TL;DR
Section 113 of the Bharatiya Nyaya Sanhita (BNS), 2023, introduces "terrorist act" as a defined offence in India's general criminal code for the first time. The IPC had no equivalent provision — terrorism was exclusively addressed through special laws, primarily the Unlawful Activities (Prevention) Act (UAPA), 1967. Section 113 BNS substantially mirrors the definition of "terrorist act" in Section 15 UAPA but adds provisions on economic terrorism (counterfeiting), holding proceeds of terrorism (without the knowledge requirement found in UAPA), and protection of government property. This creates a dual-track system where terrorism can be prosecuted under either the BNS or the UAPA. The decision on which law to invoke rests with a police officer not below the rank of Superintendent of Police.
Overview: The Old Position
IPC Had No Terrorism Provision
The Indian Penal Code, 1860, did not contain any provision defining or punishing terrorist acts. Offences related to terrorism were addressed exclusively through special legislation:
- TADA (Terrorist and Disruptive Activities (Prevention) Act), 1987: India's first dedicated anti-terror law, which lapsed in 1995.
- POTA (Prevention of Terrorism Act), 2002: Replaced TADA, repealed in 2004.
- UAPA (Unlawful Activities (Prevention) Act), 1967 (as amended in 2004, 2008, 2012, 2019): The current primary anti-terror law, which absorbed key provisions from POTA after its repeal.
The rationale for keeping terrorism in special laws was that such offences required special procedural frameworks — designated courts, modified bail provisions, extended investigation periods, and admissibility of confessions to senior police officers — that were inappropriate for the general criminal code.
Section 113 BNS — Terrorist Act
Definition
Section 113(1) defines a "terrorist act" as any act committed with the intent to:
- Threaten or likely threaten the unity, integrity, sovereignty, security, or economic security of India
- 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 be committed by using:
- Bombs, dynamite, or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or other substances (whether biological, radioactive, nuclear, or otherwise) of a hazardous nature or by any other means of whatever nature
The act must cause or be likely to cause:
- Death of, or injuries to, any person or persons
- Loss of, or damage to, or destruction of, property
- Disruption of any supplies or services essential to the life of the community in India or in any foreign country
- Damage to, or destruction of, any property in India or in a foreign country used or intended to be used for the defence of India
- Damage to or disruption of any monetary stability of India by way of production or smuggling or circulation of high-quality counterfeit Indian paper currency, coin, or of any other material
- Damage to, or disruption of, any critical infrastructure in India
Punishment
| Scenario | Punishment |
|---|---|
| Terrorist act causing death | Death or life imprisonment (not less than 5 years), and fine |
| Terrorist act not causing death | Imprisonment minimum 5 years, extendable to life imprisonment, and fine |
| Conspiracy or attempt to commit terrorist act | Imprisonment minimum 5 years, extendable to life imprisonment, and fine |
| Harbouring any person knowing that such person is a terrorist | Imprisonment minimum 3 years, extendable to life imprisonment, and fine |
| Possessing property derived from or held as proceeds of terrorism | Imprisonment extendable to life imprisonment, and fine |
| Membership of a terrorist gang or organisation | Imprisonment extendable to life imprisonment, and fine |
Comparison with UAPA Section 15
Definitional Overlap
The definition of "terrorist act" under Section 113 BNS substantially mirrors Section 15 UAPA. Both cover:
- Acts threatening national security, unity, and integrity
- Acts designed to strike terror in the population
- Use of explosives, firearms, chemical/biological/nuclear weapons
- Causing death, injury, property destruction, or disruption of essential services
Key Differences
| Feature | UAPA Section 15 | BNS Section 113 |
|---|---|---|
| Legislative framework | Special law with modified procedures | General criminal code |
| Confessions | Admissible under special provisions | General BSA rules apply — confessions to police inadmissible |
| Bail provisions | Stringent restrictions under UAPA Section 43D(5) | General BNSS bail provisions — no special restrictions |
| Investigation period | Extended periods under UAPA | Standard BNSS investigation timelines |
| Designated courts | NIA Special Courts under UAPA/NIA Act | Sessions Courts under BNSS |
| Proceeds of terrorism | Requires "knowingly" holding property | No "knowingly" requirement — broader liability |
| Economic terrorism | Covered but less specifically | Explicitly covers counterfeit currency as terrorism |
| Organisation membership | Requires proscription of organisation (Section 35 UAPA) | Covers membership of any "terrorist gang or organisation" without proscription requirement |
| Police discretion | NIA or State Police with Central consent | SP-rank officer decides which law applies |
The "Knowingly" Gap
One of the most significant differences is in the proceeds of terrorism provision. UAPA requires that the accused "knowingly" holds property derived from proceeds of terrorism. Section 113 BNS omits this mens rea requirement, creating potentially broader liability for possessing property linked to terrorism without knowledge of its provenance.
