The Winter Session of the Indian Parliament started on December 04, 2023, and during its course, three bills—Bharatiya Nyaya (Second) Sanhita, 2023 (BNS), BharatiyaSakshya (Second) Bill, 2023 (BSB), and Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 (BNSS)—were approved in both the Lok Sabha on 20-12-2023 and the Rajya Sabha on 21-12-2023 amid the suspension of approximately 141 Members of Parliament from both houses. These bills are pivotal as they aim to revamp the foundational laws governing the Indian Criminal Justice System, namely the Indian Penal Code, 1860 (now BNS), the Code of Criminal Procedure, 1973 (now BNSS), and the Indian Evidence Act, 1872 (now BSB).
Initially introduced during the 2023 Monsoon Session, the bills’ primary objective was to “decolonize” the existing British-era criminal laws and infuse them with an “Indianness” perspective. Earlier versions of these bills had been withdrawn by the Central Government. Subsequently, revised versions were introduced, incorporating amendments and alterations proposed by the Parliamentary Standing Committee, chaired by Brij Lal, a Rajya Sabha member. However, the reports produced by the Standing Committee, while comprehensive, failed to address several concerning provisions within these bills, despite dissenting notes from committee members
This discussion focuses on examining the impact of the “reforms” proposed by these three criminal bills on digital rights and freedoms. It also delves into the circumstances surrounding their approval and critically assesses the role (or lack thereof) played by the Standing Committee in scrutinizing the numerous contentious aspects of these bills.
Examining the Critical Aspects of Each Bill –
Bharatiya Nyaya (Second) Sanhita (BNS) 2023:
* The fresh hit-and-run legislation in India, part of the Bharatiya Nyaya Sanhita, enforces more severe consequences for individuals who leave accident scenes. Under this law, a driver absconding after a hit-and-run incident could face a maximum imprisonment of 10 years along with a ₹7 lakh fine. This regulation extends its coverage to encompass private vehicle proprietors as well. The primary objective of this updated law is to reduce the incidence of hit-and-run incidents, which annually result in approximately 50,000 fatalities in India law also applies to private vehicle owners. The new law aims to minimize the number of hit-and-run cases, which cause around 50,000 deaths in India each year.
* The Bill also introduces alterations to Section 113, which focuses on acts of terrorism. This modification aligns the section with the provisions of the Unlawful Activities (Prevention) Act, 1967, by altering the definition of a ‘terrorist act’ to include attacks targeting the economic security and monetary stability of the nation, while excluding the intimidation of the general public or disturbance of public order from its scope. Section 113 in the reintroduced BNS Bill (formerly identified as Section 111 in the initial August bill) closely resembles Sections 15 to 21 of the UAPA. According to the legislation, the decision regarding whether to file a case under Section 111 of the BNS or the UAPA will rest with an officer no lower in rank than a Superintendent of Police
While upholding the maximum and minimum penalties for various forms of terrorist acts, the new BNS bill separately delineates the punishment for organizing terrorist training camps and recruiting individuals for a terrorist act as imprisonment for a minimum of five years, extendable to life imprisonment, along with fines. It’s worth noting that such terrorist training camps, linked to the outlawed PFI, have been uncovered in multiple states by the NIA and respective state police forces
* Regarded as a substantial “reform” to the Indian Penal Code, BNS eliminates the offense of “sedition.” However, in reality, the Ministry of Home Affairs has not merely abolished the term “sedition” (previously Section 124A of the IPC). Instead, it has introduced a much broader and less precise description in the BNS, within Clause 150 titled ‘Acts endangering sovereignty unity and integrity of India.’ This Clause criminalizes actions that “endanger the sovereignty, unity, and integrity of India [including the use of electronic communications] to incite armed rebellion, subversive activities, secession, separatism, or to jeopardize India’s unity, sovereignty, and integrity.” Though akin to sedition, these actions will now incur penalties with a wider scope and application due to the vagueness of the language, posing severe threats to free speech, dissent, and journalistic freedom. These alterations have been implemented disregarding the ongoing Supreme Court deliberation on the existing sedition law. On September 12, 2023, a 3-judge bench of the Supreme Court referred petitions challenging the constitutionality of the sedition law to a bench of at least 5 judges. Despite being applicable only prospectively, the constructive jurisprudence by the Supreme Court regarding the criminalization of seditious or similar acts is crucial for criminal justice reform. However, by swiftly passing the BNS, the legislative branch has extinguished all possibilities of comprehensive reform.
