The Bharatiya Nyaya Sanhita Act (BNSA) 2023: Implications for Forensic Psychiatry in India

The Bharatiya Nyaya Sanhita Act (BNSA) 2023, passed by the Indian Parliament on December 21, 2023, ¹ marks a significant turning point for the legal landscape in India. Intended to replace the colonialera Indian Penal Code (IPC) 1860, ² the BNSA 2023 aims to modernize India’s criminal justice system. The convergence of mental health and the criminal justice system presents intricate challenges for both legal professionals and mental health experts. While the Mental Health Care Act (MHCA) 2017 signaled a crucial shift toward protecting the rights of those with mental illness, the recently passed BNSA 2023 offers both progress and missed opportunities. This article offers a critical analysis of the BNSA from a forensic psychiatry perspective, examining both the introduced changes and the persistent reliance on outdated concepts concerning mental illness.

Evolving Approach Toward Suicide: From Criminalization to Care

Historically, attempted suicide in India was considered a criminal offense under section 309 of the IPC, a provision dating back to the colonial era. According to section 309 of IPC-

Whoever attempts to commit suicide and does any act towards the commission of such offense shall be punished with simple imprisonment for a term which may extend to 1 year or with fine, or with both.

However, a significant shift occurred after the MHCA 2017 was enacted. Section 115 of MHCA 2017 states that any person attempting suicide is presumed to be experiencing severe stress unless proven otherwise and thus exempted from being tried and punished. ³ The law additionally stipulates that the government must offer care, treatment, and rehabilitative services to lessen the likelihood of future suicide attempts.

Building upon the foundation laid by the MHCA 2017, the BNSA 2023 omits IPC Section 309 but introduces a new offense under Section 226 of the BNSA. This repeal of the outdated provision of IPC 309 marks a profound paradigm shift, recognizing that attempted suicide often stems from mental distress and necessitates a public health approach focused on support, treatment, and rehabilitation. This aspect of the BNSA 2023 aligns with international standards and encourages a culture of compassion and support. Individuals are more likely to seek help without fear of legal repercussions. Such legislative changes pave the way for destigmatizing mental health issues and promoting inclusive strategies that prioritize the well-being of all citizens.

Newly enacted Section 226 of the BNSA 2023 states that—

Whoever attempts to commit suicide with the intent to compel or restrain any public servant from discharging his official duty shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both, or with community service.

This creates a new area of intersection with forensic psychiatry. Forensic evaluations may be required in cases where the courts need to assess the mental state of the accused, particularly regarding intent and capacity. Section 115 of the Mental Healthcare Act presumes that all suicide attempts are due to severe stress unless proven otherwise. Therefore, it is the responsibility of the authorities to prove that an attempt was not related to severe stress but rather an attempt to compel a public servant, as specified in section 226 of the BNSA. However, the practical implementation of this provision remains uncertain. Additionally, the new offense risks undermining the decriminalization of suicide and perpetuating stigma around mental health issues. Close monitoring of its application will provide valuable insights as it intersects with mental health issues.

With these changes, medical practice in India has shifted from recording all cases with a history of suicide as Medicolegal Cases (MLC) to prioritizing clinical care, reflecting a more compassionate approach toward mental health crises. However, the Bharatiya Nyaya Sanhita (BNS) maintains punishment for abetment to suicide (section 108 of BNS, corresponding to section 306 of IPC). It introduces punishment for attempts to commit suicide to influence a public servant (BNS 226). These provisions under the BNSA 2023 necessitate maintaining MLC registration under specified conditions for attempted suicide, such as when there is suspicion of abetment or foul play. Table 1 highlights times when a medical practitioner needs to consider MLC when dealing with suicide.

Table 1.

Suggested Recommendations for Medico-Legal Case (MLC) Registration in Attempted Suicide Incidents for Medical Officers.

Scenario	Suspicion of Foul Play	Capacity to Consent	Medically Stable	Recommendation for MLC* Registration
1	Not known	Present	Yes	Decision to register MLC based on patients’ report
2	Not known	Present	No	Register as MLC
3	Not known	Absent	Yes	Register as MLC
4	Evident	–	–	Register as MLC

Register as MLC if in doubt; however, clinical care should take precedence over legal requirement.

*MLC: Medicolegal Case.

Expanding the Punishment Option to Community Services

Section 53 of the IPC outlines the six forms of punishment: the death penalty, imprisonment for life, rigorous and simple imprisonment, forfeiture of property, and fine. ² Imprisonment, a common punitive measure, has been consistently linked to detrimental effects on mental health outcomes, highlighting the critical need for legislative reforms that prioritize therapeutic interventions over punitive measures.^4,5 Community service, introduced as an alternative to short-term imprisonment, gained international attention as a rehabilitation or restorative penal measure. This led to its adoption in various countries worldwide, including continental Europe, Australia, Canada, and New Zealand. At the same time, its implementation remains localized and patchy in the United States and limited in Asia and Africa. ⁶ In India, till now, only “The Juvenile Justice (Care And Protection Of Children) Act, 2015” had provisions for community sentencing in section 18(1)(c) as a punishment order for “children in conflict with the law” ⁷ as follows

Order the child to perform community service under the supervision of an organization or institution, or a specified person, persons or group of persons identified by the Board.

