ABSTRACT
The legal system of India has experienced substantial changes since independence, with various amendments to adapt to the changing sociopolitical context. India has recently transformed its legal landscape by introducing new criminal bills in the parliament. In August 2023, three new criminal bills in the Parliament were introduced which sought to replace the previous criminal laws of the Indian Penal Code 1860, the Code of Criminal Procedure 1973, and, the Indian Evidence Act 1872. These new bills were passed by Parliament in December 2023. The IPC will be replaced by the Bhartiya Nyaya (Second) Sanhita bill, 2023; the CrPC will be replaced by the Bhartiya Nagarik Suraksha (Second) Sanhita bill, 2023 and the IEA will be replaced by the Bhartiya Sakshya (Second) bill, 2023. On 1 July 2024, these bills came into effect and the system started working according to these new bills. Police which play a pivotal role within the framework of India’s Criminal Justice system as it is tasked with various responsibilities under the criminal laws such as investigating the case, crime prevention, maintaining public order etc., is undergoing a transformation with regards to its duties, power and responsibilities due to influence of these new criminal bills. One of the significant changes with respect to police power includes increased power regarding the detention of individuals. While some people argue that such provision is violative of fundamental rights of person while other put forwards the point that such provisions will help in conducting proper investigation and providing required justice to the victim.
This research paper discusses the notion of the expanded Police Custody due to execution of new criminal laws in the country. This paper elucidates how new criminal bills were introduced in our country, which eventually gathered serious debate and how at the end these bills molded into laws. This research paper proposes how more power to police regarding the detention period of the arrested persons can lead to major violations of people’s rights that will eventually lead to an upturned legal environment. Furthermore, the paper presents a comparative analysis of new provision of police custody (Section 187 of BNSS) in respect of the old provision (Section 167 of CrPC). Lastly, the paper concludes on how such a provision under BNSS will create a negative impact on civil liberties and there is a potential for police misconduct and thus it is not advantageous for India’s criminal justice framework.
KEYWORDS
New criminal laws, criminal justice system, police custody, section 167 CrPC, section 187 BNSS, violation of rights, misuse of power, provision.
INTRODUCTION
India’s criminal justice system has been predominantly shaped by laws and regulations inherited from the British colonial era. In the post-independence years, these legal foundations underwent alterations and amendments to align with the evolving requirements of modern times. The most recent altercation in the field of criminal law is the three new criminal laws which have led to a significant change in India’s Legal Environment. These laws which seeks to replace the colonial era criminal laws were first introduced by Central government in Parliament on 11 August, 2023 after which they were referred to a 31member Parliamentary Standing Committee led by MP Brij Lal. After taking assistance from experts and stakeholders, the committee adopted its reports on November 7. In 2020, before the introduction of these bills in parliament, they were discussed in Lok Sabha for a total of 9 hours and 29 minutes and in Rajya Sabha for a total of 6 hours and 17 minutes. Suggestions were sought from all MPs, Chief Ministers, SC and HC Judges, IPS officers and collectors. A total of 158 meetings were held to prepare these bills. After the report submitted by the Standing committee the revised criminal bills were introduced by Union Home Minister Amit Shah in Parliament on December 12, 2023 and both the houses passed the bills through a voice vote and afterwards President of India Draupadi Murmu gave her assent to the bills on December 25, 2023. On 1 July 2024, these bills came into effect and took the form as new criminal laws. These newly implemented laws are considered to be ‘swadeshi’ which means laws made by Indians for Indians without any foreign influence. However, some people argues that there are many regressive provisions in these laws which will eventually lead to instances of polite torture and abuse. While some people are of the view that with the execution of these new laws, India would have the most modern criminal justice system in the world. It is presumed that these laws will function on the basis of Indian ethics. The opposition is of the opinion that these laws were neither requisitely discussed in the Parliamentary committee nor substantially discussed in both Lok Sabha and Rajya Sabha and moreover the way the government is rushing to implement these laws in the country is not desirable for our democracy. Whereas the central government firmly believes that these new laws bring in modern justice system, incorporating innovative legal procedures, technological advancements, protection of vulnerable groups etc. and even the court process will now be a time-bound, bringing an end to lengthy delays.
