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AN ANALYSIS OF THE BHARATIYA NAGARIK SURAKSHA SANHITA, 2023

Publications, Research paper
ABSTRACT

The criminal procedure in India, primarily influenced by British colonial rule, encompasses the

Code of Criminal Procedure, 1898, which served as the basis for the current Code of Criminal Procedure, 1973 (CrPC). The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), scheduled to be implemented on July 1, 2024, intends to replace the current CrPC with a more effective legal framework. The existing CrPC, reflecting its colonial roots, is frequently regarded as outdated and inadequate for addressing the evolving nature of criminal offenses, particularly in the digital era. The BNSS aims to tackle persistent issues such as convoluted processes, backlog of cases, low conviction rates, delayed justice, and insufficient adoption of technology. Its main goal is the protection (Suraksha) of citizens from being exploited by procedural irregularities by closing existing legal gaps. A key reform introduced by the BNSS is the streamlining of criminal procedures, which is anticipated to shorten trial durations and lessen the strain on the judicial system. Moreover, the new legislation establishes strict deadlines for different procedural phases. The BNSS also augments the investigative powers of law enforcement, enabling more efficient and comprehensive inquiries. Additionally, the new law seeks to diminish reliance on obsolete methods while integrating digital tools to simplify procedures and enhance efficiency. This paper intends to explore the principal changes introduced by the Bharatiya Nagarik Suraksha Sanhita.

INTRODUCTION

Procedural regulations should promote justice instead of obstructing it. This concept is especially pertinent to the ongoing reform of India’s criminal procedures, which have historically been based on the colonial-era Code of Criminal Procedure from 1898, later updated as the Code of

Criminal Procedure, 1973 (CrPC). The Act was approved by the Lok Sabha on December 20, the Rajya Sabha on December 21, and received presidential approval on December 25. This new legislation aims to achieve three main goals: to update archaic colonial laws, to foster significant changes in India’s Criminal Justice System, and to emphasize the safeguarding of citizens’ rights with a focus on achieving justice rather than simply administering punishment. The imminent implementation of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) on July 1, 2024, signifies an important transition towards modernizing the legal system.

RESEARCH METHODOLOGY

The methodology used for this paper is an in-depth analysis of legal texts. The main objective is to compare the provisions of the Criminal Procedure Code (Cr. PC) and the Bharat Nagrik Suraksha Sanhita (BNSS). This approach involves a detailed comparative analysis, relying on secondary data sources, such as legal statutes, judicial interpretations, commentaries, and scholarly articles

SOURCES OF DATA

  1. Legal Statutes: Primary legal documents, including the Criminal Procedure Code (Cr.PC) and the Bharat Nagrik Suraksha Sanhita (BNSS).
  2. Judicial Decisions: Case laws and judgments that interpret various provisions of the Cr.PC and BNSS.

METHODS OF DATA COLLECTION

  1. Online Databases: Use of online legal databases such as hein law,LiveLaw, Bar and Bench, and other scholarly databases to access judicial decisions, articles, and commentaries
  2. Government Publications: Reviewing official publications and other documents published by governmental bodies.
REVIEW OF LITERATURE

This study seeks to enhance the current understanding of BNSS and its ramifications, offering a detailed and sophisticated perspective that serves as a significant resource for scholars, practitioners, and policymakers.

REVISIONS IN DEFINITIONS

Chapter I of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) presents several significant alterations and additions to the definitions section (Section 2). These changes are intended to ensure that legal terminology is consistent with modern practices and technological developments.

Notable inclusions comprise definitions for “audio-video electronic” means applicable to various legal procedures, such as video conferencing, identification, search and seizure operations, and the transmission of electronic communications. The term “bail” is introduced for the first time, providing clarity that it pertains to the release of an accused individual under specific conditions set by an officer or court, typically involving the execution of a bond or bail bond. Furthermore, the BNSS differentiates between “bail bond,” which necessitates release with surety, and “bond,” which denotes a personal bond permitting release without surety. The term “electronic communication” is defined as communication facilitated through electronic devices, reflecting the growing dependence on digital communication within legal frameworks. The definition of “investigation” specifies that in cases of any discrepancies, investigations or inquiries conducted under special statutes, such as the Prevention of Money Laundering Act, 2002, or the Narcotic

Drugs and Psychotropic Substances Act, 1985, will take precedence over the provisions of the BNSS. Additionally, the definitions of “metropolitan area” and “prescribed” have been removed.

