The New Architecture Of Crimes In India - A Critical Analysis Of Reclassification Under The Bharatiya Nyaya Sanhita, 2023

Author: LawSphereX

Category: Criminal Law

Published: 2026-08-23T21:26:18.537021+00:00

Updated: 2026-08-26T17:05:31.885+00:00

THE NEW ARCHITECTURE OF CRIMES IN INDIA: A

CRITICAL ANALYSIS OF RECLASSIFICATION UNDER

THE BHARATIYA NYAYA SANHITA, 2023

Yashveena, Amity Law School, Amity University, Mohali, Punjab, India

ABSTRACT

The Bharatiya Nyaya Sanhita, 2023 (BNS) signifies a major redrafting of India's substantive criminal law since the Indian Penal Code (IPC) of 1860 was enacted. In doing so, the BNS abandoned the colonial-era code and brought about a dramatic change in the way criminal offences were structured and classified, showing an effort to bring the law into line with social realities, technology, and constitutional values of the current times. The BNS's reclassification not only changes the classification of offences as cognizable or non-cognizable but also changes the features of the crimes, recalibrates the sentencing ranges, restructures the chapters of the books covering violent and socio-economic crimes, and most importantly, it adopts a victim-centric approach, especially with respect to gender-based violence, organized crime, and cyber-enabled harms.

These modifications affect farranging powers of the police, prosecutorial discretion, judicial decisionmaking, and also the experiences of victims and accused persons in the criminal justice system. By synthesizing criminological theory, constitutional doctrine, comparative criminal law, and the ground realities of crime administration in India, this paper first sets out to evaluate these changes. The paper poses a question on whether the reclassification is supported by evidence-based criminology or is simply a move towards an increased punitive approach and a higher State power.

The findings suggest that in many respects, the BNS project is one of modernization, victim protection and decolonization; however, there is a simultaneous risk of exacerbating the problem of over-criminalization, increasing the powers of the police and intensifying incarceration without corresponding increases in investigative capacity or procedural safeguards. Reforms leading to increased cognizability, enhanced punishments, and the formation of broad offence categories are likely to cause discretion issues, misuse of powers, and constitutional guarantees of liberty and due process being pushed aside. Notwithstanding this, the paper contends that the success of the Indian criminal law reform initiative cannot be gauged by the mere-floor of reclassification of offences. Real change in substance requires the embedding of structural criminological reforms, consistent investigative and

forensic infrastructure, restorative justice models, and close empirical research of how laws work on the ground. The BNS, if not taking such an integrated approach, runs the risk of merely replacing one inflexible structure with another rather than producing a transformative, rights-respecting criminal justice system as demanded by a modern democratic order. Keywords: Bharatiya Nyaya Sanhita, 2023, Criminal Law Reclassification, Cognizable and Non-Cognizable Offences, Proportionality and Sentencing Reform, Victim-Centric Criminal Justice, Over-Criminalisation

1. INTRODUCTION

The Bharatiya Nyaya Sanhita, 2023 (BNS), was brought about with the clear aim of "decolonizing" the substantive criminal law of India and thus changing the Indian Penal Code,

1860 (IPC), which has been a source of criminal liability, punishment, and offence

classification for almost 163 years. 1 And although the IPC was subjected to changes several times, the dominating argument of the various law scholars and commissions was that the colonial penological philosophies were still reflected in the basic framework of the IPC - these included paternalistic morality, hierarchical social ordering, and a heavily punitive, Statecentric approach to criminalization. 2 The critics of the IPC voiced that these embedded assumptions made the IPC structurally ill-equipped to co-ordinate with values promoted by the constitution, insights of modern-day criminology, and ever-changing social realities. 3 The law embodied in BNS, is the most substantial and sweeping attempt at overhaul of the Indian criminal law system.

It doesn’t merely change the categorization of crimes but also restructure the titles of chapters, create new offense groups which are aligned to the socioeconomic and technological changes and remove or recast those numerous provisions which are generally accepted to be obsolete or that have been incongruous with the social norms. 4 In these reforms, the reclassification of offences comes first and foremost which inter alia includes recalibration of their cognizability, bailability, and sentencing frameworks. 5 These classifications are not just procedural labels delineating the powers of the police, the discretion the courts have in granting bail and the severity of the sentence, but they fundamentally identify

1 Bharatiya Nyaya Sanhita, 2023.

2 K.D. Gaur, Textbook on Indian Penal Code, Universal Law Publishing, 2019, pp. 1–5.

3 B.B. Pande, “Criminal Law Reform: Need for Indigenous Approaches,” Journal of the Indian Law Institute, Vol. 47 (2005), pp. 15–30

4 Law Commission of India, Report No. 262 – Death Penalty (2015).

5 N.V. Paranjape, Criminology & Penology, 17th ed., Central Law Publications, 2021, pp. 102–110.

when and under what circumstances the police can make a warrantless arrest, how the bail decision is taken, and how severe and in what manner the sentence is finally handed down. 6 Such reclassification has deep-seated institutional and normative implications. The reclassification affects the interplay of personal freedom and State power; it scales up or down the discretion of the police and determines how victims and accused persons perceive criminal proceedings. 7 Thus, any evaluation of BNS cannot simply stop at the textual changes but should see these changes in the light of criminological theories such as deterrence, rehabilitation, restorative justice, proportionality, and net-widening.

