► "Human rights are not granted by the state. They are inherent to every human being from birth until death — universal, inalienable, and indivisible."

What Is BNS 2023 and How Does It Protect Human Rights?

The Bharatiya Nyaya Sanhita, 2023 is India's new substantive criminal law that replaced the Indian Penal Code, 1860 with effect from 1 July 2024. It consists of 358 sections across 20 chapters and received Presidential assent on 25 December 2023. The word Bharatiya means Indian, Nyaya means justice, and Sanhita means code: together, the Bharatiya Nyaya Sanhita is India's Code of Justice. Unlike the colonial-era IPC, the BNS 2023 was drafted with an explicit commitment to human rights, constitutional morality, and restorative justice at its core. This article explains what human rights are, how the BNS 2023 embeds them chapter by chapter, which landmark judicial decisions shape their interpretation, and how India's new criminal code aligns with its international human rights obligations.

What Are Human Rights and Why Do They Form the Foundation of Criminal Law?

Human rights are rights that belong to every human being by virtue of their humanity alone. They are not granted by the state, earned through citizenship, or conditioned on any social, religious, or economic status. They exist from birth until death, universally and without exception.

The etymology of the phrase captures its philosophical depth. The word human derives from the Latin humanus, meaning pertaining to mankind. The word rights derives from the Latin rectus, meaning straight, proper, or just, and from the French dreit, meaning legal entitlements grounded in principles of justice and fairness. Together, human rights are the just entitlements of every person simply by reason of being human.

Human rights carry four foundational characteristics. They are universal, meaning they apply to every person regardless of nationality, religion, caste, community, sex, or race. They are inalienable, meaning they cannot be surrendered, removed, or voluntarily given away. They are indivisible, meaning no right is more important than another and all rights must be protected together. They are interdependent, meaning the violation of one right frequently leads to the violation of others.

The table below sets out the principal categories of human rights and their relevance to criminal law.

Human rights are not absolute. They may be restricted in specific circumstances including national security, public order, public health, the rights and freedoms of others, and criminal and legal proceedings. However, every restriction must satisfy four conditions: it must be prescribed by law, pursue a legitimate aim, be necessary in a democratic society, and be proportionate to the aim pursued. These conditions are directly reflected in the structure of the BNS 2023's offence and exception framework.

How Does the Indian Constitutional Framework Protect Human Rights?

India's commitment to human rights is embedded in the constitutional architecture through two primary mechanisms.

Part III of the Constitution of India contains the Fundamental Rights, which are justiciable rights directly enforceable against the state. These include Article 14 (equality before law), Article 19 (freedom of speech, expression, movement, and association), Article 20 (protection against ex post facto laws, double jeopardy, and self-incrimination), Article 21 (right to life and personal liberty), and Article 22 (protection against arbitrary arrest and detention). Every provision of the BNS 2023 must be read in conformity with these rights.

Part IV of the Constitution contains the Directive Principles of State Policy, which are non-justiciable but constitutionally binding guides for legislative and executive action. Article 39A specifically directs the state to provide free legal aid to ensure justice is not denied by reason of economic disability, directly informing the BNS 2023's victim-centric and access-to-justice orientation.

India is also a signatory to key international human rights instruments including the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR). These treaties reinforce India's domestic commitment and inform the interpretation of constitutional rights by the judiciary.

The Indian judiciary has played a transformative role in expanding human rights through landmark decisions including Maneka Gandhi v. Union of India (1978), Vishaka v. State of Rajasthan (1997), and K.S. Puttaswamy v. Union of India (2017). Public Interest Litigation has been an additional mechanism through which citizens enforce human rights directly through the courts.

What Are the Core Human Rights Principles Embedded in the BNS 2023?

The BNS 2023 reflects eight core human rights principles that distinguish it from the colonial-era IPC it replaced.

The table below sets out these principles and their statutory expression.

► Key Principle: The BNS 2023 introduces community service as a reformative punishment for petty offences, marking a fundamental philosophical shift from purely punitive to restorative criminal justice.

Which Chapters of the BNS 2023 Directly Protect Specific Human Rights?

The BNS 2023 distributes its human rights protections across multiple chapters, each addressing a specific dimension of the right to a dignified and secure life.

The table below maps each relevant chapter to the human right it protects.

Chapter XIX contains a particularly significant human rights provision that is often overlooked. It punishes a person who, being bound by a lawful contract to attend to or supply the wants of a person who is a minor, diseased, helpless, or incapable of providing for their own safety, and who voluntarily omits to do so. This provision directly protects the human rights of the most vulnerable members of society by creating a legal duty of care backed by criminal sanction.

Chapter V's protection of women and children reflects India's obligations under CEDAW and the UN Convention on the Rights of the Child, and directly implements the constitutional guarantee of non-discrimination and special protection for women and children under Articles 14 and 15(3).

How Does the BNS 2023 Prohibit Torture, Custodial Violence, and Arbitrary Arrest?

