The Bharatiya Nyaya Sanhita 2023 is the statute that ended the Indian Penal Code. On 1 July 2024 the Sanhita came into force as Act 45 of 2023, and the Penal Code of 1860, which had defined the substantive criminal law of India for well over a century and a half, stood repealed. Yet a repeal of this kind is not an ending in any simple sense. The Sanhita is best understood as three distinct analytical moves performed at once: a large act of retention, in which the architecture and much of the substance of the old code were carried across under new numbers; a smaller act of deletion, in which nineteen provisions of the Penal Code were dropped, one of them against the express written advice of the parliamentary committee that examined the bill; and a set of additions, twenty new offences together with a new punishment, which changed the sentencing policy of the code even where its text remained familiar. Accounts that collapse those three moves into a single claim, whether the claim is that everything changed or that nothing did, misdescribe the statute. This article separates them.

The reader who works through what follows will be able to say, provision by provision, which of the three moves any given part of the Sanhita represents. That reader will also understand the transitional position, which is the part of the replacement that matters most in practice: because the repeal was accompanied by a savings provision, the Indian Penal Code continues to govern every offence committed before 1 July 2024, and it will go on deciding real cases in real courtrooms for years after its formal repeal. A new code, in other words, is not a new beginning. It is a repeal, a set of savings, a transitional period measured in years, and a series of choices about what not to carry forward, and the choices about omission turn out to matter more than the renaming.

The Code That Was Repealed and Why It Had Run Its Course

The Indian Penal Code was drafted by the First Law Commission under Thomas Babington Macaulay, enacted in 1860, and brought into force on 1 January 1862. It was, by the standards of its time, an extraordinary piece of codification: a single statute that stated the general principles of criminal liability, the general exceptions, the law of abetment and conspiracy, and the catalogue of offences against the body, property, the state, and public order, arranged in 511 sections across twenty-three chapters. Its durability was itself remarkable. The code survived the end of the empire that wrote it, the framing of a republican constitution, and decades of amendment, because its central design decisions were sound. The definitions were general, the exceptions were principled, and the offence structure was capacious enough to absorb new subject matter by amendment rather than replacement.

Longevity, however, produced accumulation. The Penal Code that stood on the statute book in 2023 was not the code of 1860 with a fresh coat of paint; it was a layered text in which provisions struck down by constitutional courts remained printed alongside provisions that worked, in which offences inserted for nineteenth-century conditions sat beside offences inserted for twenty-first-century ones, and in which the numbering had been stretched by lettered insertions that no reader could navigate without a concordance. The Supreme Court had held the adultery offence in Section 497 unconstitutional in Joseph Shine v Union of India in 2018, as arbitrary and as treating a married woman as the property of her husband. A five-judge bench in Navtej Singh Johar v Union of India, also in 2018, had read down Section 377 so that it no longer reached consensual sexual acts between adults, while leaving it in force for non-consensual acts, acts with minors, and bestiality. The mandatory death sentence in Section 303 for murder committed by a life convict had been struck down in Mithu v State of Punjab in 1983, yet the section remained in the printed code. The attempt to commit suicide, punishable under Section 309, had been overtaken in practice by Section 115 of the Mental Healthcare Act 2017, which directed that a person attempting suicide be presumed to be under severe stress and not be tried or punished. Sedition under Section 124A had been kept in abeyance by the Supreme Court’s interim order of May 2022 in the challenge brought by the S.G. Vombatkere petitioners, after the Union government told the Court it was re-examining the provision. A code carrying that much judicially disabled text was a code inviting legislative attention.

The case for replacement, as the government framed it, went beyond tidiness. Introducing the three criminal law bills in the Lok Sabha on 11 August 2023, the Home Minister, Amit Shah, presented the exercise as one of decolonisation: the old codes were described as laws made by a foreign power to rule subjects, and the new codes as laws made by a republic to deliver justice to citizens, with the very word nyaya, justice, displacing the punitive emphasis of a penal code. The fuller history of the code being replaced, its drafting, its structure, and its long amendment arc, belongs to the complete guide to the Indian Penal Code, and is only summarised here because the subject of this article is the replacement itself. What matters for the replacement story is that the pressure took two forms at once. There was an internal pressure, generated by the accumulation of dead and disabled provisions and by long-standing reform proposals that had circulated for decades. And there was a presentational pressure, the desire to mark a decisive break with the colonial statute book. The tension between those two pressures explains much of what the Sanhita eventually did, because a statute drafted to demonstrate a break has reasons to rename and renumber even where its drafters intend to change very little, and reasons to move quickly even where the material rewards slowness.

Reform of the criminal codes had been proposed many times before 2023, and the failures are part of the record. Law Commission reports across several decades recommended changes to individual provisions of the Penal Code, and Parliament enacted many of them piecemeal, most extensively after 2013. A wholesale recodification, however, had never been carried through, partly because the criminal codes sit at the centre of the justice system and any error in replacing them propagates into every police station and every trial court in the country. In 2020 the Ministry of Home Affairs constituted a Committee for Reforms in Criminal Laws, chaired by Ranbir Singh, the Vice-Chancellor of the National Law University, Delhi, to consult on a comprehensive revision. That committee’s process drew criticism for the breadth of its questions and the shortness of its consultation windows, a criticism that would return in sharper form when the bills themselves appeared. The drafting that produced the Bharatiya Nyaya Sanhita Bill of 2023 was done inside government, and the text the Lok Sabha saw in August 2023 was the first public version of it. There had been no white paper, no published draft for comment, and no select committee examination before introduction. That sequence, introduction first and scrutiny afterwards, shaped both the committee stage that followed and the controversy that attended the passage of the codes in December 2023.

A Short History of the Idea of Replacement

The replacement of 2023 was the first attempt that succeeded, but the idea of rewriting the Penal Code had been in official circulation for half a century, and the earlier failures explain both the form the Sanhita took and the suspicion with which parts of the profession received it. The Law Commission of India devoted its Forty-second Report, in 1971, to a comprehensive revision of the Penal Code, working through the code chapter by chapter and recommending changes of substance and structure; Parliament enacted fragments of that agenda over the following decades and left the whole unattempted. The Committee on Reforms of the Criminal Justice System, chaired by Justice V. S. Malimath and reporting in 2003, approached the code from the system’s failures rather than from the text, and recommended a reorientation of criminal justice towards the victim and towards truth-seeking, with substantial changes to the law of offences and evidence. The Committee on Draft National Policy on Criminal Justice, chaired by N. R. Madhav Menon in 2007, carried the policy work further. None of these exercises produced a replacement code, for a reason that is structural rather than accidental. A penal code is the load-bearing wall of the criminal justice system; every government that contemplated replacing it confronted the certainty of transitional disruption against the uncertainty of drafting gains, and every government until 2023 concluded that amendment was the safer instrument. The piecemeal route had its own logic and its own achievements: the insertion of dowry death and cruelty offences in the 1980s, the rebuilding of the sexual offences after 2013, the addition of acid attack and stalking and trafficking offences, were all accomplished by amendment, and each amendment carried the authority of a specific public demand debated on its own merits.

What changed in 2023 was therefore not the discovery that the Penal Code was old, which every committee had known, but the willingness of a government with large parliamentary majorities to accept the transitional costs as the price of a symbolic and structural reset, and to legislate for the whole system at once rather than offence by offence. That willingness explains the features of the Sanhita that puzzle readers who approach it as a drafting exercise. A government legislating for a reset has reason to rename, because the name is the reset’s public face. It has reason to legislate the three codes together, because a reset of one code among three would leave the system’s centre of gravity where it was. And it has reason to move at the speed the passage record shows, because a reset debated indefinitely becomes a negotiation in which every interest with a stake in an existing provision organises against its disturbance. The critics’ strongest point, made by Justice A. P. Shah among others, is the mirror image of the same analysis: that the virtues claimed for the method, decisiveness, comprehensiveness, speed, are purchased by sacrificing the deliberation through which drafting errors and unjust provisions are ordinarily caught, and that the Section 377 omission is what that sacrifice looks like when it lands on a defined group of victims. The history thus frames the assessment this article reaches at its close. The Sanhita is the product of a choice about how criminal law should be remade in India, by episodic amendment under pressure or by occasional comprehensive replacement under executive direction, and the arguments for the statute are, at bottom, arguments for the second method, while the arguments against its defects are arguments about what the second method costs.

From Introduction to Commencement: The Passage Record of 2023

The Bharatiya Nyaya Sanhita travelled to the statute book by an unusual route, and the route is part of what a reader needs in order to judge the product. The bill was one of three. The Bharatiya Nyaya Sanhita Bill was to replace the Penal Code; its companions were to replace the Code of Criminal Procedure and the Indian Evidence Act, and the three were introduced together in the Lok Sabha on 11 August 2023, the closing phase of the monsoon session. The companion codes are treated in their own articles, on the Bharatiya Nagarik Suraksha Sanhita 2023 and the Bharatiya Sakshya Adhiniyam 2023, because the procedure and evidence replacements raise questions quite different from the substantive replacement examined here. The three bills were referred together to the Parliamentary Standing Committee on Home Affairs, chaired by Brij Lal, a member of the Rajya Sabha and a former Director General of Police, and the committee reported on 10 November 2023. The working of that scrutiny stage, and the general question of what committee examination does to a bill, is examined in the article on parliamentary committees and bill scrutiny, which owns that subject for the series.

The committee’s reports were substantive documents. The committee recommended, among much else, that the offence of adultery be retained in a gender-neutral form notwithstanding the Joseph Shine judgment; that Section 377 of the Penal Code be reintroduced and retained, for reasons examined in detail later in this article; that the punishment for causing death by negligence be set at five years, higher than the two years the old code had provided for the corresponding offence; that terms such as community service be defined in the statute rather than left to implication; and that a series of drafting corrections and clarifications be made across all three bills. The government’s response to the committee stage was procedurally striking. Rather than move amendments to the pending bills, it withdrew all three bills on 12 December 2023 and introduced revised second bills on the same day, incorporating a selection of the committee’s recommendations and a number of changes of its own. The Bharatiya Nyaya (Second) Sanhita Bill, 2023 is therefore the text that was debated and passed, and the enacted Sanhita differs from the bill of August 2023 in respects that are traceable to the committee’s work, including the raising of the negligence punishment and the restructuring of the provision on sexual intercourse obtained by deceitful means.

The conditions of passage require to be stated plainly, because they are a fact about the statute’s making and because both the government’s defence and the opposition’s criticism are on the record. The winter session of 2023 was dominated, from 13 December, by a security breach in the Lok Sabha chamber and by the opposition’s demand for a statement from the Home Minister on that breach. Members were suspended in escalating numbers for disorderly conduct in pressing the demand, and by the end of the session 146 members stood suspended, one hundred from the Lok Sabha and forty-six from the Rajya Sabha, a figure without precedent in the history of the Indian Parliament. The three second bills were passed by the Lok Sabha on 20 December 2023 and by the Rajya Sabha on 21 December 2023, while the great majority of those suspensions remained in force and the opposition benches were correspondingly depleted. The criticism made by opposition parties, and repeated by commentators since, is that three foundational codes were enacted with the chamber’s critical membership largely absent. The government’s answer, made at the time, is that the bills had been through a full standing committee examination in which opposition members participated and whose recommendations were in substantial part accepted, that the suspensions were consequences of the suspended members’ own conduct under the rules of the Houses, and that the passage followed the forms of parliamentary procedure. Both accounts agree on the underlying facts: the dates, the numbers, and the sequence. What divides them is the weight those facts should carry in judging the legitimacy of the result, and that is a question of democratic values rather than of legislative fact. The bills received the assent of the President on 25 December 2023, and the Sanhita became Act 45 of 2023.

