Legislative Brief

The Bharatiya Nyaya (Second) Sanhita, 2023

The Bharatiya Nyaya Highlights of the Bill
Sanhita, 2023 was
introduced in Lok  The Bharatiya Nyaya (Second) Sanhita (BNS2) retains most offences
Sabha on August 11,
2023. It replaces the from the IPC. It adds community service as a form of punishment.
Indian Penal Code,
1860. The Bharatiya  Sedition is no longer an offence. Instead, there is a new offence for
Nyaya (Second)
Sanhita, 2023 was
acts endangering the sovereignty, unity and integrity of India.
introduced on
December 12, 2023  The BNS2 adds terrorism as an offence. It is defined as an act that
after the earlier Bill intends to threaten the unity, integrity, security or economic security
was withdrawn. The
Standing Committee on of the country, or strike terror in the people.
Home Affairs has
examined the earlier  Organised crime has been added as an offence. It includes crimes
Bill.
such as kidnapping, extortion and cyber-crime committed on behalf
of a crime syndicate. Petty organised crime is also an offence now.
 Murder by a group of five or more persons on grounds of certain
identity markers such as caste, language or personal belief will be an
Related Briefs:
offence with penalty life imprisonment or death, and with a fine.
Cover Note on
Overview of Criminal
Law Reforms Key Issues and Analysis
Bharatiya Nagrik  Age of criminal responsibility is retained at seven years. It extends
Suraksha (Second)
Sanhita, 2023 to 12 years depending upon the maturity of the accused. This may
Bharatiya Sakshya contravene recommendations of international conventions.
(Second) Bill, 2023
 The BNS2 defines a child to mean a person below the age of 18.
However, for several offences, the age threshold of the victim for
offences against children is not 18. The threshold for minority of the
victim of for rape and gangrape is different.
 Several offences overlap with special laws. In many cases, both
carry different penalties or provide for different procedures. This
may lead to multiple regulatory regimes, additional costs of
compliance and possibility of levelling multiple charges.
Rutvik Upadhyaya  The BNS2 removes sedition as an offence. The provision on
rutvik@prsindia.org
endangering the sovereignty, unity and integrity of India may have
Alaya Purewal retained aspects of sedition.
alaya@prsindia.org

Mandvi Gaur
 The BNS2 retains the provisions of the IPC on rape and sexual
mandvi@prsindia.org harassment. It does not consider recommendations of the Justice
December 13, 2023 Verma Committee (2013) such as making the offence of rape gender
neutral and including marital rape as an offence.
 The BNS2 omits S. 377 of IPC which was read down by the Supreme
Court. This removes rape of men and bestiality as offences.

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 The Bharatiya Nyaya (Second) Sanhita, 2023 PRS Legislative Research

PART A: HIGHLIGHTS OF THE BILL

Context
The Indian Penal Code (IPC), 1860 is the principal law on criminal offences in India. Offences covered include
those affecting: (i) human body such as assault and murder, (ii) property such as extortion and theft, (iii) public
order such as unlawful assembly and rioting, (iv) public health, safety, decency, morality, and religion, (iv)
defamation, and (v) offences against the state. Over the years, the IPC has been amended to add new offences,
amend existing ones and change the quantum of punishment.1 Courts have also de-criminalised certain offences
such as consensual intercourse between same-sex adults, adultery and attempt to commit suicide.2,3,4 Several
states have also amended the IPC to provide different punishments for sexual offences, selling minors for
prostitution, adulteration of food and drugs and sacrilege of religious texts.5,6,7,8 Several Law Commission
reports have recommended amendments to the IPC on subjects including offences against women, food
adulteration, death penalty.9, 10
The Bharatiya Nyaya Sanhita (BNS) was introduced on August 11, 2023 to replace the IPC. It was examined by
the Standing Committee on Home Affairs. 11 The Bharatiya Nyaya (Second) Sanhita, 2023 (BNS2) was
introduced on December 12, 2023 after the earlier Bill was withdrawn. It incorporates certain recommendations
of the Standing Committee. The BNS2 largely retains the provisions of the IPC, adds some new offences,
removes offences that have been struck down by courts, and increases penalties for several offences.

