In India, Section 103(2) of the Bharatiya Nyaya Sanhita, 2023 (BNS) punishes each member of a group of five or more who, acting in concert, murder on the ground of race, caste or community, sex, place of birth, language, personal belief or any other similar ground: death or life imprisonment, and fine. The IPC had no equivalent.
At a glance
| IPC (old) | BNS (new) | Offence or rule | Punishment | Cognizable / bailable / triable by | Change |
|---|---|---|---|---|---|
| s.302 | s.103(1) | Murder | Death or imprisonment for life, and fine | Cognizable; non-bailable; Court of Session | Minor edit |
| — | s.103(2) | Murder by a group of five or more acting in concert on a listed ground | Death or imprisonment for life, and fine | Cognizable; non-bailable; Court of Session | New |
| s.325 | s.117(2) | Voluntarily causing grievous hurt | Up to 7 years and fine | Cognizable; bailable; any Magistrate | Minor edit |
| — | s.117(4) | Grievous hurt by a group of five or more acting in concert on a listed ground | Up to 7 years and fine | Cognizable; non-bailable; Court of Session | New |
| s.34 | s.3(5) | Acts done in furtherance of common intention | Liability rule | — | Identical |
| s.141 | s.189(1) | Unlawful assembly (five or more, common object) | Definition | — | Minor edit |
| s.149 | s.190 | Every member of unlawful assembly guilty of offence committed in prosecution of common object | The same as for the offence | According as the offence | Identical |
| ss.146, 147 | s.191(1)–(2) | Rioting | Up to 2 years, or fine, or both | Cognizable; bailable; any Magistrate | Minor edit (merged) |
| s.148 | s.191(3) | Rioting, armed with a deadly weapon | Up to 5 years (IPC: 3 years), or fine, or both | Cognizable; bailable; Magistrate of the first class | Modified |
BNS classifications are from the BNSS First Schedule. The CrPC First Schedule gave the corresponding IPC sections the same classifications; only the punishment for armed rioting changed.
What changed
- s.103(1) — Minor edit. "shall be punished with death, or imprisonment for life" (IPC s.302) loses the comma after "death". The punishment is unchanged.
- s.103(2) — New. There was no IPC provision for murder by a group on a listed ground. A group killing had to be charged as murder read with s.34 or s.149.
- s.117(2) — Minor edit. The exception now refers to "sub-section (2) of section 122" instead of "section 335"; the seven-year maximum and fine are unchanged.
- s.117(4) — New. The grievous-hurt counterpart of s.103(2): each member "shall be guilty of the offence of causing grievous hurt".
- s.3(5) — Identical. The common-intention rule of IPC s.34, word for word, now sits in the BNS general explanations.
- s.189(1) — Minor edit. The five common objects that made an assembly unlawful ("First" to "Fifth" in IPC s.141) become clauses (a) to (e), with the same substance.
- s.190 — Identical. Word for word the text of IPC s.149.
- s.191(1)–(2) — Minor edit (merged). The definition of rioting (IPC s.146) and its punishment (IPC s.147, up to two years, or fine, or both) are combined in one section.
- s.191(3) — Modified. Rioting armed with a deadly weapon: the maximum rises from "three years" (IPC s.148) to "five years".
Statutory text (relevant extracts)
Section 302 IPC (original-PDF text):
Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.
Section 103 BNS (Gazette):
(1) Whoever commits murder shall be punished with death or imprisonment for life, and shall also be liable to fine.
(2) When a group of five or more persons acting in concert commits murder on the ground of race, caste or community, sex, place of birth, language, personal belief or any other similar ground each member of such group shall be punished with death or with imprisonment for life, and shall also be liable to fine.
Section 117(4) BNS — extract (Gazette):
When a group of five or more persons acting in concert, causes grievous hurt to a person on the ground of his race, caste or community, sex, place of birth, language, personal belief or any other similar ground, each member of such group shall be guilty of the offence of causing grievous hurt …
Section 190 BNS (Gazette; same words as IPC s.149):
If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.
