IPC Offences Omitted or Not Retained in the BNS: A Comprehensive Reference

When the Bharatiya Nyaya Sanhita, 2023, replaced the Indian Penal Code, 1860, it carried forward most of the substantive criminal law - but not all. A number of IPC offences were OMITTED, not retained in the new code. Some were omitted because they had already been struck down as unconstitutional (adultery, and the consensual-adult portion of Section 377). Some were omitted because they were obsolete or archaic, reflecting a colonial or bygone era (the offence relating to 'thugs', certain provisions on begging, and others). Some were omitted or reorganised as part of the consolidation and modernisation of the code. Understanding which IPC offences were NOT retained is as important as understanding what was carried forward and what was newly introduced - it reveals the choices the legislature made about what should no longer be criminal, and it alerts practitioners to the gaps and changes in the new code. This module provides a comprehensive reference on the IPC offences omitted or not retained in the BNS: the offences struck down as unconstitutional, the obsolete provisions omitted, the offences reorganised or subsumed, the notable gaps, and the significance of the omissions.

1. Introduction

What was not retained

The BNS carried forward most of the IPC, but a number of offences were NOT retained:

• Some were omitted because they had been struck down as unconstitutional.
• Some were omitted because they were obsolete or archaic.
• Some were reorganised or subsumed into other provisions.

Understanding the omissions is essential for the complete picture of the transition.

The categories of omission

The omitted/not-retained provisions fall into categories:

• STRUCK DOWN AS UNCONSTITUTIONAL: adultery (Section 497), and the position on Section 377.
• OBSOLETE/ARCHAIC: attempt to suicide (narrowed), the thug provision, and other archaic provisions.
• REORGANISED/CONSOLIDATED: some provisions merged or reorganised.

The significance of the omissions

The omissions are significant because:

• They reflect constitutional developments (Joseph Shine, Navtej Singh Johar).
• They reflect the decriminalisation of attempted suicide (Mental Healthcare Act 2017).
• They reflect the modernisation of the code (removing archaic provisions).
• Some omissions (particularly the Section 377 gap) have raised concerns.

2. Offences Struck Down as Unconstitutional

Some IPC offences were not retained because they had already been STRUCK DOWN or READ DOWN as unconstitutional by the Supreme Court:

• ADULTERY (Section 497 IPC): struck down as unconstitutional in Joseph Shine v Union of India (2018).
• SECTION 377 IPC (unnatural offences): the consensual-adult portion read down in Navtej Singh Johar v Union of India (2018).

The framework:

• These provisions had been declared unconstitutional (wholly or partly) before the BNS was enacted.
• The BNS reflects these constitutional developments by not retaining the struck-down provisions.
• The omission of these provisions is a consequence of the constitutional rulings.

The significance:

• The BNS aligns with the constitutional position established by the Supreme Court.
• It does not retain provisions that had been declared unconstitutional.
• This reflects the primacy of the constitutional rulings.

3. Adultery (Section 497 IPC): Joseph Shine

Adultery (Section 497 IPC) was struck down and NOT retained in the BNS:

• Section 497 IPC criminalised adultery - a man having sexual intercourse with a married woman without her husband's consent.
• It was struck down in Joseph Shine v Union of India (2018) as unconstitutional (violating Articles 14, 15, 21).
• The BNS did NOT retain adultery as a criminal offence.

The reasons for the omission:

• The Supreme Court had struck down adultery as unconstitutional before the BNS.
• The Court held that adultery treated women as property, denied their agency, and was based on gender stereotypes.
• Adultery may be a ground for divorce (civil consequence) but not a criminal offence.
• The BNS reflects this by not criminalising adultery.

The significance:

• The decriminalisation of adultery reflects the constitutional developments on gender equality and autonomy.
• The BNS aligns with the Joseph Shine ruling.
• Adultery remains a civil ground for divorce but is no longer a criminal offence.

4. Section 377 IPC: Navtej Singh Johar and the Gap

Section 377 IPC and its position in the BNS:

• Section 377 IPC criminalised 'unnatural offences' (carnal intercourse against the order of nature).
• In Navtej Singh Johar v Union of India (2018), the consensual-adult portion was read down (decriminalising consensual same-sex relations between adults).
• Section 377 continued to apply to NON-CONSENSUAL acts, and acts involving minors or animals.