Key Features
Key changes in the BNS2 include:
 Offences against the body: The IPC criminalises acts such as murder, abetment of suicide, assault and
causing grievous hurt. The BNS2 retains these provisions. It adds new offences such as organised crime,
terrorism, and murder or grievous hurt by a group on certain grounds.
 Sexual offences against women: The IPC criminalises acts such as rape, voyeurism, stalking and insulting
the modesty of a woman. The BNS2 retains these provisions. It increases the threshold for the victim to be
classified as a major, in the case of gangrape, from 16 to 18 years of age. It also criminalises sexual
intercourse with a woman by deceitful means or making false promises.
 Sedition: The BNS2 removes the offence of sedition. It instead penalises the following: (i) exciting or
attempting to excite secession, armed rebellion, or subversive activities, (ii) encouraging feelings of
separatist activities, or (iii) endangering the sovereignty or unity and integrity of India. These offences may
involve exchange of words or signs, electronic communication, or use of financial means.
 Terrorism: Terrorism includes an act that intends to: (i) threaten the unity, integrity, security or economic
security of the country, or (ii) strike terror in the people or any section of people in India. Punishment for
attempting or committing terrorism includes: (i) death or life imprisonment, and a fine, if it results in death
of a person, or (ii) imprisonment between five years and life, and a fine.
 Organised crime: Organised crime includes offences such as kidnapping, extortion, contract killing, land
grabbing, financial scams, and cybercrime carried out on behalf of a crime syndicate. Attempting or
committing organised crime will be punishable with: (i) death or life imprisonment and a fine of Rs 10 lakh,
if it results in death of a person, or (ii) imprisonment between five years and life, and a fine of at least five
lakh rupees.
 Mob lynching: The BNS2 adds murder or grievous hurt by five or more people on specified grounds, as an
offence. These grounds include race, caste, sex, language, or personal belief. The punishment for such
murder is life imprisonment or death.
 Rulings of the Supreme Court: The BNS2 conforms to some decisions of the Supreme Court. These
include omitting adultery as an offence and adding life imprisonment as one of the penalties (in addition to
the death penalty) for murder or attempt to murder by a life convict.

PART B: KEY ISSUES AND ANALYSIS

Age specifications for offences
Act: Minimum age of criminal responsibility higher than several other jurisdictions
Sections Age of criminal responsibility refers to the minimum age at which a child can be prosecuted and punished for an
82, 83
offence. Advances in understanding of how brain biology affects adolescent behaviour has raised questions
Bill: Clauses
20, 21 about how responsible children should be held for their actions.12 Under IPC, nothing is considered an offence
if committed by a child below the age of seven years. The age of criminal responsibility increases to 12 years, if
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 The Bharatiya Nyaya (Second) Sanhita, 2023 PRS Legislative Research

the child is found to not have attained the ability to understand the nature and consequences of his conduct. The
BNS2 retains these provisions. This age is lower than the age of criminal responsibility in other countries. In
2007, a UN Committee recommended states to set the age of criminal responsibility to above 12 years. 13
The age of criminal responsibility varies across countries. For instance, in Germany, the age of criminal
responsibility is 14 years, whereas in England and Wales, it is 10 years.14,15 In Scotland, the age of criminal
responsibility is 12 years.16
Age threshold of the victim for similar offences against children varies
Bill: Clause The BNS2 provides for higher penalties in case of offences against children. In most cases, it provides that a
143(4), victim below the age of 18 years be treated as a child. The penalty for rape and gang rape of women and
144(1), 295, children is different. However, the threshold for minority of the victim for different offences of rape and
96, 98 consequently the penalty, varies. For gang rape, the penalty differs based on whether the victim is above or
Bill: Clause
below 18 years of age. However, for rape, the penalty is different based on whether the victim’s age is below 12
65,93, 97,141 years, between 12 and 16 years, or above. This is inconsistent with the Protection of Children from Sexual
Offences Act, 2012, which classifies all individuals below the age of 18 as minors.
Additionally, under BNS2, age threshold of the victim for certain offences against children is not 18 years. For
example, kidnapping or abducting a child with the intent to steal from a parent applies only to a child under 10
years. This implies that the punishment for kidnapping an 11-year-old is the same as that of kidnapping an
adult. Further, the BNS2 retains from the IPC the age of 21 years for the offence of importing a foreign woman
from another country. However, for boys, it adds the age threshold of 18 years. The Standing Committee on
Home Affairs (2023) has recommended defining a child as a person below the age of 18.11