The elements of s.103(2)
- A group of five or more persons. The number matches the unlawful-assembly threshold in s.189(1) ("An assembly of five or more persons"). The Sanhita does not define "group".
- Acting in concert. Not defined. The phrase is written into the sub-section itself, not borrowed from s.3(5) ("common intention") or s.189 ("common object"). On a reading, it requires the group to act together; how far each member's participation must be shown is left to the courts.
- Commits murder. "Murder" carries its meaning under s.101 BNS. The group must commit murder, not merely cause death.
- On a listed ground. "race, caste or community, sex, place of birth, language, personal belief or any other similar ground". The ground is an element to be proved. A group killing for another reason (a property dispute, for example) falls outside s.103(2) on a reading of the words "on the ground of".
- Liability of each member. "each member of such group shall be punished". Contrast s.117(4), which says each member "shall be guilty of the offence of causing grievous hurt", and s.190, where every member "is guilty of that offence". Section 103(2) states the punishment for each member without the "guilty of" formula. Whether that difference matters is a question of construction the text does not resolve.
Punishment. Death or imprisonment for life, and fine — the same as s.103(1). There is no lower sentencing band.
Section 103(2) beside the older routes to group liability
Section 103(2) did not replace the general rules; all of them remain in the BNS.
- s.103(1) read with s.3(5). Where a criminal act is done by several persons "in furtherance of the common intention of all", each is liable "as if it were done by him alone". This requires no minimum number and no listed ground.
- s.103(1) read with s.190. Every member of an unlawful assembly is guilty of an offence committed in prosecution of the common object, or one the members knew likely to be committed. Section 189(1) requires five or more persons sharing one of the five common objects; the third is "to commit any mischief or criminal trespass, or other offence".
- Rioting (s.191). Where force or violence is used by an unlawful assembly in prosecution of the common object, every member is guilty of rioting (s.191(1)); armed rioting now carries up to five years (s.191(3)).
On a reading, s.103(2) adds a route that turns on the group acting in concert and the listed ground, rather than on a shared intention or a common object. It does not increase the punishment for murder. A charge under s.103(2) therefore requires proof of the ground; a charge under s.103(1) with s.3(5) or s.190 does not.
Section 117(4): when the victim survives
Where the group causes grievous hurt, not death, on a listed ground, s.117(4) applies. The punishment matches ordinary grievous hurt under s.117(2) — up to seven years and fine. The classification differs sharply: s.117(2) is bailable and triable by any Magistrate, while s.117(4) is non-bailable and triable by the Court of Session. For the general hurt provisions, see hurt and grievous hurt under BNS ss.115–117.
The listed grounds, and what is not listed
The grounds in ss.103(2) and 117(4) are identical: race, caste or community, sex, place of birth, language, personal belief, or any other similar ground. "Religion" is not listed. Section 196(1)(a) BNS (promoting enmity between groups, formerly IPC s.153A) does list it: "on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever".
Two readings are available, and the text does not choose between them. One is that "community", "personal belief" or "any other similar ground" is wide enough to cover a religious motive. The other is that naming religion in s.196 and not in s.103(2) signals a deliberate difference. No judgment deciding the point is cited here. Until one is, a prosecutor relying on s.103(2) for a religiously motivated killing has to argue the construction; s.103(1) with s.3(5) or s.190 does not depend on it.
What this means in practice
Police. Register the FIR at once; Tehseen Poonawalla directed that the jurisdictional police station "shall immediately cause to lodge an FIR" after an incident of lynching or mob violence (para 40, remedial measure (i)). Murder is punishable with death or life imprisonment, so it falls within the seven-year threshold of s.176(3) BNSS. Once the State's notified date applies, the forensic-expert visit and videography duty follows — see Section 176(3) BNSS. Collect evidence of the ground (what was said, written or shared) as well as of the killing.
Prosecutors. Charge s.103(2) where the ground can be proved. Where it is contested, consider framing alternative charges under s.103(1) with s.3(5) or s.190, which carry the same punishment. Where there are many accused, Masalti held it was not unreasonable for a court to require two or three witnesses giving a consistent account before convicting each one.
