BNS is not reform. It is re-numbering.

The Bharatiya Nyaya Sanhita 2023 was sold to the country, by the Union Home Minister and by a substantial section of the legal commentariat, as a decolonising rewrite of the Indian Penal Code. Out went the Macaulay code of 1860; in came an indigenous criminal statute fit for an independent Republic.¹ The Home Minister called it the end of 'slave-era' criminal law. Editorials called it the most significant overhaul of Indian criminal law since Independence. Bar associations organised CPD modules on the 'new' law. Publishers rushed BNS commentaries onto the shelves. Three statutes — the BNS, the BNSS, and the BSA — came into force on 1 July 2024 with the kind of ceremonial introduction usually reserved for constitutional moments. I want to argue that the substantive criminal law has not changed. The section numbers have changed; the chapter sequence has changed; the language has been tidied; the name on the cover has changed. On every contested point of doctrine — sedition, mens rea, the marital-rape exception, the law of homicide — the BNS is the IPC. The reform was cosmetic. The continuity was the point. We have been told a story about decolonisation and given a renumbering exercise.

The settled view, in its strongest form

Polemic that ignores the strongest version of its target is shouting. Let me state, fairly, what the settled view actually claims.

The settled view's first claim is symbolic. A criminal code drafted by Thomas Babington Macaulay's Indian Law Commission in the 1830s, enacted in 1860 after the Mutiny, designed for colonial pacification, named in English, structured around an English common-law conception of criminal liability — such a code is, in the year 2024, a constitutional anachronism. A sovereign Republic should have a sovereign penal statute. The act of replacement, on this view, has independent democratic value irrespective of how much of the underlying substance has changed. India lived under the Macaulay code for a hundred and sixty-two years.² The longevity itself is a colonial inheritance the Republic was right to terminate.

The second claim is structural. The BNS does reorder the IPC's chapter sequence. Offences against women — sexual offences, dowry death, cruelty by husband or his relatives, acid attack — are gathered in a single chapter near the front of the BNS, where the IPC had scattered them across Chapters XVI, XX, and the later inserted XX-A. Organised crime and terrorism, previously regulated by stand-alone statutes (MCOCA, UAPA), receive substantive criminal-code provisions in the BNS for the first time. Cruelty to children, mob lynching, and snatching get specific provisions where the IPC dealt with them through generalised offences against the body or property. The reordering is, on this view, a coherent legislative judgement about which offences the State should treat as priority categories.

The third claim is consultative. The Bharatiya Nyaya Sanhita Bill 2023 was referred to the Parliamentary Standing Committee on Home Affairs, which produced its 246th Report in November 2023 after taking evidence from a range of practitioners and academics.¹² The Committee recommended drafting amendments and the Government accepted a number of them in the version eventually enacted. The process was, in this account, the ordinary process of major legislation in a parliamentary democracy. To call it a renumbering exercise is, on this view, to insult both the consultation and the legislative competence of Parliament.

Take these three claims together and the settled view runs as follows: the BNS is a real act of legislative sovereignty; it has restructured Indian criminal law around contemporary priorities; it was enacted through proper deliberative process; and the residual continuity with the IPC reflects, where it exists, the fact that the IPC was, in many respects, a competent piece of legislation that did not need to be rebuilt from scratch. The decolonisation rhetoric may be overheated. The legislative reality is serious work.

I take this account seriously. I do not think the symbolic claim is wholly empty. A Republic with a penal code named in Sanskritised Hindi is, in some thin sense, exercising sovereign legislative competence in a way that a Republic still operating under a statute named the Indian Penal Code, 1860 was not. The reordering of the chapter sequence is not nothing. The new statute does have provisions on organised crime and terrorism that the IPC did not. The Standing Committee did meet. The deliberation was real to the extent it was real. My disagreement with the settled view is not that all of this is false. My disagreement is that the substantive criminal law — the law of mens rea, the law of homicide, the law of sedition, the law of sexual offences — is unchanged on every contested point, and that the official account, by emphasising the cosmetic changes, has succeeded in directing attention away from the absence of substantive change. The renumbering is the point because it is what the legislature did instead of reform.

Sedition reborn: BNS s 152

The single most contested provision of the Indian Penal Code in the decade before BNS was section 124A — sedition.³ The provision criminalised any act that brought or attempted to bring into hatred or contempt, or excited or attempted to excite disaffection towards, the Government established by law in India. Its colonial origin was direct: section 124A had been inserted into the IPC in 1898 specifically to prosecute Indian nationalist publications. Tilak was tried under it. Gandhi was tried under it. The Federal Court of India, in 1942, held that incitement to violence was the gist of the offence; the Privy Council in 1947 overruled that reading; the Supreme Court of independent India, in Kedar Nath Singh v State of Bihar, read the provision down to apply only to acts involving incitement to violence or tendency to create public disorder.⁴ Through the 2010s, the provision was used extensively against journalists, students, comedians, and protesters. In May 2022 the Supreme Court, in S.G. Vombatkere v Union of India, ordered all pending sedition prosecutions stayed and all new ones to be in abeyance pending its decision on the constitutional validity of section 124A.

