On August 11th, 2023, a significant milestone was reached, putting an end to the speculation surrounding the introduction of new criminal laws. On this historic day, India's Hon’ble Home Minister, Shri Amit Shah, presented three bills aimed at replacing the existing IPC, CrPC, and IEA. These bills, known as "The Bharatiya Nyaya Sanhita, 2023," "The Bharatiya Nagarik Suraksha Sanhita, 2023," and "The Bharatiya Sakshya Bill, 2023," respectively, have been referred to the relevant Parliamentary Standing Committee. Although these bills are yet to be enacted and officially announced, they have ignited extensive debates and discussions. While some applaud this move to decolonize the existing criminal framework, others criticize it as abrupt and lacking proper public consultation. The primary focus of these discussions has largely centered on the IPC and the forthcoming Bhartiya Nyaya Sanhita.
In this article, the author conducts a comprehensive examination of the statutory changes made to the Code of Criminal Procedure, 1973, which will be renamed as "The Bharatiya Nagarik Suraksha Sanhita, 2023" (BNSS). Throughout this article, it will be referred to as CrPC and BNSS respectively.
The scope of this piece is confined to substantial modifications within the criminal procedure law, specifically through an exhaustive comparative analysis of provisions from CrPC and BNSS. Incidental changes such as section renumbering, incorporation of amendments from the 1973 code, substitution of references to IPC with references to Bhartiya Nyaya Sanhita, and increased fines will not be exhaustively listed. This article comprises five sections: Introduction, Positive Changes, Inadvertent Errors, Negative Changes, and Concluding Remarks.
Any inadvertent errors or omissions in this analysis are solely the responsibility of the author.
**Positive Changes**
Contrary to prevailing discourse, the BNSS brings forth a range of favorable alterations. These positive changes can be categorized into five broader sections, with overlaps where one provision might fit into multiple categories.
**A. Removal of Archaic and Insensitive Terms**
In an effort to eliminate archaic and insensitive language, the BNSS replaces terms like 'lunatic person' and 'person of unsound mind' with more considerate alternatives such as 'having intellectual disability' or 'person with mental illness.' This transformation is evident in BNSS Section 219(1)(a), corresponding to CrPC Section 198. Likewise, Section 357 of BNSS, corresponding to Section 318 of CrPC, has been amended similarly. BNSS introduces Chapter XXVII, 'Provisions as to Accused Persons With Mental Illness,' which revises the earlier Chapter XXV on 'Provisions as to Accused Persons Of Unsound Mind.' The BNSS incorporates references to the Mental Healthcare Act 2017 and replaces 'lunatic asylum' with 'mental health establishment.'
Several other outdated terms and references have been rectified. For instance, the non-existent designation 'Assistant Sessions Judges' has been removed by deleting Section 10. References to 'pleader' have been replaced with 'advocate,' and 'thug' and related crimes have been expunged, e.g., Section 201 of BNSS corresponding to Section 181 of CrPC.
A notable change is the elimination of references to 'Metropolitan Area/magistrates.' Previously, Section 8 of CrPC classified certain cities as 'metropolitan areas,' designating their judicial magistrates as 'Metropolitan Magistrates.' This distinction has now been abolished by BNSS, ensuring uniformity in the nomenclature for judicial magistrates across the country. BNSS also abolishes Section 153 of CrPC, which granted police the authority to enter and search places without a warrant to inspect measuring instruments' accuracy.
Another significant change addresses gender bias. BNSS eliminates the restriction that summonses could only be served to adult 'male' family members (Section 64 of CrPC) and petitions for suspension/remission were applicable only to 'males' over 18 (Section 432 of CrPC).
**B. Clarity in Procedures**
BNSS offers clarity on certain procedures. It modifies the stance on Proclaimed offenders, allowing declaration for offenses carrying more than 10 years' imprisonment. A new Section 356 outlines procedures in the absence of a Proclaimed offender. BNSS addresses computation of limitation periods, and coercive actions against those fined are now contingent on non-payment. The new 'Bail' chapter introduces a clear explanation of terms like 'Bail' and 'Bond,' though 'Surety' could have been included. BNSS introduces a procedure for 'Mercy Petitions in Death Sentence cases' under Section 473.
**C. Progressive Safeguards and Changes**
BNSS embraces progress, incorporating forensic science use in crime investigation. Section 311A of CrPC, now Section 349 of BNSS, allows taking fingerprints and voice samples. State governments can now notify scientific experts under Section 329(4)(g) of BNSS. Section 176 of BNSS, analogous to Section 157 of CrPC, mandates forensic team visits and videography for crimes punishable by over 7 years.
BNSS enhances victim safeguards. A proviso in Section 232 forwards victims' applications to the Sessions Court during committal proceedings. Police reports and documents under Section 207 now must be shared with victims or their advocates. Accused's voices are heard in complaint cases under Section 223. Informants and victims receive updates on investigations within 90 days (Section 193(3)). BNSS necessitates state governments to establish witness protection schemes under Section 398. However, more detailed guidelines could have been included.
Additional safeguards relate to electronic statements, witness protection, victim rights, accused representation, and information sharing during investigations.
**D. Electronic/Digital Alternatives for Existing Processes**
In alignment with Digital India initiatives, a groundbreaking Section 532 allows electronic trials, evidence recording, and communication of summons, warrants, and other processes. Specific sections detail the electronic process for various procedures, including summonses, notices, and police reports.
**E. Expediting Processes and Time-Bound Actions**
BNSS expedites trials by mandating witnesses' presence and allowing testimony through successors. The code acknowledges special judges under other laws and recognizes equivalent positions. Numerous proceedings are now time-bound, such as completion of proceedings for removal of nuisance, sending information on non-cognizable offenses, and pronouncement of judgments. These changes aim to expedite trials and ensure efficiency.