Assent was not commencement. The Act was brought into force on 1 July 2024, a little over six months later, together with its two companion codes, the interval being used for the administrative preparation that a change of substantive criminal law demands: the reprinting of charge sheets and registers, the retraining of police and prosecutors, the updating of the digital systems through which first information reports are recorded, and the preparation of correspondence tables by which a practitioner can move between the old numbering and the new. Even within that commencement there was one deliberate exception. Section 106(2) of the Sanhita created an enhanced offence of causing death by a rash or negligent act and failing to report the incident or to carry the victim to medical assistance, the provision directed at hit-and-run driving, carrying imprisonment of up to ten years. Transport workers struck across much of the country in January 2024 against the provision, arguing that it exposed drivers to severe punishment in circumstances where stopping at the scene could itself be dangerous, and the government assured the transport organisations that a decision to bring Section 106(2) into operation would be taken only after consultation with the sector. The exception is a small but instructive feature of the replacement: even a commencement date announced for an entire code can be qualified provision by provision, and the reader who assumes that every section of the Sanhita has been in force from 1 July 2024 will be wrong in at least this one respect.

The First Move: What the Bharatiya Nyaya Sanhita Kept

The largest single fact about the Bharatiya Nyaya Sanhita is how much of the Indian Penal Code it retains. The Sanhita has 358 sections in twenty chapters, against the Penal Code’s 511 sections in twenty-three chapters, and the reduction in the count is principally a work of consolidation and rearrangement rather than of substantive repeal. Definitions scattered through the Penal Code, in the long run of sections that defined terms from judge to document to movable property, were gathered into a single consolidated definitions provision in Section 3 of the Sanhita, so that one act of consolidation accounts for a significant share of the numerical difference on its own. Offences that the Penal Code had stated in several sections, a definition section followed by graded punishment sections, were in places restated as a single section with graded sub-sections. The reader comparing the two codes section by section, a task owned by the dedicated IPC and BNS comparison, will find long stretches in which the words of 1860 survive with only their numbers changed.

What did the Bharatiya Nyaya Sanhita keep from the Indian Penal Code?

The Sanhita kept the architecture of the Penal Code and the substance of most of its offences. The general exceptions, abetment, criminal conspiracy and attempt, the offences against the human body from hurt to murder, and the great property offences of theft, robbery, dacoity, cheating, and criminal breach of trust all crossed over, reorganised and renumbered.

The continuity begins with the conceptual machinery. Chapter II of the Sanhita deals with punishments, Chapter III with the general exceptions, and Chapter IV with abetment, criminal conspiracy and attempt, which is the Penal Code’s own order of business. The general exceptions are carried across in substance: acts done by a person bound or justified by law, acts done in good faith, the defence of unsoundness of mind restated in the language of mental illness, the defence of infancy, intoxication, acts done under compulsion, and the right of private defence of body and property, which occupies the closing sections of the chapter much as it did in the old code. Private defence is the exception with the deepest body of case law in Indian criminal practice, and the decision to restate it rather than redesign it means that the accumulated learning on questions such as the imminence of the threat, the proportionality of the defensive act, and the protection of a stranger’s property remains directly serviceable. The same is true of abetment and conspiracy. The Sanhita treats instigation, conspiracy, and intentional aiding as the modes of abetment, retains the distinction between the abettor who is present at the scene and the abettor who is not, and states the offence of criminal conspiracy in terms that descend from the provision inserted into the Penal Code in 1913. An advocate who understood the old inchoate offences understands the new ones, and needs chiefly to learn where they now live.

The offences against the human body were likewise retained in substance and reorganised in presentation. Culpable homicide and murder occupy Sections 100 and 101, with punishment in Section 103; hurt and grievous hurt follow in the sections that succeed them; wrongful restraint and confinement, criminal force and assault, kidnapping and abduction all reappear. The definitional core of murder, including the four limbs of the culpable homicide definition that generations of students learned from the illustrations to the old Section 300, was carried across with its structure intact. That continuity is consequential beyond the classroom. The great interpretive judgments on the distinction between culpable homicide and murder, on intention and knowledge, on grave and sudden provocation, were delivered on words that the Sanhita reproduces, and they therefore continue to construe the new text in a way they could not have done had the drafters rewritten the definitions from first principles. The offences against property tell the same story at greater length. Theft is defined in Section 303, extortion follows, robbery and dacoity follow, and the sequence runs through criminal misappropriation, criminal breach of trust, receiving stolen property, cheating, mischief, and criminal trespass, closing the Sanhita’s long Chapter XVII. The ingredients that the courts spent a century and a half elaborating, dishonest intention at the moment of taking, the distinction between custody and possession, the boundary between cheating and breach of contract, are ingredients of definitions the Sanhita substantially restates.

Consolidation also changed the order in which the code presents its material, and one change of order carried a stated meaning. The offences against women and children, which the Penal Code had distributed between its chapters on offences against the human body and offences against decency and morals, were drawn together into a single Chapter V placed immediately after the inchoate offences and before the general chapter on the human body. Rape is defined in Section 63, the punishment provisions follow, and the chapter runs through the sexual offences, the offences of cruelty and dowry-related harm, kidnapping of children, and the offences concerning child victims. The government presented the placement as a statement of priority, and whatever a reader makes of the symbolism, the practical effect for practitioners is real: the sexual offences are now found in one continuous run of sections rather than at the scattered points where amendment had left them in the old code. Section 63 also carries one specific and deliberate substantive change inside the retention. The definition of rape retains the marital exception, the provision that sexual intercourse by a man with his own wife is not rape, but the exception is stated with the wife’s age at eighteen years. The Penal Code as enacted had set that age far lower; the Supreme Court in Independent Thought v Union of India in 2017 had read the exception down so that it could not apply where the wife was under eighteen, harmonising the Penal Code with the Protection of Children from Sexual Offences Act, and the Sanhita wrote the Court’s figure into the text. Retention, in this instance, was retention of the provision as the courts had already remade it.

The Second Move: What the Sanhita Discarded

Nineteen provisions of the Penal Code were not carried into the Sanhita. The dropped column repays close reading, because the omissions are of three different kinds, and only one of the three is controversial. Some omissions merely removed text that the courts had already killed. Some removed offences that belonged to a regulatory world the general penal code no longer served. And some removed live offences, provisions that still did work in the legal system, where the omission created a gap that somebody then had to fill or learn to live without. The Sanhita’s treatment of each kind tells the reader something different about the drafting philosophy of the replacement.

Was anything of value lost when the nineteen provisions were dropped?

Almost nothing of working value was lost, with one exception. The dropped provisions were largely dead text: the adultery offence struck down in Joseph Shine, the attempt to commit suicide, the thug offences, the sedition offence in its old form, and the weights and measures offences. The exception is Section 377, still in live use, treated separately below.

The uncontroversial deletions cleared away the dead. Section 497, the adultery offence, had been held unconstitutional in 2018 and could not have been restated in its old form in any event, since the judgment had condemned its premise that a wife was her husband’s property and its structure of punishing only the man outside the marriage. What the drafters might have done, and what the Standing Committee recommended they do, was to enact adultery afresh in a gender-neutral form on the stated ground of protecting the institution of marriage. The revised bill declined that recommendation, and adultery is simply absent from the Sanhita. The legal consequence is that adultery operates in the legal system only where the Supreme Court left it: as a fact with consequences in matrimonial and service law, and not as a crime. Section 303, the mandatory death sentence for a murder committed by a person already serving a life sentence, had been struck down four decades earlier in Mithu, and the Sanhita handles the underlying situation differently, in Section 104, which punishes murder by a life convict with death or with imprisonment for life for the remainder of natural life, restoring the judicial discretion that Mithu had held the Constitution requires. Section 309, the punishment for attempting suicide, disappeared without replacement as a general offence, completing in the statute book the change the Mental Healthcare Act 2017 had already made in practice, although the Sanhita does punish, in Section 226, an attempt to commit suicide undertaken with the intention of compelling or restraining a public servant in the exercise of lawful power, a provision aimed at the coercive fast and the threatened self-immolation as instruments of pressure rather than at the act of despair itself.

A second group of deletions reflects regulatory migration. The Penal Code had contained a cluster of offences about false weights and measures, the residue of a period when the general criminal code was the only instrument available for market regulation. Those offences had long been duplicated, and in practice displaced, by the Legal Metrology Act, and the Sanhita left them behind. The definition of a thug in Section 310 and its punishment in Section 311, drafted against the organised stranglers of the nineteenth century and carrying the colonial ethnography of that campaign inside the code’s text, were dropped as provisions whose subject matter ordinary offences of murder, robbery, and conspiracy fully cover. A number of lesser provisions that had fallen into complete disuse went with them. Deletions of this kind are the least examined and the least objectionable part of the replacement: a penal code is not improved by carrying offences that no prosecutor has invoked within living memory and no commentary can illustrate with a modern case.

The third kind of deletion is of a different order, and two provisions belong to it. The first is sedition, which the Sanhita did not so much drop as dissolve and recast, in a provision whose relationship to the old offence is contested enough to require its own analysis later in this article. The second is Section 377, the provision against carnal intercourse against the order of nature. After Navtej Singh Johar, Section 377 no longer punished consensual adult intimacy, but it remained the only offence in the Penal Code that reached non-consensual sexual acts against adult men, sexual acts against transgender persons outside the rape definition, and acts of bestiality. Its omission therefore deleted live law, and it did so after the Standing Committee had examined precisely that point and advised against it. Because that omission is the single most instructive event in the making of the Sanhita, it is given a section of its own below, after the additions and the sedition analysis have been set out. The pattern the dropped column reveals, taken as a whole, is of drafters who were careful with the dead provisions, sensible with the migrated ones, and, in the one case where a parliamentary committee spelled out the human cost of an omission in advance, unwilling to be persuaded.

The Third Move: What the Sanhita Added

Against the retention and the deletions stand the additions: twenty new offences, a new form of punishment, and a systematic revision of penalties across the code. The recorded scale of the sentencing revision is part of the official account of the statute and is worth stating exactly. Imprisonment was increased for thirty-three offences. Fines were increased for eighty-three offences. A mandatory minimum punishment was introduced for twenty-three offences, which had the structural effect of withdrawing sentencing discretion from the trial court at the bottom of the range in each of those cases. Community service was introduced as a punishment for six offences. These figures, taken together, describe the Sanhita’s clearest substantive policy: the code of 2023 punishes more heavily, and leaves judges less room to punish less, than the code it replaced. A reader who wants to know what genuinely changed in Indian substantive criminal law in 2024 should start with that sentencing arithmetic rather than with the renaming.

Which of the additions carries the greatest practical weight?

Organised crime in Section 111 and petty organised crime in Section 112 carry the greatest weight, with a terrorist act in Section 113, murder and grievous hurt by a group of five or more persons on grounds such as race, caste, community, sex, language, or personal belief, snatching in Section 304, and sexual intercourse by deceitful means in Section 69.