The Proscription Question
Under UAPA, the concept of "terrorist organisation" is tied to the formal proscription process under Sections 35-36, which requires government notification and offers a review mechanism before a tribunal. Section 113 BNS uses the phrase "terrorist gang or organisation" without any reference to a formal proscription requirement, potentially allowing prosecution for membership of groups that have not been officially designated as terrorist organisations.
The Dual-Track Problem
Overlap Between BNS and UAPA
Section 113 BNS and Sections 15-23 UAPA now create parallel prosecution tracks for the same conduct. This raises several issues:
Forum shopping: The choice between BNS and UAPA affects the accused's procedural rights — UAPA has stricter bail provisions, allows confessions to police, and provides extended investigation periods. The prosecution may strategically choose whichever framework is more advantageous.
Double jeopardy risk: While the same act cannot result in prosecution under both laws simultaneously for the same offence, the overlapping definitions create ambiguity about when dual prosecution is permissible.
Police-level discretion: The Explanation to Section 113 BNS states that a police officer not below the rank of SP decides whether to register the case under BNS or UAPA. This concentrates significant prosecutorial discretion at the police level without judicial oversight.
Which Law Provides More Protection to the Accused?
| Rights Feature | BNS/BNSS Track | UAPA Track |
|---|---|---|
| Bail | General BNSS provisions — no special bar | Section 43D(5) — bail restricted unless prima facie case not made out |
| Confession | Inadmissible under BSA | Admissible under certain UAPA provisions |
| Investigation period | Standard BNSS timelines | Extended (up to 180 days under UAPA) |
| Trial court | Sessions Court | NIA Special Court |
| Default bail | Available under Section 187(2) BNSS | More restricted under UAPA timeline extensions |
From the accused's perspective, the BNS track offers significantly more procedural protections. This creates an incentive for the prosecution to prefer the UAPA track for serious cases.
Concerns and Critiques
Overbreadth
The phrase "threaten or likely to threaten the unity, integrity, sovereignty, security, or economic security of India" is extremely broad. Critics argue it could be stretched to cover activities far beyond what is traditionally understood as terrorism — including organised protests, strikes, or even certain forms of political speech.
Judicial Response
In Tejender Pal Singh v. State of Rajasthan (2024), the Rajasthan High Court emphasised that provisions targeting terrorism and national security should be a "shield for national security" rather than a "sword against dissent." Courts are expected to interpret Section 113 strictly, requiring proof of intent and proximate connection between the act and terrorist objectives.
Why the BNS Track Matters
Despite the existence of UAPA, the inclusion of terrorism in the general criminal code has symbolic and practical significance:
- Normalization: Embedding terrorism in the general code normalizes its treatment alongside ordinary crimes, potentially lowering the threshold for invocation.
- Accessibility: Every police station can register an FIR under Section 113 BNS, unlike UAPA which often requires state-level or NIA coordination.
- Broader reach: The absence of UAPA-style procedural requirements means Section 113 is easier to invoke.
New Provisions with No Old Equivalent
| Section | Provision | Details |
|---|---|---|
| Section 113 | Terrorist act in general criminal code | First inclusion of terrorism definition in India's general penal statute. No IPC equivalent. |
| Section 113 (counterfeit provision) | Economic terrorism through counterfeiting | Explicitly covers high-quality counterfeit currency as a terrorist act. |
| Section 113 (proceeds without knowledge) | Possessing proceeds of terrorism | Broader than UAPA — no "knowingly" requirement. |
Practical Checklist for Practitioners
- When defending a client charged under Section 113 BNS, compare the charge with UAPA provisions — determine whether the prosecution chose the BNS track to avoid UAPA's procedural requirements or for other strategic reasons
- Challenge the overbreadth of the definition — argue that ordinary criminal activity (even if serious) does not constitute a "terrorist act" without proof of terrorist intent and nexus
- Note that general BNSS bail provisions apply — unlike UAPA, there is no statutory bar on bail requiring the court to find no prima facie case
- Challenge the absence of the "knowingly" requirement for proceeds of terrorism — argue that mens rea should be read in as a constitutional requirement
- Verify the SP-rank officer's decision to register under BNS rather than UAPA — challenge if the decision appears to circumvent UAPA procedures
- For membership charges, argue that absence of a formal proscription process (unlike UAPA) makes the provision void for vagueness unless the prosecution identifies a specific "terrorist gang or organisation"
- Invoke Tejender Pal Singh and similar rulings to argue for strict interpretation of Section 113
Recent judicial developments (post-July 2024)
While no cases directly interpreting Section 113 BNS have been identified in the Veritect Legal Intelligence database, several significant Supreme Court judgments on the parallel UAPA framework provide critical guidance on how courts are approaching terrorism-related prosecutions in the post-July 2024 era:
Jalaluddin Khan v. Union of India (13 August 2024)
Court: Supreme Court of India | Judges: Abhay S. Oka, Augustine George Masih | Result: Bail granted
The Supreme Court granted bail to a retired police constable charged under UAPA and IPC Sections 121/121A/122 for alleged PFI involvement. The Court held that the chargesheet, taken as a whole, failed to establish reasonable grounds to believe the accusation was prima facie true under Section 43D(5) UAPA. The Court emphasized that mere commercial lease of premises and possession of CCTV does not imply conspiratorial intent, and that bail considerations must not devolve into a mini-trial.