REFORMS IN JUDICIAL AUTHORITY AND ADMINISTRATIVE STRUCTURE

A significant modification involves the restructuring of the court system, which removes redundant categories such as Metropolitan Area, Metropolitan Magistrates, and Assistant

Sessions Judges. An amendment has been added to Section 18 concerning the appointment of Public Prosecutors. According to this amendment, in states not specifically mentioned, the responsibility for appointing Public Prosecutors lies with either the Central Government or the State Government, following consultations with the High Court. Additionally, the State Government is permitted to designate any police officer of at least the rank of Superintendent of

Police as a Special Executive Magistrate, in conjunction with the current Executive Magistrates.

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) introduces various new stipulations within Section 20 (Directorate of Prosecution). Subsection 1(b) mandates the establishment of District Directorate Prosecution by the State government, thereby further decentralizing prosecutorial responsibilities. Furthermore, subsection 2 delineates updated eligibility requirements for critical roles within the Directorate. Directors and Deputy Directors of Prosecution are now required to possess a minimum of 15 years of experience as advocates or to have served as Sessions Judges, while Assistant Directors of Prosecution must have at least 7 years of advocacy experience or hold the position of Judicial Magistrates of First Class. Additionally, new subsections (7) to (11) articulate the powers and responsibilities associated with these roles, which include monitoring and accelerating case progress based on duration, assigning duties for proceedings under the BNSS, and conferring residual powers as determined by the State Government.

Moreover, the authority to impose fines has been enhanced for first-class Magistrates, increasing the limit from Rs. 10,000 to Rs. 50,000, while for second-class Magistrates, the limit has risen from Rs. 5,000 to Rs. 10,000. In conjunction with this increase in fines, both categories of Magistrates are now empowered to impose community service as an alternative sentencing option. It is important to highlight that the issue of jurisdiction related to juveniles has been excluded. The prior version of this section indicated that any offense perpetrated by a person under the age of sixteen, which does not carry the penalties of death or life imprisonment, could be adjudicated by the Court of a Chief Judicial Magistrate or any court authorized under the Children Act of 1960 or other applicable legislation.

CHANGES IN ARREST PROCEDURES

Section 35 of the BNSS integrates the stipulations found in Sections 41 and 41A of the CrPC, thereby establishing a cohesive framework for arrests. This section requires that prior authorization be obtained from a Deputy Superintendent of Police for arrests concerning offenses that carry a penalty of less than three years, particularly when the individual is elderly or physically impaired. Under Section 36(c) of the BNSS, individuals who are arrested are granted the right to notify any person of their arrest, extending beyond just relatives or friends.

Furthermore, Section 37(b) mandates that the State government appoint a police officer tasked with the responsibility of maintaining records of all arrests, which must be prominently displayed at police stations and district headquarters.

Regarding arrests made by private individuals, Clause 40(1) establishes a six-hour timeframe within which such individuals must transfer the arrestee to the police, a shift from the previous requirement of acting ‘without unnecessary delay.’ This provision underscores the necessity for timely action while simultaneously safeguarding the rights of individuals during the arrest process.

The BNSS represents a significant shift from the directives set forth by the Supreme Court in the case of Prem Shankar Shukla v. Delhi Administration, particularly concerning the application of handcuffs during arrests. While the Supreme Court had imposed stringent restrictions on this practice, the BNSS allows for their use under certain conditions. Section 43(3) confers discretionary authority upon the police regarding the application of handcuffs during arrests, especially for habitual offenders or individuals implicated in serious crimes such as organized crime, offenses against the State, acts of terrorism, sexual offenses, murder, acid attacks, and human trafficking. It is important to note that this provision must comply with constitutional standards that protect individual dignity, particularly as outlined in Article 21. Sections 51 and 52 broaden the parameters for medical examinations to include any police officer, regardless of rank.

REVISIONS TO THE MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY

Chapter XI of the BNSS has introduced several significant modifications. The District Magistrate (DM) or any Executive Magistrate (EM) designated by the DM is now empowered to disperse an assembly with the assistance of armed forces. Previously, this authority was restricted to the highest-ranking EM present at the scene. The current amendment allows any EM authorized by the DM to exercise this power.