8 Such theories when applied to BNS allow us to deepen our understanding of reclassification by indicating whether it helps to achieve the goals of decolonization, modernization, and victim-centric justice, or it may be facilitating the growth of an expanded punitive power while at the same time hardening structural inequities within the Indian criminal justice system. 9

2. HISTORICAL BACKGROUND: FROM THE IPC TO THE BNS

The Indian Penal Code was a product of the determined effort of Lord Macaulay and the first Law Commission (1834–37) during the British colonial period. 10 The Commission aimed to invent a single criminal law system for the whole India basing the new law on the existing English law, utilitarian philosophy and 19th-century Enlightenment ideals. 11 Though the IPC was praised for the clarity of its organization and language, it still operated within a Victorian moral world which reflected the colonizer's fears in the areas of sexuality, gender, public order, and authority. 12 Among others, the provisions related to sedition, adultery, obscenity and “unnatural offenses” show the dominating ideologies of the time rather than the socio-legal realities of the locals.

13 In the span of 150 years, the Indian courts and legislatures have made numerous attempts to change, reinterpret and adapt the IPC so that it is in tune with the social circumstances and the values of the constitution. One of the most significant impacts on criminal law doctrinal

6 Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.

7 Sandra Walklate, Handbook of Victims and Victimology, Routledge, 2017, pp. 45–60

8 Douglas Husak, Overcriminalization: The Limits of the Criminal Law, Oxford University Press, 2008, pp. 25–40.

9 Bachan Singh v. State of Punjab, (1980) 2 SCC 684.

10 First Law Commission, Draft Penal Code, 1837

11 K.D. Gaur, Textbook on Indian Penal Code, Universal Law Publishing, 2019, pp. 3–7.

12 B. N. Srikrishna, “Colonial Foundations of Indian Criminal Law,” JILI, Vol. 55 (2013), pp. 112–128.

13 Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

framing has been the expansion of fundamental rights jurisprudence after the 1970s. The Supreme Court ruling in Maneka Gandhi v. Union of India, where the Court considered that the procedural fairness under Article 21 should be “just, fair, and reasonable,” has dramatically constitutionalized personal liberty-State power relationship. 14 The next major change was brought about by Justice K. S. Puttaswamy v. Union of India, the court ruling that the right to privacy is a fundamental right tied up with human dignity and freedom, therefore, people should rethink those criminal offences that violate bodily integrity, sexual autonomy, and informational privacy.

15 In addition to the changes in the Constitution, several Law Commission Reports and parliamentary committees have pointed out the necessity for a total revision of the Indian Penal Code so as to be able to recognize the new faces of criminality. The Justice J. S. Verma Committee Report (2013), in the Nirbhaya aftermath, inter alia, pointed out that the legal system was seriously lacking in the areas of gender-based violence, child protection, and sexual autonomy. 16 Other Law Commission Reports refer to these defects in the IPC, for example, those on organized crime, terrorism, trafficking, cybercrime, and sentencing policy, that have called attention to the Indian Penal Code's framework inadequacies that result in the inefficient law enforcement in a quickly changing socio-technological environment.

17 These critiques and reform discourses over time left little room for the continuance of the status quo and created a pressing need for a law that would comprehensively revise the previous one. For almost thirty years Bharatiya Nyaya Sanhita, 2023 is a result of many such talks, discussions, and debates on the topic of criminal law reform. The law aims at restructuring the offence classifications in such a way as to make them up to date, to align the material law with constitutional morality and for the first time ever to create a new category of offences that can be attributed to contemporary world such as digital crimes, organized criminal networks and transnational threats.

18 Although the BNS shows a milestone in the structural change from the IPC, the question of its effectiveness still remains open as to whether it will really help to establish a criminal justice system that respects the rights, is evidence-based, and suits modern India.

