Overlap between IPC, BNS and Special Laws
List of overlap between IPC, BNS and Special Laws
| BNS/BNSS | Special Law |
| Adulteration of food or drink for sale | |
| Imprisonment up to 6 months, fine up to Rs 5,000, or both. Non-Cognizable, bailable. (IPC Sec. 272, 273; BNS Clause 272, 273) | The Food Safety and Security Act, 2006: Imprisonment up to life, and a fine up to Rs 10 lakh for manufacture, storage, sale of unsafe food. Sentence proportionate to damage caused. (Sec. 59) |
| Adulteration of drugs, and sale of adulterated drugs | |
| Adulteration penalised with imprisonment up to a year, fine up to Rs 5,000, or both. Sale of adulterated drugs penalised with imprisonment up to 6 months, fine up to Rs 5,000 or both. Non-Cognizable, bailable. (IPC Sec. 274, 275; BNS Clause 274, 275) | The Drugs and Cosmetics Act, 1940: Consumption of adulterated drugs causing death or grievous hurt penalised with imprisonment between 10 years and life, and fine of at least Rs 10 lakh, or 3 times the value of the seized drugs, whichever is higher. In other cases, penalty is imprisonment of 3-5 years, and fine of at least Rs 1 lakh, or 3 times the value of the seized drugs, whichever is more. (Sec. 27) |
| Unlawful compulsory labour | |
| Imprisonment up to one year, fine, or both. Cognizable, Bailable. (IPC Sec. 374; BNS Clause 144) | The Bonded Labour System (Abolition) Act, 1976: Imprisonment up to 3 years and fine up to Rs 2,000. (Sec. 16, 17, 18). |
| Abandoning a child | |
| Parent or guardian abandoning a child below the age of 12 is punishable with imprisonment up to 7 years, fine, or both. Cognizable, bailable. (IPC Sec. 317; BNS Clause 91) | The Juvenile Justice Act, 2015: Abandoning or procuring a child for abandonment is punishable with imprisonment up to 3 years, fine up to Rs 1 lakh, or both. Biological parents abandoning a child due to circumstances beyond their control are exempt. (Sec. 75) |
| Rash driving | |
| Punishable with imprisonment up to 6 months, fine up to Rs 1,000 or both. Cognizable, bailable, non-compoundable. (IPC Sec 279; BNS Clause 279) | The Motor Vehicles Act, 1988: Punishment for first offence: imprisonment up to 6 months, and/or fine up to Rs 5,000. Subsequent offence within three years: imprisonment up to 2 years and/or a fine up to Rs 10,000. Cognizable, bailable, compoundable. (Sec. 184) |
Sources: IPC, BNS, Various Special Laws; PRS.
Addition of crimes related to organised crime and terrorism
Currently, organised crime and acts of terrorism are not covered under IPC. Acts of terrorism are covered under the Unlawful Activities (Prevention) Act, 1967 (UAPA). Organised crime is covered by state laws such as the Maharashtra Control of Organised Crime Act, 1999 (MCOCA), and similar laws enacted by Karnataka, Gujarat, Uttar Pradesh, Haryana and Rajasthan.[20] Offences related to both organised crime and terrorism have been added in the BNS. Adding organised crime as an offense in the BNS fills a gap as these crimes may occur across all states, including those which have not enacted a special law. However, this also creates duplication of laws in states which already have such special laws.
The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) and the Bharatiya Sakshya Bill, 2023 (BSB) which replace the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872, respectively, do not provide for a separate criminal procedure for these offences. The special laws on organised crime and terrorism have several departures from ordinary criminal procedure. They remove some safeguards for the accused, such as the conditions for bail and the admissibility of police confessions. Cases under UAPA are tried under the National Investigation Agency Act, 2008, which establishes Special Courts to try such cases.[21] Under the BNSS, cases of terrorism will be tried in Sessions Courts. This would result in varying investigation and trial procedures for similar offences. The Standing Committee on Home Affairs (2023) recommended providing special criminal procedures for organised crime in the BNSS.11
Murder by a group on certain grounds of identity
The Bill specifies a separate penalty for murder committed by five or more persons on certain grounds. The offence is punished with imprisonment of at least seven years up to life imprisonment or death, and a fine. The grounds are race, caste or community, sex, place of birth, language, personal belief or any other ground.
