Bharatiya Nagarik Suraksha Sanhita bill, 2023.

Bharatiya Nagarik Suraksha Sanhita bill, 2023.

 

On 31.08.2023, Project 39A released a substantive analysis of the Bharatiya Nyaya

Sanhita Bill, 2023 (‘BNS’), which has been proposed as a replacement for the Indian

Penal Code, 1860 (‘IPC’). Alongside the BNS, the Bharatiya Nagarik Suraksha Sanhita,

2023 (‘BNSS’) and the Bharatiya Sakshya Bill, 2023 (‘BSB’) were also introduced in

the Parliament. As with the BNS, large portions of the BNSS and BSB are identical

or similar to the legislations they propose to replace, the Code of Criminal

Procedure, 1973 (‘CrPC’), and the Indian Evidence Act, 1870 (‘IEA’) respectively.

However, a few significant changes to criminal law procedures and evidentiary

qualifications have raised concerns. Fourteen such changes have been analysed in

this brief, while the remaining have been summarised at the end for the benefit of

the reader.

I. BNSS

With speedy justice as its primary goal, a significant change in the BNSS is the

introduction of timelines for various steps in the investigation and trial. These

timelines have been reviewed briefly towards the end of this Brief.1 Note that

previous attempts to address delays through measures like fast track courts have

had limited success due to systemic constraints such as heavy caseloads and

shortage of judges. It is thus unclear if these timelines would be able to ensure

quick disposal, without simultaneous institutional investments. More concerning is

the likely adverse consequence of rushed proceedings on the quality of

investigation and fair trial rights of the accused.

Besides these timelines, several procedural changes have been introduced in the

BNSS. Most of these may be categorised broadly in the following manner. The first

category includes amendments that have been introduced possibly to resolve

existing conflicts in law. For instance, the provision on remand now permits the

police to take custody of the accused at any time within the maximum of sixty or

ninety-day period of detention after arrest. This resolves a conflict in the Supreme

Court jurisprudence on whether police custody can be only in the initial fifteen

days after arrest, or even thereafter.

1 Refer to section on Introduction of Timelines under BNSS, Page 107.

1 Another category is changes to existing provisions which incorporate or are in line

with judicial developments. For instance, the clause on remission powers of State

governments, which requires the ‘concurrence’ of the Central government, instead

of ‘consultation’ under the CrPC, reflects the present judicial interpretation.

Another amendment is the inclusion of audio-video measures in investigation, such

as the mandatory need for such recording in search and seizure proceedings.

Though some concerns with this proposal are discussed in the brief, inclusion of

these measures is in line with the legislative and judicial trend of expanding the

use of technology towards ensuring better transparency. Further, provisions have

been incorporated to provide information to victims at various stages of

investigation and trial. An enabling provision for State governments to introduce a

witness protection scheme has also been introduced.

The final category of changes is more troubling: provisions which contradict settled

law and reverse beneficial judicial developments. For instance, BNSS introduces a

clause governing mercy petitions, which provides that no question ‘to the arriving

of the decision’ of the President can be enquired into by any court. This appears

to curtail the constitutional powers of the courts to conduct judicial review on

limited grounds, when fundamental rights are at stake. Further, contrary to settled

jurisprudence that use of handcuffs on arrestees violate human dignity under

Art.21 of the Constitution, BNSS provides statutory sanction for handcuffing of a

‘habitual, repeat offender’ by the police, without requiring an individualised

assessment of the tendency to escape or consideration of less restrictive

measures. Another significant change is that BNSS expands the category of

experts who are exempted from coming to court to include not just government

scientific experts as under the CrPC, but also any expert certified by the State or

Central governments. Further, it provides that an expert cannot be called to court

unless the genuineness as of their report is disputed by the opposing party. This

disregards existing jurisprudence that emphasises the importance of meaningful

examination of forensic evidence by courts, including the accuracy and reliability of

the expert opinion. Making this scrutiny by the court dependent on a party

challenging the genuineness of the report is unreasonable and is likely to severely

affect fair trial rights of the accused and victims.

Related to this category are provisions that deviate from existing law and similarly

threaten to violate fundamental rights of the accused. A shocking proposal is a

clause that allows detention in police custody to be authorised beyond the

2 fifteen-day period provided under the CrPC, and for the entire detention period of

sixty or ninety days. Police custody is a well-documented site for torture and other

excesses. Expanding the duration and reach of such custody is bound to increase

the potential for abuse, including fabrication of evidence by the police. Another

provision permits trials of proclaimed offenders, who are absconding in serious

offences to be conducted and concluded in their absence.

Thus, while there are some beneficial amendments, several provisions of BNSS have

a significant potential for abuse. Some provisions subvert benefits presently

conferred by law, often with serious consequences to constitutional rights of the

accused. Further, some changes in the BNSS have led to absurd consequences. For

instance, the term ‘unsound mind’ has been replaced with ‘mental illness’,

throughout the proposed bills. This terminology completely excludes persons with

intellectual disability, resulting in them being denied protections under the

proposed bill. Even though such persons may lack the capacity to stand trial, the

proposed law excludes them from the fitness to trial process.

II. BSB

Contrary to the numerous changes in the BNSS, BSB has only one significant

change. This relates to a new scheme on the evidentiary nature and admissibility

of electronic evidence. The proposed changes include expansion of the definition

of primary evidence to include copies of electronic or digital files. At the same

time, the special procedure under the CrPC, which requires a certificate for the

admissibility of electronic files in case the original computer on which such files

were prepared is not produced, has been retained. This creates confusion about

the process governing admissibility of electronic evidence under the BSB. It is

unclear whether the special procedure would continue to be applicable like the

CrPC, or whether copies within the now expanded purview of ‘primary evidence’

would be proved as primary evidence, without requiring the submission of a

certificate. This confusion is significant, since existing case law requires the

production of this certificate, as copies of original electronic records are

susceptible to alteration and errors, due to tampering or even as unintended

digital artefacts. Doing away with this protection would have serious adverse

consequences.

A widely stated aim of the three bills, including BSB, has been to decolonise the

criminal legal framework. Given this, the choice of amendments, particularly in the

3 BSB, demand consideration. One of the most brutal remnants of our colonial

criminal law legacy is s.27 IEA, which continues unmodified as a proviso to Cl.23 of

the BSB. Confessions to police officers are barred under Indian law, but s.27 IEA

allows information discovered as a result of a confession, along with a portion of

the confession to be admitted in evidence. This section has been long criticised

for enabling the culture of torture and violence in police custody, and severely

undermining rights of the accused. The decision to retain this hallmark of colonial practice is conspicuous