ASSOCIATION AS ORGANISATION: Section 112 OF THE BNS :An Essay on the Status‑Plus‑Conduct Model, Undefined Membership, and the Overreach of Section 112

Brigadeesh Kamalnath (National University of Juridical Sciences, Kolkata

Table of Contents

1. Introduction

2. A Brief Pre-History

3. From Clause 110 to Section 112: What Changed and Why It Matters

4. Membership and Proof: What ‘Group or Gang’ Implies

5. Procedure and Safeguards: The Lack Thereof

6. Section 112’s Co-existence with BNS Base Offences and State Special Legislation

7. Conclusion

Introduction

On December 25, 2023, the Bharatiya Nyaya Sanhita, 2023 (BNS), the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) and the Bharatiya Sakshya Adhiniyam, 2023 (BSA) were enacted by the Parliament. These 3 legislations came into force on July 1, 2024, replacing the “colonial” and “regressive” Indian Penal Code, 1860 (IPC), the Code of Criminal Procedure, 1973 (CrPC), and the Indian Evidence Act, 1872 (IEA). But the question lies in whether these new enactments modernise criminal law or just reshuffle the familiar pieces. Importantly, the main takeaway from these new enactments is several structural choices to bring in drastically increased penalties with no significant procedural safeguards, as noted in an Amnesty International Report. For instance, it’s claimed that sedition is abolished, but the new provision replacing it under §150 of the BNS only increases its scope and makes it more arbitrary, according to critics. But the most consequential change is the introduction of the sections to combat organised crime - §111 and §112.

This essay will delve into §112 specifically, which is not to minimise the stakes around §111, but to avoid redundancy. §111 is largely taken from the organised crime provisions in the Maharashtra Control of Organised Crime Act, 1999 (MCOCA) and the legislations it inspired - the Gujarat Control of Terrorism and Organised Crime Act, 2015 (GUJCTOCA) and the Karnataka Control of Organised Crime Act, 2000 (KCOCA). Given this lineage, the critique around these state statutes foreshadows how §111 will be argued. §112, however, is a brand-new piece of legislation, introducing a general-code aggravator for “petty organised crime”, in a way that deliberately lowers structural thresholds, while raising the penalty ceilings for common “petty” offences. The friction in §112’s design is therefore not in the gravity of the offense, but in the absence of similar legislation, both domestically and internationally, and the lack of procedural scaffolding, §112 is thus drastically under-analysed, despite its targeting of everyday acquisitive offences, increased penalties of 1 to 7 years, non-bailability, and decreased procedural safeguards, which are likely to affect far more people, far more often.

This essay proceeds in five parts: a brief pre‑history; the drafting history of §112 and why it matters; the membership and proof problem; procedure and safeguards under the ordinary code; and the provision’s coexistence with base BNS and special laws.

A Brief Pre-History

Before BNS, organised crime was only addressed under state legislations like the MCOCA, GUJCTOCA, KCOCA and Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 (UP Gangsters Act), and if the state didn’t have special legislation, under §120B or §120 of the IPC (criminal conspiracy). However, interestingly, this is not the first attempt by the Centre to draft a law on this subject matter. In the 1990s, the UNAFEI’s 108th International Seminar Visiting Expert’s Papers quotes the Home Ministry that the Centre was then in the process of drafting an “Organised Crime Control Act”. But there is no official record of this bill, so it's safe to say that this bill never passed the drafting stage for reasons unknown. This draft Act however, defines ‘organised criminal gang’ in a comprehensive manner:

“A band of two or more persons who commit or attempt to commit or cause to be committed, either individually or collectively, in furtherance of a common object or objects and on a continuing basis, for material gains or otherwise, by taking recourse to use or show of violence or threat of violence, either direct or implied, or by fraudulent or dishonest means corrupting the public servants, any of the acts listed in Schedule I to this Act.”

(Schedule I³ was a comprehensive list of most major criminal offences, including murder, bodily harm, smuggling, mass-killing, extortion, etc.).

The procedural aspects of the draft Act appear to be the same as those implemented in the MCOCA and other state legislations on organised crime. But the most significant aspect of the draft Act is that continuing criminal activity based on violence, even when not impelled by material gain, is proposed to be brought within the ambit of organised crime. This is an obvious departure from prevalent definitions of organised crime in other countri⁴es, which focus on material gain as an important aspect. But in neither this draft Act nor in the state legislations was “petty organised crime” resembling §112 ever codified. Petty theft, cheating and other heads under §112 were only dealt with in their unorganised form by the IPC, CrPC, and relevant special legislations like the Public Gambling Act, 1867, and the recent Public Examinations (Prevention of Unfair Means) Act, 2024.

