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Bharatiya Nagarik Suraksha Sanhita: A Shift Towards a Police State or a Step Towards a More Democratic Legal Framework.

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Bharatiya Nagarik Suraksha Sanhita: A Shift Towards a Police State or a Step Towards a More Democratic Legal Framework.

Author : Ruby 

ABSTRACT 

The article aims to examine the Bharatiya Nagarik Suraksha (herein mentioned as BNSS) 2023 and its impact on the balance which is between a police state and democratic system in India. The BNSS does aims to enhance and modernize the Criminal procedure code but it also empowers the police with different powers. The proposed law to replace the Criminal Procedure Code 1973 (herein mentioned as CrPc) has raised concerns about its impact on the balance between a democratic state and a police state and its impact on the rights and freedom of the individuals. The article analysis the key provisions of the BNSS and its impact on the democratic state.

Keywords: Bharatiya Nagrik Suraksha Sanhita, Police Custody, Democracy, Police, state and individual rights.

INTRODUCTION

The current CrPC is being replaced by the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”), which will go into effect on July 1, 2024. In addition, the BNSS seeks to create a more rapid and effective justice system that can address persistent issues with intricate processes, pending cases, poor conviction rates, a lack of technological adoption, and delayed delivery of justice. The protection of citizens against unfair exploitation of the criminal procedure system, which is made possible by flaws in the current system, is the primary goal of the Bureau of Narcotics and Science (BNSS).

The Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS) is a significant legislative reform in India aimed at modernizing the CrPc which is in from the British times in India. While the new reforms aim to improve the law enforcement, efficiency and safety of the individuals, they also have raised concerns about the potential overreach and breach of rights of the individuals.

IMPACT OF BNSS ON POLICE CUSTODY AND INDIVIDUAL RIGHTS.

 The BNSS 2023 main change is to remove the roots of British times from the Indian criminal law. The new criminal legislation has been introduced with several new changes including changes towards police custody rules, including changes to the duration of police custody and the introduction of the digital process in the legal proceedings. These changes aim to efficiently run processes and enhance the efficiency of law enforcement. However it has raised concern about police abusing the power. For instance the BNSS it allows more flexibility with the time duration of police custody which could lead to delayed trail and prolong detention unnecessarily. Additionally the introduction of digitalizing everything in legal proceedings may not always ensure fairness and transparency.  

The BNSS modifies the police custody rules. It provides more flexibility compared to CrPc in duration of custody of an accused. The current law allows the accuse to be in police custody for 15 days straight then to be handed over to the judicial custody under section 167 of CrPc. In the new BNSS the law talks about how the accused will be in police custody for 15 days but it can be sought in parts throughout the 60- or 90-day period (depending on the crime) by the police as mention in the BNSS under section 187(3). So as a result, the police can ask for the accused, can seek accused’s custody when they are in judicial custody. There are no guidelines mentioned for the use of power no limitation or criteria given, which means that police will have unchecked discretion under this. If an individual keeps switching whenever the police wants then such switching between two type of custody may effect the individual in a negative way, and it can also come in the way of securing bail as bail can only be granted when the person is in judicial custody. 

Another change in the BNSS is that a person who has been charged with multiple offences cannot secure mandatory bail where as under CrPc it is valid. So there can be cases where the police may be able to cancel a person’s bail by charging him under multiple similar offences.

The BNSS does not provide a detailed guideline regarding how to handle such device so that the invasion of privacy is protected through digital devices during investigation. The police under BNSS can compel an accused to produce their digital devices for the investigation. Now in that process the police can go through the persons personal files and contents and manipulate and misuse the device. This opens the possibility of the police to access to the information that may not be important to the case or conversation between accused and lawyer or spouse or anything personal that they do not want to reveal. This is under violation of Right to privacy article 21.  

Under CrPC the magistrate could order to obtain handwriting or signature from arrested person, But now In the new criminal law it empowers the magistrate also to collect finger prints impressions and also voice samples not only from the person who have been arrested but also who have not been arrested under any investigation. 

The use of handcuffs during an arrest is permitted by the BNSS.  Only two people may be arrested with handcuffs: (i) a habitual or repeat offender who has escaped from custody; or (ii) an individual who is suspected of committing crimes including rape, acid attacks, organised crime, economic offences, or actions that jeopardise India’s sovereignty, unity, or integrity.  The clause defies both National Human Rights Commission recommendations and Supreme Court rulings. According to the Supreme Court, handcuffing someone is cruel, irrational, arbitrary, and against Article 21. When using handcuffs in extreme situations, the escorting authority must document the circumstances behind the use. It has also decided that no prisoner awaiting trial may be handcuffed without a judge’s approval. As a result, the trial court has been given the freedom to determine whether or not to deploy handcuffs. The Standing Committee (2023) suggested that economic violations be taken from of the list of offences for which handcuffs may be applied. Handcuffs should only be applied if there is a risk of violence or if there is a good chance the suspect will elude capture, according to a dissent note in the Committee report.