Veritect reference: Diary_15920-2024_Judgment
Athar Parwez v. Union of India (17 December 2024)
Court: Supreme Court of India | Judges: Augustine George Masih, Abhay S. Oka | Result: Bail granted
The Supreme Court granted bail in a UAPA case, holding that mere association with an organisation not yet declared terrorist does not suffice for denial of bail. The Court reaffirmed that prolonged pre-trial detention without charges framed violates Article 21. This ruling is particularly relevant to Section 113 BNS, which allows prosecution for membership of a "terrorist gang or organisation" without the formal proscription requirement found in UAPA.
Veritect reference: Diary_14912-2024_Judgment
CBI v. Dayamoy Mahato — Jnaneshwari Express Derailment (11 December 2025)
Court: Supreme Court of India | Judges: Sanjay Karol, Nongmeikapam Kotiswar Singh | Result: HC bail orders set aside but bail not cancelled
In this landmark judgment involving the 2010 Jnaneshwari Express derailment (148 deaths, charged under Section 16 UAPA), the Supreme Court held that Section 436-A CrPC (corresponding to Section 479 BNSS) explicitly excludes offences where death is one of the possible punishments. While setting aside the HC bail orders, the Court declined to cancel bail after 3+ years without misuse, and issued comprehensive directions for expeditious UAPA trial completion and monitoring across all High Courts.
Veritect reference: Diary_27175-2023_Judgment
Ankush Vipan Kapoor v. NIA (16 December 2024)
Court: Supreme Court of India | Judge: Nagarathna, J. | Result: NIA jurisdiction upheld
The Supreme Court upheld NIA jurisdiction over connected NDPS cases as part of a broader UAPA conspiracy, establishing that Section 8 of the NIA Act allows investigation of any offence "connected" with a scheduled offence. This clarifies the expanded investigative reach of the NIA in terrorism cases — relevant context for the dual-track prosecution question between Section 113 BNS and UAPA.
Veritect reference: Diary_7542-2024_Judgment
Emerging patterns
Based on available post-July 2024 court orders:
Courts are demanding rigorous prima facie scrutiny in terrorism cases: The Jalaluddin Khan and Athar Parwez judgments signal that courts will not accept thin evidence for terrorism charges, whether under UAPA or potentially Section 113 BNS.
Article 21 as a counterbalance: The Supreme Court is increasingly using Article 21 to grant bail in terrorism cases involving prolonged pre-trial detention, which undercuts the prosecution's advantage in choosing the UAPA track over BNS.
The proscription gap matters: The Athar Parwez ruling — that association with an unproscribed organisation is insufficient — directly challenges Section 113 BNS's lack of a proscription requirement for "terrorist gang or organisation" membership charges.
Section 479 BNSS exclusion upheld: The Dayamoy Mahato ruling confirms that the default bail provision in Section 479 BNSS (like Section 436-A CrPC) does not apply to death-penalty offences, maintaining the stringent bail regime for the most serious terrorism charges.
Frequently Asked Questions
Does Section 113 BNS replace the UAPA?
No. UAPA continues to operate as a separate special law alongside Section 113 BNS. The two create parallel prosecution tracks. A police officer of SP rank or above decides which law to invoke for a specific case.
Why is terrorism now in the general criminal code?
The stated rationale is to provide a comprehensive criminal code that addresses all forms of serious crime, including terrorism. Critics argue this normalizes terrorism prosecution and lowers procedural safeguards available to the accused under special laws.
Can a person be charged under both Section 113 BNS and UAPA for the same act?
This remains legally contested. While double jeopardy principles should prevent prosecution for the same offence under both laws, the overlapping definitions create ambiguity. Courts will need to clarify the boundaries.
Are the bail provisions different for terrorism cases under BNS vs UAPA?
Yes, significantly. Under UAPA Section 43D(5), the court cannot grant bail unless it is satisfied, after perusal of the case diary, that there are reasonable grounds for believing that the accusation is not prima facie true. Under BNS/BNSS, general bail provisions apply with no such restriction.
What is the role of the NIA in BNS terrorism cases?
Section 113 BNS does not specifically involve the NIA. Cases under BNS are investigated by state police and tried in sessions courts. The NIA's jurisdiction is primarily under the NIA Act, 2008, and UAPA. However, if a case involves a "scheduled offence" under the NIA Act, the NIA may take over investigation.