BNSS aims at leveraging technology but a glaring gap is the absence of comprehensive data privacy regulations
By Pavan Kasturi, Yeseswini Hari
The Ministry of Home Affairs recently introduced three Bills to modernise colonial-era criminal laws. The ‘Bharatiya Nyaya Sanhita, 2023,’ replaces the Indian Penal Code, 1860; The Bharatiya Nagarik Suraksha Sanhita, 2023, (BNSS) replaces the Criminal Procedure Code, 1973, and the Bharatiya Sakshya Bill, 2023, replaces the Indian Evidence Act, 1872. These three Bills were referred to the Parliamentary Standing Committee for review and recommendations. It is pragmatic that the true essence of the impact of the procedural laws remains veiled until they are put to the practical test.
Despite this, some reservations were expressed by legal experts, scholars and advocates who view this initiative as an old wine in a new bottle. Even the opposition criticised this as nothing but an attempt to leave Prime Minister Modi’s mark on laws. What remains crucial is fostering discussions and public awareness regarding the implementation of the new laws. These hold the potential to directly influence the lives of the populace as the Criminal Procedure Code encompasses a comprehensive array of elements impacting individual freedoms substantially. We examine aspects within the new draft of BNSS, specifically provisions around investigation. As this chapter significantly influences personal liberties, evaluation of the merits and demerits, when juxtaposed with the prevailing code is pivotal in shaping the legal discourse.
The Brighter Side
The BNSS introduces several noteworthy advantages such as the concept of the ‘Zero FIR’, which offers individuals the right to register complaints of cognizable offences at any police station, irrespective of the crime’s location. Within this, a registered complaint has to be promptly forwarded to the jurisdictional police station within 15 days, fostering a more inclusive and accessible system. Further, embracing the digital era, the Bill presents a streamlined method for case registration, allowing individuals to submit complaints through electronic forms, ensuring swift accommodation of cases into official records once signed, within three days.
The aim of the new code’s agenda is the pursuit of swifter investigation and trial proceedings. The Bill proposes a stringent timeline, a 90-day window for filing charge sheets, 60 days for framing of charges by the court, and a 30-day limit for delivering judgments following the completion of hearings. To ensure stakeholders’ easy access, the judgment be uploaded online within seven days.
To bolster accountability and transparency, the Bill stipulates that the in-charge officer must diligently forward a fortnightly report of all non-cognizable cases to the magistrate. This move is poised to enhance oversight, ensuring that all cases, regardless of their nature, are subject to judicial review. Recognising the importance of audio-visual aids, the Code endorses the use of electronic devices, preferably mobile phones, to record crucial investigation steps, including confessions, witness statements and search and seizure operations. The Bill also empowers magistrates to issue summons and warrants electronically, embracing the digital milieu to expedite legal processes.
The central focus of this legislative overhaul is the adherence to women’s safety and empowerment within the legal framework. Special provisions include the requirement for female judicial magistrates to record statements and confessions of female victims. In cases where a female magistrate is unavailable, a woman’s presence alongside a male magistrate is mandated, particularly for offences against women, encompassing sexual offences and criminal force. Additionally, investigating officers handling sexual offences and Protection of Children from Sexual Offences (POCSO) Act cases must conclude their tasks within two months.
Moreover, the Bill introduces a noteworthy modification termed ‘Deemed Sanction’, empowering the legal system to proceed against public servants or judicial officers, for offences committed during the discharge of official duties, automatically upon failure of sanction by the appropriate government within 120 days. Such sanction isn’t necessary in cases of sexual offences. This establishes a time-bound mechanism to ensure prompt justice.
The Loopholes
India’s criminal justice system is adversarial in nature, ie, the accused is innocent until proven guilty. But the most perilous aspect of the new Bill is that it allows magistrates to grant police custody exceeding the current 15-day limit, stretching up to 90 days. This extended detention period applies to severe offences punishable with death penalty, life imprisonment, or imprisonment for at least 10 years. The Bill also permits custody extension beyond 15 days, up to 60 days, for “any other offence” with lesser imprisonment terms. Beyond the 15-day limit, an accused can be held only in judicial custody or alternative arrangements. Subjecting the accused to three months of uninterrupted police custody exposes them to coercion and intimidation, eroding their rights.
Further, certain clauses make it mandatory to conform to the directions of the police and give power to the police to remove or detain a person and release them when the occasion is past. Increasing police powers may not be optimal, given instances of abuse and brutality.
Although the BNSS aims at leveraging technology in the investigation process, amidst India’s innovative criminal laws, technology emerges as a guiding light to untangle complex cases. However, a glaring gap is the absence of comprehensive data privacy regulations. As these legal reforms navigate the intricate landscape of contemporary crime-solving, the deficiency in stringent data protection measures becomes a potential stumbling block.
Further, even though the Bill exempts pending cases, courts may face varied interpretations, possibly causing trial delays. Such delays can frustrate both the prosecution and the defence, especially for the detained accused. Challenges to the new provisions’ constitutionality via Articles 226 and 32 are inevitable, and the corridors of justice may witness an influx of cases, underscoring the need for a judicious equilibrium between legal evolution and the capacity of the judicial machinery to effectively grapple with this expanded caseload.
Impact Assessment
In summary, the BNSS brings forth a constellation of benefits that encompasses accessibility, efficiency, transparency and accountability. But the 50-year-old Code of Criminal Procedure has been regularly revised, until recently in 2018. To the common voter, these Bills might seem like shedding colonial influences, however, substantial advancements were already part of the Supreme Court’s judgments. Adopting provisions with minute changes unsettles the well-established jurisprudence of these Codes. Navigating the subsequent administrative and judicial complexities is a task that has to be well-coordinated.
What is imperative now is the Legislative Impact Assessment especially from various think tanks and specialised agencies, as implementing such assessments would safeguard against unintended effects, enhance transparency, and foster responsible governance in ensuring the effectiveness of these laws.