Terrorist Act Definition — New BNS Section 113

In India, Section 113 of the Bharatiya Nyaya Sanhita, 2023 (BNS) defines and punishes a "terrorist act", an offence the Indian Penal Code never had. A terrorist act causing death is punishable with death or imprisonment for life. An officer not below Superintendent of Police decides whether to register under Section 113 or the Unlawful Activities (Prevention) Act, 1967.

Section 113 sits in Chapter VI, "Of offences affecting the human body", under the sub-heading "Of offences affecting life" — not in Chapter VII, "Of offences against the State". The BNS came into force on 1 July 2024 (S.O. 850(E), 23 February 2024), except Section 106(2). The texts of the UAPA and the National Investigation Agency Act, 2008 were not among the sources read, so nothing is said here about their content.

At a glance

Schedule misprint: the First Schedule's punishment column describes s.113(5) and s.113(7) as "Imprisonment for life and fine". The sections say "imprisonment for a term which may extend to imprisonment for life". The Schedule's explanatory note says its entries are "not intended as the definition of, and the punishment prescribed for, the offence … but merely as indication of the substance of the section", so the section text governs.

What changed

• A defined offence in the general code — New. A whitespace-normalised search of the original IPC and CrPC texts finds neither "terrorist" nor "terrorism". Every BNS occurrence of "terror" is inside s.113.
• Two alternative intents, each with a "likely to" form — New. The first is "the intent to threaten or likely to threaten the unity, integrity, sovereignty, security, or economic security of India". The second is "the intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country".
• Reach beyond India — New. Terror may be struck "in any foreign country". Limb (a)(iii) covers essential supplies or services "in India or in any foreign country". Limb (a)(v) covers defence or government property "in India or in a foreign country". Limb (c) covers compelling "the Government of a foreign country or an international or inter-governmental organisation".
• Economic limbs — New. "Economic security of India" is one of the protected interests. Limb (a)(iv) covers "damage to, the monetary stability of India by way of production or smuggling or circulation of counterfeit Indian paper currency, coin or of any other material".
• Two defined terms — New. "Public functionary" means "the constitutional authorities or any other functionary notified in the Official Gazette by the Central Government as public functionary". "Counterfeit Indian currency" means currency declared, after examination by an authorised or notified forensic authority, to imitate or compromise the key security features of Indian currency.
• Choice-of-law Explanation — New. The Explanation at the end of the section declares, "For the removal of doubts", that an officer not below the rank of Superintendent of Police decides whether to register under s.113 or the UAPA.

Statutory text (relevant extracts)

Section 113(1), opening words (extract):

Whoever does any act with the intent to threaten or likely to threaten the unity, integrity, sovereignty, security, or economic security of India or with the intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country,––

Section 113(1)(a), means (extract):

by using bombs, dynamite or other explosive substance or inflammable substance or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substance (whether biological, radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause,—

Section 113(5) (extract):

Any person who is a member of an organisation which is involved in terrorist act, shall be punished with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine.

Explanation (extract):

For the removal of doubts, it is hereby declared that the officer not below the rank of Superintendent of Police shall decide whether to register the case under this section or under the Unlawful Activities (Prevention) Act, 1967.

How the definition works

Section 113(1) has two layers, and the prosecution must establish both.

Layer 1 — the intent. The act must be done with one of two intents:

• to threaten, or be likely to threaten, the unity, integrity, sovereignty, security or economic security of India; or
• to strike terror, or be likely to strike terror, in the people or any section of the people in India or any foreign country.

Layer 2 — the conduct. The act must fall within one of three limbs.

• Limb (a) — the use of bombs, dynamite, explosives, inflammables, firearms, lethal weapons, poisonous or noxious gases, chemicals, hazardous substances "(whether biological, radioactive, nuclear or otherwise)", "or by any other means of whatever nature". The use must cause, or be likely to cause, one of five results:
  • (i) death of, or injury to, any person;
  • (ii) loss of, damage to, or destruction of property;
  • (iii) disruption of supplies or services essential to the life of the community in India or a foreign country;
  • (iv) damage to India's monetary stability through counterfeit Indian paper currency, coin or other material;
  • (v) damage to or destruction of property in India or abroad used, or intended to be used, for the defence of India or for other purposes of the Government of India, a State Government or their agencies.
• Limb (b) — overawing by criminal force or the show of it, or attempting to do so, or causing or attempting to cause the death of any public functionary.
• Limb (c) — detaining, kidnapping or abducting any person and threatening to kill or injure that person, "or does any other act", in order to compel the Government of India, a State Government, a foreign Government, an international or inter-governmental organisation "or any other person" to do or abstain from doing any act.

