Abstract
India had been governed by colonial-era penal laws for the longest time. These criminal laws did not represent the dynamics and needs of the present Indian society. In a historic legislative overhaul, the Indian government replaced the Indian Penal Code, the Code of Criminal Procedure, and the Indian Evidence Act with the Bharatiya Nyaya Sanhita (BNS) 2023, Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, and Bharatiya Sakshya Adhiniyam (BSA) 2023. The primary aim behind these new laws was to decolonize the criminal justice system and effectively address the deficiencies of the previously existing criminal provisions. The government stated they aimed to “give justice, not punishment”. These new penal provisions address contemporary concerns related to offences against women, children, the state, and society at large. They also incorporate constitutional values and Supreme Court guidelines, giving them statutory recognition.
This paper provides a feminist critique of the new penal provisions, questioning whether they dismantle the patriarchal foundations of the older codes or repackage them. It examines the gender neutrality of sexual offences, the continued exclusion of marital rape, and procedural safeguards for survivors. While the new framework aspires to be a Citizen-centric and technologically progressive piece of legislation, this analysis highlights that many reforms remain superficial; they do not address the structural inequalities embedded in law enforcement and adjudication. The paper affirms that a truly transformative legal reform must not only include women or children in its design but also center their lived realities within its purview of justice.
Keywords
BNS, Gender Justice, New Criminal Laws, Feminism, Neutral Laws, Intersectional feminist theory, victim-centric
Research Methodology
This study employs a doctrinal legal research methodology to critically examine the newly enacted criminal law codes in India. The research is primarily qualitative in nature, grounded in constitutional values, gender justice principles, and intersectional feminist theory.
The primary sources include the statutes of BNS as enacted in 2023, as well as Committee Reports to understand the historical intent and aim of enacting the new penal laws.
Secondary sources include Scholarly articles, commentaries on legal theory, gender justice, and criminal law reform.
Review of literature
The principal criminal laws of India, which governed the nation for over a century and a half, proved inadequate in dealing with the complexities of modern crimes and the growing need for stringent and effective penal provisions [1]. The IPC,1860 codified a wide array of offences which included crimes against the human body, property, and public order, to those relating to decency, morality, religion, and the state. The apex court in its judgments revamped the provisions of this legislation in several judgements, which include the decriminalization of adultery [2], consensual same-sex relations [3]. The legislative efforts included the insertion and amendments of existing provisions, which are Dowry death (s.304B) [4], Amendments in s. 376 following the Criminal Law Amendment Act,2013, post the unfortunate incident of Nirbhaya [5]. S.498A was inserted in which dealt with the issue of cruelty to married women, often in the context of dowry demands or domestic violence by husband or his family members [6]. S. 326A and 326B were inserted as specific provisions related to acid attacks to provide for harsher punishments for this particularly brutal form of violence. [7]
The procedural criminal laws were also replaced in order to put an end to the colonial legacy, integrate technological advancements, and inculcate gender sensitive procedures [8]. CrPC and the Indian Evidence Act failed to protect vulnerable groups adequately and were deemed to be centric. The reforms, however, were tailored to strengthen victim rights and foster substantive gender justice.
This legislative overhaul not only offered an opportunity to modernize criminal laws but also enabled the framers to align these statutes closely with the values and principles enshrined in the Indian Constitution. [9]
Analysis of the provisions of BNS, BNSS, and BSA
The Bharatiya Nyaya Sanhita (BNS), 2023, Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, and Bharatiya Sakshya Adhiniyam (BSA) 2023. represents a significant paradigm shift in India’s criminal jurisprudence[10]. These legislations introduce a multitude of notable changes. However, despite its progressive aspirations, the BNS has also drawn considerable critique regarding certain provisions, which will be critically examined herein.
The new law incorporates the definition of transgender persons as established in the Transgender Persons (Protection of Rights) Act, 2019. However, this very definition has faced significant criticism from numerous transgender activists[11], who argue it disregards the principle of self-identification and undermines the landmark judgment delivered by the Apex Court in National Legal Services Authority (NALSA) v. Union of India[12]. This definitional limitation, coupled with the law’s broader shortcomings, ultimately undermines it from adequately accounting for the diverse and intersecting vulnerabilities faced by transgender individuals.
Section 4(f) is where the new law gets it right; Bharatiya Nyaya Sanhita (BNS),2023 has been inserted for petty offences which include attempted suicide, drunken misconduct, and defamation[13]. This aligns with the feminist concern over unnecessary incarceration and policing. This shows the affirmative movement towards decarceral justice for minor non-violent offences. The feminist justice framework advocates for healing and support in cases of suicide, resonating with the spirit recognized by the Supreme Court decision in Gian Kaur v. State of Punjab [14]; consequently, victim-sensitive alternatives must be developed further.
