Abstract
This article critically examines the Bhartiya Nagrik Suraksha Sanhita, also known as the Citizen Protection Act, and its implications on individual rights and civil liberties in India. Drawing upon historical parallels with the British colonial-era laws, the article explores whether the Act poses a more severe threat to fundamental freedoms than the oppressive laws of the past. Key provisions of the Act, such as surveillance powers, arrest and detention, restrictions on freedom of speech, and limitations on judicial oversight, are analyzed within the context of India’s democratic framework. The article emphasizes the importance of vigilance and oversight in upholding citizens’ rights while acknowledging the Act’s potential role in safeguarding national security. Ultimately, it calls for a balanced approach that respects constitutional principles while addressing contemporary security challenges.
Keywords
Bharatiya Nagarik Suraksha Sanhita Bill, citizen centric, legal system, code of criminal procedure, Misuse, Colonial era
Introduction
11th August 2023 marked an historic moment in India’s history as this day marks the introduction of the Bharatiya Nagarik Suraksha Sanhita Bill, introduced in the Lok Sabha by honourable Home Minister of India, Mr. Amit Shah. The bill seeks to nullify and substitute the current Code of Criminal Procedure, 1973 (CrPC), in addition to two other proposed Bills designed to supplant the Indian Penal Code, 1860 (IPC), and the Indian Evidence Act, 1872 (Evidence Act). It is to be noted that The Bhartiya Nagarik Suraksha Sanhita Bill comprises a total of 533 sections, involving modifications to 160 sections from the previous law, the addition of 9 new sections, and the removal of 9 sections.
The Bhartiya Nagrik Suraksha Sanhita has been a subject of controversy and debate since its introduction even though it hasn’t been passed or enacted yet. Supporters argue that it is a necessary step towards safeguarding national security, while critics argue that it poses a serious threat to the fundamental rights and liberties of Indian citizens. In this article, we will examine the key provisions of the Act and explore whether it is indeed worse than the colonial-era British laws that India fought so hard to be rid of. The proposed bill incorporates several amendments, thoughtfully addressing the evolving needs of our society. It represents a significant effort to harmonize the legal framework with the rapid technological advancements and the dynamic socio-cultural landscape of today. This new legislation reflects the administration’s commitment to moving away from colonial-era regulations that have become largely obsolete in the modern world. The draft bill centers around citizens, advocating for gender equality, adopting digital modernization, and giving precedence to justice rather than focusing solely on punitive actions.
Research Methodology
The research aims to critically analyze and evaluate the Bhartiya Nagrik Suraksha Sanhita (BNSS) Bill, also known as the Citizen Protection Act, with the central question of whether it presents a legal framework that is more regressive or oppressive compared to the colonial-era laws it intends to replace. The study will employ a comprehensive research methodology that is based on qualitative approaches to provide a well-rounded assessment. Secondary data in the form of articles by various reputed advocates have been used, also the public opinions have been taken into consideration. The paper has been written after an analytical study of the Bhartiya Nagrik Suraksha Sanhita[1]. Thus, both primary and secondary has been used to provide a comprehensive study of the new bill.
Review of Literature
The paper undertakes a comprehensive analysis of the Bharatiya Nagrik Suraksha Sanhita Bill, a groundbreaking legislative proposal poised to reshape India’s judicial landscape by replacing the existing Code of Criminal Procedure. This investigation draws upon research[2] conducted by Arshdeep Singh and Advocate Saloni Sharma and an in-depth article[3] authored by Sunishth Goyal, an Assistant Professor of Law at NALSAR University of Law, Hyderabad about the Bharatiya Nagarik Suraksha Sanhita, 2023.
