The unconstitutional trinity— Part 2: The unpalatable son

In the second part of this series, Nipun Saxena explains the fine art of purloining the suraksha of nagriks through a law labelled to the contrary.

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IN Part I of the trilogy, I dealt with the Unholy Ghost and examined the various provisions of the newly enacted Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) and delved into various concerning aspects of the law that have now been imposed and will come into effect in the next 10 days, i.e., July 1, 2024.

A good starting point would, therefore, be to examine the question that would stare us in the face in the next 10 days: a question that will puzzle the police, confuse the lawyers and confound the judges: Which procedural law will apply from July 1, 2024?

A side note on retrospectivity: Inspector Lalita Kumari and her troubles with the BNSS

As Nani Palkhiwala famously remarked: Indian legislators love the hit and trial method, first they hit you with the law, then they err, only to hit you again.

While that analogy was in the context of the Income Tax Act, it would apply with equal force to the new criminal laws that are sought to be brought into effect, thereby creating two parallel systems for both procedural as well as substantive law.

On and from July 1, 2024, India will find itself at a crossroads of a procedure that could apply retroactively or retrospectively or prospectively (a distinction which is delicate yet may be riddled with profound implications if overlooked) to substantive offences which could only apply prospectively.

While prosecutors and police officers would wish for the procedure to be applied prospectively too, the timelines contained in that procedure would make their task so onerous as to defeat the objectives of the law.

To give you a simple instance, suppose an offence of sexual assault was committed on June 29, 2024, before the new law came into the picture. Under an ideal scenario, Inspector Lalita Kumari is supposed to complete the investigation and file a chargesheet within 90 days, or the default bail provision under Section 167(2) of the Code of Criminal Procedure (CrPC) would kick in, and the accused would be let out under the previous regime.

Now, if the information of the offence is only received on July 1, 2024 and Inspector Lalita Kumari, displaying exemplary promptness, registers the said first information report (FIR) on the very same day, the first question would be, whether an FIR is to be registered under the erstwhile provision of Section 375/376 of the Indian Penal Code (IPC) or the new provision, i.e., Section 63 or 64 of the Bharatiya Nyaya Sanhita, 2023 (BNS).

Also read: BNSS introduces handcuffs and in-absentia trials, widens preventive detention and police custody

The question arises because while the offence was committed during the IPC regime, the information was received only after the new criminal laws came into the picture, therefore, the FIR has to be registered under the new procedure.

The puzzled Inspector Lalita Kumari is left in a lurch to decide whether she has to go by the CrPC or by the BNSS to register the FIR.

The problem gets even more convoluted since under the previous regime Inspector Lalita Kumari was supposed to complete the investigation within 90 days.

However, under Section 193(2) of the BNSS, she will have to complete the investigation within 60 days, since there is a specific mandate to complete the investigation from the date of its registration and not from the date of its commission in cases of sexual assault.

With a thirty-day shorter deadline, Inspector Lalita Kumari would wish for the confusion to end, but it only gets more worrisome. Now, under Section 187 of the BNSS (successor to Section 167 of the CrPC), the police are supposed to file their chargesheet within 90 days, but if Inspector Lalita Kumari abides by the deadline specified in Section 193(2) of the BNSS, she will have to file it within 60 days.

Does it mean that if she fails to file the chargesheet within 60 days, the accused can seek the benefit of default bail, even though Section 187 of the BNSS prescribes an outer limit of 90 days?

From a standpoint of liberty, considering the Supreme Court has, in a copious number of judgments, held that custody of even a minute beyond the statutory period would be tantamount to illegal custody. However, a judge would be left to wonder whether the accused in a sexual assault case under the new regime is entitled to default bail after 60 days or after 90 days.

Statutory fortification of extra-judicial statements

One would recall that Macaulay never trusted the police, therefore, under the erstwhile 'colonial law', any statement given by a witness to a police officer was not admissible as evidence.

This included police statements under Section 161 of the CrPC as well as confessions wriggled out of suspects through extrajudicial means in police custody.

Also read: Stop the Damocles' sword of three new criminal laws from falling upon us, Indira Jaising beseeches new Union law minister

These statements need not even bear the signatures of those on whose behalf the Section 161 CrPc statements are being recorded. For a statement to become admissible or for a confession to be admissible, such statements or confessions could have been made before a judge under Section 164 of the CrPC, when the judge would satisfy herself/himself of the genuineness of such statement or confession before proceeding to record it. The distinction between an admissible and an inadmissible statement was clear under the old regime.

Under the new regime, that distinction seems to have been blurred on account of a new insertion masqueraded as a safeguard which has found its way to the BNSS in the form of Section 188(2), with a rather deceptively worded marginal note: "No inducement to be offered."

Under Section 188(2) of the BNSS, "a person can make any statement to a police officer which he may be disposed to make of his own free will."

This expression gives rise to pivotal questions such as who decides whether the person making the statement is doing so out of his own free will or not? Is it the subjective discretion of the investigating officer to decide whether the statement made by the witness is out of his free will or not? Will such a statement be admissible now that it has been made out of "free will"?

