Terrorist Act (Section 113 BNS)

Section 113 of the Bharatiya Nyaya Sanhita, 2023 (BNS) brings the substantive offence of terrorism into the general penal Code for the first time. The Indian Penal Code, 1860 (IPC) — whose framework is set out in our introduction chapter — never carried such a provision. Successive special statutes addressed the field — the Terrorist and Disruptive Activities (Prevention) Act, 1985 (TADA), the Prevention of Terrorism Act, 2002 (POTA), and the Unlawful Activities (Prevention) Act, 1967 (UAPA, as substantially amended in 2004, 2008, 2013 and 2019). Section 113 BNS does not displace those special statutes; it sits alongside them, supplying a general-Code offence that the prosecution may charge in any State, before any court of competent jurisdiction, without the institutional special-court machinery that TADA and POTA carried.

The legislative judgment is clear. Terrorism, as a substantive criminal-law category, was for forty years treated as an exceptional matter requiring exceptional procedure. The Sanhita restores the offence to the general Code and accepts that procedural exceptionalism — special courts, altered evidentiary rules, extended detention — should remain in the special statutes where it is needed, while the substantive definition is now uniform.

Statutory anchor

Section 113(1) BNS opens with the controlling intent: 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, by one of the three modalities that follow, commits a terrorist act.

The modalities are listed under sub-clauses (a), (b) and (c) of Section 113(1) BNS. They are non-overlapping in concept though often overlapping in fact. Each ought to be understood as a freestanding limb because a terrorist-act prosecution must specify which limb is being invoked and the act-element of that limb must be made out.

Three limbs of the actus reus

Section 113(1)(a) BNS — weapons-of-violence limb

This sub-clause catches the use of bombs, dynamite or other explosive or inflammable substance, firearms or other lethal weapons, poisonous or noxious gases or other chemicals, or any other substance (whether biological, radioactive, nuclear or otherwise) of a hazardous nature, or any other means of whatever nature, to cause or likely to cause one of five named consequences:

1. Death of, or injury to, any person or persons.
2. Loss of, damage to, or destruction of, property.
3. Disruption of any supplies or services essential to the life of the community in India or in any foreign country.
4. Damage to the monetary stability of India by way of production, smuggling or circulation of counterfeit Indian paper currency, coin or of any other material.
5. Damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies.

Two features of the limb merit attention. First, the residuary phrase or any other means of whatever nature is wide enough to absorb low-tech as well as high-tech delivery — a vehicle driven into a crowd, a knife attack at a public gathering, a cyber-attack on critical infrastructure all fall within the limb if the controlling intent is established. Second, the consequence need only be likely to cause — actual occurrence of death, damage or disruption is not required. The likelihood test brings preparatory and incipient conduct within reach.

Section 113(1)(b) BNS — overawing-and-public-functionary limb

This sub-clause catches three patterns: overawing the Government by means of criminal force or the show of criminal force; attempting to overawe the Government by such means; and causing or attempting to cause the death of a public functionary. The Explanation defines public functionary to mean the constitutional authorities — the President, Vice-President, Prime Minister, Governors, Speakers, Judges of the Supreme Court and High Courts — and any other functionary notified in the Official Gazette by the Central Government.

The provision absorbs assassination of constitutional authorities and of notified functionaries, attempted assassination, and the broader category of overawing the Government. The notion of overawing draws on the older jurisprudence under the offences against the State framework of Sections 147 to 158 BNS, but the concept is wider — it does not require waging war and need not take collective form.

Section 113(1)(c) BNS — hostage-and-coercion limb

This sub-clause catches the detention, kidnapping or abduction of any person, accompanied by a threat to kill or injure such person, or any other act, with the purpose of compelling the Government of India, any State Government, the Government of a foreign country, or any other person to do or abstain from doing any act. The limb is the terrorism-specific cousin of Section 140(2) BNS — kidnapping for ransom. The two are distinguished by the purpose: Section 140(2) BNS targets pecuniary ransom, while Section 113(1)(c) BNS targets coercion of state or international authority.