Defence advocates. Test each element separately. Was the group five or more? Did it act "in concert"? Was the accused a member of it, rather than a bystander? Was the killing "on the ground of" a listed ground? Under s.190, Masalti requires proof that the accused was one of the persons constituting the assembly and shared its common object.
Victims and families. Tehseen Poonawalla directed States to frame a lynching and mob-violence victim compensation scheme with interim relief within thirty days of the incident (para 40, remedial measure (iv)). It also directed notice of court proceedings to victims and next of kin and a right to be heard on bail, discharge, release and parole (remedial measure (viii)). See victim rights and compensation.
This guide does not cover State legislation on lynching, which is outside the sources used.
Judgments that still matter
Tehseen S. Poonawalla v. Union of India, [2018] 9 S.C.R. 291 (2018 INSC 617), 17 July 2018, three judges (Dipak Misra C.J.I., A.M. Khanwilkar and D.Y. Chandrachud JJ.; opinion of Misra C.J.I.). The Court described lynching as "an affront to the rule of law and to the exalted values of the Constitution itself" (para 18). It said that "Crime knows no religion and neither the perpetrator nor the victim can be viewed through the lens of race, caste, class or religion" (para 23). It then issued preventive, remedial and punitive guidelines (para 40), to be carried out within four weeks (para 41). They include:
- a nodal officer not below Superintendent of Police in each district;
- trial by designated or fast-track courts, preferably within six months of cognizance;
- a direction that trial courts "must ordinarily award maximum sentence as provided for various offences under the provisions of the IPC";
- disciplinary action against officials who fail to comply.
It recommended that Parliament "create a separate offence for lynching and provide adequate punishment for the same" (para 43). Bearing on s.103(2): the directions were framed with reference to the IPC and the CrPC. On a reading, nothing in the BNS or the BNSS withdraws them, but they were not written for s.103(2), and the judgment does not construe the grounds that s.103(2) lists (para 23 names race, caste, class and religion only to say that neither perpetrator nor victim can be viewed through that lens).
Masalti v. State of U.P., [1964] 8 S.C.R. 133 (1964 INSC 149), 4 May 1964, four judges (P.B. Gajendragadkar C.J., K.N. Wanchoo, K.C. Das Gupta and Raghubar Dayal JJ.). Forty members of a village faction were tried for five murders under ss.302/149 IPC. The Court held that an earlier observation about passive onlookers could not be read as a general rule that an overt act must be proved against each member. It said: "What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly", and that he shared its common object as defined by s.141 IPC. Where many offenders and victims are involved, "it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident". The report has no paragraph numbers. Bearing: s.190 BNS repeats s.149 IPC word for word, so on a reading this construction applies to s.190. Its evidential approach to crowds may also be argued in s.103(2) cases on who was a "member of such group".
Which law applies to your case
The BNS came into force on 1 July 2024, except s.106(2) (S.O. 850(E), 23 February 2024). Article 20(1) of the Constitution provides that no person shall be convicted "except for violation of a law in force at the time of the commission of the Act charged as an offence". Section 358(2) BNS preserves liabilities and penalties under the IPC "as if that Code had not been repealed". On a reading of Article 20(1), s.103(2) and s.117(4) cannot apply to a killing or assault before 1 July 2024. Such a case is charged under IPC s.302 (or s.325) with s.34 or s.149. See which law applies to an offence before 1 July 2024.
Frequently Asked Questions
Is mob lynching a separate offence under the BNS?
Section 103(2) of the Bharatiya Nyaya Sanhita, 2023 provides specifically for murder committed by a group of five or more persons acting in concert on the ground of race, caste or community, sex, place of birth, language, personal belief or any other similar ground. The Indian Penal Code had no equivalent. The Sanhita does not use the words "mob lynching"; the BNSS First Schedule describes the offence as "Murder by group of five or more persons".
What is the punishment under Section 103(2) BNS?