Organised crime is the most elaborate of the additions. Section 111 builds the offence around the idea of continuing unlawful activity: a course of conduct, undertaken by a person as a member of an organised crime syndicate or on its behalf, in respect of which more than one charge sheet has been filed within the preceding ten years and a court has taken cognizance. The definition of the underlying activity reaches kidnapping, robbery, extortion, contract killing, and a defined category of economic offences including large-scale fraud and hawala transactions. The punishments are calibrated to outcome and role: death or imprisonment for life where the offence results in a death, imprisonment of not less than five years extending to life in other cases, with heavy minimum fines, and distinct liability for abetting, conspiring, harbouring, and holding property derived from the syndicate’s activity. The provision imports into the general penal code a model that Indian law had previously confined to state legislation, most prominently the Maharashtra Control of Organised Crime Act of 1999, and to special statutes. Section 112 then creates the offence of petty organised crime, directed at the member of a group or gang who commits theft, snatching, cheating, unauthorised selling of tickets, unauthorised betting or gambling, or the selling of public examination question papers, and punishable with imprisonment of one to seven years. Between them, the two sections move the code’s centre of gravity: the unit of concern is no longer only the individual offender and the individual act, but the syndicate and the pattern.

The terrorist act in Section 113 performs a similar importation at the level of the state. The Indian Penal Code had contained no general offence of terrorism; terrorist acts were prosecuted under the Unlawful Activities (Prevention) Act, a special statute with its own procedural regime. Section 113 defines a terrorist act in terms closely modelled on that statute, an act done with intent to threaten the unity, integrity, sovereignty, security, or economic security of India or to strike terror in the people, by means ranging from explosives and firearms to cyber means, and punishes it with death or imprisonment for life where death results, and with imprisonment of not less than five years extending to life in other cases. The objection pressed by critics of the provision is one of duplication: a general code offence that overlaps a special statute invites parallel proceedings and forum choice by the prosecution. The defence offered for it is one of completeness: the substantive code, it is said, should itself name the gravest offence against the state rather than leave it entirely to a statute framed as an exception. Section 103(2) and the corresponding provision in Section 117 address a different and specifically Indian failure. Where a group of five or more persons acting in concert commits murder on the ground of race, caste or community, sex, place of birth, language, personal belief, or any other similar ground, every member of the group is punishable with death, or with imprisonment for life, or with imprisonment of not less than seven years, and Section 117 makes parallel provision where the group inflicts grievous hurt. These are the mob lynching provisions, written after a decade in which killings by crowds, often of men accused of cattle offences or child lifting, had been prosecuted, if at all, as ordinary murder by unidentified participants in a mob. The design choice is significant: the aggravating feature is not the number of assailants alone but the ground of selection of the victim, which makes the offence a statutory recognition that some killings are attacks on a class and not only on a person.

The remaining additions work at a smaller scale and are none the less instructive. Snatching, in Section 304, separates the sudden seizure of property from the victim’s person out of the law of theft, where the Penal Code had left it, and punishes it with imprisonment of up to three years, answering the urban offence of the snatched chain and the snatched telephone that police forces had long charged awkwardly as theft or robbery. Section 69 creates an offence of sexual intercourse obtained by deceitful means, defined to include a promise of marriage made without any intention of fulfilling it, inducement connected with employment or promotion, and marriage procured by suppressing identity, punishable with imprisonment of up to ten years. The provision sits deliberately below rape: the consent it addresses is consent procured by deception rather than consent absent or overborne, and the courts will have to police the boundary between a broken promise, which is a civil and personal wrong, and a promise false when made, which is now a crime. The Sanhita also modernised its definitional base, giving the code definitions of child and of transgender that the Penal Code lacked, and recasting particular offences in gender-neutral terms where the old text had assumed a male offender or a female victim. Finally, Section 4 of the Sanhita added community service to the code’s list of punishments, alongside death, imprisonment for life, imprisonment rigorous and simple, forfeiture of property, and fine. The six offences for which a court may impose it are minor in character: a public servant unlawfully engaging in trade under Section 202, failure to appear in response to a proclamation under Section 209, the coercive attempt at suicide under Section 226, a first petty theft under the proviso to Section 303(2) where the value is small and the property is restored or its value paid, misconduct in public by a drunken person under Section 355, and defamation under Section 356(2). The committee had asked that community service be defined; the enacted text left the term undefined, a small drafting debt that the rules and the courts will between them have to discharge.

Sedition: Abolished in Name, Recast in Section 152

No single question about the Sanhita is asked more often, or answered more carelessly, than whether it abolished sedition. The government’s presentation said that it had: the Home Minister told Parliament that the offence of sedition was being abolished outright, and the word sedition appears nowhere in the new code. The critics’ counter-presentation said that the substance had survived under a heavier label. The text supports a more exact statement than either. Section 124A of the Penal Code punished whoever brought or attempted to bring the Government established by law into hatred or contempt, or excited or attempted to excite disaffection towards it. Its object was the government of the day, its trigger was a feeling, disaffection, and its constitutional survival depended on the reading down performed in Kedar Nath Singh v State of Bihar in 1962, which confined it to speech with a tendency to incite violence or public disorder. Section 152 of the Sanhita is drawn differently at every one of those points. It punishes whoever, purposely or knowingly, by words spoken or written, by signs or visible representation, by electronic communication, by the 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 the sovereignty, unity, or integrity of India. Its object is not the government but the state itself, its punishment is imprisonment for life or imprisonment extending to seven years with fine, and its Explanation protects comments expressing disapprobation of the measures of the government with a view to obtaining their alteration by lawful means, so long as they do not excite the activities the section names.

How does Section 152 differ from the sedition offence it replaced?

Section 152 changes the object, the vocabulary, and the machinery of the old offence. Section 124A protected the government from disaffection; Section 152 protects the sovereignty, unity, and integrity of India from secession, armed rebellion, and subversive activity. Electronic communication and financial means are named modes of commission, and criticism of government measures aimed at lawful change is protected.

Whether the new provision is narrower or broader than the old is the genuine and contested question, and it should be answered by separating its three moving parts. On its object, Section 152 is narrower in one respect and it is the respect that mattered most to the old law’s abuse. The characteristic misuse of Section 124A across its long career was its deployment against critics of the government in office: journalists, protesters, cartoonists, students, and opposition speakers, charged not with plotting secession but with exciting disaffection towards the administration. A provision whose gravamen is secession, armed rebellion, or danger to the unity and integrity of India does not, on its face, criminalise hostility to a ministry, and the Explanation’s protection of disapprobation aimed at lawful alteration points the same way. The Law Commission of India, in its Report No. 279 of June 2023, had recommended that sedition be retained with procedural safeguards and an enhanced punishment structure; the Sanhita did not follow that recommendation, and the departure counts in favour of reading Section 152 as a different offence rather than a retitled one. On its vocabulary, however, the provision is open-textured in ways that cut the other way. The phrase subversive activities is not defined anywhere in the Sanhita, and the encouragement of feelings of separatist activities punishes the cultivation of a sentiment at one remove from any act. Constitutional scholar Gautam Bhatia has argued that in these respects the new provision is capable of reaching as much protected speech as the old, and in some respects more, because its key terms carry no accumulated judicial narrowing of the kind the Kedar Nath Singh reading had built around disaffection. On its machinery, the offence is aggravated: the maximum short of life imprisonment rose from three years under Section 124A in its ordinary form to seven years under Section 152, and the express inclusion of electronic communication and financial means reflects the channels through which separatist organisation in fact proceeds, while also enlarging the surface on which an investigation can begin.

The verdict the text supports is therefore a split one, and it is the verdict this article adopts. Sedition, as an offence protecting a government against the disaffection of its subjects, was abolished, and the abolition is real: the concept at the heart of Section 124A has no successor. What replaced it is a distinct offence against the territorial and constitutional integrity of the state, of a kind that most penal codes contain in some form, drafted in language whose undefined terms, particularly subversive activities, leave its speech-restricting potential to be settled by the courts, with the memory of how the predecessor provision was construed and abused as the obvious caution. The claim that nothing changed is false. The claim that the change is an unambiguous liberalisation is, on the text, unproven.

The Committee-Ignored Gap: The Omission of Section 377

One deletion in the Sanhita stands apart from every other, because it was made against a written warning, delivered in advance, by the very body Parliament had charged with examining the bill. Section 377 of the Penal Code punished carnal intercourse against the order of nature. For most of its life it was known, and condemned, as the provision under which consensual homosexual acts were criminal. In Navtej Singh Johar v Union of India in 2018 a five-judge bench of the Supreme Court held unanimously that Section 377, so applied, violated Articles 14, 15, 19, and 21 of the Constitution, and read it down. The judgment that did that work, and the long litigation that produced it, is analysed in the article on the Section 377 case and the Navtej Johar judgment, which owns it. What Navtej deliberately did not do was erase the provision. The Court left Section 377 standing for the residue of conduct it had always covered beyond consensual adult intimacy: non-consensual carnal intercourse with adults, all such acts with minors, and acts of bestiality. That residue was not theoretical. The rape definition in the Penal Code, carried into the Sanhita, is structured around a man and a woman, so a male victim of a non-consensual sexual act had no rape provision to invoke, and a transgender victim stood in the same position outside the limited protection of the Transgender Persons (Protection of Rights) Act 2019, which punishes sexual abuse of a transgender person with imprisonment of six months to two years. For those victims, Section 377 was the operative offence, carrying punishment extending to imprisonment for life.

The Standing Committee on Home Affairs saw the point with complete clarity and recorded it in terms. Its report of 10 November 2023 observed that in the Bharatiya Nyaya Sanhita no provision had been made for non-consensual sexual offences against male, female, or transgender persons or for bestiality, and it reasoned from the bill’s own stated objective: to align with the objectives in the Statement of Objects and Reasons, which highlighted the move towards gender-neutral offences, it was in the committee’s view mandatory to reintroduce and retain Section 377 of the Penal Code, and the committee recommended that the government include Section 377 in the proposed law. The recommendation was not a stray observation in a long report. It identified a defined class of victims, explained the doctrinal reason the gap would open, connected the remedy to the government’s own declared policy, and proposed the precise textual cure. The revised bill of December 2023, which accepted other committee recommendations, did not accept this one, and no minister explained the refusal on the floor in terms that answered the committee’s reasoning. The Sanhita as enacted contains no successor offence. Bestiality, which Section 377 had also covered, is likewise left without a specific offence in the general code, touching animals only through the separate and far lighter framework of the Prevention of Cruelty to Animals Act 1960.