BharatiyaSakshya (Second) Bill, 2023:
* The BharatiyaSakshya (Second) Bill (BSB) widens the scope of ‘documents’ to encompass electronic or digital records, encompassing online communications across various personal devices. This comprehensive definition encompasses messages, call recordings, emails, and electronic communication devices like mobile phones, laptops, cameras, and any other electronic gadgets that might be specified by the government at a later stage. While the bill aims for substantial reform, it lacks mechanisms to guarantee the security or proper maintenance of a chain of custody for digital evidence obtained during investigations. The absence of safeguards raises concerns about potential tampering, leaks, or breaches of private information or communication stored by investigating officers
* Moreover, despite requiring certification for the admissibility of electronic evidence similar to Section 65B of the Indian Evidence Act, the BSB presents a contradiction by categorizing electronic records as “documents” that might not necessarily require certification. Another significant aspect to highlight is the shift in perception regarding electronic records, now classified as “documents,” resulting in a transition from secondary to primary evidence. However, considering the susceptibility of electronic records to manipulation, designating them as “primary evidence” could pose substantial challenges.
* Clause 185 of the BSB grants authority to a police officer to search for any material or document, including within digital devices, without a written order if they possess “reasonable grounds” to believe that obtaining such material or document through regular means would cause undue delay. This particular provision raises concerns as it could validate and promote widespread violations of privacy by law enforcement agencies. In recent times, there has been a noticeable surge in raids where the powers of search and seizure seem to extend beyond reasonable limits. Instances have also emerged of police stopping individuals on the streets and compelling them to surrender their phones.
* Considering that mobile devices have become indispensable extensions of our personal lives, laws like the BSB, which endorse unwarranted search and seizure, may perpetuate the police’s access to extensive amounts of an individual’s private information, thus encroaching upon their fundamental right to privacy.
Bharatiya Nagarik Suraksha (Second) Sanhita (BNSS) 2023:
* The BNSS brings modifications to the mercy petition procedure by eliminating the necessity for the President to adhere to the advice of the council of ministers. It enables convicts to submit mercy petitions within 30 days under specific conditions, granting authority to both the President and the State Governor to assess these appeals. Convicts are eligible to file a mercy petition when notified by the Jail Superintendent about the Supreme Court’s dismissal of their appeal or the High Court’s confirmation of the death sentence, coupled with the expiration of the time available for appeal. This commences the procedure for mercy petitions. In situations involving multiple convicts, the superintendent ensures that all convicts submit a mercy petition within 60 days. Failure to comply by any convict prompts the superintendent to forward their details and case records to the Central or State Government for consideration. The Central Government examines the mercy petitions, asks comments from the state government, and presents recommendations to the President within 60 days. However, the BNSS does not specify a time limit for the President to decide on these recommendations. The proposed BNSS provision expressly prohibits any court appeals against the President’s decision regarding mercy petitions. This stands in contrast to earlier legal precedents that permitted judicial review based on various grounds such as malicious intent or failure to consider pertinent materials.Unlike previous judgments, the proposed BNSS does not delineate a timeframe between the rejection of a mercy petition and its execution. This raises concerns about the psychological and emotional readiness of the convict, aspects that were considered essential in previous legal rulings.