Focusing on a provision potentially prone to misuse, Section 69 of the BNS criminalizes sexual intercourse achieved by deceitful means. While prima facie this may appear to represent a nascent step in acknowledging non-physical coercion and expanding the legal understanding of consent, significant apprehensions exist [15]. Critics fear its potential misuse to target inter-faith or inter-caste relationships under the guise of “identity suppression”, often associated with the contentious term ‘Love-Jihad.’ Furthermore, this section’s limitation to deceitful acts perpetrated by a man implicitly excludes men and LGBTQ+ individuals from being victims of this offense [16], raising questions about gender neutrality.
BNS has introduced gender neutrality in specific sexual offenses under Sections 75, 76, 94, and 139. For instance, in offenses such as disrobing and voyeurism, the term ‘minor girl’ has been replaced with ‘child,’ and ‘importation of girl’ is now ‘girl or boy.’ This represents a positive development, as it formally recognizes male and queer individuals as potential victims of sexual violence [17]. However, it is crucial to ensure a careful balance between achieving gender neutrality and maintaining appropriate gender sensitivity within these legal provisions.
There has been an increase in the minimum mandatory punishment in the cases of custodial rape to not less than ten years’ imprisonment. Sexual intercourse by a man with his wife during separation is punishable with two to seven years’ imprisonment under section 67 of the BNS. Similarly, offences related to use of criminal force and assault against women, including forced disrobing (section 76 of the BNSS), voyeurism (section 77 of BNS), stalking (section 78 of BNS) and acid violence (sections 123-124 of BNS), are punishable with a range of punishments up to 10 years imprisonment or life imprisonment [18]. The potential benefits of new substantive criminal laws are, however, significantly curtailed by a critical procedural flaw within the Bharatiya Nagarik Suraksha Sanhita (BNSS) Section 173(3) confers discretionary authority upon the police to conduct a preliminary inquiry to determine if a prima facie case exists for offenses punishable by three to seven years of imprisonment, which covers many of the serious crimes previously outlined [19]. This means that the police have discretion whether to investigate this case properly. This could easily prevent victims from getting justice and defeat the purpose of the new criminal law [20].
One momentous aspect of the new criminal law is the creation of a dedicated chapter for offences against women and children. This development, however, raises questions regarding its scope and implications. This part of the law takes crimes against women and children and puts them in their separate box, instead of just seeing them as crimes against people in general. Satirically, this might suggest that women and children are not considered part of the ‘human body’ under this legal framework. Specifically, the provisions are limited to women and children, excluding men and LGBTQ+ individuals [21].
Turning to the procedural criminal laws, the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, explicitly mandates gender-sensitive arrest protocols in Section 43[22]. While these provisions are the same safeguards that were present in previous legislation designed to protect women in custody, feminist critics question whether such measures are effectively enforced in practice. In reality, women and queer individuals often lack access to female officers or safe facilities, leading to concerns that even well-intentioned laws may not prevent custodial abuse. Furthermore, the BNSS retains a maximum police remand of 15 days under Section 187, which can be split over the initial months of investigation [23]. From a feminist perspective, this provision poses a significant risk, especially considering the documented instances of torture, molestation, and rape of women in custody.[24]
The BNSS largely maintains a victim–centric approach. It mandates police to inform victims of case progress and stipulates that victims be heard in bail or discharge proceedings [25]. In effect, a victim must be notified and allowed to voice concerns before charges are framed or dropped. However, the BNSS does not permit victims to engage their counsel to argue a case or submit independent evidence. Additionally, merely informing victims is insufficient without empowering them to counterbalance the existing accused-centric procedures.
One of the most significant shortcomings of India’s judicial system has been its slow-paced court procedures, which often take years to complete. Recognizing this deficiency, a primary objective addressed by the new laws is the introduction of strict timelines to expedite the processing of cases. According to the provisions of BNSS, judges are mandated to deliver judgments within 30 days of concluding evidence (extendable to 45 days), and charges must be framed within 60 days of the first hearing. On paper, this ‘justice-centric’ approach appears to favor victims by reducing delays [26]. However, such speed must not sacrifice thoroughness. While timely justice can empower complainants in theory, this will only materialize if courts also safeguard due process.