Mens rea — the controlling intent

The controlling intent under Section 113(1) BNS has two alternative components and a likelihood-test wrinkle.

1. Intent to threaten the unity, integrity, sovereignty, security or economic security of India. The five values are listed in the alternative — proof of any one suffices. The economic-security limb is new; it was not present in TADA or in POTA, though it tracks the broader UAPA scheme. It catches the production of counterfeit currency, large-scale economic sabotage and cyber-attacks on the financial system.
2. Intent to strike terror in the people or any section of the people in India or in any foreign country. The Supreme Court's TADA jurisprudence — particularly Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 — laid down that striking terror means more than committing a violent act in a public place. The act must be calculated to overawe a section of the population. That doctrinal gloss survives into Section 113 BNS.
3. The likelihood test. The intent need not have actually translated into the threatened consequence — proof that the act was likely to threaten or strike terror is enough. The test brings preparatory and incipient conduct within reach.

The intent must be at the time of the act. Subsequent ratification by a terrorist group does not retrofit terrorist intent into a non-terrorist act, and the absence of contemporaneous intent will defeat a prosecution under Section 113 BNS however severe the actual consequences.

The punishment scale

Section 113 BNS prescribes one of the heaviest punishment scales in the Sanhita, comparable only to that for waging war and organised crime.

1. Section 113(2)(a) BNS — death-resulting cases. Death or imprisonment for life, with fine.
2. Section 113(2)(b) BNS — non-death cases. Five years to life, with fine.
3. Section 113(3) BNS — conspiracy, attempt, advocacy, abetment, advice, incitement, facilitation, preparatory acts. Five years to life, with fine. The provision absorbs and extends the inchoate-liability theories that ordinarily attach through the general law of abetment under Sections 45 to 60 BNS, the law of criminal conspiracy under Section 61 BNS, and the general attempt provision under Section 62 BNS. The advocacy, advice and incitement limbs go beyond the general law and reach inflammatory speech that does not amount to abetment in the strict sense.
4. Section 113(4) BNS — terrorist training and recruitment. Five years to life, with fine. Catches the operator of a training camp and the recruiter of personnel for terrorist activity.
5. Section 113(5) BNS — bare membership. Up to life imprisonment, with fine. Membership of an organisation involved in terrorist act is itself an independent substantive offence.
6. Section 113(6) BNS — harbouring or concealing. Three years to life, with fine. The proviso exempts the spouse of the offender, preserving the historical family-immunity policy that the Sanhita carries through Section 111(5) BNS for organised crime as well.
7. Section 113(7) BNS — possession of proceeds. Up to life imprisonment, with fine. Knowing possession of property derived from, or acquired through, the commission of a terrorist act is independently punishable.

Section 113 BNS and UAPA — the prosecutor's choice

The Explanation to Section 113(7) BNS contains the most consequential procedural innovation in the section. It declares that an officer not below the rank of Superintendent of Police shall decide whether to register the case under Section 113 BNS or under the Unlawful Activities (Prevention) Act, 1967. The provision recognises overlap and channels the choice through a senior-rank decision-maker.

The two regimes diverge in three significant ways.

1. Investigation. UAPA cases are typically investigated by the National Investigation Agency under the National Investigation Agency Act, 2008. Section 113 BNS cases are investigated by the State police of the territorial jurisdiction. The choice has cascading consequences for trial venue, prosecutorial control and Centre-State coordination.
2. Bail and detention. UAPA's Section 43D(5) imposes a sharp bail bar — the court shall not release the accused on bail if there are reasonable grounds for believing that the accusation is prima facie true. Section 113 BNS, being part of the general Code, attracts the standard bail framework of Chapter XXXV of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS); UAPA-style bail bars do not apply.
3. Trial. UAPA cases are typically tried by Special Courts established under the National Investigation Agency Act, 2008, or by Designated Courts under the State amendments. Section 113 BNS is triable by the Court of Session under the standard First Schedule classification.

