Offences Against Cybercrime under the Bharatiya Nyaya Sanhita, 2023 (BNS)
- Megha Rodrigues
- 7 hours ago
- 10 min read
Written by: Megha Rodrigues, B.A.LL.B, University of Mumbai
1. Abstract
The exponential growth of information and communication technology has fundamentally altered the social, economic, and legal landscape of modern societies. While digitalisation has enhanced efficiency, accessibility, and innovation, it has simultaneously facilitated the emergence of cybercrime as a serious threat to individuals, institutions, and the State. India has witnessed a steady rise in cyber offences such as online fraud, identity theft, cyberstalking, data breaches, and digital sexual exploitation. Historically, such offences were regulated through a combination of provisions under the Information Technology Act, 2000 and the Indian Penal Code, 1860. With the replacement of the IPC by the Bharatiya Nyaya Sanhita, 2023 (BNS), Indian criminal law has undergone a significant transformation.
This research paper provides a comprehensive and critical analysis of offences against cybercrime under the Bharatiya Nyaya Sanhita, 2023. It examines how traditional criminal offences—such as cheating, forgery, impersonation, criminal intimidation, obscenity, and defamation—are applied in the cyber domain. The paper further analyses judicial responses to cybercrime through landmark case laws and evaluates whether the BNS adequately addresses the evolving nature of digital criminality. By adopting a doctrinal and analytical approach, this study aims to contribute original academic insight and provide a publication-ready legal analysis of cybercrime under the new criminal law framework.
2. Introduction
The digital revolution has transformed the manner in which individuals communicate, conduct business, and interact with the State. The internet, social media platforms, cloud computing, and digital payment systems have become integral to daily life. However, the same technological tools that facilitate convenience and growth have also created opportunities for criminal misuse. Cybercrime has emerged as one of the most complex and rapidly evolving forms of criminal activity, transcending geographical boundaries and challenging traditional legal frameworks.
Cybercrime may broadly be understood as any unlawful act committed using computers, digital devices, networks, or cyberspace as a tool, target, or place of commission. Unlike conventional crimes, cyber offences often involve anonymity, jurisdictional complexities, and sophisticated technological methods, making detection and prosecution difficult. In India, the increasing penetration of the internet and digital services has been accompanied by a sharp rise in cyber offences, particularly targeting vulnerable users.
The Indian Penal Code, 1860, was enacted in a pre-digital era and was not designed to address crimes committed through electronic means. To bridge this gap, the Information Technology Act, 2000 was enacted as a special legislation dealing specifically with electronic records and cyber offences. Nevertheless, many cybercrimes continued to be prosecuted using IPC provisions relating to cheating, forgery, defamation, obscenity, and criminal intimidation. Recognising the need for comprehensive reform, the Bharatiya Nyaya Sanhita, 2023 was enacted to replace the IPC and modernise substantive criminal law.
This paper focuses on the treatment of cybercrime-related offences under the Bharatiya Nyaya Sanhita, 2023, read in harmony with the Information Technology Act, 2000. It analyses the relevance, scope, and effectiveness of BNS provisions in addressing cyber offences and protecting digital rights in contemporary India.
3. Evolution of Cybercrime Laws in India
Before the enactment of the IT Act, 2000, cyber offences were prosecuted under traditional IPC provisions such as cheating, forgery, and criminal breach of trust. The IT Act introduced technology-specific offences and legal recognition of electronic records. However, the IPC continued to apply to the substantive criminal aspects of cyber offences.
The Bharatiya Nyaya Sanhita, 2023, continues this dual-structure approach by complementing the IT Act rather than replacing it. The BNS modernises terminology and punishment while recognising cybercrime as a serious threat to national security, the economy, and individual rights.
4. Concept and Nature of Cybercrime
Cybercrime may be classified into:
1. Crimes against individuals (cyberstalking, online harassment, identity theft)
2. Crimes against property (data theft, ransomware, online fraud)
3. Crimes against society (obscenity, hate speech, misinformation)
4. Crimes against the State (cyber terrorism, attacks on critical infrastructure)
Cybercrime is characterised by anonymity, cross-border operation, rapid execution, and difficulty in evidence collection, necessitating specialised legal and procedural mechanisms.
5. Cybercrime under the Bharatiya Nyaya Sanhita, 2023
1. Absence of a Separate Cybercrime Chapter
Unlike the IT Act, the BNS does not provide a distinct chapter on cybercrime. Instead, cyber offences are addressed through general penal provisions when committed using electronic means. This reflects the legislative intent to treat cybercrime as a method of committing crime rather than a separate category.
2. Organised Cybercrime – Section 111 BNS
Section 111 of the BNS casts a wide net over activities including “kidnapping, robbery, economic offence, cyber-crimes” when carried out as part of syndicate activity. This represents a statutory recognition that cybercrime—when committed by criminal organisations—constitutes aggravated criminal behaviour. Penalties under organised crime provisions are significantly more stringent than standalone punishments for individual acts.
Key features:
Cyber-crimes become an element of organised crime when committed as part of a continuing unlawful enterprise.
