The addition of vague offences that confer significant police powers also raises alarm bells for civil liberties.
As we stand at the cusp of the new criminal laws coming into force — on July 1 — it would be naive to ignore the colossal confusion that awaits us in the administration of criminal justice. Of equal concern must also be the regressive provisions that confer expanded police powers and dilute civil liberties. While there are some positive changes, our institutions certainly do not have the capacity to implement them. We are forced to, once again, ask the question: Why are these provisions being rolled out, especially when there has been no reliable and independent assessment of institutional preparedness across the police, courts, bar, and prisons to implement these laws?
The Bharatiya Nyaya Sanhita (BNS), the Bharatiya Nagarik Suraksha Sanhita (BNSS), and the Bharatiya Sakshya Adhiniyam (BSA) will replace the Indian Penal Code, 1860 (IPC), the Code of Criminal Procedure, 1973 (CrPC), and the Indian Evidence Act, 1872 (IEA) respectively. These new laws were presented as an exercise in decolonising our criminal law. However, it is now evident that this claim cannot be defended. Seventy five per cent of the existing provisions have been retained verbatim in the new laws, making any claim of decolonisation difficult to sustain. Besides, decolonisation cannot be understood as merely legislative changes. Our criminal justice institutions continue to be afflicted by colonial legacies and are in need of fundamental institutional reform.
What then does it mean to “reform” the criminal justice system? Certain new provisions that confer excessive police power using vague definitions of offences, enhance durations of police custody and permit trials in-absentia are regressive. They cannot be imagined as “reform” in any sense. While some changes are worth pursuing, they do not amount to the kind of systemic reform that has been proclaimed. Besides, positive changes like timelines for different stages of the criminal process, recording of search and seizure by the police and more scientific investigations do not come with the commensurate effort to build the necessary procedural protections or institutional capacity to deliver all of this. Mere changes to the statute without increasing the capacity of relevant institutions to implement these changes is like putting the cart before the horse.
Some changes are alarming in terms of the police powers they confer. Section 187 of the BNSS substantially increases police powers by expanding the maximum limit of police custody from 15 days to either 60 days or 90 days. The proviso to Section 167(2)(a) of the CrPC allows the magistrate to extend custody of an arrested person beyond 15 days as long as it is not in police custody, meaning that beyond 15 days the person has to be in prison and not within police custody. However, the corresponding Section 187(3) of the BNSS has deleted the words “otherwise than in police custody” that exist in the CrPC, opening up the possibility of police custody for much longer durations than those envisaged in the UAPA [Unlawful Activities (Prevention) Act] or erstwhile stringent legislation like the POTA (Prevention of Terrorism Act) and TADA [Terrorist and Disruptive Activities (Prevention) Act]. Notably, significantly longer police custody is a possibility applicable for all offences listed in the new BNS.
The addition of vague offences that confer significant police powers also raises alarm bells for civil liberties. The provisions on “false and misleading information” (section 197) and “acts endangering sovereignty, unity, and integrity of India” (section 152 as the replacement for sedition) are extraordinarily vague with no real indication of when the police can initiate action under these provisions. Reading these two provisions will not give any reasonable individual an idea of what exactly is being criminalised and the potential for grave abuse is evident.
Worryingly, the BNSS also permits trials in-absentia, that is, prosecution and adjudication of complete trials against absconding proclaimed offenders in their absence. While the CrPC only allowed for the evidence to be recorded in the absence of the accused, the BNSS completely suffocates the accused’s right to defend themselves.
Retention of large parts of the existing laws also raises another set of crucial questions. What was the need to repeal the existing laws? Could the changes have not come in the form of amendments? The new laws in their respective “repeal and savings” provisions provide for a limited application of the IPC, CrPC and the IEA in proceedings which are pending immediately before these new laws come into force on July 1. However, these provisions fail to provide sufficient clarity on various counts. For instance, while section 358 of the BNS states that the IPC will continue to apply in case of offences under the IPC, it is unclear whether the IPC will only apply to cases in which the date of the offence is before July 1 or also in those instances where some proceedings, investigation, or remedy concerning an offence under the IPC are pending. Similarly, section 531 of the BNSS and section 170 of the BSA state that if there is any appeal, application, trial, inquiry or investigation pending before the enforcement of the new legislation then such proceedings will be governed by the provisions of the CrPC or IEA. However, there is confusion about the applicability of the new laws in cases where a proceeding has been concluded under the provisions of the CrPC, but further proceedings remain. For instance, if an investigation has concluded before July 1 but the trial is yet to begin, it is not clear whether the framing of charges, trial and appeal will proceed under the CrPC or the BNSS. These are not new issues and have been a site of judicial confusion with contradictory judgments by different High Courts.
The institutional readiness for these laws coming into force is a serious cause for concern. Police personnel in every single police station need to be ready with the knowledge of these laws for even the very first step of registering FIRs from July 1. Multiple levels of judicial officers, court staff and prison officials are required to be prepared. There has been no in-depth assessment of preparedness across different institutions of the criminal justice system across different states. Merely stating the number of training sessions and number of attendees will not do. There is far too much at stake in terms of liberty and justice for us to leave it to the hope that we have done enough to prepare our institutions. The implementation of these laws must be postponed until there is a thorough and independent audit of the preparedness of our criminal justice institutions across the states.
Surendranath is Professor of Law and Executive Director, Project 39A at National Law University, Delhi. Vishwanath is Director – Sentencing at Project 39A. Views are personal