The senior-rank channelling under the Explanation to Section 113(7) BNS aims to prevent forum-shopping — the prosecution cannot choose at trial-court level between the two statutes once the SP-rank officer has registered the case. The decision is reviewable, but the institutional default is locked in at registration.

Constitutional history — TADA, POTA and the journey to Section 113

Three special statutes preceded Section 113 BNS, and each left doctrinal residue that the new provision absorbs.

TADA, 1985–1995

The Terrorist and Disruptive Activities (Prevention) Act, 1985, was India's first dedicated terrorism statute. Its constitutionality was sustained by the Supreme Court in Kartar Singh v. State of Punjab, (1994) 3 SCC 569, which laid down due-process safeguards governing confessions to police officers, designated-court procedure and the role of Review Committees. The statute was allowed to lapse in 1995 because of widespread misuse.

POTA, 2002–2004

The Prevention of Terrorism Act, 2002 — enacted in the wake of the December 2001 Parliament attack — carried a similar substantive scheme with added provisions on terrorist organisations and proceeds of terrorism. The Supreme Court in People's Union for Civil Liberties v. Union of India, (2004) 9 SCC 580, upheld POTA but read in safeguards. The statute was repealed in 2004 in response to documented misuse, with the substantive offences then folded into UAPA by amendment.

UAPA, post-2004

UAPA — originally a 1967 statute targeting unlawful associations — was transformed by the 2004, 2008, 2013 and 2019 amendments into India's principal terrorism law. Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra, (2010) 5 SCC 246, affirmed the supremacy of the Central UAPA over State legislation in the field; the 2019 amendment introduced the controversial individual-designation framework that the Supreme Court is yet to rule on conclusively.

Section 113 BNS and Section 111 BNS — sister provisions

The terrorist-act provision and the organised-crime provision under Section 111 BNS are sister sections in the syndicate-and-terrorism trilogy that the Sanhita introduces. They share architecture — bare-membership offence, harbouring offence, possession-of-proceeds offence — but differ in mens rea. Section 111 BNS targets profit-driven syndicate criminality; Section 113 BNS targets ideologically-motivated conduct intended to threaten state values or strike terror. The same fact-pattern may attract both — a syndicate that finances terror through extortion, or a terror cell that funds itself through organised drug trafficking — and concurrent charges are common.

The lower-tier sibling — petty organised crime under Section 112 BNS — does not intersect with Section 113 BNS at all because the predicate-offence categories of Section 112 BNS (theft, snatching, ticket scams) cannot satisfy the terrorist-intent requirement.

Procedural classification

Section 113 BNS is cognizable, non-bailable, and triable exclusively by the Court of Session. The First Schedule to the BNSS so classifies it. The mandatory minimum sentence under Section 113(2)(b) BNS makes plea-bargaining under Chapter XXIII of the BNSS unavailable as a route to a sub-five-year sentence. The offence is not compoundable. Investigation is by the State police of the territorial jurisdiction, with the SP-rank officer making the institutional choice between registration under Section 113 BNS and registration under UAPA.

The seven sub-sections seen as a unified scheme

The architecture of Section 113 BNS becomes clearer when the seven sub-sections are read together as a unified scheme rather than as discrete offences. Each sub-section captures a different role in the terror ecosystem.

1. The principal offender is caught by Section 113(1) read with Section 113(2) BNS. This is the operative who plants the bomb, fires the shot, takes the hostage. The punishment scales with the consequence — death where any victim dies, five years to life otherwise.
2. The conspirator, planner and inciter are caught by Section 113(3) BNS. The provision is broader than the general law of conspiracy because it independently catches advocacy, advice and incitement that would not amount to abetment in the strict sense. Five years to life with fine.
3. The trainer and recruiter are caught by Section 113(4) BNS. The provision targets the operator of a training camp and the person who recruits personnel for terrorist activity. Five years to life with fine.
4. The bare member is caught by Section 113(5) BNS. Membership of an organisation involved in terrorist act is itself an independent substantive offence. Up to life imprisonment with fine.
5. The harbourer is caught by Section 113(6) BNS, with the spouse exempted by proviso. Three years to life with fine.
6. The financier and beneficiary are caught by Section 113(7) BNS. Knowing possession of property derived from, or acquired through, the commission of a terrorist act is independently punishable. Up to life imprisonment with fine.