Each member of the group "shall be punished with death or with imprisonment for life, and shall also be liable to fine". That is the same punishment as murder under Section 103(1), so the lowest sentence available is imprisonment for life. There is no shorter term of years in the sub-section.
Does Section 103(2) cover a killing motivated by religion?
Religion is not among the grounds listed in Section 103(2) (race, caste or community, sex, place of birth, language, personal belief or any other similar ground), or in Section 117(4). Section 196(1)(a) BNS, by contrast, names "religion" expressly. Whether "community", "personal belief" or "any other similar ground" reaches a religiously motivated killing is not answered by the text, and no judgment deciding it is cited here.
How is Section 103(2) different from Section 190 BNS (old Section 149 IPC)?
Section 190 BNS, identical to Section 149 IPC, makes every member of an unlawful assembly guilty of an offence committed in prosecution of its common object. Section 103(2) instead requires a group of five or more "acting in concert" and a murder committed on a listed ground. Both can lead to death or life imprisonment for murder; the difference lies in what must be proved.
What if the victim of a mob attack survives?
Section 117(4) BNS applies where a group of five or more persons acting in concert causes grievous hurt on the same listed grounds. Each member is guilty of causing grievous hurt and is punishable with imprisonment of either description up to seven years and fine. The BNSS First Schedule makes it cognizable, non-bailable and triable by the Court of Session, whereas ordinary grievous hurt under Section 117(2) is bailable and triable by any Magistrate.
Is Section 103(2) bailable, and which court tries it?
The BNSS First Schedule lists Section 103(2) as cognizable, non-bailable and triable by the Court of Session, with punishment "Death or with imprisonment for life and fine". Section 302 IPC carried the same classification in the CrPC First Schedule.
Can Section 103(2) be applied to a lynching that happened before 1 July 2024?
On a reading of Article 20(1) of the Constitution and Section 358(2) BNS, no. Article 20(1) bars conviction except for violation of a law in force when the act was committed, and Section 358(2) keeps IPC liabilities alive "as if that Code had not been repealed". A killing before 1 July 2024 would be charged under Section 302 IPC read with Section 34 or 149.
What did the Supreme Court direct in Tehseen S. Poonawalla?
In its judgment of 17 July 2018 the Court issued preventive, remedial and punitive directions (para 40), including a nodal officer of Superintendent of Police rank in each district and a victim compensation scheme. It also directed trial by designated or fast-track courts, preferably within six months of cognizance. It recommended that Parliament create a separate offence for lynching (para 43).
Related
- Section 103(2) BNS — mob lynching (section page)
- Section 302 IPC vs Section 103 BNS — murder
- Hate speech and promoting enmity — BNS 196 vs IPC 153A
- Hurt and grievous hurt — BNS 115–117 vs IPC 319–325
- Victim rights and compensation
- Offence before 1 July 2024 — which law applies
- Section 149 IPC vs Section 190 BNS — Unlawful Assembly and Common Object
- Section 323-326 IPC vs Section 115-118 BNS — Hurt and Grievous Hurt (IPC 319-326)
- Section 153A IPC vs Section 196 BNS — Promoting Enmity Between Different Groups
Sources
Acts and sections read (primary text):
- Bharatiya Nyaya Sanhita, 2023 (Gazette of India, CG-DL-E-25122023-250883): ss.3(5), 101, 103, 117, 189(1), 190, 191, 196(1)(a), 358; commencement footnote to s.1 in the official text.
- Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette, CG-DL-E-25122023-250884): First Schedule entries for ss.103, 117, 190, 191; s.176(3); s.531(2)(a).
- Indian Penal Code, 1860 (original-PDF text): ss.34, 141, 146, 147, 148, 149, 302, 325; Code of Criminal Procedure, 1973, First Schedule entries for those sections.
- Constitution of India: Article 20(1).
Judgments read (Supreme Court, full text in the Veritect judgment corpus):
- Tehseen S. Poonawalla v. Union of India, [2018] 9 S.C.R. 291 —
2018_9_291_328_EN.md - Masalti v. State of U.P., [1964] 8 S.C.R. 133 —
1964_8_133_152_EN.md
This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.