This offence involves the same intent and consequences as murder, which is already provided for in the IPC. The minimum penalty for murder by a group on these specified grounds is lower than the penalty for murder, which is death or life imprisonment. The rationale for the difference in penalties is not clear. The Standing Committee on Home Affairs (2023) recommended removing imprisonment of seven years from the clause.11 The Bill specifies identity markers such as caste and language, but does not specify religion.
Offences against women
The BNS retains the provisions of IPC related to rape. It has not addressed several recommendations made by the Justice Verma Committee (2013) and Supreme Court on reforming offences against women. We mention some of these below.
Table 2: Recommendations related to offences against women
| Recommendations | Whether incorporated in BNS |
| Rape (IPC s.375) – Rape should not be limited to penetration of the vagina, mouth or anus. Any non-consensual penetration of a sexual nature should be included in the definition of rape. Exception to marital rape should be removed.9 | No. Original provision retained in Clause 63. |
| Words, gesture, or act intended to insult modesty of woman (IPC s.509) – the section should be repealed. The offence of ‘eve-teasing’ can be charged under s.354 of the IPC (s.73). Remove the terminology ‘modesty of women’ from the IPC.9 | No. Original provision retained in Clause 78. |
| Assault or use of criminal force on woman with intent to disrobe (IPC s.354B) – penalty should be increased to imprisonment for at least five years up to 10 years.[22] | No. Penalty is imprisonment for at least three years up to seven years (Clause 75). |
| Adultery (IPC s.497) – the section violates Articles 14 and 21. It creates a distinction between men and women based on gender stereotypes, and is arbitrary. Adultery should not be treated as an offence as it violates the right to privacy.3 | Yes. Adultery has been omitted. However, BNS retains s.498 of the IPC (Clause 83) which penalises a man for enticing the wife of another man so that she may have intercourse with any person. |
Sources: See endnotes; PRS.
Aspects of sedition retained
The IPC defines sedition as bringing or attempting to bring hatred, contempt, or exciting disaffection towards the government. The Supreme Court has put the offence of sedition on hold until a Constitution bench examines it.[23] The BNS removes this offence. Instead, it adds a provision that penalises: (i) exciting or attempting to excite secession, armed rebellion, or subversive activities, (ii) encouraging feelings of separatist activities, or (iii) endangering sovereignty or unity and integrity of India. These offences may involve exchange of words or signs, electronic communication, or use of financial means. It may be argued that the new provision retains certain aspects of the offence of sedition and broadens the range of acts that could be seen as threatening the unity and integrity of India. Terms like ‘subversive activities’ are also not defined, and it is unclear what activities will meet this qualification.
In 1962, the Supreme Court limited the application of sedition to acts that carry the intention or tendency to create public disorder or incite violence.[24] Note that the BNSS refers to ‘seditious matters’ in BNS (clauses 150, 195, 297), despite the word sedition not appearing in BNS.
Solitary confinement may violate fundamental rights
The IPC permits solitary confinement for offences that are penalised with rigorous imprisonment. Such offences include criminal conspiracy, sexual harassment, kidnapping or abducting to murder. The BNS retains these provisions. The Prisons Act, 1894, which also permits solitary confinement, has been adopted by many state laws.[25] Provisions on solitary confinement are not in line with Court rulings and expert recommendations.