Overlap between the BNS2 and special laws

Duplication of offences with other special laws
When the IPC was enacted, it encompassed all criminal offences. Over time, special laws have been enacted to
address specific subjects and related offences. Some of these offences have been removed from the BNS2. For
example, offences related to weights and measures were incorporated in the Legal Metrology Act, 2009 and
have been removed from the BNS2. However, several offences continue to be retained (see Table 1 below for
some illustrations). The BNS2 also adds certain new offences such as organised crime and terrorism which are
already covered under special laws. Such overlap in laws may cause additional compliance burden and costs. It
may also lead to multiple laws providing varying penalties for the same offences. Deleting such offences could
remove duplication, possible inconsistencies, and multiple regulatory regimes.
Table 1: Illustrative list of overlap between and IPC, BNS2 and Special Laws
BNS2 Special Law
Adulteration of food or drink for sale
Imprisonment up to 6 months, fine up to Rs 5,000, or both. The Food Safety and Security Act, 2006: Imprisonment up to life, and a
Non-Cognizable, bailable. (IPC Sec. 272, 273; BNS2 Clause fine up to Rs 10 lakh for manufacture, storage, sale of unsafe food.
274, 275) Sentence proportionate to damage caused. (Sec. 59)
Adulteration of drugs, and sale of adulterated drugs
Adulteration penalised with imprisonment up to a year, fine The Drugs and Cosmetics Act, 1940: Consumption of adulterated drugs
up to Rs 5,000, or both. causing death or grievous hurt penalised with imprisonment between 10
Sale of adulterated drugs penalised with imprisonment up to years and life, and fine of at least Rs 10 lakh, or 3 times the value of the
6 months, fine up to Rs 5,000 or both. seized drugs, whichever is higher.
Non-Cognizable, bailable. (IPC Sec. 274, 275; BNS2 Clause In other cases, penalty is imprisonment of 3-5 years, and fine of at least
276, 277) Rs 1 lakh, or 3 times the value of the seized drugs, whichever is more.
(Sec. 27)
Unlawful compulsory labour
Imprisonment up to one year, fine, or both. The Bonded Labour System (Abolition) Act, 1976: Imprisonment up to
Cognizable, Bailable. (IPC Sec. 374; BNS2 Clause 146) 3 years and fine up to Rs 2,000. (Sec. 16, 17, 18).
Abandoning a child
Parent or guardian abandoning a child below the age of 12 is The Juvenile Justice Act, 2015: Abandoning or procuring a child for
punishable with imprisonment up to 7 years, fine, or both. abandonment is punishable with imprisonment up to 3 years, fine up to Rs
Cognizable, bailable. (IPC Sec. 317; BNS2 Clause 93) 1 lakh, or both. Biological parents abandoning a child due to
circumstances beyond their control are exempt. (Sec. 75)
Rash driving
Punishable with imprisonment up to 6 months, fine up to Rs The Motor Vehicles Act, 1988: Punishment for first offence:
1,000 or both. imprisonment up to 6 months, and/or fine up to Rs 5,000. Subsequent
Cognizable, bailable, non-compoundable. (IPC Sec 279; offence within three years: imprisonment up to 2 years and/or a fine up to
BNS2 Clause 281) Rs 10,000. Cognizable, bailable, compoundable. (Sec. 184)
Sources: IPC; BNS2; Various Special Laws; PRS.

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 The Bharatiya Nyaya (Second) Sanhita, 2023 PRS Legislative Research

Addition of crimes related to organised crime and terrorism

Bill: Clause Currently, organised crime and acts of terrorism are not covered under IPC. Acts of terrorism are covered under
111, 113 the Unlawful Activities (Prevention) Act, 1967 (UAPA). Organised crime is covered by state laws such as the
Maharashtra Control of Organised Crime Act, 1999 (MCOCA), and similar laws enacted by Karnataka, Gujarat,
Uttar Pradesh, Haryana and Rajasthan.17 Offences related to both organised crime and terrorism have been
added in the BNS2. The provision on terrorism in BNS2 is similar to the one in UAPA. Adding organised
crime as an offence in the BNS2 fills a gap as these crimes may occur across all states, including those which
have not enacted a special law. However, this also creates duplication of laws in states which already have such
special laws.
The Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 (BNSS2) and the Bharatiya Sakshya (Second) Bill,
2023 (BSB2) which replace the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872,
respectively, do not provide for a separate criminal procedure for these offences. The special laws on organised
crime and terrorism have several departures from ordinary criminal procedure. They remove some safeguards
for the accused, such as the conditions for bail and the admissibility of police confessions. Cases under UAPA
are tried under the National Investigation Agency Act, 2008, which establishes Special Courts to try such
cases.18 Under the BNSS2, cases of terrorism will be tried in Sessions Courts. This would result in varying
investigation and trial procedures for similar offences. The Standing Committee on Home Affairs (2023) had
recommended providing special criminal procedures for organised crime in the Bhartiya Nagrik Suraksha
Sanhita, 2023 (BNSS).11

