An overhaul, the criminal law Bills, and the big picture

General Studies Paper 2

Introduction

• The central government introduced three Bills in Parliament in August. Called the Bharatiya Nyaya Sanhita (BNS), 2023, the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 and the Bharatiya Sakshya (BS) Bill, 2023 they are to replace the existing Indian Penal Code, 1860, the Code of Criminal Procedure (CrPC), 1973 and the Indian Evidence Act, 1872, respectively.

The Bharatiya Nagarik Suraksha Sanhita

• There is an explicit provision in the BNSS on the registration of a cognisable offence in any police station, irrespective of the area where the offence is committed.
• Though this practice (known as recording first information report, or FIR at Zero) has been in use for many years now, its formal inclusion in the BNSS may help complainants get their cases registered as a matter of right without running around.
• As there does not seem to be an intelligent differentia vis-à-vis the rest of the cognisable cases with overall objective of the provision, this differentiation may not stand scrutiny in constitutional courts.
• All provisions of the CrPC on arrest have been retained in the BNSS.
• A new clause says that for offences punishable with less than three years of imprisonment, an arrest could be done only with the prior permission of Deputy Superintendent of Police if the accused person is infirm or is aged over 60. This may provide some relief to these two categories of persons provided the Deputy Superintendent of Police uses the clause judicially.
• The new Codes provide for handcuffing in at least a dozen categories of persons who are accused of serious offences inter alia such as one who commits a terrorist act, murder, rape, acid attack or offence against the state.
• This is sure to help police, who may be short staffed, to secure their custody. But the enabling section that guides handcuffing has not changed.

At the scene of crime

• The new Sanhita provides for a mandatory visit of the crime scene by a forensic expert and the collection of forensic evidence for offences punishable with more than seven years of imprisonment.
• But on realisation of the ground reality (of limited forensic infrastructure at field level), a maximum five years of leverage has been given to State governments to bring this clause into operation.
• Therefore, unless State governments commit themselves to the provision of sufficient resources for the development of forensic infrastructure (technology and manpower), the impact of this change may not be visible soon.
• The Sanhita rightly encourages the use of audio-video means in recording the various steps of investigation; this includes searches.
• However, the preferred use of smartphones (as recommended) has its limitations.
• Despite a ban on the two-finger test in a case of rape, and this test having been termed by the Supreme Court to be unscientific and violative of the dignity and privacy of a rape victim/survivor, the ban does not have a place in the Code.
• On the disclosure of identity of victim/survivor of rape, the provision of giving authorisation (to disclose identity) to the next of kin in case the victim is minor, may also be omitted as the Protection of Children from Sexual Offences Act, which exclusively deals with this issue and does not have a similar provision.

Duration of police custody

• A provision in the Sanhita that has raised the eyebrows of critics is the increase in the period of police custody exceeding 15 days, as provided in the CrPC.
• This may help the police to interrogate an accused person again if additional evidence is found during an investigation.
• The Sanhita also proposes enlarging the scope of judicial inquiry into suspicious deaths by including dowry deaths, but relaxes the provision of the mandatory recording of statement of a woman, a male under the age of 15 or above 60 (65 years in the CrPC) at the place of their residence based on their willingness.
• It is hoped that this provision is not misused by the police, especially in crimes against women and children.

Way forward

• Overall, some of the proposed changes are definitely progressive in nature, but cannot be termed as path-breaking or radical.
• What must not be forgotten is that police stations are generally under-staffed, have poor mobility, insufficient training infrastructure and poor housing facilities.
• Police personnel work under stressful conditions. Therefore, the colonial mindset will go only if police reformation is taken up in its entirety and not just by tweaking some provisions of the applicable laws.