The new enacted Law of Evidence is the Bhayatiya Sakshya Adhiniyam, 2023, which uses Gender-Neutral language [27]. The law has been aligned with the modern inclusive norms. This ensures that the people, irrespective of their identity, can be victims or accused. But there have been arguments that this change only sounds egalitarian but does not reflect the lived reality of the society [28]. While the Bharatiya Nagarik Suraksha Sanhita (BNSS) and Bharatiya Sakshya Adhiniyam (BSA) introduce pro-victim measures and formalize victim rights [29], they also contain aspects that necessitate a cautious evaluation of their practical impact. The true effectiveness of these laws hinges critically on their proper enforcement.[30] Their ability to truly address the lived realities of society remains to be seen.
Suggestions
Despite widespread celebration surrounding efforts to decolonize legal frameworks, a critical analysis reveals that the new penal codes regrettably lack substantive innovation. While commendable steps have been taken, such as the adoption of gender-neutral language in sexual offense provisions[31], these reforms often fall short of integrating principles of substantive equality. This oversight is particularly concerning given the well-documented reality that women, transgender, and queer individuals disproportionately experience systematic and structural violence, and in distinct ways. The current approach, which often allocates specific provisions without a broader understanding of intersectional vulnerabilities, inadvertently distorts the fundamental aspect of gender neutrality and dilutes the protective scope of the law.[32]
Furthermore, these new legal frameworks represent a significant missed opportunity to inculcate intersectional feminist theory meaningfully. Such an integration would allow for a nuanced understanding and targeted protection of individuals who, due to intersecting identities (e.g., caste, class, disability, religion, sexual orientation, gender identity), are rendered even more susceptible to various forms of crime[33]. Following the landmark Supreme Court judgment that decriminalized Section 377 of the Indian Penal Code [34], there is an imperative need to diversify the definition of sexual offenses. This diversification must extend beyond merely gender-neutral language to comprehensively include all potential victims and perpetrators, thereby ensuring true inclusivity in protection and recognition under the law.
While acknowledging some procedural reforms, a significant lacuna persists in the trial process: the failure to mandate trauma-informed procedures. This omission can exacerbate the distress experienced by survivors and hinder their ability to engage effectively with the justice system. Perhaps one of the most glaring and persistently critiqued aspects of these new laws is the continued exclusion of marital rape from the ambit of criminal offenses. Urgent efforts are required to align domestic legal provisions with constitutional morality and India’s international human rights commitments. Crucially, policy reforms in this area must be rigorously evidence-based, moving beyond outdated, patriarchal-induced moral panic and embracing a progressive, rights-based approach to justice [35].
Conclusion
The newly enacted criminal laws, the Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya Adhiniyam, 2023, undeniably mark a significant turning point in Indian criminal law jurisprudence. These legislative instruments were specifically introduced with the ambitious aim of replacing colonial-era legislation, a task undertaken after more than half a century. The stated objective behind their enactment was to modernize legal responses to crime and, crucially, to align them more closely with the values of a democratic, constitutional republic and modern society[36]. But when reimagined through a feminist lens, this new framework reveals both notable areas of progress and, simultaneously, persistent silences. This critical observation strongly suggests that a mere transformation in the wording of the law may not, as yet, translate into a true transformation in its spirit.
One of the most visible changes is the adoption of gender-neutral language across the provisions of several sexual offences. This step, on the surface, reflects a commitment to inclusivity, but risks flattening the lived realities of gendered harm. Feminist scholars have long argued that treating the unequal as equals under the guise of neutrality can deepen invisibility, especially for women and trans persons who continue to experience violence in gendered ways. The law’s ambition to appear neutral must not override the need for gender sensitivity and targeted protections where they are still sorely needed.
Moreover, the recognition of transgender persons in the BNS by importing the definition from the Transgender Persons (Protection of Rights) Act, 2019, appears, at first, to be a nod to inclusion. However, the definition itself has been widely criticized by the trans community for undermining the principle of self-identification laid down in the landmark NALSA v. Union of India judgment[37]. The law, thus, acknowledges gender diversity but does so on terms that are contested and, arguably, regressive.
Intersectionality is a core pillar of feminist legal critique, and it remains notably absent from the drafting philosophy of these new laws. Individuals at the margins of multiple identities, such as Dalit women, disabled queer persons, Muslim and trans women, continue to face compounded violence and discrimination [38]. Yet, the legal framework continues to treat gender, caste, religion, and disability as separate silos. This fragmentation not only obscures the realities of those at the intersections but also limits the law’s ability to respond meaningfully to structural violence.
At the same time, there are glimmers of progress. Clause 4(f) of the BNS, which introduces community service as a punishment for petty offences such as attempted suicide and defamation, resonates with decarceral feminist thought. It represents a quiet but significant shift from punishment to restoration, particularly relevant in cases where the state has traditionally criminalized vulnerability. This aligns with the spirit of Gian Kaur v. State of Punjab[39], where the right to die was discussed in the broader context of human dignity.
