Bharatiya Nagarik Surakhya Sanhita, 2023: A paradigm shift or Pandora’s box?

Pallab Bhattacharyya

(Pallab Bhattacharyya is a former director-general of police, Special Branch and erstwhile Chairman, APSC. Views expressed by him is personal. He can be reached at pallab1959@hotmail.com)

The recent step by the Government of India to replace the Code of Criminal Procedure, 1973 (CrPC) with the Bharatiya Nagarik Surakhya Sanhita (BNSS) 2023 has sparked a nationwide debate. Proponents hail it as a progressive overhaul, while critics warn of potential pitfalls.

The salient points raised in STATEMENT OF OBJECTS AND REASONS provided in the Bill at paras 2, 4, and 5 stipulate (i) speedy delivery of services through citizen-centric criminal procedure; (ii) a government with the mantra “Sabka Saath, Sabka Vikas, Sabka Vishwas, and Sabka Prayas” is committed to making a comprehensive review of the framework of criminal laws to provide accessible and speedy justice to all; and (iii) providing for use of technology and forensic sciences in the investigation of crime, lodging of FIR, service of summons, etc., through electronic communication and fixing specific time-lines on the entire process from investigation to conclusion of trial.

Key Changes:

Mandated Forensic Investigation: BNSS mandates forensic investigation for offences exceeding seven years’ imprisonment, potentially strengthening evidence-based prosecution and reducing dependence on unreliable witness testimonies. S 176 (3) stipulates as follows: On receipt of every information relating to the commission of an offence that is made punishable for seven years or more, the officer in charge of a police station shall, from such date as may be notified within a period of five years by the State Government in this regard, cause the forensic expert to visit the crime scene to collect forensic evidence in the offence and also cause videography of the process on a mobile phone or any other electronic device:

Electronic mode of service of summons and trials: Section 530 states: All trials, inquires, and proceedings under this Sanhita, including—(i) issuance, service, and execution of summons and warrants; (ii) examination of complainants and witnesses; (iii) recording of evidence in inquiries and trials; and (iv) all appellate proceedings or any other proceeding, may be held in electronic mode, by use of electronic communication or use of audio-video electronic means. This provision aims to expedite proceedings and improve efficiency, potentially reducing backlogs and ensuring swifter justice. However, critiques of the interception of electronic communication, while intended for investigative purposes, raise concerns about data security and potential infringement on the right to privacy. Clear guidelines and judicial scrutiny are crucial to preventing unwarranted surveillance. Critics also contend that the BNSS prioritises expediency over fundamental rights. They warn that a trade-off between security and liberty could have adverse consequences for vulnerable groups and dissenters. Furthermore, concerns exist about the potential for misuse of expanded police powers by an already overburdened and undertrained force.

Expanded Scope of Property Seizure: Confiscation of ill-gotten wealth from criminals could deter organised crime and corruption.

Timeline for various activities: Timelines fixed for various activities are bound to have a salutary effect on the entire investigation, prosecution, and trial process.

n Medical Report Submission: As per Section 184 of the BNSS, a rape victim medical report should be submitted within a period of seven days by the medical practitioner to the investigating officer.

n Timeline for Supply of Relevant Documents to the Victim and the Accused: Section 230 of the BNS prescribes fourteen days for the supply of relevant documents to the accused as well as to the victim.

n Timeline for Framing of Charges and Filing Discharge Application: While Section 251 prescribes this timeline for trial in session cases, Section 263 is for warrant cases.

n Timeline for Pronouncing Judgement in a Criminal Trial: Section 258 of the BNSS prescribes that a judge, after hearing the arguments, shall give its verdict within a period of thirty days (extendable up to 45 days).

n Timeline for Discharging the Accused if the Complainant Remains Absent in Court: While the current CrPC does not have any timeline for discharging the accused in case the complainant fails to appear in court, BNSS prescribes thirty days for the same. Section 272 of the BNSS grants discretion to the magistrate to discharge the accused in cases where the complainant remains absent after giving thirty days’ time to be present.

n Timeline for Informing about the Progress of Investigation to Victims: BNSS, as per Section 193(3), mandates that the police officer shall inform the informant or victim of the progress of the investigation within a period of ninety days.

n Timeline for Further Investigation: Section 193(9) of the BNSS prescribes a ninety-day time limit for further investigation. Any extension beyond this ninety-day period shall be made with the Court’s prior permission.

Increased Police Powers: (1) Provisions like preventive detention and the interception of electronic communication could enhance crime prevention and investigation. Clause 187(2) of the BNSS stipulates that 15-day police custody can be sought on the whole, or in parts, at any time during the initial 60 days (if the offence is punishable with death, imprisonment for life, or imprisonment for a term of not less than ten years) or during the initial 40 days (in respect of other offences). If we compare this clause with its corresponding provision in the CrPC, Section 167(2)(a), it appears that police custody can be extended by a magistrate beyond the initial 15 days under the BNSS, unlike the existing provision.

(2) Use of Handcuffs: Section 43(3) empowers police to use handcuffs in certain cases. Drawing on the Supreme Court’s landmark decision in Prem Shankar Shukla v. Delhi Administration (1980) 3 SCC 526, Adhir Ranjan Choudhury, a Congress MP, argued that the use of handcuffs is an affront to human dignity and a violation of Article 21, emphasising that such measures reflect a colonial-era mindset of punitive state control rather than prioritising citizen welfare.

Victim and Witness Protection: Provisions ensuring witness protection and speedy compensation for victims of crime contribute to a more supportive and just judicial system for vulnerable individuals. Section 396, which dwells on victim compensation schemes, Section 398, which provides for witness protection schemes, and Section 399, which stipulates compensation to persons groundlessly arrested, are welcome steps, and these are long overdue.

Though the BNSS is a well-intentioned attempt to revamp India’s criminal justice system, its positive potential is overshadowed by concerns about infringement on individual liberties, a lack of adequate safeguards, and the potential for misuse. A thorough public debate and rigorous parliamentary scrutiny are necessary before enacting such a transformative law that impacts every Indian citizen. Ultimately, striking the right balance between security and liberty is paramount to ensuring a just and equitable criminal justice system.