The unconstitutional trinity— Part 1: Examining the unholy ‘ghost’ of BNSS

Of the new trinity that will lord over India's criminal law landscape, Bharatiya Nagarik Suraksha Sanhita, replacing the Code of Criminal Procedure, 1973, has received the least attention, because procedure is an unholy 'ghost' not necessarily discernible to the layman. In the first part of this series, Nipun Saxena makes manifest what is deliberately hidden in plain sight..—.This Christmas season, the proverbial 'gifts' that the nation has received are the three criminal laws to eradicate the supposed 'colonial hangover' that India has been reeling under since the time of Macaulay..In so doing, the three controversial Bills were passed without any meaningful debate or discussion both in the 'House of the People' or in Rajya Sabha, and amidst a controversy that has already been widely reported..While these Bills have received the Presidential assent and while the government is yet to decide a date on which they come into force, it is necessary to examine the intention behind the promises that these laws make..Much has been said about the Bharatiya Nyaya Sanhita, the successor to the Indian Penal Code, 1860, but the real protagonist is the Bharatiya Nagarik Suraksha Sanhita (BNSS), replacing the Code of Criminal Procedure (CrPC), 1973..The BNSS has not received much attention since it deals with the intricacies of procedure, not visible to the naked eye, but ask any stakeholders (judges, accused, complainants, lawyers being the prima donna) and they will tell you what the Pandora's Box holds, which is antithetical to both 'nagarik' and their 'suraksha'..“The three controversial Bills were passed without any meaningful debate or discussion both in the 'House of the People' or in Rajya Sabha, and amidst a controversy that has already been widely reported..For this reason, certain provisions of the BNSS are akin to a 'ghost' (not to be confused with the Christian equivalent)..Of origins and the decoy 'colonial narrative'.Contrary to popular perception, the CrPC was not a relic of Macaulayan times, and markedly different from its predecessor code of 1894. Between 1963 and 1968, various provisions of the Criminal Procedure Code of 1894 were criticised for their 'colonial approach' and scant regard for individual liberty..Also read: The three new criminal laws betray a narrow spirit of nationalism.As a result, as many as four Law Commission Reports (32nd, 33rd, 35th and 36th) brought in various changes to the CrPC to 'Indianise' it. After that, the 37th Report of the Law Commission of India undertook an exercise in two parts (Part I: Section 1 to 176 of the CrPC of 1894 was proposed to be amended) whereas on September 24, 1969, the 41st Law Commission of India submitted its report highlighting in its 385 pages proposed changes which were made to end the 'colonial legacy' once and for all..The cover page of the 41st Report of the Law Commission of India attributes the entire credit to the consultative processes held with judges of all high courts in the country, before bringing the CrPC, 1973 to its present form..In essence, the work that had begun in 1961 took almost 13 years to bring the law to its present form after detailed deliberations. If six Indian Law Commissions have spent 13 years creating an Indian law, which was subsequently passed by the Parliament of India, the present law cannot by any stretch of imagination be called 'colonial' in its outlook..Of 'nagriks' and their 'suraksha'.A nagrik is a crucial stakeholder in the scheme of the BNSS. A nagrik could be a complainant, a victim or an accused. How then does the BNSS offer a better redress mechanism than its predecessor the CrPC? Will the duties and rights outlined strike the perfect balance between individual liberty and the State's right to investigate, prosecute and sentence a criminal?.“The BNSS has not received much attention since it deals with the intricacies of procedure, not visible to the naked eye..Complainant Mussadilal and his tryst with a preliminary inquiry.It is indeed the complainant who triggers the criminal law into motion and, in case of a cognisable offence, the contents of that very complaint or information become gospel truth, at least until the stage where the investigation is completed and results in a closure report or a chargesheet..The law laid down by the Supreme Court of India in Lalita Kumari versus State of UP, therefore, attaches the greatest importance to the substance of the information, and its prompt registration into a first information report (FIR)..Until 2014, a growing trend had plagued the criminal justice system where the police officers would put a premium on their reluctance in registering an FIR, thereby letting the complainant travel from pillar to post to kick start the criminal proceedings..Also read: Explained: The revised criminal law Bills.Money, power and