The BNS position and the gap:

• The BNS did NOT carry forward a Section 377 equivalent.
• This has raised concerns about the GAP - the absence of a provision for NON-CONSENSUAL sexual acts against MEN (and against animals - bestiality).
• Rape (Section 63 BNS) is gender-specific (man against woman), so non-consensual sexual acts against men may not be adequately covered.

The concern:

• The omission of a Section 377 equivalent, combined with the gender-specific rape provision, leaves a potential gap for non-consensual sexual acts against men.
• It also leaves a gap on bestiality (which was covered by Section 377).
• This gap has been the subject of concern and discussion, with some courts and commentators noting the absence.

5. Attempt to Suicide (Section 309 IPC): Narrowed

Attempt to suicide (Section 309 IPC) was largely OMITTED/NARROWED in the BNS:

• Section 309 IPC criminalised ALL attempts to suicide.
• The BNS did not retain general attempted suicide as an offence.
• Section 226 BNS retains attempted suicide ONLY where done to compel or restrain a public servant.

The framework:

• General attempted suicide is NO LONGER a criminal offence under the BNS.
• This reflects the Mental Healthcare Act, 2017 (Section 115), which presumes severe stress and directs that persons who attempt suicide shall not be tried and punished.
• Section 226 BNS retains a narrow residual offence - attempted suicide to compel/restrain a public servant (e.g., coercive hunger strikes, threats of self-immolation to prevent official action).

The significance:

• The narrowing reflects the modern understanding of suicide as a mental health issue, not a crime.
• It aligns with the Mental Healthcare Act 2017 decriminalisation.
• The narrow residual offence (Section 226) targets only the misuse of attempted suicide to coerce public servants.
• (This is analysed in detail in the dedicated module on the right to die and Section 226.)

6. The Offence Relating to Thugs

The IPC offence relating to 'THUGS' (Section 310 IPC) was OMITTED in the BNS:

• Section 310 IPC defined a 'thug' as a person habitually associated with others for the purpose of committing robbery or child-stealing by means of murder.
• This was a colonial-era provision, reflecting the British campaign against 'thuggee' (organised ritual robbery and murder gangs) in the 19th century.
• The BNS did NOT retain the thug provision.

The reasons for the omission:

• The thug provision was OBSOLETE - the phenomenon of 'thuggee' it addressed was a 19th-century concern.
• It was an archaic, colonial-era provision with no modern relevance.
• Modern organised crime is addressed by the new organised crime provisions (Section 111 BNS).

The significance:

• The omission of the thug provision reflects the modernisation of the code.
• Archaic, colonial-era provisions with no modern relevance are removed.
• The concerns the thug provision addressed (organised crime) are now covered by the modern organised crime framework (Section 111).

7. Other Obsolete and Archaic Provisions

The BNS omitted or reorganised various other obsolete and archaic provisions:

• Certain provisions relating to specific colonial-era concerns.
• Provisions that had become redundant or were rarely used.
• Provisions consolidated into broader offences.
• Archaic language and concepts modernised.

The modernisation trend:

• The BNS removed or reorganised provisions that were obsolete, archaic, or redundant.
• This reflects the effort to modernise and streamline the code.
• The reduction from 511 IPC sections to 358 BNS sections partly reflects this streamlining.

The types of provisions affected:

• Colonial-era provisions with no modern relevance.
• Redundant or rarely-used provisions.
• Provisions consolidated into broader offences.
• Archaic definitions and concepts.

8. Provisions Reorganised or Subsumed

Some IPC provisions were REORGANISED or SUBSUMED rather than strictly omitted:

• Some IPC provisions were merged into broader BNS provisions.
• Some were reorganised under different chapters or sections.
• Some were subsumed into consolidated provisions.

The distinction from strict omission:

• STRICT OMISSION: the offence is no longer criminal (e.g., adultery).
• REORGANISATION/SUBSUMING: the substance is retained but reorganised (e.g., consolidated into a broader provision).

The significance:

• Not every provision that 'disappeared' from the IPC numbering was decriminalised.
• Many were reorganised or subsumed - the substance retained, the structure changed.
• It is important to distinguish true omissions (decriminalisation) from reorganisation (structural change with substance retained).

The practical point:

• When a familiar IPC section does not appear in the BNS, one must check whether the offence was OMITTED (decriminalised) or REORGANISED (retained under a different section).
• Most 'disappeared' IPC sections were reorganised/consolidated, not decriminalised.
• Only a few (adultery, the Section 377 gap, general attempted suicide, the thug provision) were genuinely omitted/decriminalised.

