Within the Indian Judiciary, the persistent echo is that of delayed justice, a malaise deeply rooted in the colonial legal framework that once thrived on imperialist aspirations, designed to govern millions for the benefit of a foreign power. The initial whispers of legal reform, dating back to the first law commission led by Macaulay in 1835, only materialized into action in 1960, after the seismic shifts triggered by the First War of Independence in 1957.
In a bold move to untangle the threads of colonial influence and rejuvenate our criminal justice system, the Central Government orchestrated a symphony of change with three groundbreaking laws: the Bharatiya Nyaya (Second) Sanhita (BNS2), the Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 (BNSS2), and The Bharatiya Sakshya (Second) Bill, 2023 (BSB2). These legislative endeavors aimed at decolonization of the criminal justice system, ensuring swift justice, expeditious case resolutions, and adaptation to the technology advancement and evolving criminal elements.
Yet, despite the commendable strides taken, a chorus of critics emerged, questioning the integrity of these legal codes. It is in this cacophony of skepticism, I write this column to rebut the arguments of those cynical about the potential misuse of these Acts.
In the labyrinth of legal discourse, a prevalent argument championed by some legal luminaries, notably senior advocate Menaka Guruswamy in her columns (‘The Custody Question’, IE, Aug 19 & ‘Weakening law’s guardrails’, IE, Sept 2), posits that the BNSS2 confers upon magistrates the authority to sanction detention in police custody for a duration surpassing the 15-day threshold, extending ambitiously up to 90 days. Such contentions insinuate a transformation of our democratic fabric into a potential police state, where the cherished liberty of citizens becomes subject to the caprice of law enforcement. Yet, as an advocate predominantly engaged in criminal practice, I assert with utmost responsibility that these arguments are misconceived.
The purported expansion highlighted in the new code is misconstrued. The sole modification introduced by BNSS2 in Section 187, analogous to Section 167 of the Criminal Procedure Code (CrPC), is the addition of the phrase “or in parts, at any time during the initial forty days or sixty days out of the detention period of sixty days or ninety days, as the case may be, as provided in sub-section (3).” Essentially, this implies that the 15-day police custody, whether in its entirety or partially, can be invoked at any point between 40 or 60 days (15 days earlier), as applicable, from the initial date of arrest. This perspective finds resonance even in the pronouncements of the Supreme Court of India in the cases of CBI Vs. Vikas Mishra, (2023) 6 SCC 49, and V. Senthil Balaji Vs. State, 2023 SCC OnLine SC 934. These judgments advocate a reconsideration of the stance taken by the Apex Court in CBI Vs. Anupam J Kularni, (1992) 3 SCC 141, which rejects the request of police custody after 15 days of arrest of the accused.
Moreover, the inclusion of such provisions is imperative. Instances arise where the accused strategically admits themselves to hospitals or employs other deceptive tactics to evade police interrogation during the remand period. Additionally, such provisions prove vital when law enforcement seeks to juxtapose the accused with co-conspirators apprehended after the initial 15 days of his arrest. Denying such rights to the investigating agency would essentially reward an accused deliberately obstructing the judicial process.
Crucially, any such remand occurs post an application of judicial mind, subject to challenge up to the Apex Court. Therefore, concerns of executive tyranny are unfounded. In essence, these legal nuances aim to strike a delicate balance, preserving the rights of the accused while ensuring the efficacy of the justice system.
The second concern contends that BNSS2 opens the door to trial in absentia, allowing the judge to decide, based on satisfaction, that “the personal attendance of the accused before the Court is not necessary in the interests of justice, or that the accused persistently disturbs the proceedings in Court.” Critics argue that this provision provides an ample playing field for judicial abuse in determining the necessity of the accused’s presence. However, this apprehension is nothing but a misinterpretation of the provision. The focal point under scrutiny is Section 355 of BNSS2, a mirror image of Section 317 of the Criminal Procedure Code (CrPC). Hence, any looming fear of misuse of this provision is not only baseless but also devoid of merit. The language and intent of the provision remain unchanged, making the concerns about its potential abuse highly fallacious and lacking in substance. Moreover, in most of the cases, the accused request exemption from personal appearances.
The third point of contention revolves around the incorporation of Organised Crimes (Sec. 111), Terrorist Act (Sec. 113), and acts endangering Sovereignty Unity and Integrity of India (Sec. 152) in BNS2, entailing more severe penalties and sparking considerable outcry. While critics argue against these additions, asserting potential misuse and lack of procedural safeguards, it is essential to recognize that these inclusions align with the evolving challenges posed by criminals employing advanced techniques.
The concern surrounding the addition of Organised Crimes in BNS2, often linked to the expansive scope and perceived absence of procedural safeguards akin to the Maharashtra Control of Organised Crime Act, 1999 (MCOCA), is, in my view, unfounded on multiple fronts. Firstly, the argument advocating for sanction by the Assistant Commissioner of Police (ACP) before registration, investigation or cognisance by the Court in case of MCOCA as a safeguard for the accused is misleading. Given that the ACP operates under the Government, potential misuse by the govt can not be mitigated by mandating sanction from a government officer. It may help the accused of such heinous crime on technical grounds if such sanction would inadvertently be overlooked.
Secondly, the gravity and scale of these offences, coupled with the absence of laws akin to MCOCA in various states, necessitate the inclusion of such serious organized crimes under the purview of central penal law to enhance the safety of the nation. Thirdly, as per critics, MCOCA cases are dealt by the experienced mind of Assistant Session Judge or Session Judge whose appointment is subject to the concurrence of the High Court. There is no deviation in this regard too. Conjoint reading of Sec. 22 and Sec. 23 of BNSS2 clarifies that sentences exceeding 7 years must be passed by a Session Judge or Additional Session Judge. Therefore, crimes, such as organized crimes which entail a maximum penalty of life imprisonment, will exclusively be decided by Session Courts. To dispel any ambiguity, it is crucial to note that Session and Additional Session judges are appointed solely by the High Court, as outlined in Sec. 8(2) and Sec. 8(3) of BNSS2.
The intricacies pertaining to Sec. 113 and Sec. 152 of DNS2 will be delved into in subsequent columns.
While skepticism may be the default response to change, a closer examination reveals the robustness of these legal frameworks. The journey from colonial shackles to a modern, technologically advanced, and justice-oriented system demands bold steps. These three criminal laws embody the spirit of progress, aiming not just to mend the gaps but to build a legal edifice befitting the aspirations of a sovereign nation.
Kumar Piyush Pushkar is an Advocate, Supreme Court of India .