14 Maneka Gandhi v. Union of India, (1978) 1 SCC 248.

15 Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

16 Justice J.S. Verma Committee Report on Amendments to Criminal Law (2013).

17 Law Commission of India, Reports No. 156, 172, 243, 267.

18 Bharatiya Nyaya Sanhita, 2023.

3. RECLASSIFICATION UNDER THE BHARATIYA NYAYA SANHITA, 2023

The Bharatiya Nyaya Sanhita, 2023 undertakes a fundamental restructuring of offence categories that directly influences entry points into the criminal justice system. Classification into cognizable/non-cognizable, bailable/non-bailable, and graded sentencing ranges determines not only the scope of police power and judicial discretion, but also the real-world experience of arrest, detention, prosecution, and trial. These classifications represent the operational core of criminal procedure and therefore must be assessed through constitutional, criminological, and comparative frameworks.

3.1 Cognizable vs. Non-Cognizable Offences

The BNS has explicitly defined a wide range of offences as cognizable. Among these are mob lynching, organised crime, acts connected with terrorism, sexual offences, and crimes involving national integrity. 19 Being cognizable is not a mere technical term but a major distribution of the police coercive power - especially the power to arrest without a warrant and start an investigation without the court's prior approval. 20 The Supreme Court in Arnesh Kumar v. State of Bihar held that the authorities must follow the constitutional rule of proportionality while exercising the powers of arrest and cognizable classification and warned against the practice of routine arrests which result in the violation of personal liberty under Article 21.

21 The BNS, by extending the list of cognizable offences, might be facilitating an increase in the discretionary policing net which has been a matter of concern in Law Commission Reports for a long time. These reports have pointed out that vague or broad categories help the malefactors in misuse, selective application, and overcriminalisation. 22 This is especially true for politically sensitive offences such as "acts endangering the sovereignty and integrity of India" that is a new offence replacing sedition under Section 150 BNS. 23 Critics opine that if provisions like these are not clearly and narrowly defined, they can trace the colonial ways of controlling the dissent again, particularly if we take cognizable nature

19 Bharatiya Nyaya Sanhita, 2023

20 The Code of Criminal Procedure, 1973, ss. 41–42.

21 Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.

22 Law Commission of India, Report No. 239 – Expeditious Investigation and Trial (2012)

23 Bharatiya Nyaya Sanhita, 2023, s. 150.

of the offence into account.24 Moreover, comparative criminal law research shows that, in many liberal democracies, the police performing an arrest in a case relating to national security need to get the permission from a judge or other supervising authority, something that the BNS is silent about.25 Therefore, even though the BNS is committed to combating serious new threats, its broadened scope of cognizability should still be in line with constitutional safeguards so as not to allow any arbitrary or politically motivated actions of the police.

3.2 Bailable vs. Non-Bailable Offences

The BNS converted a number of offenses to be non-bailable, in particular those related to cruelty, sexual violence, recidivism, and organized criminal activities. 26 Such a move points to the idea of the authorities' tightening the control over the release on bail of the offenders who are considered as dangerous and those who are habitual. On the other hand, bail jurisprudence in India has been very different from what it used to be and has gone through a constitutional change. In the case of Satender Kumar Antil v. CBI, the Supreme Court warned that bail should be the rule and incarceration the exception, stating again that criminal law "must not be turned into a tool of oppression. "27 Pre-trial overcrowding of prisons is already a problem in India where the number of undertrial prisoners is more than 75% of the total prison population in most States.

28 The issue of nonbailable offences being extended through the BNS is thus the one which talks about exacerbating existing systemic challenges and, as a result, those who come from underprivileged backgrounds will be affected more than others, while the whole society will be increasingly prone to the carceral approach without the procedural safeguards being strengthened proportionately. There is also a criminological argument for an increase in non-bailable categories that may lead to net-widening, more extended pre-trial detention periods, and involuntary plea bargaining, which are all documented as the effects of bail becoming more stringent in the jurisdictions

24 B. Pande, “Criminalisation of Dissent,” JILI, Vol. 62 (2020), pp. 45–60.

25 Kent Roach, Comparative Counter-Terrorism Law, Cambridge University Press, 2015.

26 Bharatiya Nyaya Sanhita, 2023, Schedule of Offence Classifications.

27 Satender Kumar Antil v. CBI, (2022) 10 SCC 51.

28 National Crime Records Bureau, Prison Statistics India (2022).

that have been compared.29 There have been many instances when courts have pointed out that loss of freedom at the pre-trial stage should be accompanied by the existence of compelling State interests and thus any legislative initiative that deviates from this principle should be scrutinized from a constitutional point of view in the light of Articles 14, 19, and 21.30

3.3 Sentencing Revisions

BNS changes the sentencing structure significantly. Some of the key reforms are:

1. More severe punishments for rape and gang rape are one of the major features of the

new law which includes new minimum sentences together with increased maximum punishments.31

2. What is new is the introduction of the death penalty for mob lynching, thus,

representing a very limited category of cases where state-sanctioned killing is allowed.32