However, the benefits of progressive substantive reforms are undercut by procedural limitations. Section 173(3) of the BNSS empowers police officers to decide whether or not to investigate certain offences this includes many crimes like stalking, voyeurism, and even acid attacks. This discretion, in the hands of a system often marked by caste and gender bias, threatens to undermine victim rights and perpetuate impunity. It is here that the gap between paper protections and lived justice becomes most visible.
Perhaps the most dangerous development is the potential misuse of Section 69 of the BNS, which criminalizes sexual acts under “false promises or identity suppression.” While it gestures toward an expanded understanding of consent, critics fear it will become a tool to police interfaith and inter-caste relationships, particularly under the guise of ‘love jihad’. This again raises alarm bells for feminists, who have long warned against using women’s safety as a cover for regressive social control.
In reimagining justice, it is imperative to critically question whose realities the law genuinely centers, and whose experiences are, conversely, being erased. True and meaningful reform, therefore, cannot be achieved by merely replacing colonial texts with Indian vocabulary. Instead, it necessitates active and deliberate efforts, fundamentally rooted in listening to the lived experiences of survivors, centering the voices and needs of the most marginalized communities, and intentionally moving beyond carceral reflexes towards more restorative, community-based responses to harm. While the new criminal laws represent an initial effort in this direction, they must be viewed as a starting point rather than the complete end required to fully achieve a truly feminist vision of justice.
Sadhwi N. Bengeri College: KSLU’s Law School, Hubballi.
References
1. See Statement of Objects and Reasons, Bharatiya Nyaya Sanhita Bill, No. 73 of 2023, s. 2, Lok Sabha (India)
2. Joseph Shine v. Union of India, AIR 2018 SC 1676
3. Navtej Singh Johar v. Union of India, AIR 2018 SC 4321
4. The Indian Penal Code, No. 45 of 1860, s.304B, inserted by The Criminal Law (Second Amendment) Act, No. 46 of 1983.
5. The Indian Penal Code, s. 376, as amended by The Criminal Law (Amendment) Act, No. 13 of 2013.
6. Id. 498A, inserted by The Criminal Law (Amendment) Act, No. 46 of 1983..
7. Id. 326A–326B, inserted by The Criminal Law (Amendment) Act, No. 13 of 2013.
8. Statement of Objects and Reasons, Bharatiya Nyaya Sanhita Bill, No. 73 of 2023, Lok Sabha (India); See also Ministry of Home Affairs, Press Briefing on Criminal Law Reforms (Aug. 2023).
9. ibid
10. https://blog.mygov.in/exploring-indias-new-criminal-laws-a-paradigm-shift-in-legal-framework/
11. https://qz.com/india/1756897/indias-transgender-rights-bill-disappoints-the-lgbtq-community
12. National Legal Services Authority (NALSA) v. Union of India, AIR 2014 SC 1863
13. https://www.azbpartners.com/bank/overview-of-the-bharatiya-nyaya-sanhita-2023-penal-code/?utm#_ftn24
14. Gian Kaur v. State of Punjab, AIR 1998 SC 2809
15. https://scroll.in/article/1054438/why-legal-experts-are-criticising-new-clause-that-punishes-sex-gained-by-making-false-promises?
16. Singh Siddhi and Krish Vikram Promises, Prejudices and Perils: Unveiling the Complexities of Section 69, Bharatiya Nyaya Sanhita, 2023 avl. at: https://nliulawreview.nliu.ac.in/blog/promises-prejudices-and-perils-unveiling-the-complexities-of-section-69-bharatiya-nyaya-sanhita-2023/?utm_source=
19. https://thewire.in/law/bharatiya-nyay-sanhita-women-gender-trans-queer-justice
20. ibid
21. ibid
22. Section- 43, Bharatiya Nagarik Suraksha Sanhita, No. 46 of 2023
23. https://blog.ipleaders.in/custodialviolence/#:~:text=,gang%20rape%20were%20also%20reported
30. supra note. 25
31. https://www.scobserver.in/journal/identity-and-evidence-an-intersectional-perspective/
32. ibid
33. ibid
34. supra note.3
35. Baxi, Pratiksha. (2010). Justice is a Secret: Compromise in Rape Trials. Contributions To Indian Sociology – CONTRIB INDIAN SOCIOL. 44. 207-233. 10.1177/006996671004400301.
36. supra note. 9
37. supra note. 12
39. supra note. 14