The custody questions

General Studies Paper 2

Recent Context:

• Recently, central government introduced three Bills in the Lok Sabha to reform criminal law:
• The Bharatiya Nyaya Sanhita, 2023 to replace the Indian Penal Code, 1860,
• the Bharatiya Nagarik Suraksha Sanhita, 2023 to replace the Code of Criminal Procedure, 1973 and
• the Bharatiya Sakshya Bill, 2023 to replace the Indian Evidence Act, 1872.
• The three Bills have since been referred to the relevant Parliamentary Standing Committee for review and recommendations.

Changes made in recently introduced bills

• The enactment of the new Sanhita is a crucial step to dispel the colonial shadow.
• Bharatiya Nyaya Sanhita (BNS) 2023, the proposed replacement for the Indian Penal Code (IPC), does not contain IPC Section 377 (or an equivalent section), which was read down by the Supreme Court in 2018
• Repealing Sedition law: The repeal of the sedition law points to a welcome shift in the balance struck between individual liberty and national security, but also frames that shift’s incompleteness
• But the proposed Sanhita contains a provision that penalises “endangering sovereignty, unity and integrity of India”.
• Without calling it sedition, it expands its definition, including aiding through financial means and “subversive activities”, and encouraging “feelings of separatist activities.
• Inculcation of past judgments of courts (Anurag Soni v State of Chhattisgarh (2019). for eg. Introduction of the deceitful promise to marry as a criminal offence deceitful means” will include the false promise of employment or promotion, inducement or marrying after suppressing one’s identity.
• Introduction of reformative form of justice
• The insertion of community service as an alternate form of punishment could prevent more undertrials languishing in jails
• New bills also include recognition of murder by a mob on ethnic, caste and communal lines.
• Inculcation of technological advancement:
• A new case, commencing from the FIR (first information report) leading to a case diary on its way to a chargesheet and culminating in a judgment is now to be maintained online — via digitised recordkeeping.
• Provisions of the bill allow witnesses, accused, experts and victims to appear through electronic means.
• It also allows electronic evidence to have the same legal value as documents and seeks to expand the scope of secondary evidence to include copies made from the original by mechanical processes as proof of evidence.
• Anew case, commencing from the FIR (first information report) leading to a case diary on its way to a chargesheet and culminating in
• The Protection Code now makes it mandatory for a forensic expert to visit the crime scene and collect forensic evidence for information relating to an offence that is punishable by imprisonment for at least seven years
• The Protection Code now provides that the decision to grant or reject sanction to prosecute a public servant must be reached by the government within 120 days of receiving the request. If the government fails to do so, sanction shall be deemed to be accorded.
• No sanction shall be required in cases involving public servants when accused of sexual offences or trafficking of human beings.
• More reform comes in the form of a provision that mandates that no person can be arrested without prior permission of an officer of the minimum rank of Deputy Superintendent of Police for offences punishable with less than three years imprisonment, if the accused is above the age of 60 years.

Areas of concern in recently introduced bill

• Protection Code enables trial in absentia if the judge is satisfied that the “personal attendance of the accused before the Court is not necessary in the interests of justice” or if the accused “persistently disturbs the proceedings in court”.
• It provides for the scope for abuse of a provision such as this given the wide latitude afforded to the judge in deciding when the presence of an accused is not necessary.
• Hamper the civil liberalities of accused
• Permits the magistrate to authorise detention in police custody for a period beyond the current 15-day limit, extending up to 90 days.
• Such detention extending to 90 days is for offences punishable with death, life imprisonment and imprisonment for a term of not less than 10 years.
• The Protection Code enables detention in police custody beyond the current 15-day mandate and up to 60 days for “any other offence”

Conclusion

• While there are many reforms that should be welcomed in the Protection Code, 2023, all of that will be rendered meaningless if an accused can be detained for long periods of time in police custody.
• Three months of uninterrupted police custody will render any accused extremely vulnerable to coercion and intimidation. Therefore, reform should be carried out while considering the basic rights of accused.