The scheme catches every link in the chain — operative, conspirator, planner, inciter, trainer, recruiter, member, harbourer, financier, beneficiary. The seven sub-sections are concentric rather than alternative; the same accused may be charged under several of them, and the trial will proceed on each charge separately.

Sentencing pattern likely to develop

Three sentencing factors are likely to crystallise as the early jurisprudence develops. The first is the consequence — the death-resulting cases under Section 113(2)(a) BNS will pull the sentence toward the death penalty in cases of mass casualty, with the rarest-of-rare doctrine of Bachan Singh v. State of Punjab, (1980) 2 SCC 684, controlling the choice between death and imprisonment for life. The second is the role played — the ringleader will draw a heavier sentence than the foot-soldier, the trainer than the trainee, the financier than the beneficiary. The third is the cooperation factor — the accused who turns approver under Section 343 of the BNSS may, after recording, secure a reduced sentence within the band, though the floor of five years remains under Section 113(2)(b) BNS.

The fine under each sub-section is mandatory but unquantified. Trial Courts have a wide discretion on the quantum, which is likely to be exercised by reference to the proceeds of the offence — where the financier has profited substantially, the fine will track the profit. Default sentencing for non-payment of fine is governed by the standard rules in the punishments chapter under Section 8 BNS.

Constitutional context — speech, association and the limits

Section 113 BNS sits at the constitutional boundary marked by Article 19(1)(a) (freedom of speech), Article 19(1)(c) (freedom of association) and the public-order, sovereignty-and-integrity reasonable restrictions in Article 19(2) and 19(4). The advocacy, advice and incitement limbs of Section 113(3) BNS are the doctrinally sensitive ones because they reach speech that does not itself amount to violent conduct. The Supreme Court's Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955, line — which read down the sedition provision to require incitement to violence or disturbance of public order — is the relevant constitutional baseline. Whether the Section 113(3) BNS advocacy and incitement limbs require the same incitement-to-imminent-violence threshold is a question that the early jurisprudence will need to settle.

Membership-based liability under Section 113(5) BNS raises a parallel question under the Article 19(1)(c) freedom of association. The Supreme Court in Arup Bhuyan v. State of Assam, (2011) 3 SCC 377, originally read down the equivalent UAPA provision to require active participation rather than bare membership; the larger Bench in 2023 reversed Arup Bhuyan and restored the bare-membership reading. Section 113(5) BNS now codifies bare-membership liability at the level of the general Code, and the constitutional question is therefore likely to recur.

Exam-angle distinctions

Five distinctions are likely to recur in judiciary-services papers and law-school examinations on this chapter, and each ought to be committed to memory in the new-law form. Section 113 BNS is distinguished from Section 111 BNS by mens rea — terror-intent versus profit-intent. Section 113 BNS is distinguished from waging war under Section 147 BNS by collective form — waging war requires armed insurgency, while terrorism may be the act of a single operative. Section 113(1)(a) BNS is distinguished from the framework of culpable homicide and murder under Sections 100 and 101 BNS by intent — the death is incidental to the terror-intent, not the primary purpose. Section 113(1)(c) BNS is distinguished from kidnapping for ransom under Section 140(2) BNS by purpose — coercion of state authority versus pecuniary ransom. Section 113(5) BNS is distinguished from the general law of conspiracy by sufficiency of bare membership — no overt act in furtherance is required.

Where this chapter sits in the larger BNS scheme

Section 113 BNS completes the syndicate-and-terrorism trilogy of new BNS innovations. Read together with Section 111 BNS (organised crime) and Section 112 BNS (petty organised crime), the trilogy creates a layered architecture for collective criminality at every scale — from gang-based theft at the bottom, through profit-driven continuing crime in the middle, to ideologically-motivated terrorism at the top. The student who keeps the three sections in view will find that fact-patterns of any complexity decompose into the doctrines worked out in each.