Police constitutes an indispensable pillar within framework of the criminal laws. As the primary law enforcement agency, it is the duty of the police to maintain public order, prevent and investigate crimes, and make sure that justice is served fairly and efficaciously. Changing criminal laws have a profound impact on the functioning and operations of the police. Recent implementation of new criminal laws has influenced various duties, powers and responsibilities of police. From changing the way how a complaint is filed by a police officer, the new laws have incorporated various provisions such as Zero FIR, online registration of police complaints, summons through electronic modes such as SMS and mandatory videography of crime scenes for all heinous crimes. One of the notable changes with respect to police power includes increased police power regarding the police custody of people. According to the provisions of the Code of Criminal Procedure (CrPC), the magistrate has the authority to grant police custody of 15 days in case investigation cannot be complete within 24 hours of the arrest and that too the custody can be sought only in the first 15 days following the arrest. But according to Section 187 of the Bhartiya Nagarik Suraksha Sanhita (BNSS), which has replaced the CrPC, police custody can be authorized in whole or in parts at any time during the initial 40 or 60 days out of the total detention period of 60 or 90 days. This section of BNSS has convened a parley in the country with Central government on one hand supporting this section and on other hand members from opposition party, human rights activists, various lawyers and advocates etc. resisting such provision.
RESEARCH METHODOLOGY
This paper is of descriptive nature based on secondary sources for deep analysis of escalating police custody rights. Secondary sources like newspapers, websites, and research papers are used for research.
An extensive search was conducted to collect various databases from accurate and authoritative sources on legal, ethical and moral aspects of more power to police regarding police custody in new criminal bills. Pertinent and relevant sources were assessed conscientiously, with priority given to news articles and journals. Data was rigorously retrieved, evaluated and classified propositionally according to research objective. Systematic categorization and interpretation of legal documents and judicial decisions to extract key provisions and implications. Various case laws were analyzed to ensure a robust examination of the topic. A comparative analysis of police custody provision in CrPC and BNSS has been done. Ensuring both rigor and an unbiased viewpoint were maintained
REVIEW OF LITERATURE
“Understanding Section 187 of the BNSS, 2023: A Comparison with CrPC” – an article by Taniya Mahanti provides an in-depth understanding of Section 187 of the BNSS, while presenting a comparative analysis of the newly passed provision with the provision of CrPC. The author elucidates this article with the help of relevant case laws which makes it easier to understand the article. The author also explains how the extended police custody has potential to substantially impact Habeas corpus. The author also suggests that how National Human Rights Commission that plays a significant role in protecting human rights can protect the illegal detentions despite the application of provision of the BNSS. Lastly, the author concludes on the fact that while this section aims at adaptability, it simultaneously raises apprehensions regarding potential infringements of individual liberties.
RELEVANT PROVISIONS OF POLICE CUSTODY UNDER CrPC.
SECTION 167 (1) According to this section, whenever any person is arrested and he is detained in custody and the investigation cannot be completed within 24 hours period as fixed by Section 57 of the CrPC, and if police thinks or believes that there is substantial evidence that supports the claim or information as credible, then either the investigating officer or the officer-in-charge of police station, who is not below the rank of sub-inspector, shall transmit a copy relating to case to the nearest Judicial Magistrate and shall at the same time forward the accused to such magistrate.
SECTION 167 (2) According to this section, the magistrate to whom an accused person is forwarded and whether he have or does not have jurisdiction to try the case, may from time to time allow the detention of the accused in such custody for a term not exceeding 15 days in total as the magistrate thinks fit; and if the magistrate does not have jurisdiction to try the case and if he considers further detention unnecessary then he may order the accused to be forwarded to such magistrate who have jurisdiction.
Provided that –
- the Magistrate may allow the detention of the accused person beyond fifteen days, otherwise than in the custody of the police, if he thinks that there are adequate grounds exist for doing so. However, no Magistrate shall authorize the accused person’s detention under this paragraph for a total period exceeding,
- ninety days for investigating into crimes that involves offences punishable by death, life imprisonment or imprisonment for at least ten years;
- sixty days, where the investigation relates to any other offence, and, on the expiry of the said period, the accused person shall be released on bail as the case may be. Every person released on bail under this sub-section shall be considered as released under the provisions of Chapter XXXIII.
RELEVANT PROVISION OF POLICE CUSTODY UNDER BNSS
SECTION 187 (1) According to this section, whenever any person is arrested and he is detained in custody and the investigation cannot be completed within 24 hours period as fixed by Section 58 of the BNSS, and if police thinks or believes that there is substantial evidence that supports the claim or information as credible, then either the investigating officer or the officer-in-charge of police station, who is not below the rank of sub-inspector, shall transmit a copy relating to case to the nearest Judicial Magistrate and shall at the same time forward the accused to such magistrate.
SECTION 187 (2) A Magistrate receiving an accused person under this section, regardless of whether they have jurisdiction to try or not try the case, may, after considering that whether such person has been released on bail or his bail has been cancelled, allow, from time to time, the accused’s detention in such custody as the Magistrate thinks fit. The detention period may be for fifteen days in total or in parts during the initial forty days or sixty days out of the overall detention period of sixty days or ninety days, as provided in sub-section (3), and if the Magistrate does not have jurisdiction to try the case and he considers further detention unnecessary, he may forward the accused to a Magistrate who has such jurisdiction.