3. To fight with organised crime, the BNS provides the use of methods such as asset

forfeiture, longer imprisonment, and additional punishment that bring the Indian legislation in line with the international anti-transnational crime measures.33

4. The ranges of punishments for theft, fraud, and other property offences have been

altered with the intention of being more consistent and proportional.34 India's sentencing jurisprudence has been the subject of critique for a long time for being inconsistent and lacking adequate legislative guidance. The Supreme Court in the case of State of Punjab v. Prem Sagar pointed out that "the lack of structured sentencing guidelines" was the cause of disparity and unpredictability in the situations where the facts were similar.35 Even though the BNS somewhat changes the statutory sentencing ranges, it still does not provide a comprehensive sentencing framework such as the one of the UK Sentencing Council or the

29 Andrew Ashworth & Lucia Zedner, Preventive Justice, Oxford University Press, 2014.

30 Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 98.

31 Bharatiya Nyaya Sanhita, ss. 63–70.

32 Bharatiya Nyaya Sanhita, s. 103

33 Bharatiya Nyaya Sanhita, Ch. IX.

34 Bharatiya Nyaya Sanhita, ss. 301–320.

35 State of Punjab v. Prem Sagar, (2008) 7 SCC 550.

organized federal sentencing grids in the US.36 From a criminological standpoint, reforms that predominantly focus on sentence duration increase are very unlikely to bring about real deterrent effect unless accompanied by significant improvements in the fields of investigation, court proceedings, and conviction certainty.37 The move to attach death penalty to mob lynching is among such issues that additionally elicit constitutional concerns, especially in the light of the Supreme Court's position that allows capital punishment only for the "rarest of the rare cases."38 In sum, the BNS attempts to make sentencing more rational and up-to-date but the lack of structured guidelines means that there still is a considerable amount of discretion in judges' hands, which in turn makes it possible for them to perpetuate their biases and for the principle of proportionality to be undermined.

4. CRIMINOLOGICAL ASSESSMENT

A criminological evaluation of the BNS shows that legal reform cannot be understood solely

as a shift in statutory text; it must be assessed through theories of punishment, structural explanations for criminality, victim-centred justice models, and constitutional limits on State power. The reclassification of offences under the BNS- particularly the expansion of cognizable and non-bailable categories and enhancement of punishments carries implications that must be examined through classical, sociological, victimological, and critical criminological perspectives.

4.1 Classical and Neoclassical Criminology

Classical criminology has been linked to the works of Cesare Beccaria and Jeremy Bentham. It argues that rational beings are deterred more by the certainty and the quickness of the punishment rather than by its severity.39 Hence, the focus is laid on the proper and thorough investigation, fair trials, and expected punishments rather than on the heavy penalties. With regard to India, the empirical data of the National Crime Records Bureau reveal that the conviction rates have been low for a long time, especially in the case of sexual assault,

36 Andrew von Hirsch, Past or Future Crimes, Routledge, 2020.

37 Daniel Nagin, “Deterrence in Criminal Justice,” National Institute of Justice Journal (2013).

38 Bachan Singh v. State of Punjab, (1980) 2 SCC 684.

39 Cesare Beccaria, On Crimes and Punishments (1764).

economic crimes, and organized criminal activities. 40 While the BNS substantially augments punishments, e. g. by adding the death penalty for mob lynching, increasing minimum terms for rape, and broadening life imprisonment categories, deterrence may not result from such steps if there is no improvement in forensic capacity, police training, witness protection, and prosecutorial efficiency parallelly. The apex court in Bachan Singh v. State of Punjab, ruled that the punishment should conform to the constitutional principle of proportionality, thereby necessitating a correlation between the gravity of the crime and the penalty inflicted. 41 This law requires that any increase in the degree of the BNS punishment, mainly the use of the death penalty, should be examined closely by the courts to determine whether it is consistent with the Constitution or not.

Further, neoclassical criminology features not only limited rationality but also investigates the effect of milieu on the agent, therefore it concedes that in the case of various offences like mob violence, crimes of passion, the perpetrators are not deterred by the fright of punishment only. If the deeper socio-psychological roots of the problem are left unaddressed, the enhanced penalties will only have symbolic rather than real force.

4.2 Sociological Criminology

Sociological criminology perceives the causes of crime in the social system inequalities, disorganization of society, marginalization, and political conflicts. 42 Thus, crimes such as mob lynching, terrorism, radicalization, and organized crime are not the results of the individual deviance of the perpetrators, but the expressions of the socio-economic and cultural tensions underlying the society. Researchers have provided evidence that communal polarization, economic precariousness, caste-based discrimination, and poor institutional trust are factors that lead to the occurrence of group violence. 43 While the BNS does harden the law enforcement's responses to these offenses, it does not feature the preventive criminological measures such as community policing, socio-economic reforms, education incentives, and conflict resolution mechanisms.