Penalty for crime by member of a gang differs from that by an individual

The BNS2 defines petty organised crime as an offence. It includes: vehicle theft, pick-pocketing, selling of
public examination question papers, any other similar criminal act. To qualify as petty organised crime, such
Bill: offences must be committed by members of a group or gang. This offence is penalised with imprisonment of
Clause 112 one to seven years, and a fine. This penalty creates a distinction between an offence committed by a member of
a gang and a person committing an offence on his own. For example, the penalty for theft is upto three years
imprisonment, whereas if the same act is committed by a gang or group, the penalty is between one and seven
years of imprisonment.

Offences against women

The BNS2 retains the provisions of IPC related to rape. It has not addressed several recommendations made by
the Justice Verma Committee (2013) and Supreme Court on reforming offences against women. We mention
some of these below.
Table 1: Recommendations related to offences against women
Recommendations Whether incorporated in BNS2
Rape (IPC s.375) – Rape should not be limited to penetration of the vagina, mouth or No. Original provision retained in Clause 63.
anus. Any non-consensual penetration of a sexual nature should be included in the
definition of rape. Exception to marital rape should be removed.9
Words, gesture, or act intended to insult modesty of woman (IPC s.509) - the section No. Original provision retained in Clause 79.
should be repealed. The offence of ‘eve-teasing’ can be charged under s.354 of the IPC
(s.73). Remove the terminology ‘modesty of women’ from the IPC.9
Assault or use of criminal force on woman with intent to disrobe (IPC s.354B) - No. Penalty is imprisonment for at least
penalty should be increased to imprisonment for at least five years up to 10 years.19 three years up to seven years (Clause 76).
Adultery (IPC s.497) – the section violates Articles 14 and 21. It creates a distinction Yes. Adultery has been omitted. However,
between men and women based on gender stereotypes, and is arbitrary. Adultery should BNS2 retains s.498 of the IPC (Clause 84)
not be treated as an offence as it violates the right to privacy.3 which penalises a man for enticing the wife
of another man so that she may have
intercourse with any person.
Sources: See endnotes; PRS.

Aspects of sedition retained

The IPC defines sedition as bringing or attempting to bring hatred, contempt, or exciting disaffection towards
Act: Section
the government. The Supreme Court has put the offence of sedition on hold until a Constitution bench examines
124A
it.20 The BNS2 removes this offence. Instead, it adds a provision that penalises: (i) exciting or attempting to
Bill: Clause
excite secession, armed rebellion, or subversive activities, (ii) encouraging feelings of separatist activities, or
152
(iii) endangering sovereignty or unity and integrity of India. These offences may involve exchange of words or
signs, electronic communication, or use of financial means. It may be argued that the new provision retains
certain aspects of the offence of sedition and broadens the range of acts that could be seen as threatening the
unity and integrity of India. Terms like ‘subversive activities’ are also not defined, and it is unclear what
activities will meet this qualification.

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 The Bharatiya Nyaya (Second) Sanhita, 2023 PRS Legislative Research

In 1962, the Supreme Court limited the application of sedition to acts that carry the intention or tendency to
create public disorder or incite violence.21 Note that the BNSS2 refers to ‘seditious matters’ in BNS2 (clauses
150, 195, 297), despite the word sedition not appearing in BNS2.

Solitary confinement may violate fundamental rights

The IPC permits solitary confinement for offences that are penalised with rigorous imprisonment. Such
Act: Section offences include criminal conspiracy, sexual harassment, kidnapping or abducting to murder. The BNS2 retains
73 and 74 these provisions. The Prisons Act, 1894, which also permits solitary confinement, has been adopted by many
Bill: Clause state laws.22 Provisions on solitary confinement are not in line with Court rulings and expert recommendations.
11 and 12
The Supreme Court (1979) has held that measures such as pushing prisoners into solitary cells deprives them of
their right to life and liberty under Article 21.23 In 1971, the Law Commission recommended removing solitary
confinement from the IPC. It observed that such confinement is out of tune with modern thinking and should
not exist as a punishment for any criminal court to enforce.24 In 1978, the Supreme Court recognised the Law
Commission’s recommendation and held that solitary confinement must be enforced only in exceptional cases.25