From Clause 110 to Section 112: What Changed and Why It Matters

The Rajya Sabha Debate on the BNS mentioned that the provision is to target mobile petty crime rings. While the main contention, regarding procedural safeguards and the approval mechanism, has not been mentioned, this debate took place on December 21, 2023, immediately after the Government introduced the Bharatiya Nyaya (Second) Sanhita on December 12, 2023. So, the final law that we know as the BNS today was the second, revised bill. So, now the question arises: what were the revisions about? To answer this we turn to the 246th Standing Committee Report of November 10, 2023 (Report), that started off talking about why the BNS and the two accompanying legislations were an unnecessary rearrangement of sections that will only burden and slow the already struggling legal system as lawyers spent what was estimated to be about 5-10 years just to cross-reference the BNS and IPC sections for interpretation. This report on the initial Bharatiya Nyaya Sanhita Bill quite strongly criticized the sections on organised crime, among other things.

In the initial version of the BNS, petty organised crime was §110, before rearrangement in the final version. §110 reads as follows:

“110. (1) Any crime that causes general feelings of insecurity among citizens relating to theft of vehicle or theft from vehicle, domestic and business theft, trick theft, cargo crime, theft (attempt to theft, theft of personal property), organised pick pocketing, snatching, theft through shoplifting or card skimming and Automated Teller Machine thefts or procuring money in unlawful manner in public transport system or illegal selling of tickets and selling of public examination question papers and such other common forms of organised crime committed by organised criminal groups or gangs, shall constitute petty organised crimes and shall include the said crimes when committed by mobile organised crime groups or gangs that create network of contacts, anchor points, and logistical support among themselves to carry out number of offences in region over a period before moving on. (2) Whoever commits or attempts to commit any petty organised crime, under sub-section (1) sha12ll be punished with imprisonment for a term which shall not be less than one year but which may extend to seven years, and shall also be liable to fine.”

Now the final enacted version, §112, is as follows:

“112. (1) Whoever, being a member of a group or gang, either singly or jointly, commits any act of theft, snatching, cheating, unauthorised selling of tickets, unauthorised betting or gambling, selling of public examination question papers or any other similar criminal act, is said to commit petty organised crime.

Explanation. — For the purposes of this sub-section “theft” includes trick theft, theft from vehicle, dwelling house or business premises, cargo theft, pick pocketing, theft through card skimming, shoplifting and theft of Automated Teller Machine.

(2) Whoever commits any petty organised crime shall be punished with imprisonment for a term whic²⁰h shall not be less than one year but which may extend to seven²¹ years, and shall also be liable to fine.”

Now, we can see that the punishment clause was only changed slightly, with “attempt” being dropped, meaning it's routed through the general provision under §62 of the BNS, rather than §112(2). However, the definition of the crime was completely overhauled in the final version. In the original, petty organised crime was defined by its effect - “any crime that causes general feelings of insecurity among citizens.” However, after “feelings of insecurity” was flagged by the Standing Committee as too vague and prone to misuse, the Government changed it when it withdrew the first Bill and introduced the Second Bill in December. The enacted §112 materially changes the chapeau, the heads, and the scope by establishing a status-plus-conduct model.

First, it replaces the vague effect-based trigger with a status-plus-conduct template, based on defined offences rather than a subjective feeling. However, the phrase “either singly or jointly” means that a solo act by any member of a gang suffices. So, the statute no longer speaks of “mobile criminal groups”, and it doesn’t require a nexus between the membership and the particular incident.

Second, the heads are condensed and reorganised, with cheating and unauthorised betting/gambling appearing as standalone heads.

Third, the residual clause is changed from “such other common forms of organised crime” to “any other similar criminal act”. That phrasing invites, and should receive, an ejusdem generis reading by the court - that “similar” means offences of the same acquisitive/fraud genus as the listed heads, to avoid gross overreach.