influence had substituted the plain letters of Section 154 of the CrPC, which never contemplated a 'preliminary inquiry'. Lalita Kumari put a decisive end to this malaise in the system and resulted in greater improvement in criminal justice administration..With the BNSS, the age-old practice of conducting a preliminary inquiry has been restored to its former inglorious self, albeit in a specific class of cases where the maximum imprisonment term ranges between three–seven years..The twin preconditions that have been attached to Section 175(3) of the BNSS are that prior permission has to be taken from the deputy superintendent of police and after that, a preliminary inquiry has to be conducted on whether a prima facie case is made out or not..“Contrary to popular perception, the CrPC was not a relic of Macaulayan times, and markedly different from its predecessor code of 1894..The problems with such a mechanism are multifarious. For all offences involving an imprisonment term ranging between three–seven years, an innocuous litigant would be made to run from pillar to post..This would bring back the vexatious days when poor litigants who stepped in as complainants had to prefer applications under Section 154(3) to the superintendent of police, Section 156(3) of the CrPC to the magistrate and Section 200 of the CrPC to register a criminal complaint..Those with the means and resources also knocked at the gates of the constitutional courts to register their FIRs by invoking the writ jurisdiction or inherent jurisdiction under Section 482 of the CrPC..Curiously, under the BNS, there are more than 98 different offences where the period of imprisonment ranges between three–seven years, thereby conferring upon an investigating officer the absolute unfettered discretion to ascertain whether there is a prima facie case that would merit the registration of an FIR..These offenses include theft, cheating, criminal breach of trust, dishonestly receiving stolen property, counterfeiting a property mark and dishonestly executing a property (a majority of white-collar crimes)..It also includes crimes affecting religious sentiments (Section 299 of the BNS), words or actions against national integration, also known as sedition [Section 197(1) and (2) of the BNS] obscenity, bodily injury, including very serious offences involving certain categories of grievous hurt, rioting armed with a deadly weapon, exploitation of a trafficked child or person, acid attack [Section 124(2) of BNS] or harbouring a terrorist or organising terrorist camps..Also read: What does 'Indianisation' and 'reform' mean in the context of the three new criminal law Bills?.One shudders to imagine the plight of a complainant in the face of an unwilling station house officer, where the offences are of such magnitude..It is perhaps for the very first time that a codified law has conferred such powers on police officers in such grave instances to carry out a preliminary inquiry instead of promptly registering an FIR..In the last regime, it was entirely the domain of the criminal courts to find out whether a prima facie case existed, after perusing the entire material on record..If such a power to determine what is or is not a prima facie case is conferred on a police officer, and that too at such a nascent stage, where the information is just received, the abuse of power would be writ apparent..In PUCL versus Union of India, the Supreme Court frowned upon unfettered discretionary power being conferred on the executive..One might wonder, in amending the law, whether the Parliament had at any point in time removed the basis of the reasoning of a Constitution Bench decision in Lalita Kumari versus State of UP..The notes on the clauses offer no valuable assistance in this regard, and the provision was not alluded to throughout the discussion in the Parliament..Accused: The rule doth err in print and praxis.The BNSS affects none as gruesomely as the one who is accused of an offence. It is needless to say that the standing presumption of innocent until proven guilty has been given an unceremonious departure from a bare reading of Section 175(3) and Section 43(3) of the BNSS..