9. The Notable Gaps and Concerns

The omissions have created some NOTABLE GAPS and concerns:

• THE SECTION 377 GAP: the absence of a provision for non-consensual sexual acts against men, and for bestiality.
• Concerns about the adequacy of the gender-specific rape provision (Section 63) combined with the omission of Section 377.
• Other potential gaps arising from the omissions and reorganisation.

The Section 377 gap (the most significant concern):

• Section 377 IPC (post-Navtej Singh Johar) covered non-consensual acts against men, and bestiality.
• The BNS did not carry forward a Section 377 equivalent.
• Rape (Section 63 BNS) is gender-specific (man against woman).
• So non-consensual sexual acts against men, and bestiality, may not be adequately covered.

The concerns and discussion:

• This gap has been noted by courts, commentators, and law reform bodies.
• There have been calls to address the gap (e.g., by providing for non-consensual sexual acts against men).
• The adequacy of the BNS in this respect is a subject of ongoing concern.

The general concern:

• While most omissions reflect deliberate policy choices (decriminalising the unconstitutional, removing the archaic), some (particularly the Section 377 gap) may be unintended gaps that require attention.

10. The Section 377 Gap in Detail

The Section 377 gap deserves detailed attention as the most significant omission concern:

• SECTION 377 IPC criminalised 'carnal intercourse against the order of nature' - covering (before Navtej Singh Johar) consensual same-sex relations, non-consensual acts (against men or women), and bestiality.
• NAVTEJ SINGH JOHAR (2018) read down Section 377 to decriminalise CONSENSUAL same-sex relations between adults, leaving Section 377 to apply to non-consensual acts and bestiality.
• The BNS did NOT carry forward a Section 377 equivalent.

What the gap means:

• NON-CONSENSUAL SEXUAL ACTS AGAINST MEN: rape (Section 63 BNS) applies to a man against a woman - it does not cover non-consensual sexual acts against men. With Section 377 omitted, there may be no adequate provision for such acts.
• BESTIALITY: Section 377 covered bestiality (sexual acts with animals). With Section 377 omitted, bestiality may not be specifically criminalised.

The responses and discussion:

• Courts have noted the gap in various contexts.
• The Parliamentary Standing Committee and law reform discussions have addressed the gap.
• There have been suggestions to introduce a gender-neutral provision for non-consensual sexual acts, or to address the specific gaps.

The current position:

• The gap remains a subject of concern and discussion.
• Whether and how it will be addressed (by amendment or judicial interpretation) is an evolving question.
• The gap illustrates the complexity of the transition and the potential for unintended consequences in the omission of provisions.

11. The Significance of the Omissions

The significance of the IPC offences omitted or not retained in the BNS:

• CONSTITUTIONAL ALIGNMENT: the omission of adultery (Joseph Shine) and the Section 377 position (Navtej Singh Johar) reflect the BNS's alignment with the constitutional rulings.
• DECRIMINALISATION OF ATTEMPTED SUICIDE: the narrowing of attempted suicide reflects the Mental Healthcare Act 2017 and the modern understanding of suicide as a mental health issue.
• MODERNISATION: the omission of archaic provisions (the thug provision, other obsolete provisions) reflects the modernisation of the code.
• GAPS AND CONCERNS: some omissions (particularly the Section 377 gap) have raised concerns about unintended gaps.

The overall assessment:

• Most omissions reflect deliberate and justified policy choices - decriminalising the unconstitutional (adultery), aligning with constitutional rulings (Section 377), reflecting modern understanding (attempted suicide), and removing the archaic (thug provision).
• But some omissions (the Section 377 gap) have raised concerns about unintended consequences.
• Understanding the omissions is essential for the complete picture of the transition - it reveals what the legislature chose to decriminalise, and it alerts practitioners to the gaps and changes.

The practical importance:

• Practitioners must know which IPC offences were NOT retained - both the deliberate decriminalisations and the potential gaps.
• This is essential for advising on whether conduct that was an IPC offence remains criminal under the BNS.
• It complements the understanding of what was carried forward (continuities) and what was newly introduced (new offences).

