The Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023 replaces select portions of the Code of Criminal Procedure (CrPC) 1973 and, in doing so, rewrites India’s response to accused persons whose mental condition prevents them from mounting a defence. The reform moves beyond outdated language and narrow categories, extends wider substantive protection, and tightens procedural safeguards.
1. Structural Re-location of the Law
CrPC housed the rules in Chapter XXV, Sections 328 – 339. BNSS mirrors this structure in Chapter XXVII, Sections 367 – 378, ensuring continuity for practitioners while signalling a fresh policy outlook.
2. Terminology: From Stigma to Dignity
CrPC still used “lunatic” and “mental retardation,” expressions laden with stigma. BNSS abandons them for “person of unsound mind,” “mental illness,” and “intellectual disability,” language that aligns with the Rights of Persons with Disabilities Act 2016 and contemporary psychiatry.
3. The Core Substantive Shift: Expanded Diagnostic Net
By substituting “mental retardation” with “intellectual disability,” BNSS widens the gateway to include conditions such as autism spectrum disorder, specific learning disabilities and degenerative dementias like Alzheimer’s. The Kerala High Court in V.I. Thankappan v. State of Kerala confirmed that this broader definition applies even to cases filed before BNSS came into force, to avoid violating constitutional guarantees of equality and fair trial.
4. Key Procedural Innovations
4.1 Medical Assessment
Both statutes still require an initial medical opinion from a civil surgeon and referral to a psychiatrist or clinical psychologist (CrPC s.328; BNSS s.367). The right of appeal to a Medical Board is retained, preserving procedural fairness.
4.2 Release Pending Trial
Section 330 CrPC allowed conditional bail for non-violent offenders found incapable of defence. BNSS s.369 now lets courts grant bail in all cases—bailable or otherwise—so long as in-patient care is unnecessary and a relative undertakes to secure out-patient treatment.
4.3 Treatment Standards
Detention or care under BNSS must comply with the Mental Healthcare Act 2017, a statute that did not exist when the CrPC provisions were drafted, thereby modernising safeguards for involuntary treatment.
4.4 Discharge Decisions
Where CrPC spoke only of “mental retardation,” BNSS empowers courts to order discharge whenever any intellectual disability renders a fair trial impossible, subject to medical advice and public-safety undertakings.
5. Comparative Snapshot
| Aspect | CrPC 1973 | BNSS 2023 |
|---|---|---|
| Governing chapter & sections | Ch. XXV, 328 – 339 | Ch. XXVII, 367 – 378 |
| Core terminology | “Unsound mind” + “mental retardation” | “Unsound mind,” “mental illness,” “intellectual disability” |
| Conditions covered | Narrow focus on mental retardation | Broader intellectual disabilities (e.g., autism, dementia) |
| Bail while incapable of defence | Possible but limited under s.330 | Mandatory consideration in all cases under s.369; outpatient-care undertaking |
| Statutory treatment framework | Mental Health Act 1987 reference | Mental Healthcare Act 2017 compliance |
| Retrospective application | Not addressed | Applied retrospectively by Kerala HC in Thankappan |
Legal practitioners must now evaluate accused persons under the wider umbrella of intellectual disability, not just unsoundness of mind or mental retardation. Bail applications have stronger footing, psychiatric care orders must meet 2017-Act standards, and pending CrPC matters can invoke BNSS safeguards to satisfy Article 21’s fair-trial requirement.
7. Conclusion
BNSS 2023 marks a decisive move from a purely medical-custodial model toward a rights-based, bio-psychosocial framework. By modernising language, enlarging substantive protection, and tightening procedural fairness, the Sanhita offers a more humane and constitutionally robust response to accused persons whose mental condition impedes their defence—fulfilling both public-safety and human-dignity imperatives.
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