“The cover page of the 41st Report of the Law Commission of India attributes the entire credit to the consultative processes held with judges of all high courts in the country, before bringing the CrPC, 1973 to its present form..The effect of the prior requirement of a preliminary inquiry before registration of an FIR on a potential accused is even more baffling since the suspect is not even aware whether they are an accused or not..It is an elementary principle of criminal law that the investigation only commences after the registration of an FIR. Under the new regime, a person will be called to answer police notices and summons without even being aware of the allegations against them..Also read: The three new criminal law Bills: Missed opportunities and misplaced priorities.Since there is no FIR as on the date of such preliminary inquiry, there is no requirement to tender a copy of the said FIR, notwithstanding the safeguards contemplated by the Supreme Court decision in Youth Bar Association of India versus Union of India and Others, which requires a copy of the FIR to be tendered even before the stage of Section 207 of the CrPC..Furthermore, the new requirement of a preliminary inquiry mirrors the scheme of the Prevention of Money Laundering Act, 2002 in one crucial aspect as to the status of the person to whom notices or summons are being sent: the status of that person. Is the person being summoned as an accused or as a witness?.The person may be compelled to give information without even confronting them with the incriminating material, a procedural safeguard with profound constitutional implication, primarily the right against self-incrimination..The handcuffing menace: Turning the clock back to the pre-1978 era.Section 43(3) of the BNSS introduces the concept of 'handcuffing' of a certain category of accused persons, even if the said person is an undertrial. One must travel back in time to trace the origins of the entire debate surrounding the handcuffing of undertrial prisoners when being presented before criminal courts..The allusion here is not to the case of Sunil Batra versus State NCT of Delhi, where elaborate guidelines were laid down, but to a later case where the effect was far more profound..Prem Shankar Shukla versus Delhi Administration was a case in 1980 where the vires of several rules of the Punjab Police Rules, 1934 were challenged by an undertrial prisoner by writing a letter to Justice Krishna Iyer who treated the same as a letter public interest litigation (PIL) and invoked jurisdiction under Article 32 of the Constitution..Rule 26 and 27, in their sinister applicability, provided for mandatory handcuffing for a select group of undertrials who were accused of a select category of offences where the maximum imprisonment was three years or above..Striking down the same as unconstitutional, the Supreme Court speaking through Justices Iyer and Chinappa Reddy remarked that this practice was an affront to the dignity of an individual and therefore violative of Articles 14, 19 and 21..Furthermore, even where the crimes that the person is accused of are grave [as is the case under Section 43(3) of the BNSS], there is no reason to handcuff a person unless and until it can be shown through stringent evidence that handcuffing was the last resort failing which the person would have disrupted court proceedings..“If six Indian Law Commissions have spent 13 years creating an Indian law, which was subsequently passed by the Parliament of India, the present law cannot by any stretch of imagination be called 'colonial' in its outlook..The reasons for handcuffing must be divulged "contemporaneously" and the arresting officer cannot take recourse to a "mindless mechanical process"..The Supreme Court was painstakingly constrained to observe: "To prevent the escape of an undertrial is in the public interest, reasonable, just and cannot, by itself, be castigated..Also read: BNSS introduces handcuffs and in-absentia trials, widens preventive detention and police custody."But to bind a man hand-and-foot, fetter his limbs with hoops of steel, shuffle him along in the streets and stand him for hours in the courts is to torture him, defile his dignity, vulgarise society and foul the soul of our constitutional culture. Where then do we draw the humane line and how far do the rules err in print and praxis?."We lay down as necessarily implicit in Articles 14 and 19 that when there is no compulsive need to fetter a person's limbs, it is sadistic, capricious, despotic and demoralising to humble a man by manacling him.."Such arbitrary conduct surely slaps Article 14 on the face. The minimal freedom of movement which even a detainee is entitled to under Article 19 (see Sunil Batra) cannot be cut down cruelly by application of handcuffs or other hoops.".The very incorporation of Section 43(3) of the BNSS even with its 'discretionary' overtures would be utterly regressive and set the country's clock back to 1978, where there loomed large a distinction between 'ordinary prisoners' and 'better class of prisoners', making some prisoners children of a lesser God..There is another problematic inclusion of the expression "habitual or repeat offender" in the body of Section 43(3) of the BNSS. A "habitual offender" is a judicially recognised word, capable of interpretation, albeit the expression varies from state to state..The expression "repeat offender" could simply mean any person against whom there is more than one case registered and not proved. There is no standing presumption of guilt against a person against whom more than one FIR has been registered, to suffer the ignominy