Additionally, individuals subject to ongoing conditional orders for the removal of nuisance may now participate in proceedings via audio-video conferencing. This new provision facilitates virtual attendance, thereby improving accessibility and efficiency within the legal framework.

Moreover, Section 157 has been amended to include a provision that permits the extension of the time frame for concluding proceedings to a maximum of 120 days, contingent upon the documentation of reasons for such an extension. Furthermore, the previous prohibition on the carrying of arms in public spaces has been rescinded.

PREVENTIVE ACTION OF POLICE

In Section 170(Arrest to Prevent Commission of Cognizable Offences), the term “Judicial Magistrate” is now specifically used. Section 172 has been added which states as follows:

(1): All persons are bound to conform to the lawful directions of a police officer given in fulfilment of any of his duties under this Chapter.

(2): A police officer may detain or remove any person resisting, refusing, ignoring, or disregarding any direction given by him under subsection

(1). The officer may either take such person before a Magistrate or, in petty cases, release him as soon as possible within a period of twenty-four hours. It empowers police officers to detain or remove individuals who resist, refuse, ignore, or disregard lawful directions. The police officer must then either take such individuals before a Magistrate or release them within 24 hours in petty cases.

This provision gives police more authority in enforcing compliance with lawful directions but also imposes a strict timeline to prevent potential misuse of detention powers.

CHANGES IN CHAPTER VI

Summons

  1. Form of Summons: Summons may now be issued in an encrypted format or any other type of electronic communication that includes the Court’s image and seal.
  2. Method of Service for Summons
  • Proviso to Section 64(1): Mandates that the police station or court registrar maintain a register that includes the address, email address, phone number, and other details as specified by the State Government.
  • Proviso to Section 64(2): Permits the electronic service of summons bearing the Court’s seal, in accordance with the regulations established by the State Government.

3. Service of Summons on Corporate Entities

  • Section 65(1): Broadens the range of officials authorized to receive summons to include the Director, Manager, Secretary, or other representatives of the corporation.
  • Section 65(2): Elaborates on the process for serving summons to firms and associations of

individuals.

  1. Proof of Service: All summons served via electronic communication under Sections 64 to 71 are regarded as properly served. A copy of such electronic summons must be verified and retained as evidence of service.
  2. Deemed Service: Upon satisfactory proof of delivery of service under Section 70(3) of electronic communication, the Court may consider the summons to have been duly served. Additionally, Section 66 (Service When Persons Summoned Cannot Be Found) has been revised to be gender-neutral, removing the previous specification of adult male.

Warrant of Arrest: The introduction of Section 82(2) stipulates that when a person is arrested under a warrant, the police officer is required to promptly notify the designated police officer in the district, as well as the relevant officer in the district where the arrested individual typically resides.

Proclamation and Attachment

  1. Proclamation for Absconding Individuals: If an individual is accused of an offense punishable by ten years of imprisonment or more and fails to appear, the Court may declare them a proclaimed offender, a change from the previous specification of certain IPC offenses.
  2. Identification and Attachment of Property: The details regarding the identification and attachment of property have also been updated.
CHANGES IN INVESTIGATION PROCEEDINGS

Zero FIR and Electronic Communication: Section 173 of the BNSS Bill formalizes the practice of Zero FIR, allowing information about cognizable offences to be given orally or through electronic communication.While the BNSS formalizes this practice, it is important to note that this is not an innovation of the BNSS and has been previously mandated by the Central Government and substantially enforced by the judiciary in various instances. In Lalita Kumari, the Supreme Court held that the police have a mandatory duty to register an FIR when the information given discloses a cognizable offence .Under Section 173(1) of theBNSS Bill, information regarding a cognizable offence can be given orally or via electronic communication. A unique requirement of the BNSS Bill is that if the information is given electronically, the informant must sign the recorded information within three days. This timeline for obtaining the informant’s signature is a new addition that is not specified in the CrPC.

Preliminary Inquiry Clause 173(3) of the BNSS Bill permits a preliminary inquiry for offences punishable by imprisonment of 3 to 7 years. This inquiry, which must be completed within 14 days, can only be initiated with the prior permission of an officer not below the rank of Deputy Superintendent of Police (DSP). The investigation proceeds only if a prima facie case is established. This structured preliminary inquiry process is a new provision aimed at ensuring a thorough initial assessment of the case.

