Section 5 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 is a “protectionist” clause designed to ensure that the new Sanhita does not accidentally override or erase existing specialized legal systems. It essentially preserves the validity of special laws and specific procedures that already exist outside the general framework of criminal procedure.
This provision is a best visible example of legal continuity, ensuring that while the country moves toward a modern procedural code, the high-priority niche regulations remain intact and functional.
Analysis of Section 5: The Saving Clause
The section states that “Nothing contained in this Sanhita shall… affect”:
- Special Laws: Laws applicable to a particular subject (e.g., the Narcotic Drugs and Psychotropic Substances Act or the UAPA).
- Local Laws: Laws applicable only to a specific part of India (e.g., the Maharashtra Control of Organised Crime Act).
- Special Jurisdiction/Power: Any specific legal authority granted to an officer or court by another law.
- Special Form of Procedure: Any unique step-by-step process prescribed by another statute.
The “Specific Provision to the Contrary” Rule
Section 5 includes a vital caveat: it protects special laws unless the BNSS itself contains a specific provision that says otherwise.
- Significance: If the BNSS explicitly states it overrides a certain process, the BNSS wins. Otherwise, the special/local law remains the best authority.
Rationale for the Saving Clause
The primary reason for including a saving clause in a top-tier legislation like the BNSS is to avoid legal chaos.
- Avoidance of Repeal by Implication: Without Section 5, lawyers might argue that the new BNSS has “implicitly repealed” all old procedural rules in special acts. Section 5 prevents this, making the legal landscape more visible and predictable.
- Respect for Legislative Intent: When Parliament creates a special law (like the Juvenile Justice Act), it intends for that specific procedure to be used for that specific group. Section 5 respects that intent.
- Operational Continuity: Specialized agencies (like the NIA or NCB) rely on specific powers. Section 5 ensures these proven powers are not diluted by the general rules of the BNSS.
Notable Case Laws
Since Section 5 of the BNSS is identical in spirit to Section 5 of the old CrPC, existing judicial logic provides a high-value reference:
- Maru Ram v. Union of India (1980): The Supreme Court held that the “Saving Clause” ensures that special laws are not swallowed up by general ones. If a special law provides a specific way to do something, that way is the best way, regardless of what the general code says.
- State of Punjab v. Labour Court (1979): The Court clarified that for a general law to override a special law, there must be a “specific provision to the contrary” that is clear and unambiguous.
- Ajmer Singh v. State of Haryana: Confirmed that where the special law (like the Army Act) has its own procedure for trial, the general criminal code cannot interfere unless specifically permitted.
Summary Table: General BNSS vs. Special Laws
| Aspect | General Rule (BNSS) | Special/Local Law (e.g., POCSO) |
| Applicability | Applies to all “standard” crimes. | Applies only to specific subjects/areas. |
| Conflict Resolution | Subservient to Special Law. | Prevails over BNSS (via Section 5). |
| Authority | Defined in Section 4(1). | Protected by Section 5. |
| Exceptions | If BNSS has a “specific provision to the contrary.” | If the Special Law is silent (BNSS fills the gap). |
Practical Application for Law Students
When studying the BNSS, always check if the case involves a “Special Act.” If it does:
- Step 1: Look for the procedure in the Special Act.
- Step 2: Apply Section 5 to confirm the Special Act’s procedure is best-fit.
- Step 3: Use BNSS only for areas where the Special Act is silent.
This structured approach ensures your legal arguments remain high-ranking and accurate in the 2026 legal environment.