This was the moment at which the BNS Bill was being drafted. The natural expectation, given the legislative-history hook the Government had been advertising, was that the new code would either drop the offence of sedition entirely or replace it with a tightly drafted provision that wrote the Kedar Nath requirement of incitement-to-violence into the statutory text. What the Government delivered, in BNS section 152, is something else.

BNS section 152 criminalises acts that 'excite or attempt to excite secession or armed rebellion or subversive activities, or encourage feelings of separatist activities or endanger sovereignty or unity and integrity of India'. The maximum punishment is imprisonment for life or seven years. The provision was framed, in the Home Minister's statement to Parliament, as the abolition of sedition: 'rajdroh ka kanoon khatam kiya hai' — 'we have abolished the law of sedition'. The Statement of Objects and Reasons does not use the word 'sedition' to describe section 152.¹³

Read the provision against IPC section 124A and the relevant Ratanlal commentary. Section 124A criminalised words, writing, signs, or visible representations that 'excite or attempt to excite' disaffection towards the Government, hatred, or contempt. Section 152 criminalises words, writing, signs, visible representations, electronic communication, or financial means that 'excite or attempt to excite' secession, armed rebellion, subversive activities, separatist feelings, or that endanger sovereignty, unity, and integrity. The verb is identical. The list of mediums is expanded to cover electronic communication and financial means — a sensible update to reflect the realities of contemporary political communication. The list of triggering objects is reorganised: in place of 'disaffection towards the Government', we have 'separatist feelings', 'subversive activities', and 'endangerment of sovereignty, unity and integrity'.

Look at the categories the provision covers. 'Subversive activities' is undefined in the BNS. 'Encouraging feelings of separatist activities' is undefined. 'Endangering sovereignty or unity and integrity' is undefined. The terms are broader than 'disaffection towards the Government' in section 124A, not narrower. Where section 124A had been judicially read down by Kedar Nath to require incitement to violence or tendency to public disorder, section 152 contains no such textual qualifier. The protection that the Court had grafted onto section 124A through doctrine — and that protected the IPC's sedition law from being struck down — is not in the new text at all. The maximum punishment under section 152 is the same as under section 124A: life imprisonment.

This is not abolition. It is reformulation. The legislative judgement embedded in section 152 is that the State requires a criminal provision targeting political speech that, in the State's view, threatens sovereignty, unity, or integrity. That judgement is precisely the legislative judgement of IPC section 124A. The terminology has been updated to remove the historically loaded word 'sedition'. The structure of the offence — broad object, low actus reus threshold, high maximum punishment, executive discretion in prosecutorial decisions — is unchanged. If Kedar Nath read down section 124A, the Supreme Court will eventually be asked to read down section 152 in the same terms; the protection that lawyers in the field have been advising clients to rely on for sixty years has been preserved, but only because the Court is likely to repeat its 1962 work on the new provision. The legislative reform that the BNS could have done — codify Kedar Nath into the statutory text, narrow the actus reus to public-disorder incitement, place the prosecutorial discretion under specific procedural constraints — was not done.

The mens rea architecture: Macaulay preserved, verbatim

The IPC was a Macaulay document and its central theoretical contribution was the mens rea architecture of Chapter II, Chapter IV, and the offence-specific provisions of Chapters XVI onwards. Sections 32, 33, 39, 40, 43 — the definitions of 'act', 'voluntarily', 'illegal', 'omission'. Sections 76 to 95 — the General Exceptions, mistake of fact, judicial acts, accident, necessity, infancy, insanity, intoxication, consent, private defence. Sections 299, 300, 301, 302, 304 — the layered structure of homicide. The IPC was, doctrinally, a careful piece of mid-Victorian English jurisprudence applied to an Indian penal context, with the central conceptual move being the codification of mens rea categories that English common law had developed but not statutorily organised. This is the part of the IPC that the better commentary literature — Ratanlal, Atchuthen Pillai, the secondary commentaries — has been pointing at when it credits Macaulay with producing a code that has outlived almost every other comparable codification effort of the nineteenth century.