Plea bargaining is an arrangement in which the prosecution and defence agree that the accused will admit guilt in exchange for a less sentence or a lesser charge.   In 2005, plea bargaining was included in the CrPC. Crimes carrying the death penalty, life in prison, or a sentence longer than seven years in jail are prohibited.  The Criminal Procedure Code prohibits the striking of a plea deal for a less serious offence or for compounding the offence; instead, the accused is presumed to have admitted guilt and been found guilty of the crime.  This clause is kept in the BNSS.  This means that in India, plea bargaining is limited to sentence bargaining, which is the process of accepting a guilty plea in exchange for a reduced sentence. The BNSS also includes a requirement that the accused submit an application for plea negotiating no later than thirty days following the date the charge was framed.  Due to the limited window of time, plea negotiations may not be as successful in obtaining a lower sentence.

An offense’s investigation and trial are the two primary steps of the procedure as provided by the CrPC. The Clauses included therein are those that pertain to the peace and tranquility as well as the security of ushering in peace. It also has clauses that empower a District Magistrate to issue the required directives to maintain public order. Among them, certain sections can be found in a different chapter of the book like the BNSS. Stated. The law on this matter is whether trial procedure and public order maintenance should be covered by the same statute or if they should be handled differently because they are two different functions. The public order is a state matter as per the Seventh Schedule mentioned in the Constitution. In contrast, the provisions under the CrPC which are problems occurred before the adoption of the Constitution are also in the Concurrent List.

CASE LAWS

A PIL filed by lawyer Tiwari on January 3rd 2024 challenging the enactment of the three new criminal laws that seek to replace the Indian penal code was not entertained by the Supreme Court. A two judge bench led by Justice Bela M Trivedi and Justice Pankaj Mithal was not inclined to hear the PIL. The Union Government claimed that the three new criminal laws  BNS 2023, BNSS AND BSA 2023, provide better definitions of the offences and punishments related to crimes but Tiwari opposed it by saying it that three new criminal laws were enacted and  passed without any parliamentary debate. 

In another case senior advocate Indira Jaising in her letter to the law minister and the chief justice of India expressing concerns about the new criminal laws that are going to be implemented from July 1st 2024 in India. She argues that the laws will create confusion and additional challenges to the lawyers and judiciary so it should be further delayed until all discussions are done by all the stakeholders including judiciary at all levels. The implementation of the new law will create confusion as there would be two criminal laws operating in the country, one for the cases which are filed till July 30 and another for the ones filed from July 1st. 

CONCLUSION

India recently proposed the Bharatiya Nagarik Suraksha Sanhita , which is a legislative reform to substantially modernize the Criminal Procedure Code referred to as CrPC in India. The stakeholders see the rising issues the balances between a police state and democratic system experienced all their lives challenging now due to this act. The BNSS still aims at updating the CrPC, they however offer police various different powers. The suggested law that is expected to replace the 1973 code of the CrPC with the new one really bothered those who think that the balance between the democratic and police states is likely to be affected as well as it will destroy the rights and freedom of the individuals.

FAQs

Answer: The BNSS 2023 introduces the following necessary adjustments in police custody rules compared to current CrPC, BNSS gives more flexibility in the duration of police custody than the current Cr.P.C. Under the BNSS, the accused can be kept in police custody for 15 days, but this can be done at parts throughout a 60 or 90-day period (depending on the crime).

The BNSS allows the police to capture the accused by judicial custody even when the police do not have exact rules or they should not do so. It might be that constantly one was being sent back and forth, effecting a person not being able to get bail.

BNSS also removes the provision of mandatory bail for those charged with multiple offenses, so the police could potentially revoke a person’s bail by charging them with multiple similar offenses.

Answer: The BNSS 2023 has faced criticism and concerns from legal experts and civil society: A PIL filed by lawyer Vishal Tiwari challenging the enactment of the three new criminal laws (BNS 2023, BNSS, and BSA 2023) was not entertained by the Supreme Court, with the court noting that the laws were yet to come into force. Senior advocate Indira Jaising wrote a letter to the Law Minister and Chief Justice of India, expressing concerns that the new criminal laws would create confusion and additional challenges for the judiciary and lawyers. She argued that the laws should be delayed until all stakeholders, including the judiciary, have had the opportunity to debate and discuss their implementation and implications.

Answer: The BNSS retains the existing restrictions on plea bargaining under the Criminal Procedure Code (CrPC), limiting it to sentence bargaining and prohibiting it for crimes carrying the death penalty, life imprisonment, or a sentence longer than seven years in jail.

Answer: According to The Bharatiya Nagarik Suraksha Sanhita, 2023’s digital world has been more often with the state yesterday than the intimate one, and as the awareness and utility of this technology rise this trend will become more pronounced.

Flexibility of the police to keep the offender in jail even if he is in judicial custody and to take the arrestee for police custody is the thing that can make the police strict with the offenders and leave them to realize their guilt only at the end of the police station nightmare trip.

The incomplete arrest can bust in the house of a suspect at any moment. They are the police force who can make this invasion of privacy and the only people who can be leaked the grounds for personal liberty closings for little bad services or dismissing the police for doing a thing that they are not supposed to.

This may sound good but there are concerns about the procedure for collecting illicit movies or recordings of voice tones that could be seen as an outright violation of privacy.

The use of wristband is not seen as just having no consent but as violating the Indian Constitution and NHRC policies.

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