Organised crime provisions allow prosecution of actors, financiers, and facilitators alike.
3. Cyber-Enabled Traditional Offences
The following offences under the BNS are commonly applied to cybercrime:
Ø Cheating and fraud committed through online platforms
Ø Criminal intimidation and cyberstalking
Ø Defamation through social media and digital publications
Ø Publication and transmission of obscene material in electronic form
The electronic mode acts as an aggravating factor rather than excluding liability under the BNS.
6. Legal Framework for Cybercrime in India: BNS and IT Act
1. BNS, 2023
The BNS is India’s new penal code, replacing the colonial-era Indian Penal Code (IPC) as of July 1, 2024. It retains core offences while modernising statutory language and accommodating contemporary crimes, including cyber-enabled wrongdoing.
A notable feature of the BNS is Section 111, which includes “cyber-crimes” within the definition of organised crime—indicating that when such conduct is part of a continuing unlawful activity by a syndicate, it attracts severe penal consequences.
However, the BNS does not contain a chapter exclusively titled “Cybercrimes.” Instead, offences traditionally viewed as cybercrimes are prosecuted under general provisions of the BNS when conducted through digital or electronic means.
2. Information Technology Act, 2000
The IT Act remains the primary statute detailing digital offences specific to computing technology—such as unlawful access, data theft, identity misuse, electronic fraud, and publishing sexually explicit digital content. The BNS complements the IT Act by addressing underlying criminal conduct that may occur offline or online.
7. Literature Review
The study of cybercrime in India has primarily revolved around the Information Technology Act, 2000 and judicial interpretation of IPC provisions in cyber contexts. Early academic works highlighted the inadequacy of traditional criminal law in addressing offences committed through electronic means. Ratanlal and Dhirajlal observed that while the IPC was broad in scope, its application to cyber offences required extensive judicial interpretation.¹
K.D. Gaur analysed the challenges posed by technological advancement to criminal jurisprudence and emphasised the need for continuous legal reform.² Several scholars have examined specific cyber offences such as online fraud, cyber defamation, and digital obscenity, often focusing on case law analysis under the IT Act. However, much of the existing literature predates the enactment of the Bharatiya Nyaya Sanhita, 2023.
Recent commentaries on the BNS have acknowledged its role in modernising criminal law but have largely focused on structural changes rather than a detailed analysis of cyber offences. There remains a notable gap in academic literature concerning a systematic and comprehensive study of cybercrime under the BNS. This research paper seeks to address this gap by offering an original, detailed, and publication-ready analysis of cybercrime-related offences under the new legal framework.
8. Objectives of the Study
The present study is undertaken with the following objectives:
To examine the concept and nature of cybercrime in the Indian legal context.
To analyse provisions of the Bharatiya Nyaya Sanhita, 2023, relevant to cyber offences.
To study how traditional criminal offences are applied to digital and online conduct.
To analyse landmark judicial decisions relating to cybercrime in India.
To evaluate the adequacy and effectiveness of the BNS in addressing emerging cyber threats.
To suggest measures for strengthening the legal framework governing cybercrime.
9. Research Questions
How does the BNS categorise and penalise cyber-enabled crimes differently from the IPC?
Does Section 111 of the BNS effectively address the systemic nature of cybercrime syndicates?
What are the legal challenges in the dual-applicability of the BNS and the IT Act?
10. Research Methodology
This research adopts a doctrinal and analytical methodology. Primary sources include statutory provisions of the Bharatiya Nyaya Sanhita, 2023 and the Information Technology Act, 2000, along with judgments of the Supreme Court of India and various High Courts. Secondary sources include legal textbooks, journal articles, commentaries, reports, and online legal databases. The study is descriptive in explaining the law and analytical in evaluating its effectiveness in dealing with cybercrime.
11. Results / Observations
1. Conceptual Framework of Cybercrime under the BNS
The Bharatiya Nyaya Sanhita, 2023 does not expressly define the term “cybercrime”. However, it recognises that offences may be committed through electronic and digital means. The absence of a specific definition allows flexibility in interpretation but also necessitates reliance on judicial reasoning and the IT Act for clarity. Cybercrime under the BNS is therefore understood through the application of general criminal offences to conduct occurring in cyberspace.
2. Cheating and Online Fraud
Cheating is one of the most common cyber offences, particularly in the form of phishing scams, online investment frauds, and fake e-commerce websites. Under the BNS, the offence of cheating extends to deception practised through electronic communication, resulting in wrongful loss or gain.
In Shreya Singhal v Union of India (2015) 5 SCC 1, the Supreme Court acknowledged the vast reach of online communication and the potential for misuse of digital platforms, emphasising the need for proportionate regulation of cyberspace.³ Although the case primarily dealt with free speech, it highlighted the broader implications of cyber misuse.
3. Identity Theft and Cyber Impersonation
Cyber impersonation involves the unauthorised use of another person’s identity, photographs, or credentials on digital platforms. Such conduct falls within the offence of personation and cheating under the BNS when it causes harm or deception.
The landmark case of State of Tamil Nadu v Suhas Katti marked India’s first conviction for cybercrime.⁴ The court applied traditional criminal principles to online conduct, demonstrating the adaptability of criminal law to cyberspace.