If the BNS were a real reform, this is where one would expect serious work. Mens rea law in India has been criticised for sixty years on several counts. The IPC's failure to systematically distinguish purpose, knowledge, recklessness, and negligence in the way the Model Penal Code does. The doctrinal confusion between 'intention' and 'knowledge' in the homicide provisions. The unclear status of strict liability offences. The General Exceptions chapter's failure to address modern questions of duress, superior orders, and mistake of law. Each of these has produced practitioner literature recommending statutory clarification. The opportunity to do this work was precisely what the BNS exercise advertised itself as.

Open the BNS at Chapter II — General Explanations. The chapter is the IPC's Chapter II with section numbers altered and one or two stylistic changes. Section 2 — definitions of 'act', 'voluntarily', 'animal', 'court', 'wrongful gain', 'wrongful loss' — is the IPC's section 33 to section 25 material, gathered into a single definitional section. The substance is identical. Section 3 of the BNS reproduces the General Explanations of IPC sections 38 to 52. The terms 'intention', 'knowledge', 'reason to believe', 'voluntarily', 'fraudulently', 'dishonestly' are not redefined. The mens rea categories the IPC carried forward from the Macaulay drafts are carried forward into the BNS without alteration. Chapter III of the BNS — General Exceptions — reproduces IPC Chapter IV with the same scope, the same defences, the same threshold tests for each defence, the same omitted issues (duress against the State, superior orders in service relationships) that the IPC left unaddressed.

Chapter VI of the BNS, on offences affecting the human body, contains sections 100 to 146.⁸ Section 100 — culpable homicide — reproduces IPC section 299, including the three illustrations of A laying sticks over a pit, A inducing B to fire at the bush, and A shooting at a fowl. Section 101 — murder — reproduces IPC section 300 verbatim, including the four clauses and the five exceptions, with the same five illustrations. Section 102 reproduces IPC section 301 on transferred intent. Section 103 prescribes punishment for murder, reproducing IPC section 302. Section 105 reproduces IPC section 304 on culpable homicide not amounting to murder. The chapter is, doctrinally, the IPC's Chapter XVI with new section numbers.

This matters in operation. The five-step inquiry the Supreme Court has articulated for homicide cases — is there a homicide; is it culpable; is it murder or culpable homicide not amounting to murder; is it rash or negligent; can the actor be identified — applies, unchanged, to BNS prosecutions. The classic exposition of the IPC homicide provisions in Reg v Govinda (1876)⁹ applies, unchanged. Virsa Singh v State of Punjab (1958)¹⁰ on the 'sufficient in the ordinary course of nature to cause death' clause applies, unchanged. The entire corpus of Indian homicide jurisprudence — Anda v State of Rajasthan, Rajwant Singh v State of Kerala, Kapur Singh v State of PEPSU, State of Andhra Pradesh v Rayavarapu Punnayya, and the dozens of subsequent applications — applies, unchanged. A criminal-law teacher in 2026 teaches the BNS homicide chapter using the same case material she used to teach the IPC homicide chapter, with only the section numbers updated in the slides.

This is the part of the BNS exercise that should be defended openly, if it is to be defended at all. Macaulay's mens rea architecture is, in many respects, a workable piece of nineteenth-century jurisprudence. There were respectable reasons to leave the homicide structure as it was; the layered intention-knowledge framework of sections 299 and 300 is not obviously inferior to alternative formulations. The argument for preservation could have been made. The argument that was made instead — that the BNS is a decolonising replacement of a colonial code — is incompatible with what the BNS actually does to Chapter II, Chapter III, and Chapter VI. Decolonisation as advertised would have required substantive engagement with the mens rea architecture. The BNS engagement is typographic.

The marital-rape exception, preserved

If there is a single test case for whether the BNS is reform or renumbering, it is the marital-rape exception to the offence of rape. IPC section 375, Exception 2, provided that 'sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape'. The exception is the longest-surviving and most-criticised feature of Indian sexual-offence law. The Justice Verma Committee in 2013 recommended its removal.¹¹ Multiple Law Commission reports across decades have recommended its removal. The 172nd Report of the Law Commission of India, the Pam Rajput Committee, every serious comparative study of marital rape law since the 1980s — all have recommended its removal.

The Supreme Court, in Independent Thought v Union of India (2017), partially read down the exception, holding that sexual intercourse by a man with his wife below the age of eighteen would constitute rape regardless of the exception.⁶ The Court did not reach the constitutionality of the exception generally. In RIT Foundation v Union of India (2022), a Delhi High Court bench delivered a split verdict on the constitutionality of the marital-rape exception — Shakdher J held it unconstitutional, Hari Shankar J upheld it.⁷ The split certified the question for the Supreme Court. The Supreme Court has heard arguments in the matter but, at the time of writing, has not delivered judgment. The constitutional question — whether the marital-rape exception violates Articles 14, 19, and 21 — is squarely before the Court.

