Within just three months of the introduction of three new bills to replace the centuries old codes that have governed India’s criminal justice system, the Parliamentary Standing Committee on Home Affairs has submitted its reports suggesting some minor tweaks in the proposed statutes.
The government intends to push for an expeditious passage of the Bharatiya Nyaya Sanhita (BNS) Bill, 2023 that seeks to repeal the Indian Penal Code, 1860, Bharatiya Nagarik Suraksha Sanhita (BNSS) Bill, 2023 to replace the Criminal Procedure Code, 1898 and the Bharatiya Sakshya Bill to repeal the Indian Evidence Act, 1872 in the ongoing Winter Session itself.
However, a careful reading of the Standing Committee reports suggests that this legislative exercise needs to be far more consultative than it has been. In their present form, the proposed laws are an exercise in repetition wherein provisions in the old statutes have merely been rearranged.
While this defeats the very purpose of signalling a complete break from the Colonial past, it simultaneously has the potential to create confusion in the legal community which would be required to re-learn the new numbers of the old provisions. For example, to locate the familiar Section 302 of the IPC, Clause 101 of the BNS Bill has to be found. The Bharatiya Sakshaya Bill (BSS), 2023 is the most striking illustration of such duplication. The new Bill rearranges the sections of the Evidence Act with minor additions and deletions but provisions in the old statute have not been changed. In his dissent note to the Standing Committee, P Chidambaram points out: “Every one of the 170 clauses of the Bill is a copy and paste of the provisions of the Indian Evidence Act, 1872.” Chidambaram estimates the extent of the copying and pasting to be 99 per cent!
While the old statutes have more or less been reproduced, the changes that have been introduced indicate harsher sentences, and expanded police powers.
The most dangerous instance of this is Clause 187(2) and 187(3) of the BNS Bill on “Procedure when investigation cannot be completed in 24 hours” that enhances the period for which a detainee can be kept in police custody for much longer periods than is presently authorised. The Clause holds: “The Magistrate may authorise the detention of the accused person beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so but no Magistrate shall authorise the detention of the accused person in custody under this sub-section for a total period extending (i) ninety days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days where the investigation relates to any other offence.”
This would cause irreparable damage to civil liberties and fundamental freedoms as every investigating officer, public prosecutor and judicial magistrate could interpret the wording of this clause according to their convenience. The new law leaves citizens exposed to the probability of torture, threat or inducement by the police.
It goes against the decision of the Supreme Court in CBI-versus-Anupam J Kulkarni (1992) in which the Court held, “The Judicial Magistrate can, in the first instance, authorise the detention of the accused in such custody i.e., either police or judicial from time to time but the total period of detention cannot exceed fifteen days in the whole.”
The proposed laws are purportedly an attempt to reform the existing criminal justice system. But the provisions bring back outdated practices that have long been frowned upon by the Supreme Court. Take, for instance, Clause 43(3) of the BNSS that brings back the practice of slapping handcuffs on detenus.
Progressive reforms
As far back as 1980, Justice VR Krishna Aiyar had held in Prem Shankar Shukla-versus-Delhi Administration (1980): “It is the basic assumption that all individuals are entitled to enjoy that dignity that determines the rule that ordinarily no restraint should be imposed except in those cases where there is a reasonable fear of the prisoner attempting to escape or attempting violence.” In DK Basu versus State of West Bengal (1996), the Supreme Court set guidelines on rights of accused while being arrested or in custody.
Clearly, the progressive reforms carried on by the Supreme Court over decades are being sought to be undone. The Standing Committee, in its report, abets the government’s efforts. In para 1.19 of its report on BNS Bill, the Committee seeks to bring back Section 497 relating to adultery which had been struck down by the Supreme Court in Joseph Shine-versus-Union of India, 2018. The Committee, in its wisdom, suggests: “The Committee is of the view that the institution of marriage is considered sacred in Indian society and there is a need to safeguard its sanctity. For the sake of protecting the institution of marriage, this section should be retained in the Sanhita by making it gender neutral.”
Another dubious insertion is with regard to sedition. In his comprehensive submissions before the Committee, TMC MP Derek O’ Brien points out that while the government has deleted the term sedition from the proposed statute, the sedition law itself has got a “sinister backfoot entry in the proposed legal regime”. Section 124A (the old sedition law) is part of the IPC. Though the BNS Bill does not explicitly have a Section 124A in it, it has Section 150. This proposed provision in the new Bill avoids using the term ‘sedition’, but describes the offence as “endangering sovereignty, unity and integrity of India”. It makes it so broad that it can encompass any act in the name of endangering the unity and integrity of India. It leaves a lot of room for discretion which is the opposite of what was advised by the Law Commission.
Thee statutes need much wider discussion not just among the parliamentarians but the legal fraternity, the police foundations, bar councils, eminent legal scholars and practitioners of law. There is still time for Parliament to constitute for the purpose a Joint Select Committee in which the Home Minister too can be a member. When the old statutes have been around over a century, a few more months will not make much difference when the issues concern common people as well as criminal jurisprudence in the country.