12. Landmark Cases and Consolidated Judgments

Consolidated Landmark Judgments

• Joseph Shine v. Union of India, (2019) 3 SCC 39. Adultery decriminalised.
• Navtej Singh Johar v. Union of India, (2018) 10 SCC 1. Section 377 read down; BNS gap.
• Gian Kaur v. State of Punjab, (1996) 2 SCC 648. Attempted suicide framework.
• P. Rathinam v. Union of India, (1994) 3 SCC 394. Attempted suicide debate.
• K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1. Privacy underpinning decriminalisations.
• Sowmithri Vishnu v. Union of India, (1985) Supp SCC 137. Earlier adultery position (overruled).
• Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1. Earlier Section 377 position (overruled).
• Naz Foundation v. Government of NCT of Delhi, (2009) Del HC. The Section 377 journey.
• V. Revathi v. Union of India, (1988) 2 SCC 72. Earlier adultery framework.
• Yusuf Abdul Aziz v. State of Bombay, AIR 1954 SC 321. Earliest adultery framework.
• Aruna Shanbaug v. Union of India, (2011) 4 SCC 454. Framework related to the right to die/suicide.
• Common Cause v. Union of India, (2018) 5 SCC 1. Right to die with dignity framework.
• Mental Healthcare Act 2017 framework. Attempted suicide decriminalisation.
• NALSA v. Union of India, (2014) 5 SCC 438. Transgender rights framework (related to Section 377 context).
• Shakti Vahini v. Union of India, (2018) 7 SCC 192. Autonomy and choice framework.

Frequently Asked Questions

Which major IPC offences were not retained in the BNS?

The major IPC offences NOT retained in the BNS fall into categories: (i) STRUCK DOWN AS UNCONSTITUTIONAL - ADULTERY (Section 497 IPC), struck down in Joseph Shine v Union of India (2018), not retained; SECTION 377 IPC (unnatural offences), the consensual-adult portion read down in Navtej Singh Johar (2018), and the BNS did not carry forward a Section 377 equivalent; (ii) OBSOLETE/ARCHAIC - ATTEMPT TO SUICIDE (Section 309 IPC), largely omitted/narrowed (Section 226 BNS retains it only for compelling a public servant, reflecting the Mental Healthcare Act 2017); the offence relating to 'THUGS' (Section 310 IPC), a colonial-era provision; certain other archaic provisions; (iii) REORGANISED/CONSOLIDATED - some provisions merged or reorganised. It is important to distinguish TRUE OMISSIONS (decriminalisation - adultery, Section 377 gap, general attempted suicide, thug provision) from REORGANISATION (substance retained under a different section). Most 'disappeared' IPC sections were reorganised/consolidated, not decriminalised - only a few were genuinely omitted.

Why was adultery not retained in the BNS?

Adultery (Section 497 IPC) was not retained because it had been STRUCK DOWN as unconstitutional in Joseph Shine v Union of India (2019) 3 SCC 39, before the BNS was enacted. A five-judge Constitution Bench held that Section 497 violated Articles 14, 15, and 21 - it treated women as the property of their husbands, denied women agency, and was based on gender stereotypes (only the man could be prosecuted, the woman was treated as a victim/property, and the husband's consent was determinative). The Court held that adultery may be a GROUND FOR DIVORCE (a civil consequence) but should NOT be a CRIMINAL offence. The BNS reflects this ruling by NOT criminalising adultery. The significance: the decriminalisation of adultery reflects the constitutional developments on gender equality and autonomy (underpinned by the privacy judgment, K.S. Puttaswamy). The BNS aligns with the Joseph Shine ruling - adultery remains a civil ground for divorce but is no longer a criminal offence. This is a deliberate and justified omission, reflecting the primacy of the constitutional ruling that had already struck down the provision.

What is the Section 377 gap in the BNS?

The Section 377 gap is the most significant omission concern in the BNS. Section 377 IPC criminalised 'carnal intercourse against the order of nature'. In Navtej Singh Johar v Union of India (2018), the Supreme Court READ DOWN Section 377 to decriminalise CONSENSUAL same-sex relations between adults, while Section 377 CONTINUED to apply to NON-CONSENSUAL acts and BESTIALITY. The BNS did NOT carry forward a Section 377 equivalent. This creates a GAP: (i) NON-CONSENSUAL SEXUAL ACTS AGAINST MEN - rape (Section 63 BNS) is gender-specific (man against woman), so it does not cover non-consensual sexual acts against men; with Section 377 omitted, there may be no adequate provision for such acts; (ii) BESTIALITY - Section 377 covered sexual acts with animals; with Section 377 omitted, bestiality may not be specifically criminalised. The concern: the omission of a Section 377 equivalent, combined with the gender-specific rape provision, leaves potential gaps for non-consensual acts against men and for bestiality. This gap has been noted by courts, commentators, and law reform bodies, with calls to address it. Whether and how it will be addressed (by amendment or judicial interpretation) is an evolving question. The gap illustrates the complexity of the transition and the potential for unintended consequences in omitting provisions.