The Supreme Court (1979) has held that measures such as pushing prisoners into solitary cells deprives them of their right to life and liberty under Article 21.[26] In 1971, the Law Commission recommended removing solitary confinement from the IPC. It observed that such confinement is out of tune with modern thinking and should not exist as a punishment for any criminal court to enforce.[27] In 1978, the Supreme Court recognised the Law Commission’s recommendation and held that solitary confinement must be enforced only in exceptional cases.[28]
The scope of community service is unclear
The BNS adds community service as a punishment. It extends this punishment to offences such as: (i) theft of property worth less than Rs. 5,000, (ii) attempt to commit suicide with the intent to restrain a public servant, and (iii) appearing in a public place intoxicated and causing annoyance. The BNS does not define what community service will entail and how it will be administered. The Standing Committee on Home Affairs (2023) recommended defining the term and nature of ‘community service’.11
Drafting issues
There are several drafting issues in the BNS. We illustrate a few below:
Table 3: Some examples of missing offences, drafting issues and obsolete illustrations
| Missing offences | |
| IPC sections 375 and 377 | Section 375 specifies rape of a woman as an offence. Section 377 specifies “intercourse against the order of nature against any man, woman or animal” an offence; the Supreme Court read this down to exclude consensual sex between adults. This meant that forced intercourse with an adult male is an offence, so is intercourse with an animal. Rape of children, regardless of gender is an offence under the POCSO Act, 2012. The BNS does not retain section 377. This implies that rape of an adult man will not be an offence under any law, neither will having intercourse with an animal. The Standing Committee on Home Affairs (2022) has recommended re-introducing this provision. |
| Drafting issues | |
| Clause | Issue |
| 23 | Acting while intoxicated. The IPC (Sec 85) gave a general exception for a person if he was intoxicated and unable to distinguish between right and wrong, provided that the person was unknowingly or forcibly intoxicated. The BNS replaces “provided that” with “unless”; this implies that a person who willingly got intoxicated would be exonerated. |
| 150 | Replaces Section 124A of the IPC, and removes the word “sedition”. Explanation (possibly to say what would not constitute an offence) is an incomplete sentence. |
| Obsolete references (may need to be updated with examples from modern life) | |
| 127 | Illustrations: (b) Z is riding in a chariot. A lashes Z’s horses, and thereby causes them to quicken their pace. Here A has caused change of motion to Z by inducing the animals to change their motion. A has therefore used force to Z; and if A has done this without Z’s consent, intending or knowing it to be likely that he may thereby injure, frighten or annoy Z, A has used criminal force to Z. Other illustrations relate to palanquins (illustration c in clause 127) and cannons (illustration d in clause 100). |
Sources: BNS, IPC; PRS.
[1]. The Criminal Law (Amendment) Act, 2018, The Criminal Law (Amendment) Act, 1983, The Criminal Law (Amendment) Act, 2013.
[2]. WP (Criminal) No. 76 of 2016, Navtej Singh Johar & Ors vs. Union of India, Supreme Court, September 6, 2018.
[3]. WP (Criminal) No. 194 of 2017, Joseph Shine vs. Union of India, Supreme Court, September 27, 2018.
[4]. 1994 AIR 1844, R. Pathinam vs. Union of India, Supreme Court, April 26 1994.
[5]. The Indian Penal Code (Tamil Nadu Amendment) Act, 2021.
[6]. The Indian Penal Code (Andhra Pradesh Amendment) Act, 1991.
[7]. Criminal Laws (Rajasthan Amendment) Bill, 2018
[8]. Indian Penal Code (Punjab Amendment) Bill, 2018.
[9]. Report of the Committee on Amendments to Criminal Law, 2013 (Verma Committee).
[10]. Report 264, Law Commission of India, 2017; Report 262, Law Commission of India, 2015.
[11]. Report No. 246, The Bharatiya Nyaya Sanhita, Standing Committee on Home Affairs, Rajya Sabha, November 10, 2023
[12]. Section 330, The Code of Criminal Procedure, 1973.
[13]. Section 85, Indian Penal Code, 1860.
[14]. 1960 AIR 633, The Superintendent Central Jail, Fatehgarh vs. Ram Manohar Lohia, Supreme Court, January 21, 1960.
[15]. PostNote 588, Age of Criminal Responsibility, Parliamentary Office of Science and Technology, The United Kingdom, June 2018.
[16]. Report of the Committee on Rights of the Child, United Nations.
[17]. Section 19, The German Criminal Code, 1998.
[18]. “Age of criminal responsibility”, The Government of the United Kingdom.
[19]. “If a young person gets in trouble with the police”, The Government of Scotland.
[20]. Maharashtra Control of Organized Crime Act, 1999, Gujarat Control of Terrorism and Organised Crime Act, 2015.
[21]. National Investigation Agency Act, 2008.
[22]. Report No. 167, The Criminal Law (Amendment) Bill, 2012, Standing Committee on Home Affairs, Rajya Sabha, March 4, 2013.
[23]. Writ Petition (Civil) No. 682/2021, SG Vombatkere vs. Union of India, Supreme Court, September 12, 2021.
[24]. 1962 AIR, Kedar Nath Singh vs. State of Bihar, Supreme Court, January 20, 1962.
[25]. Section 29, Prisons Act, 1894.
[26]. 1980 AIR 1579, Sunil Batra(II) vs. Delhi Administration, Supreme Court, December 20, 1979.
[27]. Report No. 42, Law Commission of India, 1971.
[28]. 1978 AIR 1675, Sunil Batra vs. Delhi Administration and Ors, Supreme Court, August 30, 1978.