The paper delves into the underlying motivations driving the introduction of this significant legislation and its fundamental role in safeguarding India’s sovereignty by disentangling the legal framework from its colonial legacy. It systematically elucidates the key amendments and innovations introduced by the Bharatiya Nagrik Suraksha Sanhita Bill, particularly its pivotal contribution towards realizing the vision of a Digital India, bolstering legal safeguards for Indian citizens, and addressing the urgent need for expediting judicial proceedings. A distressing fact as of July 2023 reveals an overwhelming backlog of more than 5.02 crore cases[4] across various courts in India, underscoring the pressing necessity for swift and efficient trials. The new bill is anticipated to alleviate the burden on the judiciary, facilitating greater accessibility to justice and aligning with the principles of a democratic nation
The paper further explains that one of the primary arguments in favor of revamping these laws is the need for greater clarity, efficiency, and alignment with constitutional principles. Critics contend that the IPC, in particular, contains archaic provisions and vague language that can lead to ambiguity in legal interpretations. They also highlight that the CrPC’s procedural aspects have become cumbersome, contributing to delays in the judicial process. The call for reforms emphasizes simplifying legal language, modernizing terminology, and streamlining procedures to ensure swift and fair justice delivery. The paper compares CrPC with the newly enacted draft and weighs the positive and the negative changes.
What was the chief factor behind the introduction of the Bharatiya Nagrik Suraksha Sanhita Bill?
The primary impetus behind the Bharatiya Nagrik Suraksha Sanhita Bill, also known as the Citizen Protection Act, was the imperative to confront evolving security challenges and modernize India’s legal framework for effective response. The Bill aimed to fortify national security and safeguard the interests of Indian citizens in an increasingly intricate and globally interconnected landscape. One of its central motivations was to overhaul and supplant antiquated colonial-era laws, ill-suited to cope with contemporary security issues. India’s legal system had long relied on these colonial relics, which proved inadequate against modern threats like terrorism, cybercrimes, and transnational organized crime. Recognizing this imperative, the Bill sought comprehensive reform to align the legal framework with 21st-century realities. Additionally, the proliferation of technology and the digital age played a pivotal role in the Bill’s introduction. As technology rapidly advanced, criminals and terrorists exploited novel avenues, necessitating updated legislation to combat cybercrimes and digital threats. Consequently, the Bill incorporated provisions addressing digital modernization and cybersecurity challenges.
The proposed amendments to the CRPC put forth several significant changes, including:
- Fostering sensitivity, eliminating stereotypical terminology
The proposed draft fosters inclusion and is a step towards elimination of discriminatory norms prevalent since time immemorial in the Indian society. One of the commendable aspects of the BNSS is its effort to modernize language and remove insensitive terminology. Outdated terms like ‘lunatic person’ or ‘person of unsound mind’ have been replaced with more considerate language, such as ‘having intellectual disability’ or ‘person with mental illness.’ The term ‘lunatic asylum’ has been appropriately changed to ‘mental health establishment.’ Furthermore, the BNSS has also eliminated some outdated references, like the non-existent category of ‘Assistant Sessions Judges,’ notably by removing Section 10. Similarly, all mentions of the term ‘pleader’ have been appropriately substituted with the term ‘advocate.’
Several regressive provisions have undergone vital modifications. Section 64 of the CrPC previously restricted summonses solely to adult ‘male’ family members, but Sections 66 and 474 in the BNSS have rightfully removed the term ‘male’ in both cases. Furthermore, the BNSS eliminates an antiquated provision from Section 153 of the CrPC that granted police the power to warrantlessly enter premises for weights and measures inspectionsection 124
A commendable transformation concerning India’s sovereignty involves eliminating references to “Metropolitan Area” and “Magistrates.” This overhaul aims to rectify colonial-era designations, such as Bombay, Calcutta, and Madras as metropolitan areas, unfairly excluding judges in other regions from the title of metropolitan magistrate. This alteration rectifies long-standing discrimination, reinforcing equality principles.
- Technological Evolution
In alignment with our commitment to realizing the Digital India vision, a significant addition, Section 532, has been incorporated into the BNSS. This provision ushers in a digital era for various legal proceedings, encompassing trials, inquiries, evidence gathering, examinations, summons, warrants issuance, and their execution. Under Section 176 of the Bill, mirroring Section 15714 of the CrPC concerning investigations into cognizable offenses, victim testimonies can now be electronically recorded, leveraging audio-visual methods, including mobile phone usage. Witness statements can similarly be captured through electronic means. The Bill mandates the electronic documentation of searches, with a preference for mobile phones.[5]
Filing First Information Reports (FIRs) has also been digitized, allowing for electronic submissions. Regarding the management of perishable property during trials, electronic records are now mandatory. A noteworthy addition in Section 176(3) pertains to offenses punishable with seven or more years of imprisonment. It mandates police station officers to engage forensic experts for crime scene investigation and evidence collection. This process must be meticulously recorded through videography using mobile phones or other electronic devices. Previously, only the central government had the authority to designate scientific experts, but now state governments share this prerogative, marking a significant decentralization.