Punitive expansions, as Upendra Baxi states, can hardly be the social justice-oriented reforms' substitute; criminal law alone is not capable of solving structural vulnerabilities that give rise to violence and

40 National Crime Records Bureau, Crime in India (2022)

41 Bachan Singh v. State of Punjab, (1980) 2 SCC 684.

42 Emile Durkheim, The Rules of Sociological Method, Free Press, 1982.

43 Pradeep Chhibber & Rahul Verma, Ideology and Identity, Oxford University Press, 2018.

deviance.44 The BNS is mostly silent on such factors that may cause crime as unemployment, caste-based exclusion, rural-urban disparities, and youth radicalization, which stunt its potential for transformation.

4.3 Victimology and Gender-Responsive Criminal Law

The victimology literature holds that criminal justice systems need to go beyond offendercentric models and adopt trauma-informed, rights-based, and victim-responsive ones. 45 The BNS provisions regarding the areas of rape, cruelty, abandonment, trafficking, and exploitation denote an attempt to enhance the victims' protection through the reclassification of a large number of such crimes as cognizable and non-bailable. These reforms are in line with the Indian post-Nirbhaya legal system and international standards such as the UN Declaration of Basic Principles of Justice for Victims of Crime (1985). In the case of Punjab State v. Gurmit Singh, the Supreme Court emphasized the need for courts to look through the victim's lens, especially in sexual offence trials. They should acknowledge the trauma and the stigmatization that the survivors undergo.

46 Increased punishments, more offence definitions, and the introduction of aggravated categories by the BNS are the ways in which it shows its conformity with this judicial viewpoint. Nevertheless, critical victimologists like Sandra Walklate warn that putting victims first does not mean that there should be more incarcerations; too much reliance on imprisonment may cause the needs of victims for restitution, rehabilitation, and restorative justice to be overlooked. 47 The BNS, while a great step forward in terms of strengthening the punitive mechanisms, does not offer a significant presence of restorative models, community conferencing, victim compensation mechanisms, and other alternative holistic redress frameworks.

Hence, the BNS represents a carceral feminist standpoint that mainly focuses on punishment without engaging with the systemic change or incorporating broader reparative measures.

44 Upendra Baxi, “The Crisis of the Indian Criminal Justice System,” JILI, Vol. 57 (2015).

45 N. Goel, Victimology in India, LexisNexis, 2017.

46 State of Punjab v. Gurmit Singh, (1996) 2 SCC 384.

47 Sandra Walklate, Handbook of Victims and Victimology, Routledge, 2017.

4.4 Over-Criminalization and State Power

Among the issues that critical criminology and legal philosophy, particularly Douglas Husak's work, point to are those of over-criminalization. They talk about the increase of offences along with the expansion of police powers and how these lead to the excessive control of the State over the conduct of individuals. 48 The BNS is instrumental in the emergence of a number of new crimes such as "acts endangering the sovereignty and integrity of India" for which the aim is to replace sedition. Though it is more limited than IPC Section 124A, its wide-ranging terminology can still be interpreted to cover a broad variety of instances, especially in politically sensitive areas. The past has an example for every argument about the dangers of vague criminal provisions. In the Shreya Singhal v.

Union of India case, the Supreme Court declared Section 66A of the IT Act unconstitutional because it lacked clarity and was an impediment to free expression. 49 The same risks are present if BNS offences provide the grounds for police or executiveauthority discretion in deciding whom to enforce against. Besides, criminological research also confirms that broad offence categories because that targeted selectively, members of disadvantaged groups to be disproportionately affected, and dissent to be suppressed. 50 Therefore, the expansion of cognizable and non-bailable offences by the BNS may result in the strengthening of the carceral State that will be heavily dependent on arrest, detention, and surveillance as its primary tools of governance thus, leaving out the last-resort mechanisms.

The absence of firm safeguards, judicial oversight, and structures of accountability will make the grave chances for mishandling, arbitrariness, and political policing remain.

5. JUDICIAL TRENDS AND CASE ANALYSIS POST-2023

The initial phase of judicial engagement with the Bharatiya Nyaya Sanhita, 2023 reveals an approach grounded in continuity through interpretation. Courts have repeatedly clarified that, unless the BNS introduces a substantive departure, precedents under the Indian Penal Code continue to possess persuasive - if not binding - value. This is consistent with the principle laid down in State of Punjab v. Mohar Singh, wherein the Supreme Court held that repeal and re- 48 Douglas Husak, Overcriminalization: The Limits of the Criminal Law, Oxford University Press, 2008.

