On July 1, the new criminal laws—the Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA)—replaced their older counterparts: the Indian Penal Code (IPC) 1860, Code of Criminal Procedure (CrPC) 1974, and Indian Evidence Act (IEA) 1872, respectively. The change was met with widespread dismay over the Union Government’s refusal to defer implementation despite various concerns expressed by stakeholders.
These concerns highlighted that the new laws are likely to seriously erode safeguards that Parliament and the Judiciary had painstakingly built around precious civil liberties, apparently without any clear rationale.
Consider the case of the First Information Report (FIR). In 2014, the Supreme Court, in Lalita Kumari vs State of Uttar Pradesh, made the registration of FIRs by police mandatory upon receiving a complaint from a citizen. This ruling was necessary because, prior to 2014, police often delayed FIR registration by conducting ‘preliminary inquiries’ not envisaged under Section 154 of the CrPC.
The Supreme Court’s ruling aimed to strengthen legal safeguards for complainants, ensuring that the substance of complaints would not be compromised by subsequent events that might suggest collusion between the accused and police. The practice of ‘preliminary inquiry’ had given undue discretion to investigating officers in deciding whether an FIR was warranted, which many feared could unfairly benefit the accused.
However, Section 173(3) of the BNSS, which has now replaced the CrPC, reverses the Lalita Kumari ruling for offences where the maximum imprisonment term ranges between three and seven years. This new provision requires prior permission from the deputy superintendent of police and a preliminary inquiry to determine if a prima facie case exists.
According to estimates, the BNS includes more than 98 different offences where the period of imprisonment ranges between three and seven years. This has raised concerns about entrusting investigating officers with absolute, unfettered discretion to determine whether there is a prima facie case which merits FIR registration.
Apart from ordinary offences such as theft and cheating, the affected offences also include harm to religious sentiments, “actions” against national integration, rioting with a deadly weapon, exploitation of trafficked children or persons, acid attacks, and harbouring terrorists or organising terrorist camps.
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Given that these offences are loosely defined in the new Act, a complainant would be virtually at the mercy of the station house officer (SHO). The SHO’s discretion on whether to register an FIR could unfairly favour the accused. Conversely, if the police choose to entertain frivolous complaints to harass the accused, the latter would be left without any safeguards. Under the previous IPC, courts exercised discretion on whether a prima facie case existed, with judges carefully considering all materials before them, including the FIR.
More concerning, the scope of ‘preliminary inquiry’ would empower the police to summon the accused and witnesses without registering an FIR, thus depriving them of prior knowledge about the allegations against them. The constitutional safeguard against self-incrimination under Article 20(3) of the Constitution could become ineffective if police are empowered to extract incriminating information from the accused during the preliminary inquiry without disclosing the complainant’s allegations.
Section 43(3) of the BNSS, which legitimises ‘handcuffing’ of certain undertrial prisoners (habitual offenders, repeat offenders who have escaped custody, and those alleged to have committed serious offences against the State or individuals), has also raised concerns. This provision may reverse the Supreme Court’s progressive stance that handcuffing is an affront to individual dignity and therefore unconstitutional. The Supreme Court had previously held that handcuffing should be a last resort, even for alleged heinous offences, unless there is a reasonable apprehension that the accused might disrupt court proceedings.
Experts have questioned the necessity of Section 113 of the BNS, which punishes ‘terrorist acts’ with imprisonment ranging from a minimum of five years to life, along with a fine. This section closely resembles Section 15 of the UAPA.
An explanation to Section 113 states that “for the removal of doubts,” an officer not below the rank of Superintendent of Police shall decide whether to register the case under this section or under the UAPA. However, the explanation fails to provide guidelines on how the officer should make this decision. While Section 45 of the UAPA requires prior sanction from the Central or State Government to prosecute Section 15 offences, Section 113 of the BNS lacks a similar requirement. Consequently, the BNS has no “independent” mechanism to review whether a prima facie case exists to proceed against an accused charged with a grave allegation like terrorism.
Impact on pending litigation and justice system
Ironically, the BNS has effectively reinstated the offence of sedition (without using the term) as an act “endangering sovereignty, unity, and integrity of India” under Section 152. This comes despite the Supreme Court’s stay on Section 124A of the IPC dealing with sedition, as multiple challenges to its constitutionality are pending. This seemingly calculated legislative move will likely face scrutiny before the Supreme Court.
Observers have also noted the absence of any provision in the BNS resembling Section 377 of the IPC. Under the old Section 377, non-consensual penile penetrative sex was punishable by ten years to life imprisonment, plus a fine if found guilty.
Before the Delhi High Court and later the Supreme Court narrowed Section 377 of the IPC to exclude consensual sex, it criminalised “unnatural sex” between men and women, including non-vaginal penetrative acts (oral and anal) and sexual acts between humans and animals. The IPC considered any non-procreative sex as “unnatural.”
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The BNS’s omission of a provision similar to Section 377 means that non-consensual penile penetrative sex involving men, transgender persons, and animals may go unpunished, while non-consensual sexual acts involving women victims remain punishable offenses.
Critics argue that the hasty passage of these laws without adequate parliamentary scrutiny (when 146 Opposition members were suspended last year following protests against a security lapse in Parliament) should weigh against their constitutional validity.
As many stakeholders protest the introduction of these criminal laws without adequate preparation and warn of their potential adverse impact on pending litigation, a significant question mark hangs over India’s criminal justice system in the coming days.
V. Venkatesan is an independent legal journalist based in New Delhi. Formerly Senior Associate Editor with Frontline, he has been reporting and commenting on legal issues.
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