Overall, the BNSS brings about positive reforms, addressing archaic language, enhancing clarity, providing progressive safeguards, enabling electronic alternatives, and expediting processes. These changes reflect the evolving needs of India's criminal justice system in the digital age.
Title: Analysis of Inadvertent Errors and Negative Changes in the Drafting of the Bharatiya Nyaya Sanhita, 2023
The drafting of the Bharatiya Nyaya Sanhita, 2023 (BNSS) has introduced several changes to the criminal procedure, some of which are inadvertent errors while others have raised concerns. One example of such an inadvertent error can be observed in Section 482(2) of BNSS, corresponding to Section 437(3) of CrPC. In this provision, extra bail conditions can be imposed on those accused in specific chapters of the Indian Penal Code (IPC). However, while replacing references to IPC with BNSS, a mistake led to the use of the term 'Bharatiya Nagarik Suraksha Sanhita, 2023' instead of the correct 'Bharatiya Nyaya Sanhita, 2023'. This demonstrates the need for careful editing.
Additionally, discrepancies in chapter titles have been identified. Chapter VI of BNSS, now titled 'Offences against Body', should have been renamed as 'Offences against Religion', and Chapter XVII should have been corrected to 'Offences against Property'. Though some changes have been made to address offences against body and property, offences against the state and newly added 'Offences against Women and Children' have been overlooked.
In the explanation of Section 65 of BNSS, the term 'corporation' is defined with reference to the Societies Registration Act, 1860. The author suggests that modern definitions from legislations like the Companies Act, 2013, should have been incorporated explicitly.
A notable point of contention arises from the change to Section 262 of BNSS (corresponding to Section 239 of CrPC), which allows an "accused to prefer an application for discharge within 60 days of framing of charges". However, the change results in misapplication of established law, as discharge can occur before 'charges have been framed'. Similar issues are present in Section 290 of BNSS, which requires plea bargaining applications within 30 days of 'framing of charges', despite the ideal stage for plea bargaining being prior to charge framing. The Hon'ble Delhi High Court's judgment in 2019 (Gaurav Aggarwal vs. State) underscores the need for such adjustments.
Certain improvements are evident in the procedural safeguards against arrest for women. Merging Section 43(5) and the proviso under 43(1) in BNSS would enhance the clarity of application and interpretation. However, an oversight lies in Section 175(3) of BNSS, referring to "clause (b) of subsection (4) of Section 173". Although there's no ambiguity in content, the arrangement might cause confusion.
The drafting of BNSS demonstrates the importance of precise language. Inclusion of the term 'Policy' instead of 'Police' in the proviso to Section 187(5) of BNSS is a typographical error.
While BNSS claims to have dropped the draconian Section 124A of the IPC (Sedition), concerns arise with the introduction of Section 150 in BNSS, analogous if not more stringent than sedition. Changes in corresponding sections between BNSS and CrPC reveal alterations in titles and references, potentially creating confusion or indicating unintended lapses.
Efforts to expedite cases involve amendments to magistrates' power for summary trials. Deleting Section 260(1)(i) of CrPC and introducing Section 283(2) in BNSS enables summary trial for offences under three years of imprisonment. However, amendments to the definitions clause are suggested to avoid ambiguity regarding offences eligible for summary trial.
Negative changes to BNSS have been noted. Although advocating for greater use of forensic science, some provisions, such as Section 349, allowing magistrates to request samples from individuals without arrest history, raise concerns about misuse and careful application. The reintroduction of the use of handcuffs through a new subsection in Section 43 of BNSS contradicts the Supreme Court's 1979 decision criticizing their indiscriminate use.
BNSS introduces Section 107, granting police significant powers for property seizure and attachment. The application and judicial interpretation of this section necessitate scrutiny. Additionally, changes in the state government's power to remit or commute sentences might lead to disagreements between state and central governments.
Alarming changes include the lowering of the threshold for using armed forces to disperse assemblies and broadening executive satisfaction requirements for their deployment. A new Section 172 grants police broad powers to detain or remove individuals resisting directions, necessitating clear procedural safeguards. BNSS also curbs the power of sentence commutation, impacting the sentences that can be converted.
BNSS appears to have made it more difficult to prosecute public servants, evident in various new provisions that potentially hinder prosecution processes. Several changes in BNSS, such as the provisos in Section 151(2), the addition of subsection (4) to Section 175, the new subsection (3) to Section 210, and the proviso to Section 223, may contribute to this trend.
While BNSS introduces positive changes to the provision regulating anticipatory bail, it removes factors a judge might consider when granting such bail. This could lead to more ambiguous decisions.
The analysis also highlights the introduction of new provisions, such as Section 144A, aiming to prohibit carrying arms in processions or mass drills.
Of significant concern is the amendment to the remand procedure in Section 167 of CrPC, corresponding to Section 187 of BNSS. The inclusion of specific phrases and provisions in BNSS has led to debates about the interpretation and scope of police custody, especially in light of recent Supreme Court judgments. These changes raise apprehensions about the potential misuse of powers and potential violations of rights.
In conclusion, the drafting of BNSS introduces both positive changes and problematic aspects. While errors can be rectified through amendments, concerns remain regarding certain provisions that require careful implementation and scrutiny to ensure that the procedural law maintains a just and balanced criminal justice system. The need for better funding, infrastructure, and increased safeguards within the criminal justice administration should complement the procedural changes for effective implementation.
TAGS: Drafting errors BNSS criminal procedure changes inadvertent mistakes chapter titles statutory definitions discharge applications plea bargaining procedural safeguards arrest for women summary trials forensic science use handcuffs reintroduction property seizure powers executive powers public servants prosecution anticipatory bail arms prohibition remand procedure amendments police custody interpretation.
