On the 11th of August, 2023, a momentous day unfolded, putting an end to numerous speculations concerning the introduction of new major criminal legislation. Shri Amit Shah, the respected Home Minister of India, took a pivotal step on this date by presenting a bill aimed at replacing the existing CrPC. These legislative proposals bore the name of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
This development has prompted both applause for the endeavor to decolonize the existing criminal legal framework and criticism for what some perceive as a hasty move without sufficient public consultation.
The Criminal Procedure Code (hereinafter refereed as “CrPC”) is a crucial piece of legislation that provides for the procedure for the administration of criminal justice in India. It is a comprehensive set of rules that govern the investigation, trial, and post-trial procedures for criminal cases in the country.[1]
Numerous beneficial alterations have been implemented as part of the recently enacted BNSS. Some of them are listed below:[2]
- Elimination of Outdated Language– The BNSS is praised for replacing outdated terms like ‘lunatic person’ with empathetic phrases like ‘person with mental illness.’ Section 219(1)(a) of BNSS, akin to CrPC’s Section 198, demonstrates this change. Similarly, Section 357 of BNSS aligns with CrPC’s Section 318, reflecting the inclusive language shift, promoting sensitivity and understanding.
- Progressive Enhancements and Revisions- The BNSS showcases its commitment to modernization by amending forensic investigation procedures. Section 349 expands from CrPC’s Section 311A, allowing collection of fingerprints and voice samples. The pivotal change is in Section 176, mirroring CrPC’s Section 157. Subsection (3) mandates forensic teams to visit crime scenes, collect samples, and conduct videography for serious crimes punishable by over 7 years.
- Implementation of Electronic/Digital Alternatives for Existing Procedures– The BNSS embraces the Digital India initiative with Section 532, enabling electronic trials, evidence recording, and summons issuance. Section-specific changes include electronic service of summons under Section 64(2), mirroring CrPC’s Section 62. Sections 70(3) and 71(2) validate electronically delivered summons. This aligns with ‘Issue of process’ in BNSS’s Section 227, akin to CrPC’s Section 204.
- Clarity in some procedures– The new code broadens Proclaimed offender status to offenses carrying over 10 years imprisonment, offering clear trial procedures in their absence. It resolves limitation disputes, allows coercive actions for unpaid fines, and outlines ‘Bail,’ ‘Bond,’ and ‘Bail Bond.’ However, terms like ‘Surety’ lack clarity. It also introduces a structured process for ‘Mercy Petitions in Death Sentence cases,’ amid contemporary debates on capital punishment’s relevance.
Negative Impact[3]
The recent amendments to the BNSS (Benevolent and Timely Changes to Criminal Procedure) have raised concerns. Some are so follows-
- Provisions allowing magistrates to obtain samples from individuals without a history of arrest, reintroducing the use of handcuffs, and granting extensive powers to seize property have sparked privacy and abuse worries.
- Central government’s increased authority, limitations on sentence commutation, and complications in prosecuting public servants are alarming. Changes in anticipatory bail provisions and deletion of key phrases impact informant and victim rights. Most worrying is the remand procedure alteration potentially allowing prolonged police custody without safeguards, raising significant concerns about individual rights and misuse of power.
- One significant change necessitates practical adjustments, specifically the elimination of all references to Metropolitan Areas and magistrates. In accordance with Section 8 of the CrPC, the former presidency towns of Bombay, Calcutta, Madras, and the city of Ahmedabad were categorized as ‘metropolitan areas.’ Other major cities could also be similarly classified by their respective governments. This led to the designation of judicial magistrates in these areas as ‘Metropolitan Magistrates.’ Under the new BNSS, this redundant distinction has been eliminated.
- Permits trials in absentia in specific situations, such as when the judge deems the physical presence of the accused in court unnecessary or when the accused consistently disrupts court proceedings. The significant latitude given to judges in assessing the necessity for the accused’s presence creates the potential for the misuse of this provision.
- The proposed S.262(1) suggests that a discharge application should be filed within 60 days of framing of charges. This appears to be a case of a clear drafting error. This is so because – technically – a discharge cannot take place AFTER the ‘framing of charges’, as a discharge – in itself – implies that no charges are warranted or framed on account of the inherent baselessness of the case.[4]
Loopholes in Bharatiya Nagarik Suraksha Sanhita, 2023:
India faces a grave issue with over 4.5 crore pending cases, leading to a staggering 1.3 years needed for the Supreme Court to clear the backlog. Most of these cases, 87.6 percent, burden lower courts. Law Minister Kiren Rijiju confirmed over 4.32 crore pending cases in subordinate courts. This backlog has resulted in 3.3 lakh under-trial prisoners awaiting judgment, with 1,82,000 cases pending for over 30 years. Chief Justice N.V. Ramana highlighted the overwhelming burden on the judiciary, emphasizing the urgent need for procedural law reforms.
The crime rate in the country is alarming, with 3.4 million violent victimizations and only one-third of sexual assault cases reported to the police, as per Bureau of Justice Statistics. Many crimes go unreported due to victims’ belief that reporting won’t make a difference. Cumbersome criminal procedures further discourage reporting, leading victims to endure crimes silently.
The perception that “courts and police are for the rich” prevails among the poor due to expensive legal procedures. Loopholes in the system benefit lawyers and police financially, yet justice eludes the oppressed. Recent reports indicate litigants spending over 10 lakh rupees, even without appealing to the Supreme Court, highlighting the financial burden on those seeking legal recourse[5] [6].
Conclusion
In conclusion, the 2023 amendments to the Criminal Procedure Code raise substantial concerns about individual rights and misuse of power. The provisions, including expanded police authority, limited sentence commutation, and complexities in prosecution, create worries about fairness and justice. Striking a balance between expedited processes and safeguarding civil liberties is crucial for a just legal system.
The code introduces a detailed procedure for ‘Mercy Petitions in Death Sentence cases,’ despite the ongoing debate about the relevance of capital punishment in modern democracies.
[1] Kartikay Vyas, “Comparison of Powers of Criminal Courts in old code and new code” (SSRN)
[2] Sunishth Goyal, “An Exhaustive Comparative Analysis of Code of Criminal Procedure, 1973 and Bharatiya Nagarik Suraksha Sanhita, 2023.” (Bar and Bench)
[3] Sunishth Goyal, “An Exhaustive Comparative Analysis of Code of Criminal Procedure, 1973 and Bharatiya Nagarik Suraksha Sanhita, 2023.” (Bar and Bench)
[4] The Good, The Bad and The Ugly of The New Indian Criminal Laws (The Blog of Bharat Chugh)
[5] Saksham Sharma “Bharatiya Nagrik Suraksha Sanhita- An Analysis”
[6] Kartikay Vyas, “Comparison of Powers of Criminal Courts in old code and new code” (SSRN)
Authored By:
Kinkini Chaudhuri (BBA LLB (H) 2019-24 student at Amity University, Kolkata)
Aishwarya Gupta (BBA LLB (H) 2019-24 student at Amity University, Kolkata)
Edited By:
Tammana Bahl
Email: tammana@oberoilawchambers.com
Contact: +91 8360347585
Gagan Oberoi
Email: office@oberoilawchambers.com
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