49 Shreya Singhal v. Union of India, (2015) 5 SCC 1.

50 David Garland, The Culture of Control, Oxford University Press, 2001.

enactment ordinarily carry forward the interpretive lineage of the earlier statute unless expressly excluded.51 The judiciary has thus relied on IPC jurisprudence to fill doctrinal gaps while simultaneously adapting constitutional norms to the BNS’s restructured offence framework.

5.1 Constitutional Proportionality and Reclassification Review

It appears that after the year 2023, situations of BNS have become a subject for proportionality review brought by the High Courts. Although proportionality as a constitutional doctrine evolved significantly after Modern Dental College v. State of Madhya Pradesh52 and Puttaswamy (Privacy)53, its application to criminal law classifications has become more pronounced after the BNS. As an example of such a situation, the courts started systematically to use proportionality review in issues related to bail for non-bailable categories introduced in cases of mob lynching and organized crime. The courts tried to apply the proportionality test to weigh personal freedom against the common good, thus reflecting the principles of Satender Kumar Antil v. CBI, which argued for a libertyfirst approach.54

5.2 Mob Lynching Jurisprudence

BNS features newly included sections that deal with the phenomenon of mob lynching, which, up to now, was a matter of general IPC categories only. The court in this respect has started relying on the Supreme Court's decision in the Tehseen Poonawalla v. Union of India case to argue for the constitutional mandate for prevention, monitoring, and compensation in situations of lynching.55 The courts invoke Tehseen Poonawalla to explain that the state needs to prevent violence against the constitutional moral code and the rule of law as such. The High Courts also syndicated the view that the failure in investigations and adversarial surroundings call for court intervention while being guided by the impressions of the Zahira Habibullah Sheikh v. State of Gujarat case (the "Best Bakery case")56. As mob lynching has been made a cognizable

51 State of Punjab v. Mohar Singh, AIR 1955 SC 84.

52 Modern Dental College & Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 353.

53 Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.

54 Satender Kumar Antil v. CBI, (2022) 10 SCC 51.

55 Tehseen Poonawalla v. Union of India, (2018) 9 SCC 501

56 Zahira Habibullah Sheikh v. State of Gujarat, (2006) 3 SCC 374.

offense under the BNS, thus increasing police powers and, consequently, judicial scrutiny, this issue became especially significant.

5.3 Fair Investigation and Police Accountability

The review of judicial decisions on BNS provisions dealing with cognizable offenses has revealed a continuous worry about the police also by the courts. The courts, in order to secure that the additional cognizable categories that arose from the BNS do not end in the emergence of arbitrary and selective law enforcement, have depended on the decision in Lalita Kumari v. State of Uttar Pradesh, which directs the registration of compulsory FIRs in cognizable cases. 57 Furthermore, the Supreme Court's decisions in the matter of Prakash Singh v. Union of India58 about police being free from political meddling - has again become prominent in the cases concerning "acts endangering sovereignty and integrity," which is the BNS's clause for sedition.

The courts are progressively turning to Prakash Singh to argue that the increased use of police power should go hand in hand with the establishment of accountability through organizational measures.

5.4 Sedition-Replacement Provisions and Free Speech Concerns

How the judiciary dealt with the newly introduced offense regarding threats to sovereignty and integrity is in line with the free speech cases along which Shreya Singhal v. Union of India, the landmark case which invalidated Section 66A of the IT Act because it was vague and overbroad. 59 The early decisions of the High Courts reveal that judges are not readily accepting the idea of criminalizing political dissent and have therefore held that the new provision should be narrowly construed so as to be in conformity with Article 19(1)(a). Judicial approaches are still shaped by the Supreme Court's temporary order in S. G. Vombatkere v. Union of India that sedition provisions in the IPC be kept in abeyance and this has led many courts to take a rightsprotective stance towards the BNS provision that replaces sedition.

60 They have treated this provision as a constitutional doubt unless it is used in cases involving real threats to national security.

57 Lalita Kumari v. State of Uttar Pradesh, (2014) 2 SCC 1.

58 Prakash Singh v. Union of India, (2006) 8 SCC 1.

59 Shreya Singhal v. Union of India, (2015) 5 SCC 1.

60 S.G. Vombatkere v. Union of India, Order dated 11 May 2022, Supreme Court of India.

5.5 Sentencing Consistency and Judicial Discretion

Despite the BNS's efforts to adjust sentencing bands, the judges' reasoning still largely depends on the precedents that have already been established like in State of Punjab v. Prem Sagar the Court expressed regret over the lack of sentencing guidelines explicitly set out.61 The courts have not hesitated to cite the landmark case of Bachan Singh v. State of Punjab, the deathpenalty constitutionality case, which sees the reaffirmation of the “rarest of the rare” principle.62 This has a major implication for the BNS, which broadens the grounds for the death penalty (e.g., mob lynching resulting in death). The preliminary rulings suggest that the courts may take a conservative stance towards issuing death penalty recommendations under the BNS, thus they require strict compliance with the tests set in Bachan Singh and Machhi Singh v. State of Punjab.63