Membership and Proof: What ‘Group or Gang’ Implies

First, §112 consciously drops the first Bill’s phrase “organised criminal group” (which the chapeau itself defined) and replaces it with the undefined “group or gang.” However, this reframing, by removal of the phrase “organised criminal group” gives rise to what seems to be an intentional but glaring loophole in the law, where even lawful associations could satisfy the “group or gang” status criteria. But it is likely that while interpreting this Section, the courts take in the context of the Section, and read this purposively and with lenity, confining the phrase “group or gang” to criminally oriented groupings rather than casual associations.

Second, unlike §111, this Section does not have a threshold of “continuous unlawful activity”, so it is to be construed that even ad hoc groups, that is, groups formed with the intent to commit criminal activities, can be said to satisfy the criteria. This lowering of the threshold is again deliberate, given that the “organised crime syndicate” defined in the previous §isn’t mentioned here. So, there is no requirement of continuity, prior charge sheets, or a syndicate structure here, unlike continuity‑based acts such as MCOCA, which is a deliberate, lower‑threshold choice for §112.

Third, the explicit dropping of the term “committed by an organised criminal group” in the First Bill, to just “being a member of a group or gang” shows that this Section becomes a status-plus-conduct aggravator, wherein if a person performs any of the acts listed under it and is a member of a “group or gang”, then they can be charged and prosecuted under this §without any other requirements. The text does not require that the act be carried out “as” a member or “for” the group, nor have any explicit nexus between the act and the group’s objectives. At the same time, ‘either singly or jointly’ does not dispense with proving criminal‑orientation membership in the first place - it only clarifies that the predicate act may be done alone.

Fourth, because §112 is silent on proof standards, the court will have to borrow evidentiary logic (but not elements) from similar state legislation like the UP Gangsters Act, to insist on concrete indicia of a criminal group membership through patterns, or a common modus operandi, shared logistics, role allocations, communication, planning, benefit-sharing or prior coordinated incidents. This is so that the absence of a phrase specifying “criminal groups” doesn’t mean that the prosecution can use even lawful associations to fulfil the status element required.

Thus, §112 does not require (a) proof of a syndicate, (b) continuity or prior charge sheets, or (c) that the specific act furthered group objectives. But it should be read to exclude (a) purely lawful associations, (b) social proximity without criminal nexus, and (c) mere presence at the scene. This is the narrow path that must be followed to ensure that the text’s structural minimalism and lack of clarity do not overreach to affect basic fairness.

Procedure and Safeguards: The Lack Thereof

§112, despite having such low thresholds, only travels through ordinary BNSS procedure, not a special law track. There is no prior approval or sanction, no rank-gated investigation, no special courts, no witness protection provisions, etc., like the MCOCA or the UP Gangsters Act. The offence is cognizable and non-bailable on classification. Those labels, however, do not displace the safeguards that the Supreme Court has established for offences with a maximum of seven-year sentences. The Arnesh Kumar necessity-to-arrest reasons (and ordinarily a BNSS §35 notice) rather than default arbitrary arrests, and the Satender Kumar Antil principle that bail is the rule for offences less than 7 years. ensures at least some procedural safeguards, and that discretionary bail is still possible despite the non-bailable tag.

In effect, §112’s non-bailable tag increases pre-trial leverage, removes the eligibility of a summary trial and forecloses compounding leading to increased docket load, but judicial arrest and bail discipline limits abuse of the legislation at least to some extent. Quantitatively, §112 converts commonplace acquisitive/fraud offences that typically carry 0-3 year maxima into a non‑bailable 1-7 year sentence with a mandatory floor. Summary trial, compounding, and community‑service pathways fall away once the §112 charge sticks. This penalty and procedure flip, without ex ante approvals or special‑law filters, explains why arrest/bail discipline and a narrow ‘membership’ reading shoulder most of the proportionality work in practice.

But it is still to be noted with alarm that a man who’d individually committed petty theft, even as a first time offence, could go from being charged for a minor bailable offence eligible for a summary trial and no mandatory sentence, to being charged under §112 with a minimum 1 year sentence and fine, just because of membership in a “group or gang”. This goes to show that this Section, rather than addressing petty theft in an organised manner, offers an avenue to drastically increase the sentencing of petty crimes by just proving gang membership, as almost all of the heads under §112, when in an unorganised manner, generally have a sentence of 0-3 years maximum.