SECTION 187 (3) The Magistrate may allow the detention of the accused person beyond fifteen days, if he thinks that there are adequate grounds exist for doing so. However, no Magistrate shall authorize the accused person’s detention under this paragraph for a total period exceeding—
- ninety days for investigating into crimes that involves offences punishable by death, life imprisonment or imprisonment for at least ten years;
- sixty days, where the investigation relates to any other offence, and, on the expiry of the said period, the accused person shall be released on bail as the case may be. Every person released on bail under this sub-section shall be considered as released under the provisions of Chapter XXXV.
INEXPLICABLE NATURE OF POLICE CUSTODY PROVISIONS UNDER BNSS
Provisions under Section 187 of the BNSS are bewildering in nature as under sub-clause (2) of this section, the magistrate has the power to grant detention of the accused for a term not exceeding fifteen days in whole, or in parts, at any time, during the initial forty or sixty days out of total detention period of sixty or ninety days. It is not necessary the fifteen days period must be the initial fifteen days of arrest as this period can be at any time during the initial forty or sixty days and besides the fifteen days period can be granted either in whole or can be fragmented into parts. For example, the police can have the custody of the accused person from Day 5 to Day 12 only, or this period coupled with Day 22 to Day 28. Now from day 5 to day 12 the police had custody of the accused for eight days and from day 22 to day 28, the police had custody for seven days. This provision could pave the path for police to take unjustified advantage of the detained persons and engage in extra-judicial activities. Earlier the police have power to have custody of the person for fifteen days only and that too can be sought in initial fifteen days of the arrest as it was held by Supreme Court in the State (Delhi Administration) vs Dharam Pal and Others 1982, that the accused can be sent to police custody only within first fifteen days of the presentation before the magistrate. But now police have power to request for custody beyond fifteen days of arrest and thus extending the power of police to request custody up to initial forty or sixty days of arrest which clearly violates the fundamental rights of the people and thus is retrogressive step. In Raju vs the State of UP 2009, the Supreme Court emphasized the need to strictly adhere to 15-day limit in CrPC which might be challenged by the provisions of BNSS. The Indian government justifies the expanded police custody power by saying that the police custody is of only fifteen days but it can be fragmented into parts. However, in the new law there is no such provision that gives clarity regarding the intervening period between the fragmented parts of the custody, so now the question arises that whether the arrested person will be released within such intervening period. This fragmentation of custody can lead to denial of bail to the arrested person which is serious violation of their rights. In D.K. Basu vs the State of West Bengal 1997, the Supreme Court laid down guidelines to prevent custodial torture but splitting detention periods might make it harder to monitor adherence to these guidelines. The police put forth the point that this provision will help them conduct proper and fair investigation but this will eventually expose the accused person to more police abuse, menacing and danger. This extension of police custody affects the fundamental rights of citizens which is against the spirit and morality of our constitution. While effective law enforcement is crucial, it must not come at the expense of rights of the people.
SUGGESTIONS AND CONCLUSION
Section 187 of BNSS marks a substantial altercation in police custody procedures. While aspiring for workability, there are concerns regarding potential violations of individual sovereignty. While the new laws seek to empower police authority for more efficient criminal fighting, it is crucial to strike a balance that respects individual rights while preventing abuse of power. The potential benefits of extended police custody must be balanced against the risk of abuse and a loss of civil liberties. Furthermore, the provisions may disproportionately affect marginalized communities, which are often more vulnerable to police excess. Thus, the increased power of police custody could lead to more harm than good. Additionally, this can lead to fear and distrust among general public, undermining the legitimacy of law enforcement. Another important concern is that these powers could be misused for political or personal vendettas and hence such provision can facilitate the harassment of political opponents, social activists, media, dissenters etc. Moreover, the historical and ongoing instances of police misconduct underscore the necessity for strict checks and balances rather than giving them expanded authority. Thus, instead of expanding police custody rights, efforts should be directed towards improving current oversight systems, guaranteeing strict adherence to human rights norms, and encouraging transparency and accountability within the police force. Therefore, a committee should be formed to review such provision of Section 187 of BNSS and thus steps to be taken to alter of modify such parts of the sections that are against the rights of the citizens, or, otherwise the implementation of such provisions will create an upside-down in the legal working system of our country.
Submitted by:
Jasmine Dhakarwal
University Institute of Legal Studies, Panjab University