* Permission for the use of handcuffs during arrest under the BNSS Act is limited to habitual offenders, escapees, or individuals accused of serious offenses like rape, acid attacks, organized crimes, and economic crimes. The guideline stipulates that a police officer has the discretion to employ handcuffs during the apprehension of an individual based on the seriousness and nature of the offense. This includes individuals who are habitual offenders, escapees from custody, perpetrators of organized crime, involved in terrorist activities, drug-related crimes, illegal possession of arms and ammunition, murder, rape, acid attacks, counterfeiting of currency, human trafficking, sexual offenses against children, offenses against the State that endanger India’s sovereignty, unity, and integrity, or economic offenses
* Under Section 356 of the BNSS Act, if a proclaimed offender evades trial by absconding, the judgment can be pronounced in their absence. Notwithstanding anything contained in this Sanhita for the time being in force, 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,”
* Introduction of the Zero FIR concept under Section 173(1), mandating police stations to register FIRs regardless of jurisdiction. Regarding the concept of ‘Zero FIR’, the proposed Bill suggests that individuals have the liberty to register an FIR at any police station, regardless of jurisdictional boundaries. Subsequently, within a span of 15 days, the filed FIR should be transferred to the appropriate police station that holds jurisdiction over the location where the crime occurred.
* The BNSS introduces specific timeframes for various legal procedures, aiming to enhance the efficiency of the justice system. Addressing delays in investigation and trial, the BNSS outlines precise timelines within the criminal justice procedure, detailed as follows:
I. Section 230 of the BNSS mandates the provision of copies of police reports and documents to the accused and victim within 14 days from the accused’s production or appearance date.
II. Section 232 stipulates that Committal Proceedings must conclude within 90 days from the date of taking cognizance. The Magistrate holds the authority to extend this period up to 180 days, with recorded reasons.
III. Section 250 permits the accused to file for Discharge within 60 days from the date of committal.
IV. Section 263 specifies that the charge against the accused should be framed within 60 days from the first hearing on the charge.
V. Section 346 directs Inquiries or trials to progress on a day-to-day basis until all attending witnesses have been examined. It also limits the number of adjournments to a maximum of 2 per party.
VI. Section 258 requires a verdict of acquittal or conviction to be delivered within 30 days after completing arguments, extendable up to 45 days with specific reasons provided.
* Section 187 of the BNSS introduces a provision for adaptable police custody, enabling a span of up to 15 days of such custody. This period can be utilized intermittently within the initial 40 or 60 days, forming part of the overall 60 or 90 days of judicial custody, respectively. Traditionally, both the Constitution and CrPC impose limitations on detention in police custody beyond 24 hours. However, Magistrates possess the authority to extend this duration to 15 days if deemed necessary for the ongoing investigation. Extensions in judicial custody may also be granted if warranted, yet the cumulative detention cannot exceed 60 or 90 days, depending on the nature of the offense. The BNSS brings modifications to this process by allowing the authorization of the 15-day police custody to be wholly or partially executed at any point within the initial 40 or 60 days of the total 60 or 90 days, respectively.
* Expansion of medical examination permissions, including rape cases, is allowed under the BNSS Act by enabling any police officer to request such examinations, While the CrPC requires the medical examination of the accused in rape cases, conducted by a registered medical practitioner at the request of a Sub-Inspector level police officer, the BNSS broadens this authorization to encompass any police officer, regardless of their rank, to request such an examination.
* Section 349 of the BNSS Act extends the authorization for Magistrates to order specimen signatures or handwriting to include finger impressions and voice samples, even from individuals not arrested.The CrPC grants Magistrates the authority to request specimen signatures or handwriting from individuals. However, Section 349 of the BNSS expands this jurisdiction, empowering Magistrates to also demand the collection of finger impressions and voice samples. Notably, this provision applies to individuals who have not been placed under arrest during any investigation.
* Section 173 of the BNSS permits FIR registration through electronic channels, mandating acknowledgment within a three-day timeframe. Furthermore, all legal procedures, comprising trials and inquiries, are now admissible to be conducted via electronic means. Courts have gained authority to carry out a wide array of proceedings electronically, including issuing summons and warrants, conducting inquiries, examining witnesses, facilitating trials across various courts, handling appellate procedures, and more, utilizing electronic communication or audio-video methods.
Conclusion: Prospects and Challenges-
In conclusion, these three Acts exemplify India’s dedication to reform by modernizing legal, policing, and investigative systems, emphasizing technology and forensic science. They aim to provide increased protection for marginalized sections of society, align the criminal justice system with contemporary needs and values, and ensure citizens’ rights are safeguarded while efficiently administering justice. The success of these reforms hinges on meticulous implementation, clear guidelines, and continual monitoring to prevent unintended consequences while serving the intended purpose of the law.