The consequences are structural, and they illustrate why an omission in a repealing statute is not the same as the absence of a law. A victim class that had an offence lost it by repeal, and the repeal was effected by a legislature that had been told, in writing, that the loss would occur. The remedies attempted since have run into the constitutional limit on judicial lawmaking. Petitioners asked the courts to fill the gap; the Delhi High Court disposed of a petition on the subject by leaving the petitioner to make a representation to the Union government, and the Supreme Court, in declining in October 2024 to entertain a plea seeking the criminalisation of sexual offences against men, transgender persons, and animals under the Sanhita, stated the position plainly in its order: the Court could not compel Parliament to introduce a provision and could not, by recourse to Article 142, create an offence, because what constitutes an offence falls within the parliamentary domain. The bench permitted the petitioner to make a representation to the Union of India. That disposition is constitutionally correct, and it completes the demonstration. The gap can be closed only by the institution that opened it, by amendment of the Sanhita, and until that happens the position in law is that a non-consensual sexual act against an adult man or a transgender person must be prosecuted, if at all, through the general offences of hurt, assault, or criminal force, none of which describes the wrong, carries a comparable sentence, or triggers the procedural protections that the code attaches to sexual offences. This is the committee-ignored gap, and it is the single most citable fact about the making of the Sanhita: a defined legislative injury, predicted by the legislature’s own committee, enacted anyway, and remediable only by legislation.

Repeal and Savings: How Section 358 Keeps the Old Code Alive

The most practically important provision in the Bharatiya Nyaya Sanhita is its last one. Section 358, standing alone in Chapter XX, repeals the Indian Penal Code and then saves, in the classical form of a repeal and savings clause, everything the repeal might otherwise have destroyed. Its sub-sections provide that the repeal does not affect the previous operation of the Penal Code or anything duly done under it; that it does not affect any right, privilege, obligation, or liability acquired or incurred under the old code; that it does not affect any penalty or punishment incurred for an offence committed against the old code; and that any investigation, legal proceeding, or remedy in respect of such matters may be instituted, continued, or enforced as if the Sanhita had not been enacted. Behind the section stands Article 20(1) of the Constitution, which forbids conviction for an act that was not an offence when committed and forbids a penalty greater than the one the law then provided. Together, the constitutional bar and the savings clause fix the governing rule of the transition with complete clarity: the substantive law of an offence is the law in force when the offence was committed. Conduct before 1 July 2024 is judged by the Penal Code. Conduct on or after that date is judged by the Sanhita.

Why does the Indian Penal Code still govern so many live cases?

Because criminal liability is fixed by the law in force when the act was done. Article 20(1) of the Constitution bars conviction under a later law, and the savings provision in Section 358 of the Sanhita preserves investigations, proceedings, and penalties under the Penal Code for earlier offences. Every case on 30 June 2024 continued under the old code.

The consequences of that rule unfold over years, and they are worth tracing because they explain the daily reality of the transition in a way the commencement announcement did not. An offence committed in 2023 and reported in 2025 is investigated and tried under the Penal Code’s definitions and punishments, because the date that matters is the date of the act and not the date of the complaint, although the procedure that governs the investigation and trial is the new procedure code, procedure being treated in Indian law as a matter of the forum’s present law rather than of vested right. A trial pending on the commencement date continues to judgment under the old substantive code, and an appeal or revision arising from it argues the old sections. A sentence imposed under the Penal Code is served under the Penal Code; the Sanhita neither shortens it because an offence was dropped nor lengthens it because a punishment was raised, and where the Sanhita increased a punishment, as it did for thirty-three offences, the increase simply does not reach backwards. The harder cases are the straddling ones: a conspiracy, a continuing fraud, or a course of conduct that began before the commencement date and continued after it presents the court with acts on both sides of the line, and the orthodox resolution is to charge the pre-commencement conduct under the old code and the post-commencement conduct under the new, a solution that is doctrinally tidy and administratively untidy in equal measure. Early litigation under the new codes has been occupied substantially with questions of exactly this transitional kind, which code governs a given first information report, whether a charge framed under the wrong code vitiates a proceeding or is a curable error of citation, and how courts should treat an offence committed days before commencement but charge-sheeted months after. The pattern of those disputes was predictable from the savings text, and it is a reason for stating the transitional rule from the provision itself rather than from any summary of the early cases, whose individual holdings will accumulate and settle over time.

Two practical corollaries follow for the reader. The first is that the Penal Code has not left the courtroom and will not leave it soon. Criminal trials in India run for years, appeals for years more, and the stock of Penal Code cases in the system on the commencement date was the accumulated product of decades of filings. For the working life of many practitioners, the two codes will run in parallel: the Penal Code for the past, the Sanhita for the future, with the date of the alleged act as the switch between them. The second corollary concerns reliance. The general account given here states the governing rule of the transition, but limitation, forum, and the treatment of a straddling course of conduct are unforgiving in individual matters, and the position described is legal information about the structure of the replacement, not advice on any particular case, for which the record of that case and the text of the savings provision must be read together by an adviser instructed in it. The transition is also the point at which the replacement’s costs are paid. Every actor in the system, the police officer choosing a section at the first information stage, the prosecutor settling a charge, the judge consulting a precedent, must first answer a question the old system never asked: which code. Errors at that switch are not merely administrative, because a charge under the wrong code can misstate the ingredients of the offence and the ceiling of the punishment, and the early years of a replacement code are consumed in correcting them.

How 511 Sections Became 358: The Mechanics of Consolidation

The numerical headline of the replacement, 511 sections reduced to 358, invites a misunderstanding that the preceding sections have been at pains to correct. The reduction was not achieved mainly by repealing offences. Nineteen provisions were dropped and twenty added, which nets to an increase, and the arithmetic of the smaller code is explained instead by three drafting techniques that any reader of the two texts can verify. The first is the consolidation of definitions. The Penal Code defined its terms in a long preliminary run of sections, each carrying a single definition and its illustrations, and a reader of the old code moved constantly between the operative section and the definitional section that fed it. The Sanhita gathered the great body of those definitions into Section 3, stating them as clauses of a single provision, so that dozens of Penal Code sections collapsed into one without a single definition being lost. The second technique is the fusion of definition and punishment. Where the Penal Code commonly defined an offence in one section and graded its punishments across several following sections, distinguishing the simple case, the aggravated case, and the case with particular victims or places, the Sanhita frequently states the offence and its grades within one section arranged in sub-sections. Robbery, hurt, and the sexual offences all show the technique at work. The third technique is the regrouping of chapters. The Penal Code’s arrangement was substantially the arrangement of 1860, amended by insertion; the Sanhita re-sorted the material, drawing the offences against women and children into their own early chapter, placing the offences against the state in a single run, and closing the code with the offences of criminal intimidation, insult, annoyance, and defamation before the repeal chapter. Each technique is defensible in drafting terms, and each exacts the same price: the destruction of the old numbering as a shared professional language. A section number in the Penal Code was a unit of communication understood by every police officer, lawyer, judge, and journalist in the country, and the replacement devalued the entire stock of that currency at a stroke, in return for a code that is, as a physical text, shorter and more rationally ordered. Whether the exchange was worth making is a judgment about the value of continuity in legal infrastructure, and reasonable lawyers divide on it precisely because both sides of the ledger are real.

Consolidation also produced quiet substantive effects that a pure renumbering would not have had, and a careful reader should notice them. When graded punishments are restated inside a single section, the occasions for a drafter to adjust a grade multiply, and the Sanhita’s restatements are accompanied, as the sentencing figures show, by increases at many points where the old grades were simply being transcribed. When definitions are consolidated into a single section, the definitions themselves are exposed to revision as a group, and the Sanhita used the occasion to introduce definitions the Penal Code never had, including child and transgender, and to modernise the treatment of documents and electronic records so that the code speaks the same language as its evidence companion. And when a chapter is re-sorted, offences acquire new neighbours and new interpretive company, because courts read a provision in the context of the chapter that contains it. The offences against women and children, gathered into Chapter V, will be construed together in a way their scattered predecessors were not. None of these effects required the drafters to announce a change of policy in any particular case, which is exactly why the honest description of the Sanhita must work at the level of the provision rather than the slogan: the statute changes the law both where it proclaims a change and where the mechanics of recodification quietly make one.

The Continuity of Precedent Under a New Text

A replacement code raises a question that no commencement notification can answer: what happens to the case law? The Indian Penal Code carried into the Sanhita the largest body of interpretive precedent in Indian law, thousands of decisions construing definitions, ingredients, and exceptions, and the utility of the new code to its first generation of users depends on how much of that learning survives the change of text. The governing principle is an old one in the interpretation of consolidating statutes. Where a replacement provision reproduces the words of its predecessor, the settled construction of those words is presumed to carry forward, because the legislature is taken to legislate against the background of the construction its words had already received. Where the replacement changes the words, the change is taken to be deliberate, and the precedent built on the discarded words loses its grip in proportion to the change. Applied to the Sanhita, the principle yields a differentiated map that matches the three moves this article has traced. Across the retained core, the definitions of murder and culpable homicide, of dishonest intention, of the general exceptions, of private defence, the precedents stand, and the courts have treated them as standing, because the text they construe is the text that was carried across. Across the additions, organised crime, the terrorist act, the group offences, the deceitful-means offence, there is no inherited learning by definition, and the courts must build the construction from the words, assisted only by analogy, in the case of organised crime and terrorism, to the special statutes from which the new offences were drawn. Across the deletions, precedent loses its subject: the learning on Section 377’s application to non-consensual acts construed a provision that no longer exists, and survives, if at all, only as reasoning available to a future legislature.

This differentiated survival has a consequence for how the Sanhita should be read and taught. The frequently repeated statement that the new code requires the profession to start again is true of its numbering and false of its doctrine. The stock of knowledge that matters most in criminal practice was never chiefly a stock of numbers; it was a stock of constructions, of what intention and knowledge mean in the homicide chapter, of where cheating ends and civil default begins, of how far private defence extends. That stock crossed over with the text. What did not cross over is the index. The practical labour of the transition years, the correspondence tables, the annotated editions printing old and new numbers in parallel, the judicial directions correcting mis-cited sections, is the labour of rebuilding an index to a library whose contents largely survived. It is real labour and it will occupy the system for years, but it should not be confused with the rebuilding of the library itself.

The Argument About the Sanhita: Decolonisation, Continuity, and Process

The public argument about the Bharatiya Nyaya Sanhita has run on three tracks that are often confused with one another, and separating them is the quickest way to reach a judgment on the statute. The first track is the framing of decolonisation. The government’s case, stated by the Home Minister in introducing the bills and repeated through the passage debates, is that the criminal codes were instruments of a colonial state, drafted to govern subjects rather than to serve citizens, and that replacing them with codes bearing Indian names, written in an Indian idiom, and oriented to justice rather than punishment is a substantive and not merely a ceremonial break. The second track is the continuity objection. Practitioners and commentators who compared the texts pointed out that a large share of the Sanhita reproduces the Penal Code’s provisions in substance and often in language, and argued that a code which retains the old definitions, the old exceptions, and the old offence structure cannot claim to have shed the colonial character of the law, particularly since the features of the old code most plausibly described as colonial in spirit, the breadth of police-facing offences and the severity of the sentencing structure, were retained or intensified. Justice A. P. Shah, a former Chief Justice of the Delhi High Court, was among the senior judicial voices who criticised the exercise publicly, directing his objection principally at the process: the speed of the drafting, the narrowness of the consultation that preceded it, and the absence of the wide professional and public deliberation that a recodification of the criminal law warranted. The third track is the process objection in its parliamentary form, examined in the passage record set out in this article: that the codes were passed in a session from which 146 opposition members stood suspended, so that the deliberative scrutiny of the final text was thinner than the subject required. The government’s answers, that the standing committee had examined the bills with opposition participation and that a substantial part of its advice was accepted, are answers about the committee stage, and they sit alongside, rather than answer, the objection about the floor stage.