The prohibition of torture and inhuman treatment is one of the most fundamental commitments of the BNS 2023 as a human rights instrument. The code criminalises custodial violence, assault by public servants, and all forms of cruel or degrading treatment, directly implementing Article 21's requirement that deprivation of liberty be conducted through a process that is fair, just, and reasonable.

The BNS 2023 incorporates the principles of due process through several interlocking protections. The presumption of innocence means that the prosecution must prove guilt beyond reasonable doubt; the accused is not required to establish their innocence. The right to be heard ensures that no adverse order can be made without an opportunity for the affected person to respond. Timely trial procedures address the structural human rights violation caused by prolonged pre-trial detention. Protection against double jeopardy prevents the state from repeatedly prosecuting a person for the same offence.

► Key Principle: The BNS 2023 places the burden of proof entirely on the prosecution, reflecting the foundational human rights principle that no person shall be treated as guilty until proven so through a fair process.

Protection from arbitrary arrest is reinforced through the general exceptions framework and the specific provisions on wrongful restraint and wrongful confinement in Chapter VI. The code recognises the right of private defence of body and property, acknowledging that individuals retain a human right of self-protection that the law must respect.

What Do Landmark Judicial Decisions Say About Human Rights in Indian Criminal Law?

Indian courts have built an extensive jurisprudence on human rights in criminal proceedings that directly informs the interpretation of the BNS 2023.

The table below summarises the landmark decisions and their human rights contributions.

These decisions collectively create a framework within which the BNS 2023 must be applied. The code is not read in isolation but in light of this rich judicial tradition that has consistently expanded the meaning of human rights in the criminal justice context.

How Does the BNS 2023 Align With International Human Rights Standards?

India's accession to key international human rights instruments creates an interpretive obligation: domestic law must, wherever possible, be read in conformity with international standards. The BNS 2023 reflects this obligation in multiple ways.

The table below illustrates the alignment between the BNS 2023 and international human rights standards.

The BNS 2023's introduction of community service as a reformative punishment for petty offences reflects the international movement toward restorative justice frameworks that prioritise rehabilitation over pure punishment, consistent with the principles of the UN Standard Minimum Rules for Non-Custodial Measures (Tokyo Rules).

Conclusion: India's Code of Justice Is Also India's Charter of Human Rights in the Criminal Sphere

The Bharatiya Nyaya Sanhita, 2023 is more than a technical replacement of the Indian Penal Code. It is a legislative declaration that India's criminal law will be built around human dignity, constitutional morality, and the protection of every person who interacts with the criminal justice system, whether as a victim, an accused, or a member of the public.

By embedding the principles of equality, due process, protection of the vulnerable, prohibition of torture, restorative justice, and victim-centric access to justice into its 358 sections and 20 chapters, the BNS 2023 brings Indian criminal jurisprudence into alignment with both its constitutional commitments under Part III and its international obligations under the UDHR, ICCPR, and allied instruments.

The true measure of any criminal code is not its severity but its fairness. A code that punishes equally, protects the vulnerable, prohibits abuse of state power, and ensures every person a meaningful opportunity to be heard before judgment is passed is a code that honours the human in human rights. The BNS 2023, read alongside the landmark judicial decisions that have shaped Indian criminal jurisprudence over seven decades, represents India's most serious attempt to build exactly that.

Frequently Asked Questions (FAQs) on the Bharatiya Nyaya Sanhita 2023 and Human Rights

1. What is the Bharatiya Nyaya Sanhita 2023 and when did it come into effect? The BNS 2023 is India's new substantive criminal law that replaced the Indian Penal Code, 1860. It received Presidential assent on 25 December 2023 and came into force on 1 July 2024. It consists of 358 sections across 20 chapters and is the 45th Act of 2023.

2. How does the BNS 2023 differ from the Indian Penal Code in its approach to human rights? Unlike the colonial-era IPC, the BNS 2023 was drafted with an explicit commitment to human rights, constitutional morality, and restorative justice. It introduces community service as a reformative punishment, strengthens protections for women and children, and aligns Indian criminal law with international human rights standards.

3. What constitutional provisions support human rights in Indian criminal law? Part III of the Constitution containing the Fundamental Rights, particularly Articles 14, 19, 20, 21, and 22, directly governs the criminal justice system. Part IV's Directive Principles, particularly Article 39A on free legal aid, inform the justice delivery framework.

4. What is community service under the BNS 2023 and which human rights principle does it reflect? Community service is a reformative punishment introduced for petty offences under the BNS 2023. It reflects the human rights principle of restorative justice, prioritising rehabilitation and social reintegration over purely punitive approaches to minor criminal conduct.

5. How does the BNS 2023 protect women and children specifically? Chapter V of the BNS 2023 is dedicated to offences against women and children, covering sexual offences, criminal force and assault against women, offences relating to marriage, causing miscarriage, and offences against children, implementing India's obligations under CEDAW and the UN Convention on the Rights of the Child.