Reading the two layers together. Most conduct in the three limbs is already an offence elsewhere in the BNS — murder, hurt, mischief, kidnapping, or counterfeiting under s.178 (life or up to ten years, and fine). On a reading, what turns such conduct into a terrorist act is Layer 1. A charge under s.113 should therefore identify which intent is alleged and on what material. The "likely to" forms widen the intent element. The Sanhita does not define "likely", and no judgment construing these words in s.113 is cited here.

The punishment ladder: sub-sections (2) to (7)

• Commission, s.113(2). Death or life, and fine, where the act "has resulted in the death of any person". In any other case, not less than five years up to life, and fine. The death case has no minimum term of years; its lowest sentence is imprisonment for life.
• Inchoate and assisting conduct, s.113(3). The sub-section covers whoever "conspires or attempts to commit, or advocates, abets, advises or incites, directly or knowingly facilitates" a terrorist act or "any act preparatory to" one. The punishment is not less than five years up to life, and fine. The words "directly or knowingly" govern facilitation. "Abets" carries the meaning given by the BNS definition in s.45.
• Camps and recruitment, s.113(4). Organising, or causing to be organised, "any camp or camps for imparting training in terrorist act", or recruiting persons for commission of a terrorist act. Not less than five years up to life, and fine.
• Membership, s.113(5). "Any person who is a member of an organisation which is involved in terrorist act". The sub-section states no mental element, and the BNS contains no mechanism for listing or notifying such organisations. Up to life, and fine.
• Harbouring, s.113(6). Voluntarily harbouring or concealing, or attempting to, "any person knowing that such person has committed a terrorist act". Not less than three years up to life, and fine. The proviso excludes harbour or concealment "by the spouse of the offender".
• Proceeds, s.113(7). "Whoever knowingly possesses any property derived or obtained from commission of any terrorist act or acquired through the commission of any terrorist act". Up to life, and fine.

Procedure under the BNSS

• Classification. Every s.113 offence is cognizable, non-bailable and triable by the Court of Session (First Schedule).
• No government sanction under s.217 BNSS, on a reading. Section 217(1)(a) requires previous sanction for offences "under Chapter VII or under section 196, section 299 or sub-section (1) of section 353". Section 113 is in Chapter VI and is not named, so on the text that bar does not reach it.
• Duty to report, s.33(1)(ii). Every person aware of the commission of, or intention to commit, an offence under ss.111 to 113 must, absent reasonable excuse, forthwith inform the nearest Magistrate or police officer. The burden of proving the excuse lies on the person so aware.
• Handcuffing, s.43(3). The police may use handcuffs, "keeping in view the nature and gravity of the offence", on a person who has committed a "terrorist act".
• Preliminary enquiry, s.173(3), on a reading not available. It applies only to offences punishable for three years or more but less than seven years. Every s.113 offence reaches imprisonment for life.
• Custody and default bail, s.187(3)(i). The maximum detention during investigation is ninety days for offences punishable with death, imprisonment for life or ten years or more. After that period the accused "shall be released on bail if he is prepared to and does furnish bail".
• Bail in non-bailable offences, s.480(1)(i). Subject to its provisos, a person shall not be released by the police, or by a court other than the High Court or Court of Session, if there appear reasonable grounds for believing he has been guilty of an offence punishable with death or imprisonment for life.
• Undertrial release, s.479(1). The section excludes offences for which "death or life imprisonment has been specified as one of the punishments". On a reading, that covers every s.113 offence.

The Superintendent of Police choice

The Explanation does three things on its face:

• it places the choice of law with a police officer "not below the rank of Superintendent of Police";
• it assumes that the same facts may fall under s.113 or the UAPA;
• it is framed as declaratory ("For the removal of doubts").

It is silent on four things:

• the criteria for choosing;
• whether reasons must be recorded;
• whether the choice can be reviewed;
• what happens if an officer below that rank registers the case.

