The government has in quick succession withdrawn the Criminal Law Bills and then reintroduced newer versions of the Bharatiya Nyaya Sanhita (BNS-II to replace the IPC, 1860), the Bharatiya Nagarik Suraksha Sanhita (BNSS-II to replace the Criminal Procedure Code, 1973), and the Bharatiya Sakshya Bill (BSB-II to replace the Indian Evidence Act, 1872). With the report of the Parliamentary Standing Committee appearing between the two versions, it is appropriate to assess the final shape of these changes. While the proverbial devil is certainly in the detail, there is much to worry about in the rhetoric around these Bills, too. It is difficult to see any transformative vision for criminal law and justice. We seem to be heading towards a system that unreasonably expands state control by extensive overcriminalisation and wider police powers.
One particular aspect of the BNSS will have a significant impact on civil liberties but it has barely received any attention. The massive expansion of the possible duration of police custody in the BNSS strikes at the very heart of civil liberties protection. The BNSS expands the maximum limit of police custody under general criminal law from 15 days to either 60 days or 90 days (depending on the nature of the offence). Under our current law, police custody is limited to the first 15 days of arrest. The expansion under the proposed BNSS heightens the risk of exposure to police excesses. Given widely acknowledged concerns about the safety of arrested persons in police custody, and the heightened risk of coerced and fabricated evidence after prolonged detention, this provision of the BNSS is a shocking expansion of police powers. Remarkably, our general criminal law will now incorporate provisions that were until now limited to “special laws”. In fact, these provisions go beyond what the “special laws” provide on the duration of police custody.
This expansion of police custody must be understood in the context of extremely broad and vague offences proposed in the BNS. Several proposed offences are an exercise in overcriminalisation. This is particularly so for offences geared towards protecting the security of the state. For instance, widely-worded provisions, criminalising misinformation (“false or misleading information jeopardising the sovereignty, unity and integrity or security of India”) introduced in BNS I, remain unchanged in BNS II. While the word “sedition” has been removed in the redrafted Bills, its surrogate offence — “Acts endangering sovereignty, unity and integrity of India” — continues to suffer from wide and ambiguous wording in both versions of the BNS. The BNS I also introduced expansively worded offences of “organised crime” and “terrorist act”, defining these above and beyond their current definitions in legislation constituted especially to combat them. A new offence of “petty organised crime” was added, which contained a vaguely worded illustrative list of various forms of organised thefts including snatching, pick-pocketing, and selling tickets in black.
While the scope of these offences continues to remain wide in BNS II, effort has been made to clarify and limit the ambit of petty organised crime and organised crime. BNS II brings the definition of “terrorist act” in line with its definition under Section 15 of the UAPA, which is comparatively narrower than the scope of the offence under BNS I. However, there remains a lack of clarity about the applicability of the BNS for terror offences over the UAPA. A newly added Explanation in BNS II provides that “an officer not below the rank of the Superintendent of Police shall decide whether to register the case under this provision or the Unlawful Activities (Prevention) Act, 1967.” It is a curious provision without any real guidance on the basis on which the officer would make this decision.
Many of the positive aspects of the Bills depend on fundamental transformations in our criminal justice system. Through its emphasis on timelines and the expanded use of technology during investigation and trial, the BNSS imagines a criminal justice system that will be committed to fairness and efficiency. The mandatory requirement for audio-video recording of search and seizure is an important step towards greater accountability and transparency in police functioning. However, it is important to recognise that goals of speedy justice and effective investigation cannot be achieved with fairness unless we address deep structural barriers.
Timelines cannot be met without addressing problems of high vacancy and an already overburdened judiciary. The mandatory involvement of forensic experts in investigation and the use of audio-video technology during investigation (including the recording of statements by the police) will require developments in infrastructure, equipment and training of personnel. On forensics, apart from capacity issues, there is the much deeper issue of the scientific validity of methods being used in our criminal justice system. There is a significant push to bolster the forensic science capacity in the country through the National Forensic Science University but fundamental questions about the approach to forensic and expert evidence remain largely unaddressed. If ever there was a cautionary tale about this aspect of efficiency and fairness, it is the fate of the effort to have CCTV cameras installed in police stations to prevent custodial torture. We often look at questions of technology and efficiency without sufficiently accounting for the context in which those proposals will be implemented.
These Bills present a missed opportunity to correct the entrenched injustices of our criminal justice system. There are changes between the two versions of the BNS, BNSS, and the BSB but none are about any fundamental change in approach to criminal law. These Bills, far from decolonising criminal law, entrench colonial logic — where the state’s paramount interest in criminal law is to control the people to the maximum extent possible.
This article first appeared on Indian Express and can be accessed here.
Anup Surendranath is a Professor of Law at National Law University, Delhi.
Zeba Sikora heads the work on Torture Prevention at Project 39A, National Law University Delhi