6. What protection does the BNS 2023 provide against custodial violence and arbitrary arrest? The BNS 2023 criminalises custodial violence and assault by public servants, implementing the principles from DK Basu v. State of West Bengal (1997) and Joginder Kumar v. State of UP (1994). Chapter VI's offences against wrongful restraint and confinement provide additional protection against arbitrary deprivation of liberty.

7. How does the BNS 2023 align with international human rights instruments? The BNS 2023 aligns with the UDHR, ICCPR, CEDAW, and the UN Convention on the Rights of the Child through its protections for life and security, prohibition of torture, presumption of innocence, protection against double jeopardy, and special provisions for children and women.

8. What is the significance of Chapter XIX's provision on the helpless and vulnerable? Chapter XIX of the BNS 2023 punishes a person who, being bound by a lawful contract to attend to a minor, diseased, or helpless person, voluntarily omits to do so. This creates a legally enforceable duty of care for the most vulnerable members of society backed by criminal sanction.

Key Takeaways

The BNS 2023, effective from 1 July 2024, replaced the Indian Penal Code, 1860 with a human rights-centred criminal code consisting of 358 sections across 20 chapters.

Human rights are universal, inalienable, indivisible, and interdependent and form the philosophical foundation of every provision of the BNS 2023.

The BNS 2023 aligns Indian criminal law with the constitutional guarantees of Articles 14, 19, 20, 21, and 22, making the Constitution the interpretive framework for every offence and exception.

Community service introduced as a reformative punishment for petty offences marks the BNS 2023's most visible departure from the purely punitive philosophy of the colonial IPC.

Chapter V's dedicated protections for women and children implement India's obligations under CEDAW and the UN Convention on the Rights of the Child directly into substantive criminal law.

Chapter VI's offences against wrongful restraint, wrongful confinement, and forced labour directly protect the right to personal liberty under Article 21 and the ICCPR.

The BNS 2023 prohibits torture and inhuman treatment by criminalising custodial violence and assault by public servants, implementing the landmark principles of DK Basu v. State of West Bengal (1997).

Landmark decisions from Hussainara Khatoon (1979) on speedy trials to K.S. Puttaswamy (2017) on privacy create the interpretive framework within which every provision of the BNS 2023 must be read.

Chapter XIX's protection of helpless and vulnerable persons creates a legally enforceable criminal duty of care that gives human rights protection to those least able to protect themselves.

The BNS 2023 represents India's most comprehensive attempt to align substantive criminal law with both its constitutional commitments and its international human rights obligations, making justice not merely a legal outcome but a human rights guarantee.

References

The Bharatiya Nyaya Sanhita, 2023, Act No. 45 of 2023, Government of India: The primary substantive criminal legislation replacing the Indian Penal Code, 1860, in force from 1 July 2024.

The Constitution of India, 1950: The foundational document containing the Fundamental Rights in Part III and Directive Principles in Part IV that together constitute the constitutional framework for human rights in India.

Universal Declaration of Human Rights, 1948: The foundational international human rights instrument establishing universal standards for the protection of human dignity and freedom.

International Covenant on Civil and Political Rights, 1966: The binding international treaty to which India is a signatory, establishing enforceable civil and political rights including the right to fair trial, presumption of innocence, and protection from torture.

International Covenant on Economic, Social and Cultural Rights, 1966: The complementary international treaty establishing economic, social, and cultural rights that inform India's restorative and victim-centric justice approach.

Maneka Gandhi v. Union of India, AIR 1978 SC 597: The landmark decision establishing that procedure under Article 21 must be fair, just, and reasonable and that Articles 14, 19, and 21 are constitutionally interlinked.

DK Basu v. State of West Bengal, (1997) 1 SCC 416: The decision establishing eleven mandatory guidelines for arrest and detention to prevent custodial violence and protect the rights of arrested persons.

Joginder Kumar v. State of UP, (1994) 4 SCC 260: The decision holding that arrest cannot be made merely because it is lawful and that necessity must be specifically established.

Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273: The decision issuing guidelines against mechanical arrest and requiring magistrates to apply mind before granting remand.

Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360: The foundational decision recognising the right to a speedy trial as a component of Article 21 and holding prolonged undertrial detention unconstitutional.

Zahira Habibullah Sheikh v. State of Gujarat, (2004) 4 SCC 158: The decision establishing that the right to fair trial includes protection of witnesses and that the state must ensure justice is not subverted.

Sheela Barse v. State of Maharashtra, AIR 1983 SC 378: The decision establishing protective custody requirements for women arrested and held in police custody.

Raghbir Singh v. State of Haryana, AIR 1980 SC 1087: The decision affirming that custodial violence is a direct violation of Article 21 and an affront to human dignity.

State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75: The decision establishing that classification of offences must have a reasonable nexus to the legislative objective to satisfy Article 14.

Vishaka v. State of Rajasthan, (1997) 6 SCC 241: The landmark decision establishing that sexual harassment is a violation of fundamental rights and issuing binding guidelines for workplace protection pending legislation.

K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1: The nine-judge bench decision recognising the right to privacy as a fundamental right under Article 21, directly relevant to the interpretation of all criminal procedure affecting personal information.

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