- Refining the legal process
Numerous modifications have been implemented to refine the legal system and enhance its accessibility to the citizens of India. In the past, in cases where the complainant was absent, the accused would be discharged. However, the revised Section 272 of the BNSS, which corresponds to Section 249 of the CrPC, now provides an opportunity for the complainant to have adequate representation. Under this provision, the magistrate has the authority to grant
An additional provision has been included in Section 232 of the BNSS, mirroring Section 209 of the CrPC. Under this proviso, in the course of committal proceedings, any application submitted by the victim will also be transmitted to the Sessions Court. This adjustment aims to enhance accessibility to the law and streamline the process of dispensing justice, making it more convenient for all parties involved. Another new addition is the ‘Trial in absentia.’[6] An individual facing criminal charges can be subjected to a trial and potential conviction in their absence, as though they were physically present in court and had voluntarily relinquished their right to a fair trial, regardless of the nature of the offenses.
Further now a ‘Zero FIR’ can be registered at any police station, and it must be subsequently transferred within 15 days to the police station that has jurisdiction over the location of the crime. In contrast to a regular FIR, which is constrained by geographical jurisdiction, a zero FIR can be filed at any police station, irrespective of whether the offense falls under the jurisdiction of that particular police station. However, there is speculation that such an alteration may introduce elements of confusion and potentially lead to delays in the legal process.
- Safeguards
Numerous provisions have been instituted to protect the rights and well-being of Indian citizens against injustices and criminal activities. This is one of the key reasons why the new Indian Penal Code (IPC) is often described as “citizen-centric.”
Two new clauses have been added to Section 183(6)(a) of the BNSS, aligning with Section 164(5A)(a) of the CrPC, to ensure the proper recording of statements by a judicial magistrate. First, when a statement is provided by a woman, it is now mandatory for it to be recorded by a female magistrate. Second, in cases involving individuals accused of serious offenses carrying imprisonment exceeding 10 years, magistrates are now obligated to record their statements. Additionally, there is now a requirement to inform the relatives or friends of a detained woman about her arrest. A compassionate change has been introduced by adding a provision to Section 195(1) of the BNSS, mirroring Section 175(1) of the CrPC, relating to the power of the police to summon individuals. According to this provision, individuals from vulnerable categories are no longer compelled to “appear at any place other than their residence.”
Furthermore, the new law seeks to expand the scope of legal assistance. While Section 304(1) of the CrPC previously mandated legal aid “in a trial before the Court of Session,” the revised Section 341(1) of the BNSS has replaced this with “in a trial or appeal before a Court,” significantly widening its applicability.While the provisions granting authority to district magistrates under Section 144 of the CrPC remain unchanged, Section 144A no longer includes the power to prohibit the carrying of weapons during processions, mass drills, or training sessions.
In 2023, the Sanhita aims to eliminate the term “sedition” and introduce a new section that defines terms like “secession,” “armed rebellion,” “subversive activities,” and “separatist activities.” Previously undefined in Section 124A of the IPC, these changes seek to balance national security and unity with citizens’ freedom of expression. The maximum penalty for such offenses is reduced from life imprisonment to seven years, with potential fines. These revisions represent a holistic attempt to improve the legal system, making it fairer and better suited to India’s evolving societal demands.[7]
- Streamlining Procedures
Numerous commendable revisions have been implemented to alleviate the burden on our legal system and expedite the legal process. These adjustments are of paramount importance, especially in light of the escalating backlog of pending cases.
An important alteration concerns ‘mercy petitions.’[8] Under the Bharatiya Nagarik Suraksha Sanhita Bill (BNSS), 2023, once the president resolves a death-row inmate’s mercy plea, the inmate loses the right to challenge it in court. BNSS Section 473 mandates the central government to forward recommendations to the president within 60 days of receiving state government input, but no timeframe is set for the president’s decision. Regarding summons, magistrates can now dismiss accused individuals with unfounded allegations, provided they justify their decision. This change acknowledges the potential appointment of special judges equivalent to (Additional) Sessions Judges. The code introduces compassionate amendments to offer leniency for first-time offenders in less severe cases, addressing concerns about the growing population of under-trial prisoners.