of being paraded in handcuffs..Also read: Bharatiya Nyaya Sanhita: Problematic Drafting of the New Provisions.Could the expression "repeat offender", capable of being given the most literal interpretation, find a deluge of aged parents handcuffed on account of multiple FIRs filed against them by disgruntled couples?.Police custody: Tinkering with the equilibrium.A very vital right accruing to the accused was in the form of default bail which was guaranteed upon failure of the police to complete the investigation within 60 days or 90 days from the date of the arrest..Implicit within such a guarantee was also a restriction on the power of the police not to seek police custody of an accused beyond the period of 15 days in toto..The controversy regarding the period of police remand for the first 15 days or any time in the 60 or 90 days was rife with two judgments of the Supreme Court of India in CBI versus Anupam J. Kulkarni and later Devender Kumar versus State of Haryana, holding that the police custody contemplated has to be for the first 15 days, whereas another line of decision in the case of CBI versus Vikas Mishra, where the Supreme Court held that in the facts of that case where the accused was evading police custody, the police remand could be taken even after the expiry of the first 15 days..“Could the expression "repeat offender", capable of being given the most literal interpretation, find a deluge of aged parents handcuffed on account of multiple FIRs filed against them by disgruntled couples?.However, the crucial safeguard embedded within the proviso to Section 167(2) of the CrPC "otherwise than in police custody" remained intact, thereby guaranteeing that the maximum permissible duration of police custody would be no longer than 15 days..The BNSS has omitted this crucial phrase thereby conferring a carte blanche power to the police to seek police remand beyond 15 days. In Sheela Barse and D.K. Basu, the Supreme Court of India has taken a grim view of the sordid reality that police lock-ups are a hotbed for torture and State excesses and must be viewed seriously..The necessary safeguard under the proviso to Section 167(2) of the CrPC was introduced in 1978 to ensure speedier investigations without taking away the right of the accused against State excesses..This very fundamental equilibrium has been unsettled by conferring powers on the police to take for more custody than 15 days, thereby unimaginably tipping the scales in favour of testimonial compulsion through illegal means, since the police may legitimately take the accused for the entire duration of the detention period..This provision is far graver in its outlook than its counterpart special legislation such as the Narcotic Drugs and Psychotropic Substances Act, 1985 and the Unlawful Activities (Prevention) Act, 1967..Also read: What is Section 207 CrPC, an essential piece of the Bhima Koregaon case puzzle?.While under Section 36A(4) of the NDPS Act, the period of detention could extend to up to 180 days and for a further period of one year, the police cannot seek custody beyond a period of 15 days in total..“The necessary safeguard under the proviso to Section 167(2) of the CrPC was introduced in 1978 to ensure speedier investigations without taking away the right of the accused against State excesses..Section 43 D of the UAPA though caps police custody to a maximum period of 30 days. It also obligates a police officer seeking further custody to disclose the reasons in an affidavit and explain the delay occasioned for seeking such custody..The BNSS, in its width and amplitude, has also surpassed the UAPA in so far as it deals with the maximum permissible duration of police custody for any individual for any offence..One is left to wonder: Where then is the suraksha?.Epilogue.In Part II of this discourse, I shall allude to the other worrying aspects of the BNSS, including the promises of the audio-visual means to record evidence in this day and age, the 'victimological centric' focus of the law, the retroactive implications, the medical examination requirements and other provisions..“The BNSS, in its width and amplitude, has also surpassed the UAPA in so far as it deals with the maximum permissible duration of police custody for any individual for any offence..In the interregnum, I would only seek solace in the prophetic words of J. Iyer, who as a soothsayer would, predicted his discomfort in the following words: "This grim scenario burns into our judicial consciousness the moral emerging from the case being that if today freedom of one forlorn person falls to the police somewhere, tomorrow the freedom of many may fall elsewhere with none to whimper unless the court process invigilates in time and polices the police before it is too late."

The unconstitutional trinity— Part 1: Examining the unholy ‘ghost’ of BNSS

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