The complete scheme is collected in the IPC and BNS notes hub, which traces the new-law-first approach across the entire substantive criminal law and links every chapter in the series.

Frequently asked questions

What is the difference between Section 113 BNS and the Unlawful Activities (Prevention) Act, 1967?

Section 113 BNS supplies a substantive terrorist-act offence in the general penal Code, with punishment ranging from five years to death and the standard procedural framework of the BNSS. UAPA is a special statute that, in addition to the substantive offence, carries the bail bar of Section 43D(5), the National Investigation Agency Act trial venue, and the individual-designation framework. The Explanation to Section 113(7) BNS provides that an officer not below the rank of Superintendent of Police shall decide whether to register the case under Section 113 BNS or under UAPA. The choice is institutional and is locked in at the time of registration.

What are the three limbs of Section 113(1) BNS?

Section 113(1)(a) BNS catches the use of bombs, dynamite, firearms, poisonous or noxious gases, biological, radioactive or nuclear substances, or any other means, to cause or be likely to cause death, injury, property damage, disruption of essential supplies, damage to monetary stability through counterfeit currency, or damage to defence-related property. Section 113(1)(b) BNS catches overawing the Government by criminal force, the show of criminal force, or attempts to do so, and the killing or attempted killing of a public functionary. Section 113(1)(c) BNS catches detention, kidnapping or abduction of any person with a threat to kill or injure, with the purpose of coercing the Government of India, a State Government, a foreign Government or any other person.

Is bare membership of a terrorist organisation an offence under Section 113 BNS?

Yes. Section 113(5) BNS independently punishes membership of an organisation involved in terrorist act, with imprisonment that may extend to life imprisonment, and fine. The provision punishes membership in itself — no proof that the member committed any specific terrorist act is required. The constitutional question whether bare-membership liability violates Article 19(1)(c) was first answered in Arup Bhuyan v. State of Assam, (2011) 3 SCC 377, which read down the equivalent UAPA provision to require active participation. A larger Bench in 2023 reversed that reading and restored the bare-membership rule, which Section 113(5) BNS now codifies at the level of the general Code.

Does the spouse exception in Section 113(6) BNS extend to live-in partners?

No. The proviso to Section 113(6) BNS exempts only the spouse of the offender from the harbouring offence. The exemption preserves the historical family-immunity policy that the IPC followed in Section 216 IPC and that Section 111(5) BNS carries forward for organised crime. The exemption is narrow — it applies only to a wife or husband whose marriage is recognised in law. A live-in partner who shelters a person known to have committed a terrorist act remains exposed to liability under Section 113(6) BNS, with punishment ranging from three years to life imprisonment, and fine.

Can Section 113 BNS be charged together with Section 111 BNS or Section 103 BNS?

Yes. The same fact-pattern may attract Section 113 BNS along with Section 111 BNS where a terror cell finances itself through organised crime, or a syndicate finances terror through extortion. It may also attract Section 103 BNS for murder where the terrorist act results in death — the death-resulting punishment under Section 113(2)(a) BNS is death or imprisonment for life, the same as the punishment for murder under Section 103 BNS. The accused may be convicted under both, with the higher of the two sentences absorbing the lower. Concurrent charging is the norm in serious cases, and is institutionally favoured because it gives the appellate court alternative bases for sustaining conviction.

What is the likelihood test in Section 113(1) BNS?

Section 113(1) BNS does not require the threat to the unity, integrity, sovereignty, security or economic security of India to have actually materialised, nor does it require terror to have actually been struck. It is enough that the act was likely to threaten or to strike terror. The same likelihood standard runs through sub-clause (a) — the act must be likely to cause death, injury, property damage, disruption, monetary harm or defence-property destruction. The likelihood test brings preparatory and incipient conduct within the reach of the section, and reduces the prosecution's evidentiary burden from proof of consequence to proof of capacity to cause consequence.