases with a 90-day investigation period. This extension increases the likelihood of detention without bail, reinvigorating a retrograde practice which is a part of our country’s colonial heirloom. The Supreme Court, in various judgments, has emphasized that when an arrest is made, the magistrate must examine its legality. Justice Bhuyan has also clarified that the

15 The Code of Criminal Procedure, 1973, §167 (2).

16 The Bharatiya Nagarik Suraksha Sanhita, 2023, §187 (2).

power to arrest does not equate to a necessity to arrest. Despite judicial precedents, the BNSS does not reflect the development of the law. In the process of modernizing criminal jurisprudence, the BNSS should have incorporated the guidelines laid down by the Supreme Court in Arnesh Kumar v. State of Bihar. In this landmark judgment, the Court elaborated on the principles of legality and necessity when making arrests, stating that the police must be satisfied with the need for an arrest based on credible information and evidence. Police officers should also ensure compliance with certain guidelines before sanctioning any arrest. Furthermore, the Supreme Court's decision in State of Rajasthan v. Balchand established that "bail is the rule, and jail is the exception," reinforcing the idea that arrest and pretrial detention should be rare rather than routine.

The BNSS fails to incorporate this fundamental principle, raising concerns about its alignment with judge-made laws. iv. Section 479 BNSS: Section 463A of the CrPC allowed for the release of undertrial prisoners on personal bond if they had undergone detention for half of the maximum imprisonment period specified for the alleged offence. However, the proviso to Section 479 of the BNSS, which replaces this provision, introduces an imprudent limitation. It stipulates that undertrial prisoners cannot be released after completing half of their sentence if they are charged with more than one offence or involved in multiple cases. 17 A critical issue with this modification is the absence of a clear classification of what constitutes multiple offences.

This means that an individual could be denied bail even after serving half of the incarceration period, simply because they face charges for another petty crime. Furthermore, the phrase ‘more than one offence or in multiple cases’ introduces considerable ambiguity. Logically, one might interpret this as applying to offences unrelated to the original charge or part of a different transaction. If not, a person would never be released if charged with multiple offences arising from the same transaction, which is not uncommon in criminal cases. This ambiguity could have severe consequences for undertrial prisoners, potentially prolonging their

17 The Bharatiya Nagarik Suraksha Sanhita, 2023, §479 (2).

detention and undermining the very purpose of the original provision aimed at preventing undue incarceration. v. Handcuffing: Section 43 of the BNSS grants police officers significant discretion in deciding when to handcuff a person while making an arrest, depending on the nature and gravity of the offence. 18 It vests police officers with broad discretion to decide when handcuffing is warranted, based on their subjective assessment of the seriousness of an offence. This shift towards police discretion contrasts sharply with the principles established by the Supreme Court in the landmark case of Prem Shankar Shukla v. Delhi Administration. This precedent underscored that handcuffing should not be arbitrary or unnecessarily degrading, and prior approval from a Magistrate was deemed essential in most cases.

Applying the same principles, it can be inferred that the nature and gravity of an offence cannot be a criterion for handcuffing as it would grant the police unfettered and arbitrary power, potentially leading to misuse. The spill-over effects would be violative of Article

21 of the Constitution. The omission of judicial approval, which had been a crucial

safeguard in preventing the arbitrary use of handcuffs, raises concerns about the protection of personal dignity and liberty. vi. Section 254 BNSS: Section 254 of the BNSS permits the deposition of all witnesses, including public servants19, through electronic means. While adopting digital technology is essential in modern times, there are significant concerns about its implementation. One of the key aspects of witness testimony is the ability of the judge to observe the witness’s demeanour and body language, which helps ascertain the truthfulness of the statement. Additionally, the risk arises that witnesses could simply read out pre-prepared statements from a screen. The guidelines laid down by the Supreme Court in the State of Maharashtra v. Prafulla B.

Desai require a judicial officer's presence when evidence is absent from Section 254, indicating that the drafting of the new law was rushed and lacked sufficient deliberation. vii. Community Service: Section 23 of the BNSS introduces court-directed community service as a form of punishment for certain offences, such as attempted suicide, theft involving property worth less than ₹5000, and public misconduct by an intoxicated person, among others. 20 However, the provision fails to define what community service entails or how it will be administered, creating significant ambiguity around its implementation. Moreover, effective implementation requires the establishment of robust monitoring mechanisms to ensure compliance and the proportionality of the punishment to the crime committed. The absence of such mechanisms risks misuse and inconsistencies.

4. Conclusion

The new laws seem to have been drafted hastily, more as a showcase of reform rather than a genuine modernization of the criminal justice system. They seem rather cosmetic, beautifying an illusion of decolonization without addressing the deeper, more detrimental colonial influences embedded in the legal system. None of the landmark Supreme Court judgements of the past 10-15 years have been inculcated in the amended provisions. While the government claims to have revamped the system, these changes appear less about justice and more about instilling fear in the population. The powers of the magistrate have been curbed, yet the police have been granted broader, more arbitrary authority without adequate accountability. This sentiment is echoed by P. Chidambaram, who criticized the laws as granting the police carte blanche.

The so-called modernization has, in reality, perpetuated the colonial-era provisions, expanding police powers without sufficient procedural safeguards. This shift raises serious concerns about safeguarding fundamental liberties, which will increase the burden on the judiciary to continually assess and rule on provisions that threaten individual rights, effectively straining the courts further. The new laws jeopardize the freedoms guaranteed by the Constitution, and we cannot be at the mercy of the state which uses the police to destroy what little is left of our freedoms.

20 The Bharatiya Nagarik Suraksha Sanhita, 2023, §23 (2) and (3).