5.6 General Judicial Approach: Punitive or Constitutional?

One of the prominent features of the judiciary is its effort to conform the BNS, which on the surface looks like a punitive reclassification, with the constitutional requirements of liberty, dignity, and fairness. While the BNS enhances the power of the State in areas like organized crime, cyber threats, and national security, courts have always maintained that criminal law is subject to constitutional limits and this is in line with their commitment to the “constitutionalisation of criminal procedure,” a term that became popular due to the post- Maneka Gandhi jurisprudence. The real challenge is going to be over the next several years: will Indian courts show restraint towards BNS’s punitive extension or will they give it a nod, thus facilitating a more prison and security-focused criminal law framework?

Up to now, judicial trends have been indicative of caution, continuity, and constitutional fidelity, but the future is still doctrinally open.

6. CHALLENGES AND CRITIQUES

Despite its ambition to modernise India’s substantive criminal law, the Bharatiya Nyaya Sanhita, 2023 (BNS) raises several critical challenges that may undermine its transformative potential. These challenges stem from structural, doctrinal, institutional, and criminological

61 State of Punjab v. Prem Sagar, (2008) 7 SCC 550.

62 Bachan Singh v. State of Punjab, (1980) 2 SCC 684.

63 Machhi Singh v. State of Punjab, (1983) 3 SCC 470.

gaps in the reclassification and reorganisation of offences. A systematic assessment reveals that the BNS, while normatively progressive in certain areas, risks replicating long-standing problems associated with over-criminalisation, institutional incapacity, and rights-dilution.

6.1 Risk of Over-Policing due to Expansion of Cognizable Offences

One of the major issues with BNS is the dramatic increase in the number of cognizable offences. A considerable portion of new offences, i. e. those related to organized crime, mob lynching, terrorism, and “acts endangering the sovereignty and integrity of India,” have been given the police the power to arrest without a warrant. 64 Criminologists like Douglas Husak argue that over-criminalization leads to an increase in the State's coercive power, but doesn't necessarily result in crime reduction. 65 In India, where police work is often criticized for lack of proper training, being politically influenced, and having socio-economic biases, the risk of selective arrests going on as a result of the cognizability expansion is high. The Supreme Court in Arnesh Kumar v.

State of Bihar warned against arresting people unnecessarily and emphasized that freedom should not be compromised by the police's arbitrary decisions. 66 Therefore, the expanded list of BNS's cognizable offences without something like an equivalent number of safeguards can escalate the problem of increased police surveillance, especially among those communities which are socially excluded.

6.2 Prison Overcrowding in Violation of Constitutional Mandates

A rise in non-bailable offences and heavier punishments, as envisaged in the BNS, will most

probably cause India's prison overcrowding problem to become even worse. The Supreme Court in Inhuman Conditions in 1382 Prisons ruled that overcrowding in prisons is a violation of Articles 21 and 14 and therefore calls for overhaul of the system, infrastructural improvements, and alternatives to incarceration.67 Regardless of this, the BNS is increasing the number and length of sentences such as longer minimum terms, more frequent use of life imprisonment, and the retention of the death penalty for certain offences. The undertrial

64 Bharatiya Nyaya Sanhita, 2023, Chapter on Offences Affecting the State.

65 Douglas Husak, Overcriminalization: The Limits of the Criminal Law (Oxford University Press, 2008).

66 Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.

67 Inhuman Conditions in 1382 Prisons, In Re, (2016) 3 SCC 700.

population in India is over 75% of the total number of inmates, and thus, if bail procedures become stricter, more people will be unable to get bail leading to further overcrowding. Studies based on real-life situations suggest that if a large number of people are put in prison without a proper rehabilitation program, the likelihood of them reoffending will increase, and prison conditions will deteriorate as well.68 Therefore, the punitive direction taken by the BNS is at odds with the constitutional demands for a humane penal system.

6.3 Ambiguity in Statutory Definitions and Drafting Vagueness

An important point in criticism of the BNS is that it continues to have a lot of ambiguous and broadly defined terms, which may cause difficulties in interpreting them. For example, the method of defining the new crime concerning acts that endanger sovereignty is more specific than sedition but is still vague enough, thus potentially allowing a wide-ranging interpretation. 69 The Supreme Court in Shreya Singhal v. Union of India removed Section 66A of the IT Act due to its vagueness and negative impact on speech arguing that precision is a requirement for any criminal law if it is to be in line with Article 19(1)(a). 70 By the same token, the vagueness of the provisions in the BNS can result in those provisions being challenged in courts and receiving different interpretations from judges.

