Recently, the Union home minister, Amit Shah, introduced three new Bills in Lok Sabha.

While stating his objective for introduction of the new Bills, the home minister said, “The existing laws and provisions date back to the 19th century when they were enacted to subjugate Indians and protect the British rulers.”

Hence, in place of the Criminal Procedure Code, 1973 (CrPC), we may be given an ‘indigenous’ Bharatiya Nagarik Suraksha Sanhita Bill, 2023 (BNSS).

Prof. Anup Surendranath, a professor of law at Delhi’s National Law University, says, “the 50-year-old Code of Criminal Procedure, has been updated and amended regularly, including as recently as 2018. This is not an overhaul. The majority of these Bills retain exactly the same existing provisions under new names.”

Notably, the vice-chancellor of the university was the convenor of a panel set up by the Ministry of Home Affairs to suggest reforms in criminal laws.

The BNSS seeks to repeal nine provisions of the CrPC, proposes changes to 160 provisions thereof and introduces nine new provisions. The Bill contains a total of 533 Sections.

The BNSS has laid emphasis on digitisation of the complete process of investigation and mandatory video recording of statements of victims of sexual offences, which was the need of the hour.

However, the BNSS has also introduced provisions like handcuffing, preventive detention and trial and conviction of accused in-absentia.

Handcuffing

The CrPC has no provision of handcuffs. In D.K. Basu versus State of West Bengal (1996), the Supreme Court set guidelines on rights of accused while being arrested or in custody.

As per the guidelines, handcuffing violates all standards of decency. Handcuffing is the last resort and should not be followed as a custom.

The judgment says “The use of handcuffs or leg chains should be avoided and if [required] at all, it should be resorted to strictly in accordance with the law repeatedly explained and mandated in judgement of the Supreme Court in Prem Shanker Shukla versus Delhi Administration (1980).”

In Prem Shanker, the Supreme Court had denounced the act of handcuffing by observing that: “Insurance against escape does not compulsorily require handcuffing.”

The BNSS, in Section 43(3), explicitly states that: “The police officer may, keeping in view the nature and gravity of the offence, use handcuff while effecting the arrest of a person who is a habitual, repeat offender who escaped from custody, who has committed offence of organised crime, offence of terrorist act, drug related crime, or offence of illegal possession of arms and ammunition, murder, rape, acid attack, counterfeiting of coins and currency notes, human trafficking, sexual offences against children, offences against the State, including acts endangering sovereignty, unity and integrity of India or economic offences.”

This Section is, therefore, in the teeth of humanitarian guidelines established by the Supreme Court.

Preventive detention

Section 172 of the BNSS seeks to expand the powers of the police while taking preventive action.

The police officer “may detain or remove any person resisting, refusing, ignoring or disregarding to conform to any direction” under Chapter XII.

Chapter XII talks about preventive action of the police.

Section 172 of the BNSS bears an uncanny resemblance with Section 43A of the Unlawful Activities (Prevention) Act, 1967 also gives power to the police to arrest if they have “has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under this Act or from any document, article or any other thing.”

Our criminal justice system is primarily based on a due process model, however by giving power to the police to detain while taking preventive action, we are basically inclining ourselves towards the crime-control model.

The crime-control model focuses on having an efficient system, with the most important function being to suppress and control crime to ensure that society is safe and there is public order. Under this model, controlling crime is more important to individual freedom.

However, in our country we try to create a balance between individual rights and societal rights. If any law is evolved which is against the principles of justice, reasonableness and non-arbitrariness, then it cannot stand against the scrutiny of the courts.

By giving ambiguous powers to the police to detain any person, in case the person does not follow the directions given by the police, that too without giving any time limit for such detention as provided under Article 22 of the Constitution, can we say that through the Bill efforts are being made to pivot towards the crime-control model, wherein without caring about any individual right, all focus is upon the prevention of crime, no matter the consequence.

If such is the case, then the evolution of due process through various judgments like R.C. Cooper versus Union of India (1970) and Maneka Gandhi versus Union of India (1978) would go in vain.

Doing so will be in violation of Articles 19, 20 and 21.

Police custody beyond 15 days

Section 187(3) of the BNSS provides that a magistrate can authorise the detention of an accused beyond a period of 15 days.

Proviso (a) to Section 167(2) of the CrPC also provides for the same.

However, Section 167(2) proviso (a) states “otherwise than in custody of the police”. This statement is missing in the BNSS.

The implication is that the police custody can be extended by a magistrate beyond the period of 15 days under the provisions of the BNSS.

In Central Bureau of Investigation versus Anupam J. Kulkarni (1992) it was held that after the expiry of the first 15 days, detention can only be that of judicial custody.

In judicial custody, there is a sense of safety as compared to police custody. In judicial custody, the investigating agency cannot interrogate the accused without the permission of the magistrate.

Whereas, in a police custody it is very easy for the police to investigate, thus increasing the probability of threat, torture or tutoring the accused.

Hence, by removing the upper limit of 15 days, chances of the accused being retained in police custody have increased.

This again gives hints of a crime-control model.

Trial of the accused in-absentia

In Section 299 of the CrPC, there is provision for recording of evidence of the witness against the accused person who has absconded.

Such evidence by the deponent could only be used on the arrest of the accused if the deponent is dead or incapable of giving evidence.

Section 356(1) of the BNSS states that “when a person declared as a proclaimed offender, whether or not charged jointly, has absconded to evade trial and there is no immediate prospect of arresting him, it shall be deemed to operate as a waiver of the right of such person to be present and tried in person, and the court shall, after recording reasons in writing, in the interest of justice, proceed with the trial in the like manner and with like effect as if he was present, under this sanhita and pronounce the judgment.”

Proceeding with the trial and pronouncing judgment without giving the accused a reasonable opportunity of cross-examination goes against the principles of natural justice, which is a part and parcel of the basic structure of the Constitution.

To enhance the probative value of evidence, cross-examination is considered as the most important tool.

Without giving the right of cross-examination to the accused, the right to fair trial, as implicit under Article 21, will also be affected.

“Cross-examination is the greatest legal engine ever invented for the discovery of truth,” says John Henry Wigmore.

Also, there have been instances in India when people go missing at the hands of the investigating agencies.

The accused considers it a better option to flee the country or go into hiding in order to save his life, than to face trial with the risk of losing his life any day during the process of the hearings.

In a country where shootouts take place in courts at an alarming frequency, these fears are not misplaced.

As far as reform in provisions related to zero FIRs, videography during search and seizure, and period of days for providing the judgment are concerned, they could be added through normal amendments rather than introducing a new law.

Amendments like The Criminal Law (Amendment) Act, 2013 and The Criminal Law (Amendment) Act, 2018 are clear examples through which some significant changes were brought in.

As of now, it appears as a draft with a plagiarism rate of 90 percent.

It seems like the new Bills have been borne out of an established and approved template that have been modified by indigenisation of labels.

(Priyanka Agarwal is an assistant editor at The Leaflet. Courtesy: The Leaflet, an independent platform for cutting-edge, progressive, legal & political opinion, founded by Indira Jaising and Anand Grover.)