Is attempt to suicide still a crime under the BNS?

Largely NO. Section 309 IPC criminalised ALL attempts to suicide. The BNS did NOT retain general attempted suicide as an offence. Section 226 BNS retains attempted suicide ONLY where done to COMPEL or RESTRAIN a PUBLIC SERVANT (e.g., coercive hunger strikes, threats of self-immolation to prevent official action). So GENERAL attempted suicide is NO LONGER a criminal offence under the BNS. This reflects: (i) the MENTAL HEALTHCARE ACT, 2017 (Section 115), which presumes that a person who attempts suicide has severe stress and directs that they shall NOT be tried and punished; (ii) the modern understanding of suicide as a MENTAL HEALTH ISSUE, not a crime - a person who attempts suicide needs care and rehabilitation, not punishment. The narrow residual offence (Section 226) targets only the MISUSE of attempted suicide to coerce public servants (not genuine suicide attempts arising from distress). The significance: the narrowing reflects the decriminalisation of attempted suicide, aligning with the Mental Healthcare Act 2017 and the compassionate understanding of suicide. It represents a deliberate and justified omission of the general offence, retaining only the narrow residual provision for coercive use against public servants.

What happened to the IPC offence relating to thugs?

The IPC offence relating to 'THUGS' (Section 310 IPC) was OMITTED in the BNS. Section 310 IPC defined a 'thug' as a person HABITUALLY ASSOCIATED with others for the purpose of committing robbery or child-stealing by means of murder. This was a COLONIAL-ERA provision, reflecting the British campaign against 'thuggee' (organised ritual robbery and murder gangs) in 19th-century India - a specific historical phenomenon. The BNS did NOT retain the thug provision. The reasons for the omission: (i) the thug provision was OBSOLETE - the phenomenon of 'thuggee' it addressed was a 19th-century concern with no modern relevance; (ii) it was an ARCHAIC, colonial-era provision; (iii) modern ORGANISED CRIME is addressed by the new organised crime provisions (Section 111 BNS). The significance: the omission of the thug provision reflects the MODERNISATION of the code - archaic, colonial-era provisions with no modern relevance are removed. The concerns the thug provision addressed (organised robbery/murder gangs) are now covered by the modern organised crime framework (Section 111 BNS), which addresses contemporary organised crime comprehensively. This is a deliberate and justified omission, removing an obsolete provision while addressing its underlying concern (organised crime) through a modern framework.

How do I know if a missing IPC section was decriminalised or just reorganised?

This is a crucial practical question. When a familiar IPC section does not appear in the BNS, you must check whether the offence was OMITTED (decriminalised) or REORGANISED (retained under a different section). The distinction: (i) TRUE OMISSION (decriminalisation) - the offence is NO LONGER CRIMINAL (e.g., adultery, general attempted suicide); (ii) REORGANISATION/SUBSUMING - the SUBSTANCE is RETAINED but reorganised/renumbered (e.g., consolidated into a broader provision). The key point: MOST 'disappeared' IPC sections were REORGANISED or CONSOLIDATED, NOT decriminalised. Only a FEW were genuinely omitted/decriminalised (adultery, the Section 377 gap, general attempted suicide, the thug provision, and some archaic provisions). To determine which: (i) check whether the offence corresponds to a BNS provision (even if renumbered or consolidated) - if so, it was reorganised, not decriminalised; (ii) check whether the offence was struck down as unconstitutional (adultery, Section 377) or falls in the omitted categories (attempted suicide, thug provision) - if so, it was omitted/decriminalised. The renumbering table (IPC to BNS) is essential for tracing whether a familiar IPC section was retained (under a new number) or omitted. Practitioners must carefully distinguish true omissions (where conduct is no longer criminal) from reorganisation (where the offence continues under a different section) to correctly advise on whether conduct remains criminal under the BNS.

Related Topics on The Legal Bridge

For a fuller picture, read these companion notes on adjacent doctrines and provisions:

• BNS vs IPC Complete Comparative Study: the comprehensive comparison including the omitted provisions.
• New Offences Introduced by BNS: the counterpart - offences newly introduced (as opposed to omitted).
• Right to Life and Right to Die: the framework for attempted suicide and its decriminalisation (Section 226).
• Important Renumbering IPC to BNS: the reference for tracing which IPC sections were retained (renumbered) vs omitted.