Each track contains a claim that survives inspection and a claim that does not. The decolonisation framing survives as an account of nomenclature and self-presentation, and nomenclature in law is not nothing: the name of a code is part of how a legal system describes itself to its citizens. It does not survive as an account of the text, because the text’s continuities are demonstrable section by section, and because the old code’s genuinely colonial survivals were equally often deleted by courts, in the adultery and Section 377 litigation, as they were deleted by this statute. The continuity objection survives as a correction to the framing, and fails as a complete account, because it cannot explain the sentencing arithmetic, the new offences, the community service punishment, or the restructuring of the sexual offences into their own chapter, all of which are changes of substance by any measure. The process objection is the hardest to discount, because its facts are agreed: whatever the standing committee achieved, and it achieved identifiable improvements to the text, the enactment of three codes in the closing days of a depleted session is a fact about the statute’s pedigree that no later success in operation will alter. The journalists who reported the passage worked through the same contested record in public, in real time, and the reporting of the criminal law reforms drew heavily on sources inside the ministries, the committees, and the profession whose identities could not be exposed; the craft of protecting sources while reporting on contested legislation, as journalists using VaultBook describe it, is part of how that record came to be as full as it is. A reader weighing the Sanhita should hold the three tracks apart: a renamed and partially modernised code, enacted by a procedurally diminished Parliament, on the advice of a committee whose most important recommendation it declined to take.

Chapter V: The Offences Against Women and Children, Rebuilt as a Chapter

The gathering of the sexual and protective offences into Chapter V is the Sanhita’s most visible act of reorganisation, and it contains more substantive change than its description as a rearrangement suggests. The Penal Code had distributed these offences across the code as amendments deposited them: rape and its punishment sections in the chapter on offences against the human body, cruelty by a husband and dowry death inserted in 1983 and 1986 at points fixed by those amendments, the offences of assaulting a woman to outrage her modesty, stalking, and voyeurism added after 2013 in the neighbourhood of the older text. The Sanhita states them as a code within the code, running from Section 63 to the close of the chapter, and the sequence itself has an order the old law lacked: the definition of rape, the punishments graduated by the age and condition of the victim, the offence of sexual intercourse by a person in authority, the deceitful-means offence in Section 69, gang rape in Section 70, and then the offences against children, dowry death in Section 80, and cruelty by a husband or his relatives in Section 85, with the older offences of assault, voyeurism, stalking, and insulting the modesty of a woman restated in the same chapter. Two substantive changes within the retention deserve emphasis. The Sanhita raised the age threshold that classifies a gang rape victim as a child from sixteen to eighteen years, aligning the general code with the age of consent structure of the child protection statute, and it attached the severest punishments, extending to death, to gang rape of a woman under eighteen. And in Section 69 it separated, for the first time in the general code, the case of consent procured by a deception practised at the time of the promise from the case of a promise honestly made and later broken, punishing the former as its own offence rather than forcing it into the definition of rape, where the courts had for years produced conflicting answers. Whatever a reader concludes about the wisdom of criminalising the false promise, the drafting choice is analytically cleaner than the position it replaced, because it gives the boundary dispute a statutory home instead of leaving it to be fought inside the meaning of consent.

The chapter also shows the limits of the reorganisation as an instrument of reform. The marital exception in Section 63 survived the recodification untouched in structure, carrying forward the position that a husband’s sexual intercourse with his adult wife is not rape, a position the Supreme Court had been asked to examine in litigation that remained pending through the drafting period and that the Law Commission and parliamentary committees had addressed before. A recodification is the one legislative moment at which such an exception must be consciously chosen rather than merely inherited, and the Sanhita’s drafters chose it, raising only the age within the exception to eighteen in line with Independent Thought. A reader tracing the three moves of this article will classify the choice correctly: it is retention, deliberate and informed, and it belongs in any honest account of what the replacement did not change.

The Punishment Architecture: Severity, Minimums, and the Withdrawal of Discretion

Chapter II of the Sanhita states the punishments the courts may inflict, and it is in this short chapter, running from Section 4 to Section 13, that the replacement’s penal philosophy is most legible. The list in Section 4 is the Penal Code’s list with one addition: death, imprisonment for life, imprisonment rigorous or simple, forfeiture of property, fine, and community service. Around that list the chapter retains the machinery of the old code, the provisions on commutation, on fractions of terms, on fines and default imprisonment gathered into a consolidated Section 8, on enhanced punishment for repeat offenders, and, notably, on solitary confinement, which Sections 11 and 12 carry across from the Penal Code with their scale and limits intact. The retention of solitary confinement drew criticism from commentators who pointed to the Supreme Court’s prison jurisprudence, beginning with Sunil Batra v Delhi Administration, which had subjected the practice to strict constitutional scrutiny; a recodification presented as a modernisation, the criticism ran, had kept a punishment its own courts had spent decades confining. The point is a fair specimen of the continuity objection in miniature: where the drafters looked at a provision and kept it, the keeping is as much a policy choice as any amendment, and it is open to the same scrutiny.

The substantive movement in the chapter’s application lies outside it, in the punishment clauses of the offences themselves, and its direction is uniform enough to state as a finding. Imprisonment increased for thirty-three offences, fines for eighty-three, mandatory minimum terms introduced for twenty-three. The mandatory minimum is the device that matters most to the theory of the code, because it reallocates power within the trial. A sentencing judge working under the Penal Code held, for most offences, a discretion bounded by a maximum and disciplined by appellate review; a judge working under a mandatory minimum has had the bottom of the range removed from that discretion, so that the effective sentencing decision for the least serious instance of the offence is taken by the legislature in advance and, in practice, by the prosecutor whose choice of charge selects the minimum that will bind the court. The government’s justification, given in the passage debates, was deterrence and consistency: that the old structure had produced sentences regarded as inadequate for offences such as those against children, and that a legislature is entitled to fix the floor below which public condemnation of a grave offence should not fall. The objection pressed by opposition members in debate and by sentencing commentators outside it is that mandatory minimums do not distinguish the worst instance of an offence from the least, that they transfer discretion to the charging stage where it is unreviewable, and that the comparative experience of jurisdictions that adopted them shows prison populations rising faster than any measurable deterrent effect. Both positions are coherent, and the Sanhita has chosen between them in twenty-three places. The reader should register the choice for what it is: the single most consequential respect in which the code of 2023 is not the code of 1860, more consequential than the renaming, the renumbering, or any individual new offence, because it operates in every courtroom every day rather than in the headline cases.

Set against that movement, community service is the counterweight, and its modesty is the point. For six minor offences the court may now sentence an offender to work for the community instead of entering the custodial system at all, a reformative device the Penal Code never contained. Its confinement to the margins of the code, petty theft restored, defamation, a drunken person’s misconduct, a public servant’s unlawful trade, is explicable as caution in a first experiment, and the committee’s unanswered request for a definition of the term leaves its administration to be built by rules and practice. But the juxtaposition defines the statute’s sentencing character precisely: severity and discretion-withdrawal for the generality of offences, experiment and diversion at the petty edge. It is a recognisable philosophy, neither the pure deterrence of the government’s presentation nor the pure continuity of the critics’ account, and it is written in the punishment clauses rather than in the speeches.

Reading the Three Codes Together

The Bharatiya Nyaya Sanhita was enacted as one of a set of three, and no account of it is complete that treats it as a solitary event. The substantive code answers the question what an offence is and how it is punished. The Bharatiya Nagarik Suraksha Sanhita answers the question how the offence is investigated, prosecuted, and tried. The Bharatiya Sakshya Adhiniyam answers the question by what evidence the charge may be proved. The three were drafted to interlock: the Sanhita’s definitions of documents and electronic records are written for a trial world in which the evidence code gives electronic records a central place, its references to proclamation and absconding run to the procedure code’s machinery, and its new offences assume the investigative and forensic apparatus of its companions. The interlocking has a transitional consequence that practitioners noticed at once. The substantive transition and the procedural transition are governed by different logics: substance follows the date of the act, so the Penal Code governs old conduct, while procedure follows the law of the forum at the time of the proceeding, so the new procedure code was applied to investigations and trials from the commencement date, including proceedings about offences committed under the old substantive code. A single case in the transition years can therefore be a Penal Code case tried by Nagarik Suraksha Sanhita procedure on Sakshya Adhiniyam evidence rules, and the three savings provisions have to be read together to describe it. The companion articles in this series take up the procedure and evidence replacements in their own right. For the substantive code, the lesson of the trio is that repeal and replacement in 2023 was a system event, and the Sanhita’s choices, its consolidation, its new offences, its sentencing turn, were made by drafters who were simultaneously rebuilding the machinery that would operate them.

The State, the Armed Forces, and Public Order: The Political Chapters

Between the chapter on the human body and the chapters on property, the Sanhita places the offences that protect the state and the public peace, and their treatment is a study in selective retention. Chapter VII, Sections 147 to 158, carries across the treason cluster of the Penal Code substantially intact: waging war against the Government of India in Section 147, conspiracy to wage war, the collecting of arms and men for that purpose, the concealment of a design to wage war, and assault upon the President or a Governor, each descending from provisions that stood near the head of the old code’s offences against the state. Into this inherited company the drafters inserted their two novelties, the terrorist act in Section 113, placed with the offences against the body, and Section 152, placed in this chapter, whose analysis has been given in this article. The juxtaposition is the chapter’s meaning. The offences the nineteenth century devised against rebellion were retained without embarrassment, because the conduct they name, levying war against the state, is criminal in every legal order; the offence the nineteenth century devised against disloyal opinion was the one the drafters felt obliged to dissolve and recast, because its history had made it indefensible in its own terms. A code engaged in mere rebranding would have treated the two alike. The Sanhita did not, and the difference is evidence about the drafting that slogans on both sides tend to miss.

Chapter XI, on offences against the public tranquillity, performs the same selective retention at the level of the street. Unlawful assembly is defined in Section 189 on the old model of an assembly of five or more persons with a common object of the kinds the section lists, rioting follows in Section 191, and the chapter carries the offences of promoting enmity between groups in Section 196, the successor of the Penal Code’s Section 153A, and of imputations and assertions prejudicial to national integration in Section 197. These are among the most frequently invoked and most frequently criticised provisions in Indian criminal practice, invoked against speech at the boundary of public order, and the Sanhita retained them with their architecture largely undisturbed. Their retention matters to the assessment of the whole, because it identifies the true centre of gravity of the recodification. The drafters’ energy went into consolidation, sentencing, and a defined set of additions and deletions; the inherited apparatus of public order, the part of the old code through which the state most often meets the citizen in conflict, was carried across as part of the retained core. A reader who wants to know what the replacement means for the politics of the street should read Chapter XI alongside Section 152: the speech and assembly offences of the old code survive, in one case recast and in the others substantially as they were, and the debate about their breadth continues on the new text with the old arguments, which is itself a finding about how much of the colonial inheritance the decolonisation of 2023 was prepared to disturb.

