Bharatiya Nagarik Suraksha (Second) Sanhita, 2023: An In-Depth Analysis

Part A: Highlights of the Bill

Context:

The Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 (BNSS2) is proposed as a replacement for the Criminal Procedure Code, 1973 (CrPC). The CrPC, designed to administer the Indian Penal Code, has undergone revisions and interpretations by the Supreme Court over the years. The BNSS2, introduced to address the evolving needs of the criminal justice system, presents several key features and changes.

Key Features:

1. Forensic Mandate:

   – BNSS2 mandates forensic investigation for offenses punishable with seven years of imprisonment or more. Forensic experts are to visit crime scenes, collect evidence, and document the process.

2. Electronic Trials:

   – All trials, inquiries, and proceedings may be conducted in electronic mode, emphasizing the modernization of legal processes.

3. Proclaimed Offenders:

   – In cases where a proclaimed offender evades trial with no immediate prospect of arrest, the trial can proceed, and judgment can be pronounced in their absence.

4. Collection of Samples:

   – Alongside specimen signatures or handwriting, BNSS2 allows the collection of finger impressions and voice samples for investigation or proceedings, even from individuals not under arrest.

Key Issues and Analysis:

1. Police Custody Duration:

   – BNSS2 allows up to 15 days of police custody during the initial 40 or 60 days of the 60 or 90 days period of judicial custody. This may lead to a denial of bail for the entire period if the police custody is not fully utilized.

2. Property Attachment without Safeguards:

   – Power to attach property from proceeds of crime lacks safeguards present in the Prevention of Money Laundering Act, raising concerns about potential misuse.

3. Limitations on Bail:

   – Unlike the CrPC, BNSS2 denies bail for anyone facing multiple charges, potentially limiting the scope of mandatory bail.

4. Handcuff Usage:

   – The use of handcuffs, even in cases of organized crime, contradicts Supreme Court directions and raises questions about potential violations of personal liberties.

5. Retained Provisions from CrPC:

   – Maintenance of public order, a function distinct from trial procedure, is retained in BNSS2, raising questions about whether such functions should be regulated under the same law.

6. Lack of Incorporation of Committee Recommendations:

   – Recommendations from high-level committees on changes to the CrPC, including reforms in sentencing guidelines and rights of the accused, have not been incorporated into BNSS2.

Part B: Key Issues and Analysis

1. Expanded Police Powers:

   – Amendments in BNSS2 may expand police powers, potentially leading to issues such as excessive use of force and illegal detentions.

2. Changes in Police Custody Procedure:

   – Modification of police custody procedures in BNSS2, allowing custody in parts during the initial period, may impact the overall detention period and raise concerns about misuse.

3. Handcuff Usage Concerns:

   – The provision for handcuff usage, especially in cases not aligned with Supreme Court guidelines, may infringe on the accused’s personal liberty.

4. Limitation on Mandatory Bail:

   – Limiting mandatory bail for individuals facing multiple charges may result in prolonged detention, impacting the principle that bail is the rule, and incarceration is the exception.

5. Impact on Plea Bargaining:

   – Introduction of a time limit for filing plea bargaining applications in BNSS2 may limit the effectiveness of plea bargaining in reducing sentences.

6. Prison Congestion:

   – Restrictions on bail and plea bargaining could hinder efforts to decongest prisons, where a significant percentage comprises under-trial prisoners.

7. Property Attachment Safeguards:

   – BNSS2 lacks certain safeguards available under the Prevention of Money Laundering Act concerning the attachment of property, potentially affecting the rights of the accused.

8. Overlap with Existing Laws:

   – Retention of certain procedures in BNSS2 that overlap with existing laws raises questions about the need for redundancy.

9. Data Collection Concerns:

   – The expansion of data collection provisions in BNSS2, overlapping with recent laws, raises questions about the necessity and constitutional validity of such provisions.

10. Maintenance of Public Order:

    – Retaining provisions related to the maintenance of public order in BNSS2 alongside trial procedures prompts a discussion on whether these functions should be regulated under the same law.

Conclusion:

While the Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 presents several noteworthy changes aimed at modernizing criminal procedures, it also raises critical concerns regarding individual rights, police powers, and potential overlaps with existing laws. A careful examination and deliberation on these issues are crucial to ensure a balanced and effective criminal justice system.