Furthermore, unclear drafting also makes life harder for police officers and prosecutors and thus leads to enforcement being different from one jurisdiction to another.

6.4 Absence of Sentencing Guidelines

Despite Repeated Judicial Appeals Another flaw in the design of the structure is the lack of a statutory framework for sentencing. While the BNS changes the ranges of punishments, it doesn’t bring in any guidelines for promoting uniformity. The Supreme Court has, time and again, in cases such as Prem Sagar and Soman v. State of Kerala, acknowledged this absence, pointing to the necessity of principled sentencing.71 On the other hand, places like the UK and Australia have already formed councils whose role is to guide judicial discretion in sentencing. The lack of such institutional support in the BNS implies that differences in sentencing can still be found, offenders in similar situations may be handed very different sentences, and the courts of appeal will continue to face the problem of unstructured judicial discretion. The BNS

68 Ministry of Home Affairs, Prison Statistics India (NCRB, 2022).

69 BNS, 2023, s. 150 (Acts endangering sovereignty, integrity and unity).

70 Shreya Singhal v. Union of India, (2015) 5 SCC 1.

71 Soman v. State of Kerala, (2013) 11 SCC 382; State of Punjab v. Prem Sagar, (2008) 7 SCC 550.

without formalized sentencing runs the risk of continuing the problem of the lack of predictability as well as unfairness in criminal adjudication.

6.5 Insufficient Integration of Criminological Research and Preventive Frameworks

The final argument here is about the limited extent of inclusion of criminological research in law reform and the BNS's over-reliance on punitive and deterrence-based philosophies, ignoring the rehabilitation and socio-economic factors side of modern criminological insight. Reformist criminologists such as Upendra Baxi maintain that no matter how much punishment is increased, it cannot make up for social justice failings and lack of structural prevention.72 The BNS ignores the incorporation of restorative justice mechanisms, diversion programs, community-based corrections, socio-structural crime-prevention strategies, and victimoffender mediation. For example, Canada has fully implemented these frameworks and has shown that they lead to reduced recidivism and stronger community trust. India's reform initiative, however, is still mostly offence-centric and penal in nature.

7. CONCLUSION

Bharatiya Nyaya Sanhita, 2023, is a major overhaul of Indian criminal law after the Indian Penal Code, 1860 was enacted. Its broad reclassification of crimes- from aspects like cognizability and bailability to restructuring of the punishment - indicates a decisive change in legislature towards a more extensive, State-empowered model of criminal administration. Although BNS aims to modernize substantive criminal law, most of its changes still reflect a deterrence-focused and policing-oriented stance, thus bringing back to the surface the issues that have been pointed out by criminological and constitutional literature.

The reclassification of offences, including the expansion of cognizable categories, has the potential to accelerate police intervention but simultaneously raises the possibility of increased surveillance, misuse of arrest powers, and heightened criminalisation of marginalised communities. Without corresponding safeguards such as mandatory judicial oversight, stronger arrest guidelines, and independent complaint mechanisms, expanded cognizability may aggravate the very structural inequalities that plague India’s criminal justice system.

72 Upendra Baxi, “The Crisis of the Indian Penal System,” Indian Law Review (1979).

Besides, the punitive focus of BNS often comes in the way of the deeper systemic issues. As far as structured sentencing guidelines are concerned, their absence is still a major reason for wide divergences. The supreme court has in many instances held so and law commissions in this connection have also submitted their reports time and again emphasizing the need for greater uniformity. The omission is especially clear if one compares the situation with such jurisdictions as the UK and Canada, which have moved towards proportionality-based and restorative sentencing framework. BNS also lacks a proper and full incorporation of empirical criminological insights which consistently argue that crime prevention is best achieved through rehabilitation, social welfare interventions, community-based corrections, and elimination of systemic inequalities.

The retention of a primarily punitive structure without a corresponding provision of preventive measures in the BNS thus will only further exacerbate extant problems such as overcrowding in prisons, delays in procedural work, and inefficiency in investigations. Furthermore, the reclassification of offences cannot be divorced from constitutional values that underpin them. Among other things, the Supreme Court stressed many times that criminal law needs to be in accord with constitutional morality, human dignity, privacy, and proportionality. Therefore, on coming to the court, the question of BNS's legitimacy will be decided by whether the judges interpret the law through the lens of these fundamental principles or whether the reform facilitates a move towards the excessive power of the State and unaccounted policing.

In the end, the overhaul of the statutory structure through the BNS, though a landmark one, would be judged largely by the extent to which it helps to reduce crime and make justice delivery more efficient.