What the Committee Stage Changed, and What It Could Not

The Standing Committee’s reports of November 2023 are the best evidence available of what scrutiny can and cannot do to a bill drafted in confidence and moved at speed, because the second bills let the reader measure acceptance and rejection recommendation by recommendation. The committee’s successes were real and textual. Its recommendation that death by negligence carry a serious punishment, rather than the two years the Penal Code had attached to the corresponding offence, was accepted in substance, and Section 106(1) of the enacted Sanhita punishes causing death by a rash or negligent act with imprisonment extending to five years, with a lower term where the offender is a registered medical practitioner acting in the course of a medical procedure. Its drafting corrections and definitional suggestions were taken up at a number of points across the three bills, and the restructuring of the deceitful-means provision between the August bill and the December bill bears the mark of the committee’s examination. A reader comparing the introduced bill with the enacted Act can watch the committee’s hand at work, and the government’s defenders are entitled to the point: the bills that passed were better bills than the bills that were introduced, and the improvement is traceable to the scrutiny stage.

The committee’s failures were equally specific, and they define the limits of the process as it operated. On Section 377, the committee reasoned, recommended, and was refused without a stated answer. On adultery, it recommended retention in a gender-neutral form on an expressly moral and institutional ground, the sanctity of marriage in Indian society, and was refused. On community service, it asked for the term to be defined and its nature and term specified, and the enacted text left it undefined. The pattern across the three refusals is instructive. Where the committee proposed changes of calibration, punishment levels, drafting precision, presentational restructuring, it could prevail. Where it proposed that the government’s substantive choices be reversed, the restoration of an offence the drafters had decided to drop, the creation of an offence the drafters had decided not to create, it could not. That division of labour, in which a committee may polish but not redirect, is not written in any rule; it is the practical constitution of the process when the executive commands the majority that must adopt the committee’s report. The criminal codes of 2023 are the product of that practical constitution, and the Section 377 gap is its most durable monument, because it is the one place where the record shows the legislature being told the cost of its choice by its own instrument and choosing anyway.

The Working Life of the Replacement

A penal code is operated by people who learned the old one, and the replacement’s first years are a study in institutional relearning. The six months between assent and commencement were consumed by the visible part of that labour: the notification of the commencement date in February 2024, the preparation of correspondence tables by the Bureau of Police Research and Development and by every commentary publisher in the country, the amendment of the software through which first information reports are registered so that the new sections presented themselves to the recording officer, the training programmes run by state police academies and judicial academies for officers and judges whose working knowledge was indexed to the Penal Code. The less visible part continues for years after. Precedent, as this article has explained, crossed over where the text did, but it crossed over wearing the old numbers, so that a judgment of 2015 construing the ingredients of cheating must be cited into a Sanhita charge by a lawyer who asserts, and a judge who accepts, that the words construed are the words re-enacted. Annotated editions print the two codes in parallel columns. Courts correct mis-citations in charges and treat the correction as the amendment of an error rather than the substitution of an accusation, provided the ingredients alleged are unchanged. None of this is an argument that the replacement should not have been made; every recodification in every jurisdiction pays the same costs, and the Indian Penal Code’s own commencement in 1862 displaced the patchwork of regulations and English law that preceded it at a similar price. It is an argument for counting the costs in the assessment, and for noticing who pays them: not the ministry that announced the reform, but the recording officer at midnight, the trial lawyer with two codes open on the desk, and the accused whose charge sheet cites a section that must be translated before it can be answered. The replacement will be complete, in the only sense that finally matters, when that translation is no longer necessary because the generation that learned the old numbers has been succeeded by one that never knew them. By the design of the savings provisions, that completion lies decades away, and the two codes will share the working life of Indian criminal law for the whole of that period.

What the Replacement Changes for the Person Charged

The measure of a penal code is finally taken in individual cases, and the replacement rearranges the position of the person charged in ways that the aggregate figures only summarise. A defendant whose conduct falls under one of the twenty-three offences carrying a new mandatory minimum faces a court that cannot sentence below the floor however strong the mitigation, and the practical centre of the case shifts accordingly from the sentencing hearing to the charge, since the decision to invoke the minimum-bearing provision determines the least that conviction will cost. A defendant charged with an offence newly created by the Sanhita faces liability the Penal Code did not impose at all: the young man who took a telephone from a pedestrian’s hand is charged with snatching as a distinct offence rather than absorbed into theft; the member of a gang whose collective activity is petty in each instance faces the petty organised crime provision, which converts repetition and association into the gravamen; the person whose sexual relationship followed a promise of marriage that the prosecution says was false when made faces Section 69, a charge that turns on proof of an intention held at a past moment and that will require courts to build, case by case, the evidential discipline the provision demands. A defendant in the petty offences at the code’s edge faces the opposite novelty: for defamation, for a first small theft made good, for the drunken misconduct and the proclaimed person’s failure to appear, the court holds a non-custodial instrument that the old code withheld, and the quality of advocacy in such cases now includes the making of a case for community service. Running beneath all of these is the transitional duality. Two accused persons whose conduct is identical, separated by a single day at the commencement line, are charged under different codes, under different numbers, in some instances with different maxima and different floors, and the only fact that justifies the difference is the date. That is not an anomaly of this replacement; it is the necessary consequence of the constitutional rule against retrospective penal law, and the savings provisions exist to make the consequence orderly. But it fixes the human meaning of the transition period more exactly than any institutional description: for years, the question of which code governs will be the first question in the case, and for the person charged it will sometimes be the question that decides the range of the sentence.

Money as Punishment: The Revision of Fines

The least discussed of the Sanhita’s sentencing movements is the one that will touch the largest number of cases. A fine is the workhorse punishment of the lower criminal courts, imposed alone or with short custody in the great mass of petty prosecutions, and the Penal Code’s fine amounts had been left behind by a century and a half of inflation. Sums fixed in the nineteenth and early twentieth centuries, fines extending to two hundred rupees, to five hundred rupees, to one thousand rupees, survived into a period in which they represented neither a deterrent to the offender nor a meaningful vindication of the wrong, and magistrates imposing them were pronouncing figures that the statute book had rendered ceremonial. The Sanhita revised the fine for eighty-three offences, in many instances multiplying the old ceilings several times over and restating petty fines at levels such as five thousand and ten thousand rupees that bear some relation to the earnings against which a fine must bite. The change is easy to overlook because no single increase is dramatic, but its aggregate direction completes the sentencing picture the imprisonment figures begin: across custody, minimums, and money alike, the replacement raised the price the code attaches to offending. The distributional question that sentencing commentators have raised about fine inflation is a real one and should be recorded. A fine is an equal sum and an unequal burden, falling lightly on the offender with means and heavily on the offender without, and the default imprisonment that follows non-payment converts poverty into custody by a side door. The Sanhita’s consolidated provision on fines and default terms in Section 8 carries the old machinery across, including the principle that default imprisonment terminates on payment, and it adds community service to the consequences framework. Whether the higher fines operate as deterrence or as a poverty penalty will be decided in the magistrates’ courts over years, and it will be decided case by case rather than in any debate about the code as a whole.

The First Questions Before the Courts

A new code generates litigation about itself before it generates litigation under itself, and the early business of the courts under the Sanhita has followed the pattern the savings provisions predict. The first class of question is transitional and has been described in this article: which code governs a report, a charge, or a straddling course of conduct, and whether an error in the code cited is fatal or curable. The second class is constitutional in prospect rather than in decided result. The breadth of Section 152, and in particular the undefined expression subversive activities, invites a vagueness and overbreadth challenge of the kind that the sedition provision survived, in narrowed form, in Kedar Nath Singh and that the information technology provision struck down in Shreya Singhal v Union of India did not survive in 2015; the deceitful-means offence in Section 69 invites argument about the certainty required of a penal provision whose gravamen is the intention behind a promise; and the mandatory minimums invite the proportionality arguments that Indian courts have entertained against mandatory sentencing in the death penalty context. These are questions the new code presents, stated as questions: the one attempt to halt the codes wholesale at the threshold, a petition asking the Supreme Court to stay the operation of the new criminal laws before their commencement, was not entertained, the Court declining in May 2024 to intervene on the plea as presented, and no provision of the Sanhita has been struck down. The third class of question is administrative and will occupy the most court time while attracting the least notice: what community service is, who supervises it, what follows on default, and how a sentencing court is to choose between it and a fine for the six offences where it is available, all left open by the undefined term the committee had asked the drafters to define. A reader who understands these three classes, the transitional, the constitutional, and the administrative, understands the litigation agenda the replacement has set for its first decade, and can place any individual decision reported under the Sanhita into the class it belongs to.

The Name, the Language, and the Stated Objects

A replacement code announces its intentions in its name before a single section is read, and the name of this one was itself contested ground. The Penal Code described its subject by its method: it was a code of punishments, penal in character, Indian by territory. The Sanhita’s name performs two substitutions. Sanhita, a compilation or code, displaces the descriptive English compound, and Nyaya, justice, displaces the punitive emphasis, a substitution the Statement of Objects and Reasons and the Home Minister’s speeches glossed as a movement from punishment towards justice and from the outlook of a ruling power to the outlook of a serving state. During the committee stage there were requests, reported in the press coverage of the committee’s work, that the codes bear names intelligible in both Hindi and English or that the Hindi titles be reconsidered; the committee’s own inclination, as reported, was to retain the proposed names, and the enacted codes kept them. The naming debate is easy to dismiss as decoration, and it should not be dismissed entirely, for two reasons. The first is practical: the names are how the statutes will be cited by millions of non-specialist users, in police stations, in examination halls, in the press, and a name that requires translation before it can be discussed imposes a small tax on every public conversation about the criminal law. The second is analytical: the claim carried in the word Nyaya is a claim about the code’s purpose that the text can then be tested against, and this article has in effect been conducting that test. A code oriented to justice rather than punishment might be expected to widen the space of reformative and restorative sanctions, and in community service it did, at the petty edge; it might be expected to narrow the offences of opinion, and in the dissolution of sedition it partly did; and it might be expected to attend first to the victims the old code underserved, which makes the omission of any offence for the victims the committee identified, in the very statute whose objects invoked gender neutrality, the sharpest internal contradiction the enacted text contains. Names in legislation are promises. The uses of the Sanhita in its first years will be measured, by its defenders and its critics alike, against the promise this one makes.

The language of the text below the title tells a quieter version of the same story. The drafters modernised the code’s vocabulary at defined points: the expression mental illness replaced the Penal Code’s language of unsoundness of mind in the general exception that excuses an act done by a person incapable of knowing its nature or wrongness; the definitions gathered in Section 3 speak of child and of transgender, categories the old definitions chapter did not name; particular offences were restated so that their terms do not assume what the old text assumed about the sex of offender or victim where the wrong is not sex-specific. These are small changes with a cumulative significance for how the code reads to the generation that will learn it first. Set against them is the countervailing fact that the great body of the operative language, the definitions of the offences and exceptions on which liability turns, is the language of the old code carried across, as it had to be if the case law was to survive. The Sanhita thus reads, sentence by sentence, as what it is: a nineteenth-century text in a twenty-first-century arrangement, wearing a new name that describes an aspiration its provisions meet in part. That is not a dismissal. It is the accurate description of every honest recodification, in which the drafter’s first duty is to the law that exists and the reformer’s ambitions are confined to the margins the duty leaves free, the additions, the deletions, and the punishments, which is where this article has located the Sanhita’s real changes throughout.