Historically, the IPC lacked provisions for community service despite attempts to introduce them. The Indian Penal Code (Amendment) Bill of 1978 proposed integrating community service orders within the penal code as punishments for various offenses. However, the Bill was not enacted, as the Law Commission of India did not recommend community service as an alternative mode of punishment. ⁸ Notably, with the BNSA 2023, we have made progress in introducing an additional sentencing option in the form of community service for minor offenses. However, the specifics of supervision, duration, and nature of work require clarification.

In Singapore, the offender will perform community order that aligns with the offense, aiming to repair the harm caused and promote a sense of responsibility. ⁹ Aligning assigned community work with the committed offense, such as mental health awareness activities for attempted suicide cases that fall under section 226 of BNSA 2023, presents a constructive alternative to incarceration. An overview of the provisions relevant to forensic psychiatry practice, as inherited from the IPC in BNSA 2023, and the significant amendments introduced by BNSA 2023 compared to the IPC are outlined in Tables 2 and 3 , respectively.

Table 2.

Unchanged Provisions in the BNSA relevant to Forensic Psychiatry.

Heading	Section in IPC	Section in BNSA
Act of a person of unsound mind	84	22
Act of a person incapable of judgment by reason of intoxication caused against his will	85	23
An offense requiring a particular intent or knowledge committed by one who is intoxicated	86	24
Consent known to be given under fear or misconception	90	28
Right of private defense against the act of a person of unsound mind	98	36
Abetment of suicide of an insane person	305	107
Making false documents by exploiting a victim’s unsoundness of mind or deception	464	335
Wrongful restraint	339–348	126 & 127

Indian Penal Code (IPC) of 1860 and Bharatiya Nyaya Sanhita Act (BNSA) of 2023.

Table 3.

Changed Provisions in the BNSA and Relevance to Forensic Psychiatry.

IPC Section	Details in IPC	BNS Section	Details in BNS	Remarks
53	The punishments to which offenders are liable under the provisions of this Code are— First—Death; Second—Imprisonment for life; Fourth—Imprisonment, which is of two descriptions, namely:— (1) Rigorous, that is, with hard labor; (2) Simple; Fifth—Forfeiture of property; Sixth—Fine	4	The punishments to which offenders are liable under the provisions of this Sanhita are— (a) Death; (b) Imprisonment for life; (c) Imprisonment, which is of two descriptions, namely—(1) Rigorous, that is, with hard labor; (2) Simple; (d) Forfeiture of property; (e) Fine; (f) Community service	Community service added
89	Act done in good faith for benefit of child or insane person, by or by consent of guardian—Nothing which is done in good faith for the benefit of a person under 12 years of age, or of unsound mind, by or by consent, either express or implied, of the guardian or other person having lawful charge of that person, is an offense by reason of any harm which it may cause, or be intended by the doer to cause or be known by the doer to be likely to cause to that person:	27	Act done in good faith for benefit of child or person of unsound mind, by, or by consent of guardian— Nothing which is done in good faith for the benefit of a person under 12 years of age, or person of unsound mind, by, or by consent, either express or implied, of the guardian or other person having lawful charge of that person, is an offense by reason of any harm which it may cause, or be intended by the doer to cause or be known by the doer to be likely to cause to that person	Terminology changed
305	Abetment of suicide of child or insane person—If any person under 18 years of age, any insane person, any delirious person, any idiot, or any person in a state of intoxication, commits suicide, whoever abets the commission of such suicide, shall be punished with death or imprisonment for a term not exceeding 10 years, and shall also be liable to fine.	107	Abetment of suicide of child or person of unsound mind—If any child, any person of unsound mind, any delirious person or any person in a state of intoxication, commits suicide, whoever abets the commission of such suicide, shall be punished with death or imprisonment for life, or imprisonment for a term not exceeding 10 years, and shall also be liable to fine	Terminology changed
309	Attempt to commit suicide—Whoever attempts to commit suicide and does any act toward the commission of such offense, shall be punished with simple imprisonment for a term which may extend to one year 3 [or with fine, or with both]			Removed
		226	Attempt to commit suicide to compel or restrain exercise of lawful power— Whoever attempts to commit suicide with the intent to compel or restrain any public servant from discharging his official duty shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both, or with community service.	Added
510	Misconduct in public by a drunken person— Whoever, in a state of intoxication, appears in any public place, or in any place which it is a trespass in him to enter, and there conducts himself in such a manner as to cause annoyance to any person, shall be punished with simple imprisonment for a term which may extend to 24 hours, or with fine which may extend to ten rupees, or with both	355	Misconduct in public by a drunken person— Whoever, in a state of intoxication, appears in any public place, or in any place which it is a trespass in him to enter, and there conducts himself in such a manner as to cause annoyance to any person, shall be punished with simple imprisonment for a term which may extend to 24 hours, or with fine which may extend to one thousand rupees, or with both or with community service	Punishment modified

Indian Penal Code (IPC) of 1860 and Bharatiya Nyaya Sanhita Act (BNSA) of 2023. Remarks are based on the comparison of these legal provisions.

