Written by Deepansh Bhargava
Student, IILM UNIVERSITY
August 2025
In December 2023, the Indian Parliament enacted a trilogy of laws to overhaul the criminal justice system: the Bharatiya Nyaya Sanhita (BNS), the Bharatiya Nagrik Suraksha Sanhita (BNSS) and the Bharatiya Sakshya Adhiniyam (BSA). Collectively, they seek to supersede 19th- and 20th-century foundations of Indian criminal law—i.e., the Indian Penal Code (1860), the Code of Criminal Procedure (1973), and the Indian Evidence Act (1872). The Union Government framed the exercise as an act of decolonisation: eliminating Victorian-era legislations, aligning criminal law with the constitutional ethos of a democratic republic, and placing the citizen—not the sovereign—at the centre of justice delivery.
This essay refutes that claim in the case of the BNS. It argues that the legislation, far from liberating Indian criminal law from the colonial genetic framework, reinscribes some of its signature features: expansive state power, morality-policed offenses, and penal focus disproportionately affecting marginalized groups. Where reforms are introduced, these are superficial, replicating earlier provisions with minimal conceptual variation. In the process, an historic opportunity for extensive, citizen-centered reorganization went astray.
Decolonization must be understood on two levels. Formal decolonization is the removal of colonial names, institutions or practices—queen’s Bench to Supreme Court, for instance. Substantive decolonization involves a transfer of power. It seeks to undo the lopsided relationship between state and subject that supported colonialism; it seeks to revive laws that criminalized resistance, governed sexuality, and solidified social hierarchies.
In order to assess whether the BNS promotes substantive decolonisation, at least four tests exist: limitation of state coercion—does the law restrict over-criminalisation and reduce police discretion? Constitutional morality—are crimes based on present-day constitutional values instead of Victorian morals? Equality and non-discrimination—does the law reduce the over-criminalisation of Dalits, Adivasis, women, queer individuals, and religious minorities? Due process and accountability—are procedural protections tightened to offset the investigative powers that have been retained under the BNSS?
Maintaining these norms in mind, we analyse the continuities and discontinuities introduced by the BNS.
Passed into law by Thomas Macaulay, Section 124A IPC made a crime of every word that “excites hatred, contempt or disaffection” against the Government. Colonial administrations employed it to imprison freedom fighters—Bal Gangadhar Tilak to Mahatma Gandhi—to demonstrate its political nature. Post-Independence, the section survived judicial scrutiny but was construed in Kedar Nath Singh v. State of Bihar (1962)[1] to be applied only where speech was employed to cause violence or threatened public order.
Section 152[2] of the BNS criminalizes conduct that “endangers the sovereignty, unity or integrity of India” or leads to “subversive activities” or “separatist feelings.” Two “transformative” shifts are asserted: the term sedition is removed; and the offence now involves an “intent to aid enemies” or “armed rebellion.” But essential ambiguities remain. What constitutes a subversive activity? How is separatist feeling measured? Lack of definitional precision invites the same sweeping reading that tainted Section 124A. And the jurisprudential protections built around the latter most importantly, the imminent-violence test—cannot necessarily be exported to Section 152, leaving citizens to the mercy of police and prosecutorial caprice.
The empirical data from the National Crime Records Bureau (NCRB) indicate that sedition charges do not lead to conviction but involve heavy personal cost in the procedural process—arrest, denial of bail, lengthy trial. In widening the linguistic scope of the offence without creating higher procedural barriers, Section 152 is likely to continue the colonial pattern whereby procedure becomes punishment.
The marital rape exception is left on the books in Section 63[3] of the BNS. Its intellectual lineage goes back to Sir Matthew Hale’s 1736 pronouncement that a husband cannot be convicted of raping his wife since their marriage is perpetual consent. The United Kingdom overruled this doctrine in R v. R (1991)[4]. The Justice Verma Committee (2013) suggested in India that it be repealed; the Delhi High Court was divided on its constitutional validity in 2022, and the issue is on appeal before the Supreme Court. In leaving the exception on the books, the BNS instates a colonial myth that denies a married woman sexual autonomy.
The BNS appropriates colonial “modesty” rhetoric in Sections 74[5] and 79[6], a term Justice Vivian Bose once described as “amorphous” and “incapable of precise definition.” The concept shifts the gaze of the law from the actions of the accused to the fantasized chastity of the woman, reinforcing patriarchal assumptions. Reform commissions have consistently urged replacing the term with “sexual assault” to highlight bodily integrity, but the suggestion hangs in limbo.