The scope of community service is unclear

Bill: The BNS2 adds community service as a punishment. It extends this punishment to offences such as: (i) theft of
Clause 4 property worth less than Rs. 5,000, (ii) attempt to commit suicide with the intent to restrain a public servant, and
(iii) appearing in a public place intoxicated and causing annoyance. The BNS2 does not define what community
service will entail and how it will be administered. The Standing Committee on Home Affairs (2023)
recommended defining the term and nature of ‘community service’.11

Drafting issues
There are several drafting issues in the BNS2. We illustrate a few below:
Table 2: Some examples of missing offences, drafting issues and obsolete illustrations
Missing offences
IPC Section 375 specifies rape of a woman as an offence. Section 377 specifies “intercourse against the order of nature against
sections any man, woman or animal” an offence; the Supreme Court read this down to exclude consensual sex between adults. This
375 and meant that forced intercourse with an adult male is an offence, so is intercourse with an animal. Rape of children,
377 regardless of gender is an offence under the POCSO Act, 2012.
The BNS2 does not retain section 377. This implies that rape of an adult man will not be an offence under any law, neither
will having intercourse with an animal. The Standing Committee on Home Affairs (2023) has recommended re-introducing
this provision.
Obsolete references (may need to be updated with examples from modern life)
129 Illustrations: (b) Z is riding in a chariot. A lashes Z’s horses, and thereby causes them to quicken their pace. Here A has
caused change of motion to Z by inducing the animals to change their motion. A has therefore used force to Z; and if A has
done this without Z’s consent, intending or knowing it to be likely that he may thereby injure, frighten or annoy Z, A has used
criminal force to Z.
Other illustrations relate to palanquins (illustration c in clause 127) and cannons (illustration d in clause 100).
Sources: BNS, IPC; PRS.

1. The Criminal Law (Amendment) Act, 2018, The Criminal Law (Amendment) Act, 1983, The Criminal Law (Amendment)
Act, 2013.
2. WP (Criminal) No. 76 of 2016, Navtej Singh Johar & Ors vs. Union of India, Supreme Court, September 6, 2018.
3. WP (Criminal) No. 194 of 2017, Joseph Shine vs. Union of India, Supreme Court, September 27, 2018.
4. 1994 AIR 1844, R. Pathinam vs. Union of India, Supreme Court, April 26 1994.
5. The Indian Penal Code (Tamil Nadu Amendment) Act, 2021.
6. The Indian Penal Code (Andhra Pradesh Amendment) Act, 1991.
7. Criminal Laws (Rajasthan Amendment) Bill, 2018
8. Indian Penal Code (Punjab Amendment) Bill, 2018.
9. Report of the Committee on Amendments to Criminal Law, 2013 (Verma Committee).
10. Report 264, Law Commission of India, 2017; Report 262, Law Commission of India, 2015.
11. Report No. 246, The Bharatiya Nyaya Sanhita, Standing Committee on Home Affairs, Rajya Sabha, November 10, 2023
12. PostNote 588, Age of Criminal Responsibility, Parliamentary Office of Science and Technology, The United Kingdom,
June 2018.
13. Report of the Committee on Rights of the Child, United Nations.
14. Section 19, The German Criminal Code, 1998.
15. “Age of criminal responsibility”, The Government of the United Kingdom.
16. “If a young person gets in trouble with the police”, The Government of Scotland.
17. Maharashtra Control of Organized Crime Act, 1999, Gujarat Control of Terrorism and Organised Crime Act, 2015.
18. National Investigation Agency Act, 2008.

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 The Bharatiya Nyaya (Second) Sanhita, 2023 PRS Legislative Research

19. Report No. 167, The Criminal Law (Amendment) Bill, 2012, Standing Committee on Home Affairs, Rajya Sabha, March
4, 2013.
20. Writ Petition (Civil) No. 682/2021, SG Vombatkere vs. Union of India, Supreme Court, September 12, 2021.
21. 1962 AIR, Kedar Nath Singh vs. State of Bihar, Supreme Court, January 20, 1962.
22. Section 29, Prisons Act, 1894.
23. 1980 AIR 1579, Sunil Batra(II) vs. Delhi Administration, Supreme Court, December 20, 1979.
24. Report No. 42, Law Commission of India, 1971.
25. 1978 AIR 1675, Sunil Batra vs. Delhi Administration and Ors, Supreme Court, August 30, 1978.
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