This new category of statements, which is different from a police statement under Section 181 of the BNSS ( Section 161 of the CrPC) is so vague that it would be a safe haven for 'fly by night' witnesses.

With rules of evidence conspicuously absent under the Bharatiya Sakshya Act, 2023 (BSA) to deal with this new category of statements, the problems regarding their admissibility and reliability will plague every single trial, confuse every presiding magistrate and sessions judge and every prosecutor and defence counsel alike.

The hallmark of every criminal law is its innate ability to be certain; since uncertainty has a direct bearing on cherished constitutional guarantees of citizens. Unfortunately, while dealing with the new category of statements, no system exists either under the Indian Evidence Act, 1872 or its successor the BSA which would afford any guidance on the reliability or admissibility of these 'free will-exhibiting' witnesses and their statements.

If it is not a police statement or a statement recorded by the court, then what is it?

Since the Proviso to Section 182 of the BNSS clearly excludes it from being a statement recorded before a judicial officer, one shudders to imagine the implications if this new category is introduced to find a getaway from the inadmissibility embargo of the police statement.

Also read: Lawless laws: The criminal law amendments and 'decolonisation' as an anti-feminist goal

Imagine a case where a dead body is found, and the case clearly reeks of homicide, and the witness statements do not inspire any confidence.

A weak case can now easily be converted into a strong case by introducing a fly-by-night witness who would attest to having seen the person, and his statement would become admissible by operation of Section 182(2) of the BNSS.

In essence, the police can introduce witnesses at the drop of a hat, and their testimonies will have to be held to be admissible. Where then is the nagrik and his suraksha?

The disastrous step-son treatment of complaint cases

One of the first few chapters taught in every law school deals with a basic question: How can criminal law be set into motion? Students are told that there are two courses available to them: by registering an FIR under Section 154 of the CrPC, or by preferring a private complaint under Section 200 of the CrPC, both of which enjoy equal status.

While one would culminate into a chargesheet on the basis of which a criminal court would take cognisance, the other would result in taking cognisance after pre-summoning evidence is led by the complainant.

In both scenarios, taking of cognisance and issuance of summons or warrants was the result. The Supreme Court had also held in various cases that at the stage of taking cognisance or issuance of process, the accused has no right to be heard.

The accused cannot take up its defences and lead evidence at that stage. At such an initial stage of issuance of process, the proceedings cannot be converted into a mini-trial, and for good reason, otherwise the accused would resort to every dilatory tactic under the sun to delay the trial.

In short, under the previous regime, there was no distinction between a police case and a complaint case in the mode and manner in which an accused was treated.

Furthermore, under Section 195 of the CrPC, for some offences, cognisance could only be taken on a complaint case; registration of an FIR of such offences was considered illegal.

Greater sanctity was attached to complaint cases because a trained judicial mind would have an occasion to examine the complaint and establish whether a prima facie case to proceed against the accused existed.

Under the new regime, however, while for an offence registered by way of an FIR culminating into chargesheet does not require an intervention from the accused, in a complaint case, an order taking cognisance cannot be passed by a magistrate unless and until the accused is given an opportunity of hearing in terms of Section 223 of the BNSS.

The accused has been given this opportunity on a platter, dehors the principles of law laid down by the Supreme Court from the times of Abhinandan Jha to the recent decision in State of Gujarat versus Hasanfatta, which in no uncertain terms says that the accused has no opportunity to be heard or to present his defence at such an initial stage.

The problems on account of this systematic change are several. Firstly, the accused will do everything to delay the trial, making complaint cases a less preferred way of redressal and defeating the objective of faster and speedier disposal of cases which was the hallmark of all parliamentary speeches.

The complainant will be forced to go to the police station for the registration of FIRs and be at the mercy of the station house officer to conduct a preliminary inquiry first.

Most importantly, when the law provides for equal modes of grievance redressal, it cannot discriminate by refusing to give an accused the right of hearing at the time of taking cognisance on a chargesheet but allow him to contest every complaint case at the stage of taking cognisance.

Similarly, for the complainant, Section 223 of the BNSS is also onerous because it gives an unfair advantage to the accused at such an initial stage of the criminal proceedings.

Also read: Section 187 of BNSS: A glaring example of bad drafting and a missed opportunity

In short, Section 223 discriminates against both the accused as well as the complainant, and since there is no third method of initiating criminal proceedings, this will affect every complainant and every accused in every case.

In fact, this provision will be singularly responsible for causing mayhem till the time the provision itself is struck down. The vice of unconstitutionality will plague every police case and every complaint case, on account of this sinister tinkering. Even the likes of Macaulay would turn in his grave with the discrimination embedded within the statute.

The son (BNSS) continues to run amuck with several provisions that are ex facie against the protections guaranteed under Articles 14, 20, 21 and 22 of the Constitution of India.

The provisions defeat the very objective that the law was supposed to espouse: speedier trials within set timelines.

In the crevice of such a discourse stands the innocent nagrik, caught between two parallel systems, with no assurance of suraksha in the face of a system riddled with handcuffs, preliminary inquiries, absence of rules of admissibility, 'free will' witness statements, and police case and complaint case dilemma, each of which is singularly sufficient to harpoon the rule of law.