Regular Reporting to Magistrates Police have to forward daily diary reports of non-cognizable cases to the Magistrate fortnightly.

Forensic Expert Involvement Clause 176(3) introduces the mandatory involvement of forensic experts in cases punishable by imprisonment of seven years or more. Forensic experts must visit

the crime scene to collect evidence and record the process using electronic devices. If a state lacks forensic facilities, it must utilize those in another state. This provision ensures the collection of high quality forensic evidence, crucial for the integrity of the investigation.

Audio-Video Recording of Statements The BNSS Act allows for the audio-video recording of any statement made during a police investigation.This provision, which extends beyond the statements of witnesses (already permitted under Section 161 of the CrPC and retained in Clause 180 of the BNSS), serves as a safeguard against the coercion and torture of the accused during custodial interrogations. However, the provision is not mandatory, limiting its effectiveness

Search and Seizure The searches should be recorded through audio-video electronic means, preferably using a mobile phone. This clause also requires that a copy of the search proceedings be forwarded to the magistrate within 48 hoursAdditionally, Clause 105 extends the audio-video recording requirement to include the process of preparing a list of seized items and obtaining the signatures of witnesses.

Detention Period Section 187(3) of the BNSS Bill allows for the extension of police custody beyond the initial fifteen days up to the entire detention period of sixty or ninety days. This extension is a significant departure from the CrPC and has raised concerns about the potential for abuse and the increased risk of torture and evidence fabrication by the police. The new draft of the BNSS aligns more closely with a recent Supreme Court ruling in V. Senthil Balaji vs. State in 2023. In this case, the Court found that “The maximum period of 15 days of police custody is meant to be applied to the entire period of investigation – 60 or 90 days, as a whole.”40Additionally, the Court in the ‘Senthil Balaji’ case called for a larger bench to reconsider the verdict in the ‘Anupam J. Kulkarni’ case.

Rights and Obligations Clause 193(3) of the BNSS Bill requires the police to inform the victim of the progress in the investigation within ninety days. This provision aims to keep victims informed of potential delays or lapses in the investigation. However, this right is contingent upon the victim being represented by an advocate, limiting its accessibility for those without legal representation. Under Section 193(3)(ii), the BNSS Bill mandates that the police inform the victim or complainant about the progress of the investigation within ninety days, using any means, including electronic communication. This provision aims to enhance transparency and keep the victims informed throughout the investigation process.

CRITICISMS REGARDING THE BNSS
  1. A significant critique pertains to the ambiguity surrounding jurisdictional issues, particularly emphasized in Section 173. The stipulation that an FIR must be registered at the police station where the information is received, regardless of the location of the offense, appears impractical and diverges from established legal standards. This misalignment with current legal practices is evident in the case of State of A.P v. Punati Ramulu.
  2. Section 173(3) presents the notion of a preliminary inquiry prior to the registration of an FIR for offenses punishable by imprisonment ranging from three to seven years. This provision stands in opposition to the Supreme Court’s decision in Lalita Kumari v. Govt. of U.P., which requires the prompt registration of an FIR for cognizable offenses. Such delays in commencing the legal process can obstruct the delivery of justice and infringe upon the rights of the accused.
  3. Section 187(2) confers excessive authority upon magistrates to prolong police custody beyond the constitutionally prescribed 24-hour limit, raising concerns regarding potential misuse of power and violations of fundamental rights. This provision undermines the protections established under Article 22(2) of the Constitution, which safeguards against arbitrary police detention.
  4. The differential treatment of police reports and complaints, as outlined in Section 223(1), introduces inconsistencies within legal procedures. The requirement for accused individuals to be heard prior to the cognizance of an offense arising from a complaint disrupts established legal norms and may cause delays in the initiation of legal actions.
  5. The imposition of a 60-day deadline for filing discharge petitions under Sections 250 and 262 may result in unnecessary delays within legal proceedings. This stipulation obstructs the efficient resolution of cases and could lead to extended pre-trial detention for the accused.
  6. Certain legal provisions, notably Section 274, which introduces the notion of “release” that functions as a discharge, exhibit a lack of clarity that may result in confusion regarding their legal interpretation and application. Such ambiguous provisions can undermine the rule of law and may lead to inconsistent outcomes in judicial proceedings.
  7. Unlike the established guidelines set forth by the Supreme Court, the BNSS permits the application of handcuffs during arrests under specific conditions. While the Supreme Court has previously established rigorous criteria governing the use of restraints, the BNSS allows for handcuffing in instances involving habitual offenders or serious offenses, including rape, acid attacks, organized crime, drug-related crimes, or offenses against the State. This deviation from established legal norms raises significant concerns about potential infringements on established judicial precedents.
ANALYSIS