Section 292[7] of the BNS retains the Hicklin test’s language—”lascivious,” “prurient,” “deprave and corrupt”—and allows judges to criminalize material on the basis of community values, not constitutional ones. Even after the Supreme Court in Aveek Sarkar v. State of West Bengal (2014)[8] added a “community standards” proviso, the test continues to be subjective in approach. Contemporary democracies, from Canada to South Africa, have shifted to a harm test, criminalizing only material that is based on exploitation or acts of non-consensual nature; the BNS does not make this shift.
The BNS also does not interfere with the IPC’s presumption that abortion is criminalized, with statutory exceptions in the Medical Termination of Pregnancy Act, 1971 (amend. 2021)[9]. By treating reproductive choice as an exception, and not a right, the code continues to have a moralistic stance criminalizing bodily autonomy.
Although this article is focused on the BNS, one cannot help but observe that procedural and substantive law complement each other. The BNSS lengthens police custody from 15 to 90 days in respect of some offenses, legalizes handcuffing in “exceptional circumstances,” and enables videographic arrests to be kept on file indefinitely. All these lengthen the coercive machinery set in motion by substantive offenses. The limited expansion of the reach of crimes under the BNS therefore acquires disproportionate significance in reality.
The NCRB’s Prison Statistics India 2023 reports that Scheduled Castes, Scheduled Tribes and Muslims together hold more than 55 percent of the prisoners and nearly 39 percent of the country’s population. Prolongation of indefinite offences and increased police powers guarantee to consolidate, rather than address, this imbalance. Pre-trial detention causes livelihood shocks: loss of employment, depletion of social capital and indebtedness due to legal fees. A 2024 Centre for Law and Policy Research report reported that families of under-trial prisoners suffer an average income loss of 44 percent six months after the arrest. Decolonisation, if at all, would place a high premium on bail reform and non-custodial options—a topic missing from the new codes.
Further afield, the United Kingdom eliminated its marital rape exception in 1991 and replaced sedition with tightly defined treason offences of intention to bring about the destruction of the state by force in the 2009 Coroners and Justice Act. South Africa’s Constitutional Court construes morality-based offences narrowly, with a focus on dignity and equality. The 2007 Teddy Bear Clinic judgment declared parts of a law criminalising consensual teen-age sex to be unconstitutional. In Canada, the abortion provision was declared to be outside the legislative power in R v. Morgentaler (1988)[10], with the Supreme Court construing reproductive choice as a Charter right under section 7.
These places demonstrate decolonial transformation is possible and, most frequently, involves unapologetic legislative and judicial action, as opposed to shallow rebranding. India, for one, also missed a few opportunities: codifying bail as a right to reduce under-trial populations, incorporating gender neutrality and acceptance of queer identities into the law, embracing community-based models of sentencing, and the addition of sunset provisions to extraordinary security crimes. For the purposes of advancing a citizen-centered criminal justice model, the following are suggested: narrowly define state-security crimes with obligatory judicial review; abolish the marital rape exception in accordance with constitutional principles; replace the use of “modesty” with autonomy-centered language to more effectively capture sexual autonomy; move the legal test away from obscenity and towards harm; decriminalize abortion in the criminal code but retain medical regulation in the MTP Act; and incorporate equality impact assessments to examine actual-world consequences of new criminal provisions. The Bharatiya Nyaya Sanhita attempts to bring in a post-colonial regime of criminal law but does not deliver substantive decolonisation. Despite a veneer of indigenised jargon, the law still inherits colonial thought that rationalises vast state power and Victorian values. Decolonisation, if it has to move beyond rhetoric, must confront and dismantle such underlying logics. Till then, the hope of a genuinely citizenal criminal code remains elusive.
[1] Kedar Nath Singh v. State of Bihar AIR 1962 SC 955
[2] Section 152 of the Bharatiya Nyaya Sanhita, 2023
[3] Section 63 of the Bharatiya Nyaya Sanhita, 2023
[4] R v. R (1991) UKHL 12
[5] Section 74 of the Bharatiya Nyaya Sanhita, 2023
[6] Section 79 of the Bharatiya Nyaya Sanhita, 2023
[7] Section 292 of the Bharatiya Nyaya Sanhita, 2023
[8] Aveek Sarkar v. State of West Bengal (2014) 4 SCC 257
[9] Medical Termination of Pregnancy Act, 1971 (amend. 2021)
[10] R v. Morgentaler (1988) 1 SCR 30