Numerous processes, in both judicial and executive domains, are now required to comply with prescribed time limits for completion.
- Accelerated Police Investigations: Police inquiries conducted during trials, under Sections 173(8) of the CrPC or 193(9) of the BNSS, must now be finalized within 90 days.
- Nuisance Proceedings Time Frame: Proceedings related to ‘Conditional orders for the removal of nuisances’ as per Section 152 of the BNSS are now required to be completed within a stipulated 90-day timeframe.
- Regular Reporting of Non-Cognizable Offenses: With an amendment to Section 155 (now Section 174) of the BNSS, the police are obligated to routinely transmit information regarding non-cognizable offenses to relevant authorities every fortnight.
- Compensation for Innocent Purchasers: Innocent buyers of stolen property must receive compensation within six months from the date of the compensation order, a specific timeframe not previously specified.
- Expeditious Committal Proceedings: ‘Committal proceedings’ from a Magistrate to a Sessions court, as outlined in Section 232 of the BNSS must now be completed within 90 days from the date of cognizance, extendable to a maximum of 180 days with proper justification.
- Time-Bound Rape Victim Examination: Medical examinations of rape victims, now mandated by Section 184(6), must occur within seven days, replacing the previous vague ‘without delay’ phrasing.
- Timely Document Disclosure: Under Section 230 of the BNS copies of police reports and other documents must be provided to the accused within 14 days from production/appearance, a change from the earlier vague language of ‘without delay.’
- Prompt Inquest Reporting: In inquest proceedings per Section 194 of the BNSS or Section 174 of the CrPC, the police must submit a report to the relevant District/Executive magistrate within 24 hours.
- Discharge Application Timeframe: Accused individuals seeking discharge in a Sessions trial, as per Section 250 of the BNSS (akin to Section 227 of the CrPC), must submit an application within 60 days of committal.
- Charges Framing Deadline: Charges in both Sessions Trials and Magistrate Trials for warrant cases need to be framed within 60 days from the first charge hearing.
- Swift Judgments and Online Publication: As per Section 392(1) of the BNSS or Section 353(1) of the CrPC, judgments in every trial must be pronounced within 45 days of the trial’s conclusion. These judgments must also be uploaded online within 7 days of their pronouncement.
Speculated errors
The draft bill known as the Bhartiya Nagrik Suraksha Sanhita (BNSS) aims to overhaul outdated and problematic laws to streamline legal proceedings and address issues within the Indian judicial system. However, it has raised concerns among critics. One major point of contention involves the amendment of Section 262 in the BNSS, which corresponds to Section 239 of the CrPC. This change permits an accused individual to seek discharge within 60 days of charges being framed. While this may appear to establish a time-bound process, it could potentially allow discharge even before formal charges are framed. A more appropriate term might have been ‘filing of the charge sheet or police report.’
To expedite case proceedings, the bill also empowers magistrates to conduct summary trials, eliminating Section 260(1)(i) of the CrPC and allowing summary trials for offenses with sentences of up to three years under Section 283(2) of the BNSS. However, it would be more precise if the definition of a ‘warrant-case’ in Section 2(y) of the BNSS were amended to include only offenses with punishments exceeding 3 years, rather than the original 2 years. This change could prevent confusion among magistrates when determining the appropriate trial procedure for offenses carrying punishments between 2 and 3 years.
Top of Form
Privacy concerns arise from the addition of subsection (3) to Section 43, ‘Arrest how made,’ in the BNSS, formally reintroducing the use of handcuffs.[9] While handcuffs may be deemed necessary in severe cases, their indiscriminate use, as suggested by the BNSS, contradicts the 1979 Supreme Court verdict in the case of Sunil Batra vs. Delhi Administration[10],which strongly criticized their widespread use.
Under the new Section 172, the police gain extensive authority to enforce their directives. Anyone deemed to be resisting or refusing to comply with police directions can be detained or removed by the police, with the option to present them before a judicial magistrate. Ideally, this section should specify that detainees held for over a day must be brought before a magistrate within 24 hours, with other procedural safeguards in place.