The legislative purpose underlying the Bharatiya Nagarik Suraksha Sanhita, 2023, was to initiate a comprehensive set of reforms aimed at modernizing and accelerating India’s criminal justice system. These reforms were intended to rectify numerous deficiencies and inefficiencies inherent in the current legal framework, while also ensuring alignment with modern standards and technological progress.

The key reforms proposed by the legislation include:

  • Establishment of Timelines: The legislation set forth specific timelines for inquiries, investigations, and trial proceedings, with the objective of streamlining processes and minimizing delays in the administration of justice.
  • Utilization of Audio-Visual and Electronic Methods: The formal incorporation of audio-visual and electronic techniques for various legal proceedings was intended to enhance operational efficiency and decrease reliance on paper documentation, thereby aligning the legal system with technological innovations.
  • Modernization of Terminology: The legislation aimed to replace outdated and potentially insensitive language with more contemporary terms, promoting a more inclusive and respectful approach to legal communication.
  • Clarification of Legal Procedures: The initiative sought to clarify various legal processes, aiming to eliminate ambiguity and ensure uniformity in the application of the law.
  • Enhancement of Safeguards: New progressive safeguards were introduced to protect the rights of individuals engaged in the criminal justice system, thereby ensuring equitable treatment and adherence to due process.
THE IMPLICATIONS OF THE NEW LAW

The enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023 holds considerable significance for a range of stakeholders within the criminal justice framework and the broader society.

  • This legislation has the capacity to enhance the operational efficiency of the criminal justice system by minimizing delays and accelerating legal processes through the establishment of specific timelines and the utilization of electronic methods.
  • By introducing progressive protective measures, the law seeks to bolster the safeguarding of fundamental rights for individuals engaged in criminal proceedings, thereby ensuring equitable treatment and adherence to due process.
  • The formal incorporation of audio-visual and electronic techniques marks a pivotal advancement towards greater technological integration within the legal framework, which may lead to improved accessibility and transparency.
  • Nonetheless, the new legislation also introduces certain challenges, such as apprehensions regarding the potential misuse of broadened investigative authorities and the necessity for sufficient training and resources to effectively implement these reforms.
  • Ultimately, the effective realization of this new law will hinge on achieving a balance between procedural efficiency and the safeguarding of citizens’ rights, necessitating diligent oversight and ongoing assessment.
CONCLUSION

An examination of the modifications introduced by the BNSS reveals that, while certain changes are praiseworthy, others provoke apprehension. The elimination of outdated language, enhanced procedural clarity, and the implementation of modern safeguards stand out as significant improvements. Additionally, the shift towards electronic methods and initiatives aimed at streamlining processes represent positive advancements. Conversely, some provisions, including the expansion of investigative authority, limitations on commutation, and the reinstatement of preliminary inquiries prior to FIRs, necessitate thorough evaluation.

To effectively address these issues, a comprehensive strategy is essential. Sufficient funding and infrastructure, along with protective measures, should support procedural laws to guarantee a just and efficient criminal justice system. It is important to recognize that while the IPC and Evidence Act have origins in colonial history, the CrPC of 1973 embodies considerations from the post-emergency constitutional framework. The act’s renaming and the change in terminology reflect an effort towards decolonization; however, the retention of problematic elements may continue to perpetuate colonial legacies.

In summary, the BNSS represents a crucial advancement in the modernization of India’s criminal justice framework. Nonetheless, it is imperative to remain vigilant in addressing critiques and ensuring a balance between individual rights and societal needs. Only through meticulous implementation by the judiciary and law enforcement, along with ongoing training and assessment, can the BNSS achieve its goal of delivering justice effectively while safeguarding the rights of all citizens.

Yashaswini Rathore

Symbiosis Law School, Hyderabad