This was the legislative moment for parliamentary action. The Government, on its own decolonising-reform rhetoric, had every reason to take the question out of the Court's hands by removing the exception in the BNS. The Verma Committee recommendation was on the record. The Independent Thought reading-down was on the record. The RIT Foundation split was on the record. The international comparative practice — Australia, Canada, the United Kingdom, South Africa, and most of the European Union all removed marital-rape exceptions in their statute books between the 1970s and the 1990s — was on the record. The decolonising-reform rhetoric, if it meant anything, meant taking the politically inconvenient steps that the IPC had not taken.

BNS section 63, the new rape provision, retains the marital-rape exception verbatim.⁵ The age threshold has been raised from fifteen to eighteen to align with Independent Thought. The substantive carve-out — that sexual intercourse by a man with his adult wife cannot constitute rape regardless of consent — survives unchanged. The legislative decision was to preserve. The decolonising-reform argument, applied to this provision, would say that the exception is itself a colonial artefact, traceable to the English common-law doctrine that marriage constituted ongoing consent — a doctrine that English law itself abandoned in R v R (1991). The Indian Republic, in 2024, has chosen to preserve in its new criminal code a doctrine that England, the originator of the doctrine, abandoned thirty-three years ago.

This is the cleanest test in the BNS exercise. There is no plausible argument that the marital-rape exception was retained because it is a structurally sound legislative provision. The Government's defence of the retention has been threadbare — that the question is sub judice (it is; but Parliament can act on sub judice issues), that family stability requires the exception (a substantive argument that ought to have been made openly, not buried), that other criminal-law provisions cover marital violence (Section 498A, Section 4 of the DV Act, BNS sections on cruelty — but none of these is rape law). The exception was retained because its retention was politically convenient and its removal was politically costly. The decolonising-reform rhetoric was not durable enough to absorb the political cost.

The cosmetic case: what the BNS did change

An honest polemic must also note what the BNS did change, and assess whether the changes amount to reform or to renumbering with additions.

The BNS adds substantive provisions on organised crime (s 111), terrorist act (s 113), mob lynching (s 103(2)), and snatching (s 304). The terrorism provision is a substantive code provision where the IPC had left the matter to special statutes (UAPA, repealed POTA, repealed TADA). The organised-crime provision codifies what state-level statutes (MCOCA, the Gujarat Control of Organised Crime Act, the Maharashtra Control of Organised Crime Act) have done at sub-national level. The mob-lynching provision responds to the post-2014 pattern of communal lynching; the snatching provision responds to urban crime trends. None of these additions is trivial. Each was a substantive legislative choice and each will produce its own jurisprudence.

The BNS also extends community-service penalties for petty offences. It introduces electronic communication into the definitional architecture of several offences (sedition successor, criminal intimidation, defamation, sexual offences with electronic-media components). It removes the offence of attempt to commit suicide as a free-standing provision (consistent with section 115 of the Mental Healthcare Act 2017). It rationalises a number of punishments — increased penalties for hit-and-run, increased penalties for child rape, increased penalties for negligence causing death, increased penalties for gang rape. The Standing Committee report identifies several places where the drafting has been tightened.

What these changes add up to is a legislative judgement that the IPC needed updating in specific areas — terrorism, organised crime, communal violence, urban crime, electronic communication. The updating, where it happened, was substantive. But updating is not what was advertised. The Statement of Objects and Reasons did not say 'we have added provisions on terrorism and organised crime, updated the actus reus definitions for electronic communication, and increased certain penalties'. It said the legislation 'is intended to repeal the colonial Indian Penal Code 1860 and replace it with a modern, victim-centric, Indian criminal code'.¹³ The gap between the advertised reform and the delivered reform is the gap I am asking the reader to notice. The delivered reform — additions in five or six specified areas, with everything else preserved — would have been a perfectly defensible piece of incremental criminal-law reform. The advertised reform — a decolonising replacement of the colonial code — required substantive engagement with sedition, mens rea, the marital-rape exception, and the underlying offence structure. That engagement did not happen.

The counter-argument: the Code did not need rebuilding

The strongest counter-argument deserves a fair statement. It runs as follows. The IPC of 1860 was, by general professional consensus, a remarkably durable piece of legislation. Macaulay's drafting was clear, the offence structure was workable, the mens rea architecture was sufficient. The doctrinal corpus that grew around the IPC — Ratanlal, Atchuthen Pillai, the Supreme Court's homicide and sedition jurisprudence — represents a body of legal learning that the legal profession, the judiciary, and the academy have spent a hundred and fifty years developing. To discard that corpus by rewriting the substantive law from scratch would have produced enormous transition costs without commensurate gains. The BNS's strategy of preserving the substantive provisions while updating the chapter sequence, modernising the language, and adding contemporary offences was the right strategic choice. The continuity is not a failure of nerve; it is recognition that the IPC was, structurally, sound.