Article 20(2) of the Constitution provides that no person shall be prosecuted and punished for the same offence more than once. Whether a s.113 charge and a UAPA charge on the same facts are "the same offence" is not answered by the BNS text, and no judgment deciding it is cited here.

What this means in practice

• For the accused and the advocate:
  • Obtain the record of the Superintendent of Police-rank decision to register under s.113.
  • Test the charge against both layers of s.113(1): which intent, and which limb.
  • Where the facts are really counterfeiting (s.178), murder, hurt or kidnapping, test whether the terrorist intent is shown.
  • For s.113(5), require proof that the organisation "is involved in terrorist act" and of the accused's membership.
  • For s.113(6) and (7), hold the prosecution to "knowing" and "knowingly".
  • Plan bail around ss.480(1)(i) and 187(3)(i) BNSS.
• For the investigating officer:
  • Record the rank and decision of the officer who chose s.113 over the UAPA.
  • Collect material on intent, not only on the act.
  • Complete investigation within the ninety-day custody limit, or the accused becomes entitled to default bail.
• For a relative or associate: s.33(1)(ii) BNSS imposes a duty to report, subject to reasonable excuse; the s.113(6) spouse proviso covers only harbour or concealment and is not an exception to s.33.

Judgments that still matter

No Supreme Court judgment applying s.113 BNS is cited here. The two judgments below construed "terrorist act" offences in earlier special statutes. They are cited only for what they say about intent and mental element. Their bearing on s.113 is a reading of the texts, not a holding.

Hitendra Vishnu Thakur v. State of Maharashtra, [1994] Supp. 1 S.C.R. 360 (1994 INSC 237), 12 July 1994, Dr. A.S. Anand and Faizan Uddin JJ.; the judgment of the Court was delivered by Anand J. Construing the "terrorist act" provision of the Terrorist and Disruptive Activities (Prevention) Act, 1987 — whose opening words the Court quoted as "with intent … to strike terror in the people or any section of the people" — the Court said that "Every 'terrorist' may be a criminal but every criminal cannot be given the label of a 'terrorist' only to set in motion the more stringent provisions of TADA."

It held that the criminal activity "must be committed with the requisite intention". It approved an earlier decision in which a killing to "gain supremacy in the underworld" caused panic and fear, but "the intention of committing the crime cannot be said to be to strike terror in the people". It concluded that the activity must be such "which cannot be classified as a mere law and order problem or disturbance of public order". The report has no paragraph numbers.

Bearing: s.113(1) repeats the words "with the intent to strike terror … in the people or any section of the people". On a reading, the distinction between the intention and the fall-out of violence therefore bears on s.113. But s.113 adds "or likely to strike terror", words absent from the passage the Court quoted, and how far they narrow that distinction is not settled by any judgment cited here.

People's Union for Civil Liberties v. Union of India, [2003] Supp. 6 S.C.R. 860 (2003 INSC 721), 16 December 2003, S. Rajendra Babu and G.P. Mathur JJ. (judgment by Rajendra Babu J.). The Court upheld provisions of the Prevention of Terrorism Act, 2002. It held that "abets" in that Act took its meaning from the Indian Penal Code, and that "'Mens rea' element is sine qua non for offences under IPC". On ss.20 to 22 of that Act, which in the Court's words reached a person who "profess[es]", "invites support" or arranges or addresses a meeting, it held that they need "positive inference that a person has acted with intent of furthering or encouraging terrorist activity or facilitating its commission". It stated as a general rule that a penal statute "presupposes mens rea element" unless the legislature expressly provides otherwise (headnote reference 890-G). No paragraph numbers.

Bearing: s.113(3) uses "abets", which the BNS defines in s.45. Section 113(5) states no mental element at all. On a reading, the presumption of mens rea stated in this judgment is the natural starting point for construing s.113(5), but no court is cited here as having applied it to the BNS.

Which law applies to your case

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 113 came into force with the rest of the BNS on 1 July 2024, and the IPC had no counterpart. On a reading of Article 20(1), s.113 cannot be applied to conduct before that date. Such conduct can be charged only under a law then in force; IPC offences are preserved by s.358(2) BNS "as if that Code had not been repealed". Pending investigations and trials continue under the CrPC (s.531(2)(a) BNSS). See which law applies to an offence before 1 July 2024.

Frequently Asked Questions

What is a terrorist act under Section 113 BNS?

