FROM COLONIAL PENAL CODE TO INDIGENOUS CRIMINAL JUSTICE: A DOCTRINAL REVIEW OF SUBSTANTIVE OFFENCES UNDER THE INDIAN PENAL CODE, 1860 AND THE BHARATIYA NYAYA SANHITA, 2023

Abstract

This paper explores how India’s criminal law has changed by comparing and contrasting the Indian Penal Code of 1860 to the Bharatiya Nyaya Sanhita of 2023 from a doctrinal perspective. The colonial countries in India codified crime and determined the government operated by creating a way to regulate how people were treated by putting them into categories, which resulted in the Indian Penal Code. After the independence of India, the Indian Penal Code remained in force; however, its original intended purpose was further extended through judicial interpretation that brought it into compliance with the provisions of the Indian Constitution. The Bharatiya Nyaya Sanhita (BNS), intended to provide a new criminal code based on indigenous ideas, constitutional values, and social equality, seeks to be a true substitute for the colonial model that had long dominated in India.

The research uses only secondary material such as statutes and legislative history, case law, and publicly available scholarly writings about law to reach the doctrinal conclusions and comparative legal analysis. The research examines the IPC by looking at how it has been affected by its colonial background and by examining its criminal philosophy, and how the BNS has reoriented the IPC's criminal law, and it then conducts a comparative analysis that identifies the changes that have occurred and the continuities from the IPC to the BNS. The legislation has been changed, some of the sections that did not need to be included have been eliminated, and the new legislation uses language that is focused on achieving justice rather than punitive measures. Although there have been some amendments, the new legislation retains the basic structure of the Indian Penal Code to a great degree, according to the research.

The Bharatiya Nyaya Sanhita is not an overall overhaul of criminal law as much as it is an updated set of existing criminal laws created by codifying, or compiling, existing criminal laws with some reform-minded additions. The report makes clear that the new criminal code is a project that requires the continued attention of judges, legislators, and scholars in order to ensure that it is consistent with constitutional principles and social justice.