An overhaul, the criminal law Bills, and the big picture
The central government presented three Bills- the Bharatiya Nyaya Sanhita (BNS), 2023, the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, and the Bharatiya Sakshya (BS) Bill, 2023 which aims to replace the long-standing Indian Penal Code, 1860, the Code of Criminal Procedure (CrPC), 1973, and the Indian Evidence Act, 1872.
GS-02 (Government Policies and Interventions)
- What are the key provisions and potential implications of the three new bills that replaces the Indian Penal Code, 1860, the Code of Criminal Procedure (CrPC), 1973, and the Indian Evidence Act, 1872 for law enforcement agencies in India? (250 words)
Dimensions of the Article:
- Bharatiya Nagarik Suraksha Sanhita (BNSS)
- At the Scene of Crime
- Duration of Police Custody
Bharatiya Nagarik Suraksha Sanhita (BNSS)
- The BNSS introduces a significant provision regarding the registration of cognizable offenses in any police station, regardless of the location where the offense occurs. While this practice, known as “recording first information report (FIR) at Zero,” has been informally in use for years, formalizing it in the BNSS could simplify the process for complainants.
- However, a provision allowing preliminary inquiries for offenses punishable with more than three but less than seven years of imprisonment has raised concerns. This differs from the Supreme Court’s Lalita Kumari judgment (2013), which mandated FIR registration for cognizable offenses. While preliminary inquiries might have advantages, such as encouraging compromises or identifying false cases, their constitutional validity is questionable.
- The BNSS retains all provisions of the CrPC on arrest. Incorporating the Supreme Court’s Arnesh Kumar judgment (2014), which mandates justifiable reasons for arrest, could have been more appropriate. Additionally, a clause permits arrest for offenses punishable with less than three years of imprisonment only with the Deputy Superintendent of Police’s prior permission if the accused is infirm or aged over 60. This may provide relief for these categories if judiciously employed.
- The new Sanhita allows handcuffing in specific cases, including terrorism, murder, rape, acid attacks, or offenses against the state. While this might aid under-staffed police forces in securing custody, it’s crucial to remember that justification and adherence to Supreme Court guidelines on handcuffing remain unchanged.
At the Scene of Crime
- The BNSS mandates forensic expert visits and the collection of forensic evidence for offenses punishable with more than seven years of imprisonment. However, its effectiveness depends on state governments’ commitment to enhancing forensic infrastructure, which remains a challenge. The Sanhita encourages audio-video recording of investigation steps, including searches, with smartphones as recommended tools. Yet, it is essential to develop facilities for crime scene videography and photography, as directed by the Supreme Court.
- Despite the ban on the two-finger test in rape cases and its acknowledgment as unscientific and violative of victims’ dignity and privacy, this ban is not explicitly mentioned in the BNSS. It was an opportunity for the government to ensure legal compliance with its own instructions.
- Regarding the disclosure of a rape victim’s identity, authorizing the next of kin to disclose the identity in the case of a minor victim might be redundant. The Protection of Children from Sexual Offenses Act exclusively handles this matter and does not have a similar provision. This provision may require reconsideration as the next of kin may not always be an appropriate party to delegate such authority, as expressed by the Supreme Court.
Duration of Police Custody
- The provision extending police custody beyond 15 days may help in cases where additional evidence emerges during investigations. However, this extension is subject to judicial discretion, with additional custody allowed only after the initial 40 or 60 days out of a total detention period of 60 or 90 days. The accused remains eligible for release on default bail as per CrPC provisions, ensuring judicial oversight.
- The BNSS enlarges the scope of judicial inquiry into suspicious deaths, including dowry deaths. However, it relaxes the mandatory recording of statements for specific categories of individuals. This provision should not be misused, especially in cases involving women and children.
While the proposed changes in the BNSS indicate progress, they are not revolutionary. True reform requires addressing understaffing, inadequate infrastructure, limited training resources, and poor living conditions in police stations. Piecemeal adjustments to the law alone cannot eliminate the colonial-era mindset; holistic police reform is essential.
The Bharatiya Nagarik Suraksha Sanhita (BNSS) introduces several provisions that can impact law enforcement agencies in India. While some of these changes are progressive, they are not radical. To bring substantial change to policing in India, comprehensive reform addressing infrastructure, resources, and living conditions within police stations is indispensable. These legal amendments can be effective only when coupled with broader police reforms.