The replacement of the Indian Penal Code, 1860 with the Bharatiya Nyaya Sanhita, 2023 raises a fundamental question: does a new criminal code necessarily bring meaningful justice?
by Adv. Dr. Chinmay Bhosale · 5 MINS READ
Modernising India’s criminal law is necessary. However, reform must extend beyond renumbering provisions and replacing colonial terminology. Its real value lies in protecting civil liberties, addressing contemporary offences and improving the administration of justice.
From the Indian Penal Code to the New Sanhita
The Indian Penal Code, 1860 has long been central to the operation of criminal law in India. The article traces its drafting to the recommendations of the commission headed by Lord Macaulay, which it dates to 1835.
The author argues that the British designed the Code principally to punish and maintain control, rather than to deliver justice. Despite those colonial origins, it remained in use for 163 years, applied by courts throughout the country, including the Supreme Court.
Against this background, the article discusses the introduction in Parliament of the Bharatiya Nyaya (Second) Sanhita Bill, 2023, intended to replace the Indian Penal Code and reform India’s criminal justice framework.
What Has Changed?
The article compares the Indian Penal Code’s 511 sections with the 358 sections in the Bharatiya Nyaya Sanhita, 2023. Familiar offences have also been renumbered:
Offence | Indian Penal Code, 1860 | Bharatiya Nyaya Sanhita, 2023 |
Murder | Section 302 | Section 103 |
Cheating | Section 420 | Section 318 |
Rape | Section 376 | Section 64 |
Terrorism and organised crime have been expressly included. The author welcomes these additions as necessary responses to contemporary conditions.
Nevertheless, the article argues that most other offences remain substantially similar, sometimes with changes to their descriptions. It estimates that approximately 80% of the offences and their wording retain the substance of the older law.
Colonial Origins Are Not the Only Test
Describing a law as colonial is not, by itself, a sufficient explanation for replacing it. The more important task is to identify what needs to change and why.
Although the British framed the original Code to serve their interests, it has since undergone numerous amendments, including changes made after Independence. It cannot therefore be assessed as though its original form remained untouched.
The author identifies several areas requiring deeper reform:
Stronger substantive protection for civil liberties.
Effective limits on arrest powers.
Adequate machinery to implement the law.
Careful scrutiny of sedition-related provisions that may place pressure on democratic freedoms.
Provisions addressing marital rape.
Accountability for malicious prosecution and deliberately false cases.
These issues require considered changes to the criminal justice system, rather than a change of name alone.
Ambiguity and Overlap With Existing Laws
Removing obsolete provisions is an important part of modernisation. However, the author finds legal ambiguity in several provisions of the new framework, alongside overlap and inconsistency with existing Central and State laws.
Terrorism is already addressed through Central legislation and investigative agencies. Organised crime is also governed by existing laws and judicial decisions.
New provisions must therefore be considered within that wider framework. Without sufficient clarity and coordination, their inclusion may create uncertainty rather than resolve it.
Relationships, Promises of Marriage and the Risk of Misuse
The article refers to Supreme Court decisions concerning sexual relationships entered into on a promise of marriage and their treatment under rape law.
Against that background, the author expresses concern about the scope for criminal proceedings under the Bharatiya Nyaya Sanhita in such circumstances. The central caution is that every failed relationship should not become a potential criminal case.
Careful safeguards are necessary to prevent misuse while addressing the conduct the law seeks to prohibit.
Sedition: A Repealed Provision, but Continuing Concerns
The article acknowledges the repeal of Section 124A, the Indian Penal Code’s sedition provision. It nevertheless questions whether a comparable offence continues under Section 152 of the Bharatiya Nyaya Sanhita.
As described in the article, Section 152 covers acts endangering India’s sovereignty, unity and integrity.
The author’s concern is that repealing an old provision does not necessarily produce a fundamental change if substantially similar restrictions remain elsewhere in the new law.
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