I take this seriously enough to grant a substantial part of it. The IPC was a remarkably durable code. The doctrinal corpus around it is real legal capital. The transition costs of a from-scratch rewrite would have been very high. The professional consensus that the IPC was structurally adequate is not a manufactured consensus; it is the considered view of generations of practising lawyers, judges, and academics. Where I part company with the settled view is on two points. First, the legislative choice to preserve substantive continuity should have been defended as such — openly, in the Statement of Objects and Reasons, in the Home Minister's parliamentary speech, in the public communication around the legislation. Defending continuity is harder politically than asserting decolonising reform. The Government chose the easier rhetorical strategy and avoided the harder defence. Second, even if the IPC was structurally sound on most issues, it was not sound on every issue. The marital-rape exception, the sedition provision, the strict-liability offences, the omitted defences in the General Exceptions chapter — these were areas where the IPC had been criticised for decades by serious commentators. The BNS could have addressed any one of these and produced something that genuinely deserved the reform label. It chose to address none of them.

The result is a legislative exercise that delivered less substantive reform than the Criminal Law (Amendment) Act 2013 — a statute that, in the wake of the Nirbhaya case and on the Verma Committee's recommendations, materially expanded the law of sexual offences, introduced new offences of acid attack and stalking, and rewrote section 354. The 2013 amendment was unambiguously substantive. It was passed within the IPC's existing framework, without any decolonising rhetoric, by an exhausted Parliament under political pressure. It changed Indian criminal law. The BNS, eleven years later, with a working majority government, with all the time it needed, and with maximum rhetorical investment in the reform narrative, delivered less.

What changes if this is right

Two things change if the argument here is correct. The first is in how the legal profession should teach and litigate under the BNS. The BNS-as-renumbering reading suggests that the IPC commentary literature continues to govern. Ratanlal under BNS section 152 is Ratanlal under IPC section 124A with the section number changed. The Supreme Court's reading-down of section 124A in Kedar Nath applies, substantively, to section 152, even though the Court will have to formally re-articulate the holding. The constitutional question pending before the Supreme Court in the marital-rape exception case applies, unchanged, to BNS section 63 Exception 2. The pre-BNS case law on homicide, sexual offences, mens rea, and the General Exceptions remains good law. This is liberating for the working practitioner; it is also a fact the BNS publishers and the CPD circuit have been reluctant to acknowledge openly because their commercial product is the new commentary, not the cross-walk that explains why the new commentary is, mostly, the old commentary in new clothes.

The second is in how political claims about decolonisation should be assessed. The BNS exercise was the largest piece of post-Independence criminal-law legislation in India and it was framed as a decolonising act of legislative sovereignty. The framing was largely accepted. The substantive content of the framing was not delivered. The lesson — for the next major legislative reform, for the next decolonising-narrative exercise, for the routine assessment of Government claims about its own legislation — is that the rhetorical framing should be tested against section-by-section comparison with the predecessor statute. The cross-walk should be the first thing published, not the last. The Standing Committee did not commission a comparative section-by-section analysis. The professional bodies did not produce one. The publishers produced commentaries on the new code that explained the new code, not commentaries that explained what was new in the new code. The decolonising-reform rhetoric survived because it was never seriously tested.

The BNS preserves the IPC. The substantive criminal law of India in 2026 is the substantive criminal law of India in 2023, with section numbers changed and a handful of new offences added at the periphery. The marital-rape exception is intact. Sedition is intact, under a different name. The Macaulay mens rea architecture is intact. The homicide chapter is the same chapter with a different section sequence. The reform that was promised was not the reform that was delivered. That fact is not, in itself, scandalous. Legislative continuity is sometimes the right choice. What is scandalous is the gap between what was advertised and what was delivered, and the willingness of the legal profession and the commentary press to live with the gap. The serious work of substantive criminal-law reform — sedition, marital rape, mens rea categories, strict liability — was not done in 1860, was not done in 2013, and was not done in 2023. It is still waiting. The BNS was the moment at which the work could have been done. It was, instead, the moment at which the rhetoric of reform was put to use as cover for the work not being done.

Get the week's biggest decisions, distilled.

A weekly digest for lawyers, students and the legally curious. Every Friday morning. Free.