Moreover, §112 leaves the concept of community service introduced in the BNS as a rather redundant paradox. Community service, being introduced to deal with minor offences and certain first-time petty crime cases (like petty theft under Rs. 5000 with restitution), was one of the central aims of the new code, in an effort to make the judicial system less punitive. But with the only requirement to charge even first-time offenders under organised petty crime being to prove gang membership, this would lead to a lot of even first-time cases being under §112, resulting in the provision of community service becoming redundant, and setting a minimum sentence of a year to even first-time offences.

So, in essence, this Section, instead of curbing petty “organised” crime, arbitrarily raises the penalty for petty crimes if it can be proven that the accused belonged to a gang, thereby completely disregarding the requirement of an “organised” aspect of the crime itself.

Section 112’s Co-existence with BNS Base Offences and State Special Legislation

§112 sits alongside, not above, both base BNS offences and special statutes. Where elements coincide, the special statute prevails over the general one, and concurrent charging is proper only if distinct elements are proved, with sentencing that avoids double punishment for the same offence. §112 should be pleaded only where its distinct status element (membership of a “group or gang”) is independently provable.

State special laws (MCOCA/GUJCTOC/KCOCA and UP Gangsters Act) continue post‑BNS under Article 254(2) of the Constitution and Presidential assent. The state special legislation will take precedence, while §112 may still run where it adds distinct elements (membership in a non‑syndicate “group or gang” plus an enumerated petty act). §112 might be preferred to bypass the approval or special court systems set up by these special laws.

The Constitutionality of §112

Vagueness critiques of the Section focus on the undefined “group or gang” and the residual “similar criminal act,” while proportionality critiques point to the 1–7 year sentence, non‑bailable status, and the breadth of common acts pulled into a serious‑offence posture by a status element that does not, on its face, require a crime‑specific nexus. While any question of the constitutionality of this Section as of right now is more speculation than substance, the pending plea in the SC challenging the constitutionality of the so-called “draconian” UP Gangsters Act will shed light upon this act once ruled upon. This is because the UP Gangsters Act, while being narrowly similar to this Act, is comparatively less vague and arbitrary, and features some procedural safeguards such as special courts, gang-charts, etc., unlike §112. So, any ruling on the UP Gangster’s Act will reflect on this provision directly, due to the similarity of their subject matter. It is to be noted that unlike the MCOCA and the UP Gangsters Act, which, despite their argued “draconian nature”, at least clearly defines some sort of special procedure and safeguards like prior approval/sanction, rank-gated investigation, special courts, property attachment, witness-protection carve-outs, etc., this Section only drastically lowers the thresholds but doesn’t raise the procedural safeguards against abuse.

Conclusion

From what we’ve seen, §112 does not fill a genuine gap so much as create new risks. The conduct it sweeps in - low‑value theft variants, snatching, cheating, touting, gambling, exam‑leaks - is already addressed by base BNS offences and a lattice of sectoral statutes, while “serious” organised criminal activity is adequately handled by §111 and long‑standing state special laws. If anything was missing in practice, it was more likely to be resourcing and coordination, not a new, freestanding non‑bailable offence with a custodial floor. The jump from bailable, often summary trial eligible petty offences (with first‑time community‑service pathways) to a 1-7 year sentence tied to an undefined status element is therefore hard to justify on necessity alone.

What the provision supplies in punitive leverage, it lacks in principled limits. “Group or gang” is not defined; “either singly or jointly” erases any act‑to‑group nexus; the residual “any other similar criminal act” invites contests at the margins; and the ordinary BNSS track offers none of the approval, rank‑gating, special‑court, or attachment filters that typically accompany organised crime policy choices in state legislation. This combination makes §112 unusually prone to overreach. it can transform routine shoplifting, a pickpocketing attempt, or touting into a non‑bailable, floor‑custody case merely by affixing a membership label, precisely where arrest‑and‑bail discipline and a narrow reading of “membership” will matter most, and where those safeguards must carry nearly all the weight, filling in for a lack of procedure.

There is no persuasive comparative analogue to point to justify this either. Mature organised crime regimes abroad generally demand continuity, enterprise structure, specified means, and serious harm, often tethered to pecuniary benefit. They do not create a standalone “petty organised crime” tier that imposes a custodial floor and non‑bailable classification on everyday acquisitive conduct for status alone. In that sense, §112 is not novel but an outlier - one that threatens the very concept of proportionality and restraint that the new code promised to deliver, with its arbitrary nature.