Terminological Reforms and the Issue of the Term “Unsoundness of Mind”

The BNSA takes a positive step by eliminating outdated and potentially prejudicial terms such as “lunatic” and “insane.” However, the retention of the term “person of unsound mind” remains a concern, as it continues to perpetuate stigma against persons with mental illness. During the initial drafting of the BNSA in the Bill, the more acceptable term “person with mental illness,” as defined in MHCA 2017, was considered. Unfortunately, the Parliamentary Standing Committee reverted to the term “person of unsound mind,” citing a need for precise differentiation between medical insanity and legal insanity in criminal proceedings. ¹⁰

While recognizing the importance of distinguishing between medical and legal insanity, we advocate for exploring more inclusive terminology. For example, section 22 of BNSA 2023 provides a defense for acts of a “person of unsound mind.” In numerous other jurisdictions across the globe, the terminology for the defense for acts of “person of unsound mind” has been replaced with alternative terms such as “defense of person with mental impairment,” ¹¹ “non-responsibility because of mental disorder,” ¹² or “not guilty/criminally responsible because of mental impairment/illness.” These alternatives reflect a commitment to precision while avoiding stigmatizing language. By selecting appropriate and contextually defined words within the BNSA 2023, we can ensure legal terminology remains precise and sensitive to mental health concerns.

Revisiting the Insanity Defense: Perspectives and Prospects

The BNSA 2023 retains a legal framework similar to IPC 84 regarding the insanity defense, outlined in section 22 of the BNSA 2023. This section details the “act of a person of unsound mind” and states

“Nothing is an offense which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.”

The origins of the insanity defense lie in the M’Naghten rules established by the UK House of Lords in 1843. Remarkably, these rules continue to serve as the basis for the insanity defense in India over 180 years later. The M’Naghten test primarily evaluates the defendant’s cognitive capacity at the time of the offense or the “test of knowing” without considering the affective (emotional) and volitional (control over actions) dimensions of mental illness. ¹³ The proponents of the M’Naghten rules in the UK have recognized the limitations of solely relying on an “insanity” defense and have significantly reformed their approach to accommodate the complexities of mental illness better.

Significant progress has been made in understanding the neuroscience of the brain, mental illness, and its association with offending. This progress has provided valuable insights into the complexities of mental health within the legal context. So, the legal system must take note of these critical changes, thereby allowing a robust discussion on this. Noteworthy changes in its application in law include abolishing the insanity defense in a few states in the United States. ¹⁴ The argument there was that the insanity defense enabled people with mental illness to avoid the consequences of their actions. Another argument for abolishing the insanity defense was that the legal frameworks that shaped it fell short of ensuring fair outcomes for offenders who met its criteria. However, our argument does not advocate for a complete abolishment of the mental impairment defense, as seen in some US states.

In contrast, approaches in European countries demonstrate greater commitment to changes in mental health legislatures. For example, the English legal system incorporates the concept of defense of diminished responsibility by the Homicidal Act of 1957. ¹⁵ Diminished responsibility is a legal defense that acknowledges mental illness can lessen a defendant’s culpability, potentially reducing a murder charge to manslaughter. This recognition acknowledges that mental illness can influence criminal culpability without completely absolving the defendant of responsibility for their actions. India also considered including “diminished responsibility” in the IPC, as evidenced by the 42nd report of the Law Commission of India in 1971. ¹⁶ However, despite these considerations, no significant reforms were adopted, suggesting that the current legal framework in India may not adequately recognize diminished capacity.

With the introduction of the BNSA 2023, there were expectations for reforms in this realm. However, section 22 of the BNSA 2023 maintains the insanity defense as in section 84 of the IPC, with no major reforms. Considering the global advancements in mental health legislation over the last century, the BNSA 2023 represents a missed opportunity for reform within the Indian legal system. Given the subsequent progress in neuroscience understanding and legal reforms through enactments like the MHCA 2017, the timing was ideal for revisiting laws about mental illness. Unfortunately, the absence of deliberations on “diminished responsibility” and “insanity defense” is regrettable.

Moreover, broader discussions on expanding the scope of section 22 of BNSA to encompass non-cognitive aspects (volitional and affective) of mental illness and their influence on behavior beyond cognitive factors alone would have been beneficial. Such adjustments could facilitate fairer sentencing for mentally ill offenders, ensuring that the justice system accounts for the full complexity of their actions and mental state. The BNSA 2023, in its reformative stride, directly and indirectly, impacts various facets of forensic psychiatry. Forensic psychiatrists will need specific training in understanding and navigating the revised legal processes. The Act’s comprehensive overhaul of judicial procedures and its emphasis on efficiency have several implications for the practice and application of forensic psychiatry in India.