The Kept, Dropped, Added Table

The three moves of the replacement, set side by side, give the reader the whole statute in one view. The fourth column records what each move does in practice, because a change in a penal code is finally a change in what can be charged, defended, and punished.

Provision or subject	Kept, dropped, or added	Position in the Sanhita	Practical consequence
General exceptions and private defence	Kept	Chapter III, Sections 14 to 44	The accumulated case law on the exceptions construes the new text
Abetment, criminal conspiracy, and attempt	Kept	Chapter IV, Sections 45 to 62	Inchoate liability continues on the old doctrinal lines
Culpable homicide and murder	Kept	Sections 100, 101, and 103	The homicide jurisprudence of the Penal Code remains serviceable
Theft, robbery, cheating, and the property offences	Kept	Chapter XVII, Sections 303 to 334	Ingredients and distinctions carry across under new numbers
Rape and the marital exception	Kept with one change	Section 63, exception stated at eighteen years	The Independent Thought reading is written into the text
Adultery, Penal Code Section 497	Dropped	Absent	Adultery has civil and service law consequences only
Attempt to commit suicide, Penal Code Section 309	Dropped	Absent, with a narrow coercive offence at Section 226	The Mental Healthcare Act position is completed in the code
Sedition, Penal Code Section 124A	Dropped and recast	Section 152	Disaffection towards government is no longer an offence; acts against sovereignty, unity, and integrity are
Section 377, non-consensual acts and bestiality	Dropped without replacement	Absent	A class of victims identified by the Standing Committee has no specific offence
Organised crime	Added	Section 111	Syndicate offending enters the general code from the state and special statutes
Petty organised crime	Added	Section 112	Gang-based petty offending is punishable as such, one to seven years
Terrorist act	Added	Section 113	A general code offence now overlaps the special anti-terrorism statute
Murder or grievous hurt by a group on identity grounds	Added	Section 103(2) and Section 117	Mob lynching is charged as an aggravated offence in its own right
Snatching	Added	Section 304	The snatched chain or telephone is charged directly, not as theft or robbery
Sexual intercourse by deceitful means	Added	Section 69	A false promise of marriage made without intention is punishable up to ten years
Community service	Added	Section 4, available for six offences	A non-custodial punishment enters the general code for the first time
Enhanced hit-and-run offence	Added, commencement held back	Section 106(2)	The ten-year offence awaited the promised consultation with transport workers

The Honest Assessment: Continuity of Text, Change in Sentencing, One Open Gap

The verdict on the Bharatiya Nyaya Sanhita has to be assembled from the three moves, because no single adjective covers a statute that retained most of a great code, deleted nineteen of its provisions, and revised the punishment of scores of offences upward. On continuity, the evidence is textual and overwhelming: the Sanhita is, in most of its operative provisions, the Indian Penal Code reorganised, consolidated, and renumbered, and its drafters’ decision to restate rather than redesign the conceptual core was, on the merits, the right one. The definitions and exceptions of the Penal Code were the product of a drafting tradition and a century and a half of judicial elaboration, and a replacement that had discarded them in pursuit of novelty would have purchased a presentational break at the price of the entire interpretive capital of Indian criminal law. The consolidation techniques by which 511 sections became 358 are competent drafting, and the gathering of the offences against women and children into a single chapter is a genuine improvement in the code’s intelligibility. Where the government’s presentation overreached was in describing this work of conservation as a casting off of the colonial code; a reader of the two texts knows that what occurred was closer to a translation of the old code into a new arrangement, and the credibility of the reform would have been better served by saying so.

On change, the evidence runs the other way, and the critics who described the Sanhita as a rebranding exercise understated it. The sentencing revision is the largest single movement: thirty-three offences with increased imprisonment, eighty-three with increased fines, twenty-three with new mandatory minimums, are not cosmetic alterations, and they will express themselves in longer sentences and narrower judicial discretion across the ordinary run of prosecutions for as long as the code lasts. The additions include offences of real consequence, the syndicate offences, the terrorist act, the group offences aimed at lynching, and a punishment, community service, that introduces a non-custodial philosophy into a code that had known only custody, fines, and forfeiture. The recasting of sedition, whatever its drafting risks, removed from the statute book the one offence whose essence was a subject’s disloyal feeling towards the government of the day. A code that did all of that did more than change its name.

On the debit side, the entries are specific rather than general, which is what makes them answerable. The Section 377 omission is the gravest, because it was foreseen, documented, and avoidable: the committee identified the victims, the doctrine, and the cure, and the enacted code left the gap open, with the result that a defined class of sexual violence is prosecuted under provisions that do not describe it. The undefined terms in Section 152, subversive activities above all, transfer to the courts a question the legislature should have answered, and they will generate the first generation of constitutional litigation under the new code. Community service was introduced without the definition the committee requested, leaving its content to be improvised by sentencing courts. And the manner of the enactment, three codes passed in the shadow of 146 suspensions after a drafting process conducted without a prior public draft, deprived the statute of the deliberative testing that might have caught the first of these defects before it required a fresh amendment to repair. The assessment that the record supports is therefore neither of the two slogans. The Bharatiya Nyaya Sanhita is a substantial consolidation with a real and more punitive sentencing policy, a small number of consequential additions, one consequential omission, and a predecessor that, by force of its own savings clause, will share the courtrooms with it for years. The replacement ended the Penal Code as a living code for new conduct. It did not end it as law, and the measure of the new code will be taken, provision by provision, against the old one it so largely kept.

One further test will be applied to the Sanhita over time, and it is worth stating because it disciplines every prediction made about the statute. A penal code is amended by its failures. The Penal Code’s own text, at the moment of its repeal, was a map of its failures: the lettered sections inserted after public scandals and committee reports, the provisions disabled by constitutional courts, the punishments adjusted after campaigns and judgments, each recording a point at which the law as written had met a case it could not justly answer. The Sanhita will accumulate the same record. Its undefined terms will be defined by litigation or by amendment. Its gap, the missing offence the committee identified, will be filled by amendment or will stand as a continuing reproach in every case in which a victim is turned towards provisions that do not fit the wrong. Its sentencing floors will be revisited if their operation produces the injustices their critics forecast, or vindicated if the consistency their defenders promised appears. Its new offences will be used, tested, read down, or allowed to sleep, and each of those fates will be information about the choices of 2023. The reader who has followed the three moves through this article holds the equipment to read that future record as it forms: to ask of every reported development whether it belongs to what the Sanhita kept, to what it dropped, or to what it added, and to remember that the drafters of 2023, like the drafters of 1860, wrote a code whose final meaning would be settled not in the session that passed it but in the decades of cases that followed. The Penal Code lasted from 1862 to 2024, one hundred and sixty-two years, and was repealed in the end not because it had failed but because a government chose, for reasons of symbol and of structure, to begin the count again. The Sanhita’s own count has begun. What it will total, and what will be said of its keeping, its dropping, and its adding when its repeal is written, depends on the work its provisions now do in the courts that operate them and on the willingness of future Parliaments to repair, as the Parliament of 2023 declined to repair, the defects that its own scrutiny brings to light.

Frequently Asked Questions

Q: What is the Bharatiya Nyaya Sanhita and when did it commence?

The Bharatiya Nyaya Sanhita, 2023 is the substantive penal code of India, the statute that defines offences and their punishments, enacted as Act 45 of 2023 in replacement of the Indian Penal Code, 1860. It was introduced in the Lok Sabha on 11 August 2023, withdrawn and replaced by a revised second bill in December 2023, passed by the Lok Sabha on 20 December and the Rajya Sabha on 21 December 2023, and assented to by the President on 25 December 2023. It was brought into force on 1 July 2024, together with the Bharatiya Nagarik Suraksha Sanhita and the Bharatiya Sakshya Adhiniyam, after an interval of a little over six months for administrative preparation.

Q: How many sections does the Bharatiya Nyaya Sanhita contain?

The Bharatiya Nyaya Sanhita contains 358 sections arranged in twenty chapters. The Indian Penal Code it replaced contained 511 sections in twenty-three chapters. The reduction in the section count was achieved principally by consolidation rather than by the repeal of offences: the definitions that the Penal Code had spread across a long preliminary run of sections were gathered into a single definitions provision in Section 3, and offences that the old code had defined in one section and punished across several following sections were restated within single sections arranged in sub-sections. Nineteen Penal Code provisions were dropped and twenty new offences were added, so the smaller size of the new code reflects a more compact drafting technique, not a narrower criminal law.

Q: Which new offences did the Bharatiya Nyaya Sanhita create?

The Bharatiya Nyaya Sanhita added twenty offences. The most substantial are organised crime in Section 111, built on the idea of continuing unlawful activity by an organised crime syndicate; petty organised crime in Section 112, directed at gang members who commit theft, snatching, cheating, unauthorised ticket selling, betting, or the sale of examination question papers; a terrorist act in Section 113, modelled on the special anti-terrorism statute; murder and grievous hurt by a group of five or more persons acting in concert on grounds such as race, caste, community, sex, place of birth, language, or personal belief, in Section 103(2) and Section 117; snatching as a distinct offence in Section 304; and sexual intercourse obtained by deceitful means, including a promise of marriage made without intention of fulfilling it, in Section 69.

Q: Did the Bharatiya Nyaya Sanhita abolish sedition?

Sedition as an offence was abolished in name and in its defining concept, and replaced by a different offence. Section 124A of the Penal Code punished exciting disaffection towards the Government established by law, and that concept of disloyalty to the government of the day has no successor in the new code. Section 152 of the Sanhita instead punishes whoever purposely or knowingly excites or attempts to excite secession or armed rebellion or subversive activities, encourages feelings of separatist activities, or endangers the sovereignty, unity, and integrity of India, with imprisonment for life or imprisonment extending to seven years. Criticism of government measures aimed at changing them by lawful means is expressly protected by the Explanation to Section 152. Whether the new provision is narrower or broader in practice turns on its undefined terms, above all subversive activities, which the courts have yet to construe.

Q: What is community service as a criminal punishment?

Community service is a punishment introduced into the general penal law of India by Section 4 of the Bharatiya Nyaya Sanhita, which lists it among the punishments a court may inflict, alongside death, imprisonment for life, imprisonment, forfeiture of property, and fine. It consists of unpaid work of benefit to the community, ordered instead of custody or a fine, and the Sanhita makes it available for six offences of a minor character: a public servant unlawfully engaging in trade, failure to appear in response to a proclamation, an attempt to commit suicide made to compel or restrain a public servant, a first petty theft of small value where the property is restored or its value paid, misconduct in public by a drunken person, and defamation. The Sanhita does not define community service or prescribe its hours or supervision, matters left to rules and to sentencing practice.

Q: Which IPC provisions were dropped from the Bharatiya Nyaya Sanhita?

Nineteen provisions of the Indian Penal Code were not carried into the Bharatiya Nyaya Sanhita. They include Section 377, which after the Navtej Singh Johar judgment still covered non-consensual acts, acts with minors, and bestiality; Section 497 on adultery, which the Supreme Court had held unconstitutional in Joseph Shine; Section 309, which had punished an attempt to commit suicide; Sections 310 and 311, which defined and punished a thug; the mandatory death sentence provision in Section 303, which had been struck down in Mithu and whose subject is handled in Section 104 of the Sanhita with judicial discretion restored; the cluster of offences concerning false weights and measures, which the Legal Metrology Act had displaced; and Section 124A on sedition, which was dissolved and recast in the different form of Section 152 of the Sanhita.