The amended Section 433 of the CrPC significantly restricts the government’s power to commute sentences, as outlined in the revised Section 475 of the BNSS. Previously, a death sentence could be commuted to any other punishment, but now, it can only be commuted to life imprisonment. Similarly, life sentences or sentences of rigorous imprisonment that could be commuted and replaced by imprisonment or a fine can no longer be commuted to just a fine.
Notably, prosecuting public servants has become more challenging compared to the previous code. Under this provision, if the relevant government authority does not decide on the required sanction within 120 days, it is automatically considered a ‘deemed sanction’ granted by the government. The proposed Sanhita also retains the exemption for marital rape, present in Section 375 of the IPC, stating that sexual acts between a man and his wife, provided she is not below eighteen, do not constitute rape. This exemption has faced substantial criticism from women’s rights advocates and legal scholars, who argue that it violates women’s constitutional rights and perpetuates gender inequality and violence within marriage.
Suggestions & Conclusion
The prospective legal code promises a profound transformation within India’s criminal justice system, striving for equity, efficiency, and responsiveness to societal needs. It’s vital to recognize that this code remains in the draft stage, awaiting enactment. However, some elements of these proposed revisions have prompted concerns. These include expanded search and seizure powers, broader sample collection authority, limitations on sentence commutation, reintroduction of preliminary inquiries pre-FIR, and the utilization of handcuffs. It’s notable that while the Indian Penal Code and Evidence Act date back to 1860 and 1872, the Criminal Procedure Code (CrPC) is relatively more recent, from 1973. Thus, evaluating if the new bill surpasses British colonial-era laws is subjective. The author contends that many changes are regressive and hold potential for misuse by authorities. Therefore, amendments are imperative to ensure the bill genuinely serves citizens’ interests, embodying true “citizen-centric” ideals.
Mimansa Arora,
Symbiosis Law School Noida
[1] NLU Delhi, Bharatiya Nagarik Suraksha Sanhita, 2023 & The Code of Criminal Procedure, 1973: An Annotated Comparison, 2023
[2] Arshdeep Singh, Advocate Saloni Sharma, REVAMPING THE BRITISH ERA LAWS: IPC, CRPC AND EVIDENCE ACT, Volume V, Indian Journal of Law and Legal Research, 2023
[3] Sunishth Goyal, An Exhaustive Comparative Analysis of Code of Criminal Procedure, 1973 and Bharatiya Nagarik Suraksha Sanhita, 2023, Bar and Bench, (20 Aug 2023, 9:29 am), https://www.barandbench.com/columns/comparative-analysis-of-code-of-criminal-procedure-1973-and-bharatiya-nagarik-suraksha-sanhita-2023
[4] Cases pending in courts cross 5-crore mark: Govt in Rajya Sabha, THE ECONOMIC TIMES, July 20, 2023
[5] Cyril Amarchand Mangaldas, The Bharatiya Nagarik Suraksha Sanhita, 2023: A primer on the proposed changes to the Code of Criminal Procedure, Lexology, (August 18 2023), https://www.lexology.com/library/detail.aspx?g=592a68ba-497b-4eb9-a749-5e1b6c5efcf9
[6] PRL Legislative Research, https://prsindia.org/billtrack/the-bharatiya-nagarik-suraksha-sanhita-2023, (last visited 13 September 2023)
[7]Edurev,https://edurev.in/Subscription?catid=0&catname=cat&course=12112&bundleId=48&rufrom=d&rurl=studytube/The-Hindu-Editorial-Analysis-21st-August-2023/3ad4ad8f-4c1a-49a5-ba33-5769bb0768a3 ( last visited 18 september 2023 )
[8] The telegraph online, https://www.telegraphindia.com/india/under-new-bill-death-row-convict-cant-appeal-against-presidents-decision-on-mercy-plea/cid/1962912, (last visited 13 September 2023)
[9] The Bharatiya Nagrik Suraksha Sanhita Bill 2023, vajiramias (Aug. 12, 2023), https://vajiramias.com/article/the-bharatiya-nagrik-suraksha-sanhita-bill-2023/64d73404f75d3861afd8167e/
[10] Sunil Batra vs. Delhi Administration, AIR 1980 SC 1579