Under Section 113(1) BNS, a person commits a terrorist act if he does any act with the intent to threaten, or likely to threaten, the unity, integrity, sovereignty, security or economic security of India, or with the intent to strike terror, or likely to strike terror, in the people or any section of the people in India or in any foreign country. The act must also fall within limb (a), (b) or (c) of the sub-section, such as using bombs or other means to cause death, damage or disruption, or kidnapping a person to compel a government.

What is the punishment for a terrorist act under the BNS?

Under Section 113(2) BNS, a terrorist act that results in the death of any person is punishable with death or imprisonment for life, and fine. In any other case the punishment is imprisonment of not less than five years, which may extend to imprisonment for life, and fine. Sub-sections (3) to (7) separately punish conspiracy and facilitation, training camps and recruitment, membership, harbouring and possession of proceeds.

Did the Indian Penal Code have a terrorism offence?

No. The words "terrorist" and "terrorism" do not appear in the Indian Penal Code, 1860, so Section 113 BNS has no IPC counterpart. Terrorism was dealt with by special legislation, and the Explanation to Section 113 names the Unlawful Activities (Prevention) Act, 1967 as the alternative under which a case may be registered.

Who decides whether a case goes under Section 113 BNS or the UAPA?

The Explanation to Section 113 declares, "for the removal of doubts", that "the officer not below the rank of Superintendent of Police shall decide whether to register the case under this section or under the Unlawful Activities (Prevention) Act, 1967". The Explanation sets out no criteria for that choice and provides no review of it.

Is a Section 113 offence bailable?

No. The BNSS First Schedule classifies every offence under Section 113(2) to (7) as cognizable, non-bailable and triable by the Court of Session. Because each is punishable with imprisonment for life (or death under Section 113(2)(a)), Section 480(1)(i) BNSS restricts release by the police or a court other than the High Court or Court of Session, and default bail under Section 187(3)(i) runs on the ninety-day limit.

Does Section 113(5) BNS say how an organisation is declared a terrorist organisation?

No. Section 113(5) punishes "Any person who is a member of an organisation which is involved in terrorist act" with imprisonment which may extend to imprisonment for life, and fine. The BNS contains no notification, listing or proscription mechanism for such organisations, so the organisation's involvement in a terrorist act is a matter the prosecution must establish on the facts.

Is a spouse who hides a person liable under Section 113(6) BNS?

No. Section 113(6) punishes voluntarily harbouring or concealing a person knowing that he has committed a terrorist act, with imprisonment of not less than three years up to life, and fine. Its proviso says the sub-section "shall not apply to any case in which the harbour or concealment is by the spouse of the offender".

Can Section 113 BNS apply to acts committed before 1 July 2024?

On a reading of Article 20(1) of the Constitution, no. Article 20(1) bars conviction except for violation of a law in force when the act was committed, and Section 113 came into force with the rest of the BNS on 1 July 2024. The Indian Penal Code had no equivalent offence, so earlier conduct can only be charged under a law that was in force at the time.

Related

• Organised crime — BNS Sections 111 and 112
• Sedition abolished — what replaced it (BNS 152)
• Remand and default bail — CrPC 167 vs BNSS 187
• Bail in non-bailable offences — CrPC 437 vs BNSS 480
• Handcuffing and use of force during arrest — BNSS 43
• Offence before 1 July 2024 — which law applies

Sources

Acts and sections read (primary text):

• Bharatiya Nyaya Sanhita, 2023 (Gazette, CG-DL-E-25122023-250883): s.113; Chapter VI and VII headings; ss.45, 178, 358; commencement footnote to s.1.
• Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette, CG-DL-E-25122023-250884): ss.33(1), 43(3), 173(3), 187(3), 217(1), 479(1), 480(1), 531(2)(a); First Schedule entries for s.113(2)–(7) and its explanatory notes.
• IPC, 1860 and CrPC, 1973 (original-PDF texts): searched for "terrorist" and "terrorism".
• Constitution of India: Article 20(1) and (2).

Judgments read (Supreme Court, full text in the Veritect judgment corpus):

• Hitendra Vishnu Thakur v. State of Maharashtra, [1994] Supp. 1 S.C.R. 360 — S_1994_1_360_420_EN.md
• People's Union for Civil Liberties v. Union of India, [2003] Supp. 6 S.C.R. 860 — S_2003_6_860_903_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.