Q: Why was Section 377 left out of the Bharatiya Nyaya Sanhita?

The omission was a drafting decision maintained against parliamentary advice, and the record does not contain a ministerial explanation answering the advice. The Parliamentary Standing Committee on Home Affairs, in its report of 10 November 2023, observed that the new code made no provision for non-consensual sexual offences against male, female, or transgender persons or for bestiality, and recommended that Section 377 of the Penal Code be reintroduced and retained, reasoning that retention was necessary to align the code with its own stated objective of moving towards gender-neutral offences. The revised bill of December 2023 did not adopt the recommendation. Since the rape definition in the Sanhita is structured around a man and a woman, the omission leaves adult male and transgender victims of non-consensual sexual acts without a specific offence, a gap the Supreme Court has since held it cannot itself fill, because creating an offence is a parliamentary function.

Q: What happens to cases registered before the new codes commenced?

Cases arising from conduct before 1 July 2024 continue under the Indian Penal Code. Section 358 of the Bharatiya Nyaya Sanhita, the repeal and savings provision, preserves the previous operation of the Penal Code, liabilities and penalties incurred under it, and investigations and legal proceedings in respect of them, which may be instituted, continued, and enforced as if the Sanhita had not been enacted. Article 20(1) of the Constitution independently bars conviction for an act that was not an offence when committed and forbids any penalty greater than the one then provided. The date of the alleged act therefore decides the substantive code, while the procedure of an investigation or trial follows the Bharatiya Nagarik Suraksha Sanhita as the procedural law of the forum. Appeals and sentences arising from Penal Code cases likewise continue under the old code.

Q: Why was the first Bharatiya Nyaya Sanhita Bill withdrawn and replaced in December 2023?

The withdrawal was the government’s chosen method of giving effect to the scrutiny stage. The bill introduced on 11 August 2023 had been referred to the Parliamentary Standing Committee on Home Affairs, which reported on 10 November 2023 with recommendations on punishment levels, definitions, and drafting. Rather than move amendments to the pending bill clause by clause, the government withdrew all three criminal law bills on 12 December 2023 and introduced revised second bills the same day, incorporating a selection of the committee’s recommendations and other changes of its own. The second bill is the text that was debated, passed on 20 and 21 December 2023, and enacted. The device is procedurally permissible and has precedent, but it meant that the chamber debated a substantially revised text within days of its introduction.

Q: Can a person still be prosecuted for sedition for an act committed before the Bharatiya Nyaya Sanhita commenced?

The liability survives, because repeal does not erase offences already committed. The savings provision in Section 358 of the Sanhita preserves penalties incurred under the Indian Penal Code and proceedings in respect of them, so an act of sedition alleged to have been committed before 1 July 2024 remains governed by Section 124A of the Penal Code, subject to the reading down of that section in Kedar Nath Singh, which confined it to speech tending to incite violence or public disorder. The practical position carries a further complication: in May 2022 the Supreme Court, in the S.G. Vombatkere proceedings, kept Section 124A in abeyance while the Union government re-examined it, directing that no new cases be registered under it and that pending proceedings remain stayed. How a pre-commencement allegation proceeds depends on the interaction of the savings provision with that continuing constitutional litigation.

Q: Which code governs an offence committed before 1 July 2024 but reported after that date?

The Indian Penal Code governs the offence, and the date of the report makes no difference. Substantive criminal liability is fixed by the law in force when the act was committed, a position secured both by Article 20(1) of the Constitution and by the savings provision in Section 358 of the Bharatiya Nyaya Sanhita, which preserves proceedings for offences against the repealed code whenever they are instituted. A first information report recorded after the commencement date in respect of earlier conduct therefore invokes the Penal Code’s definitions and punishments, even though the investigation and any trial are conducted under the procedure of the Bharatiya Nagarik Suraksha Sanhita, procedural law being applied as the law of the forum at the time of the proceeding. Confusion on this point produced a number of wrongly drawn reports in the early months of the new codes, which courts corrected by reference to the date of the alleged act.

Q: What counts as organised crime under Section 111 of the Bharatiya Nyaya Sanhita?

Section 111 of the Bharatiya Nyaya Sanhita makes organised crime an offence built on the idea of continuing unlawful activity. The activity must be a cognizable offence punishable with imprisonment of three years or more, undertaken by a person singly or jointly as a member of an organised crime syndicate or on behalf of such a syndicate, and it must be activity in respect of which more than one charge sheet has been filed before a competent court within the preceding ten years and that court has taken cognizance. The definition reaches offences including kidnapping, robbery, extortion, contract killing, and a defined range of economic offences such as large-scale fraud and hawala transactions. Punishment extends to death or imprisonment for life where the offence results in a death, and otherwise to imprisonment of not less than five years extending to life, with heavy minimum fines, and separate liability attaches to abetting, harbouring, and holding property derived from the syndicate’s activity.

Q: Does the Bharatiya Nyaya Sanhita punish murder by a group on grounds of identity as a distinct offence?

Yes. Section 103(2) of the Bharatiya Nyaya Sanhita provides that when a group of five or more persons acting in concert commits murder on the ground of race, caste or community, sex, place of birth, language, personal belief, or any other similar ground, each member of the group is punishable with death, or with imprisonment for life, or with imprisonment for a term that shall not be less than seven years, and is also liable to fine. A parallel provision in Section 117 addresses grievous hurt inflicted by such a group. These provisions were written for the pattern of mob lynching, in which a crowd kills a victim selected for an identity characteristic. Under the Indian Penal Code such a killing could only be charged as ordinary murder or rioting with murder, and the new provisions make both the group character and the ground of selection part of the offence itself.

Q: What is petty organised crime under the Bharatiya Nyaya Sanhita?

Petty organised crime, in Section 112 of the Bharatiya Nyaya Sanhita, is an offence committed by a person who, as a member of a group or gang, either singly or jointly, commits theft, snatching, cheating, unauthorised selling of tickets, unauthorised betting or gambling, or the selling of public examination question papers. It is punishable with imprisonment for a term of not less than one year extending to seven years, and with fine. The provision is the lower tier of the Sanhita’s two organised crime offences, Section 111 addressing syndicate activity of a grave and continuing character. Its distinctive feature is that the gravamen is the combination of association and repetition: conduct that would otherwise be charged as a series of minor individual offences is treated as a single aggravated wrong because it is the work of a group operating as such, a design directed at the gangs that work markets, transport hubs, and examination systems.

Q: How does the Bharatiya Nyaya Sanhita treat sexual intercourse obtained by a false promise of marriage?

Section 69 of the Bharatiya Nyaya Sanhita creates a distinct offence of sexual intercourse by employing deceitful means. It covers a man who, by deceitful means or by making a promise to marry a woman without any intention of fulfilling it, has sexual intercourse with her in circumstances that do not amount to the offence of rape. Deceitful means is explained to include inducement connected with employment or promotion and marriage procured by suppressing identity. The punishment extends to imprisonment of ten years, with fine. The provision separates two situations the courts had struggled to distinguish inside the law of rape: the promise that was false when made, which the section punishes, and the promise honestly made and later broken, which it does not, leaving the boundary to be proved from the circumstances existing at the time the promise was given.

Q: Why was adultery not carried into the Bharatiya Nyaya Sanhita?

Adultery had already ceased to be an enforceable offence before the Sanhita was drafted. Section 497 of the Indian Penal Code punished a man who had sexual intercourse with another man’s wife without the husband’s consent, and in Joseph Shine v Union of India in 2018 the Supreme Court struck the provision down as arbitrary and as founded on the treatment of a wife as her husband’s property, while leaving adultery relevant as a ground in matrimonial proceedings. The drafters of the Sanhita therefore could not simply have restated the old offence. The Parliamentary Standing Committee on Home Affairs recommended enacting adultery afresh in a gender-neutral form, arguing that the institution of marriage is regarded as sacred in Indian society and should be safeguarded, but the revised bill declined the recommendation. Adultery consequently has legal consequences in divorce and service law and none in the criminal code.

Q: Is attempting suicide an offence under the Bharatiya Nyaya Sanhita?

No general offence of attempting suicide exists under the Bharatiya Nyaya Sanhita. Section 309 of the Indian Penal Code, which had punished the attempt, was not carried into the new code, completing the change made in practice by Section 115 of the Mental Healthcare Act 2017, under which a person attempting suicide is presumed to be under severe stress and is not to be tried or punished, the government’s duty being to provide care and rehabilitation. One narrow exception stands in Section 226 of the Sanhita, which punishes an attempt to commit suicide undertaken with the intention of compelling or restraining a public servant in the discharge of duty, the case of the coercive fast or the threatened self-immolation used as an instrument of pressure. For that offence the court may impose imprisonment extending to one year, or fine, or both, or community service.

Q: What changes did the Parliamentary Standing Committee secure in the Bharatiya Nyaya Sanhita?

The committee’s report of 10 November 2023 secured changes of calibration and drafting rather than changes of direction. Its recommendation of a serious punishment for causing death by negligence was accepted in substance, and Section 106(1) of the enacted Sanhita sets the maximum at five years where the Penal Code’s corresponding offence had carried two. A series of drafting corrections and clarifications across the three bills were taken up in the revised second bills, and the deceitful-means provision was restructured between the August and December texts under the committee’s examination. Its recommendations on questions of substance were not accepted: the retention of Section 377, the re-enactment of adultery in a gender-neutral form, and the statutory definition of community service were all recommended and all declined. The government gave effect to the accepted recommendations by withdrawing the original bills and introducing revised second bills on 12 December 2023.

Q: Were the new criminal codes passed while opposition members were suspended from Parliament?

Yes, and the figures are a matter of record. During the winter session of 2023, members pressing for a statement by the Home Minister on the security breach in the Lok Sabha chamber of 13 December were suspended in successive tranches, and the total reached 146 members, one hundred from the Lok Sabha and forty-six from the Rajya Sabha, the largest number of suspensions in the history of the Indian Parliament. The three second bills were passed by the Lok Sabha on 20 December 2023 and by the Rajya Sabha on 21 December 2023 while the great majority of those suspensions remained in force, and assent followed on 25 December 2023. Opposition parties criticised the enactment of foundational codes with the opposition benches depleted. The government’s answer was that the bills had received a full standing committee examination in which opposition members took part, and that the suspensions followed the rules of the Houses for disorderly conduct.

Q: Why did transport workers protest against Section 106 of the Bharatiya Nyaya Sanhita?

The protest of January 2024, in which transport workers struck across much of the country, was directed at Section 106(2) of the Bharatiya Nyaya Sanhita. That sub-section created an enhanced offence for a person who causes death by a rash or negligent act and then escapes from the scene or fails to report the incident to a police officer or magistrate or to carry the victim for medical assistance, the hit-and-run case, and it carries imprisonment extending to ten years, a sharp increase over the general offence of causing death by negligence. Drivers’ organisations argued that the provision exposed drivers to severe punishment in circumstances in which stopping at the scene of an accident can expose the driver to violence from a crowd. The strike ended after the government assured the transport organisations that a decision to bring Section 106(2) into operation would be taken only after consultation with the sector, and the provision was held back from the code’s initial commencement on 1 July 2024.