4. Cyberstalking and Criminal Intimidation
Cyberstalking involves persistent harassment, threats, or monitoring of individuals through digital means. The BNS provisions on criminal intimidation and insult apply equally to threats communicated via emails, messaging applications, or social media.
In the Ritu Kohli case, the court recognised cyberstalking as a serious form of harassment causing psychological harm, even before explicit statutory recognition.⁵ This case set an important precedent for treating online harassment as a punishable offence.
5. Cyber Defamation
Defamation in cyberspace includes the publication of false and defamatory content on social media platforms, blogs, and websites. The BNS provisions relating to defamation continue to apply to online publications, recognising the wide and instantaneous dissemination of defamatory material.
Judicial interpretation has consistently held that digital publication is equivalent to traditional publication for criminal liability.
6. Obscenity and Sexual Offences in Cyberspace
The circulation of obscene material, child sexual abuse material, and non-consensual intimate images has become a grave concern. Such acts are punishable under the obscenity provisions of the BNS, read with the IT Act.
In Avnish Bajaj v State (NCT of Delhi) (2008) 150 DLT 769, the Delhi High Court examined intermediary liability and the transmission of obscene material through online platforms.⁶ The case highlighted the complex nature of regulating digital content while ensuring accountability.
12. Interaction between BNS and the Information Technology Act, 2000
The IT Act provides technical definitions and procedural clarity for cyber offences, while the BNS addresses intent, punishment, and general criminal liability. Courts often apply both statutes simultaneously to ensure comprehensive prosecution. This complementary relationship avoids legislative overlap while strengthening enforcement.
13. Extraterritorial Jurisdiction and Cybercrime
Cybercrime frequently involves cross-border elements. The BNS allows prosecution of offences committed outside India if they affect Indian citizens or computer systems located in India. This provision aligns with international principles of jurisdiction and is crucial in combating transnational cybercrime.
14. Interpretation of Results
The analysis reveals that the Bharatiya Nyaya Sanhita, 2023, has expanded the functional scope of criminal law by acknowledging electronic modes of committing offences. The adaptability of traditional offences to cyber contexts demonstrates the flexibility of criminal jurisprudence. Judicial decisions have played a crucial role in interpreting and applying these provisions effectively.
However, the absence of a separate and consolidated chapter on cybercrime under the BNS may create interpretational challenges. Continued reliance on the Information Technology Act, 2000, indicates the need for better statutory integration. A more explicit recognition of cyber-specific offences within the BNS could enhance clarity and enforcement.
15. Comparative Analysis: IPC, BNS and IT Act
1. IPC and Cybercrime (Pre-2023 Position)
Under the Indian Penal Code, 1860, cyber offences were addressed indirectly through provisions on cheating, forgery, obscenity, defamation, and criminal intimidation. Courts stretched the interpretation of these sections to include electronic acts, leading to doctrinal uncertainty.
2. Bharatiya Nyaya Sanhita, 2023: A Modernised Approach
The BNS modernises terminology and explicitly recognises electronic and digital means of committing offences. Unlike the IPC, the BNS is technologically neutral and future-oriented, allowing flexible interpretation.
3. Role of the Information Technology Act, 2000
The IT Act remains the primary special legislation for cyber offences. The BNS operates alongside it, ensuring substantive criminal liability, while the IT Act provides procedural and technical mechanisms.
4. Comparative Table (Summarised)
IPC: Indirect, outdated, interpretation-heavy
BNS: Modern, technology-neutral, adaptive
IT Act: Specialised, technical, cyber-specific
16. International Perspective on Cybercrime
International instruments such as the Budapest Convention on Cybercrime emphasise harmonisation of laws, international cooperation, and capacity building. Countries like the UK and the USA have dedicated cybercrime statutes, highlighting the need for India to further consolidate cyber offences under general criminal law.
17. Interpretation of Results
The study reveals that the BNS significantly strengthens the criminal law framework by expressly accommodating digital conduct. Judicial creativity continues to play a vital role, but statutory clarity under the BNS reduces ambiguity. However, fragmentation between the BNS and IT Act persists.
18. Conclusion
Cybercrime represents a dynamic and transnational threat requiring robust legal responses. The Bharatiya Nyaya Sanhita, 2023, marks a progressive shift in Indian criminal jurisprudence by recognising the digital mode of offences. While it does not create an exclusive cybercrime code, its inclusive and adaptive approach ensures continuity with evolving technologies. For future effectiveness, legislative consolidation, enhanced cyber expertise, and international cooperation are essential.
19. References
Ratanlal & Dhirajlal, The Indian Penal Code (36th edn, LexisNexis 2022).
KD Gaur, Textbook on Indian Penal Code (6th edn, Universal Law Publishing 2021).
Shreya Singhal v Union of India (2015) 5 SCC 1.
State of Tamil Nadu v Suhas Katti (2004).
Avnish Bajaj v State (NCT of Delhi) (2008) 150 DLT 769.
Information Technology Act 2000. Bharatiya Nyaya Sanhita 2023.