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EDITORIAL ANALYSIS : An overhaul, the criminal law Bills, and the big picture

 

Source: The Hindu

 

  • Prelims:, IPC, CrPC, Bharatiya Nyaya Sanhita, Bhartiya Nagrik Suraksha Sanhita, Bharatiya Sakshya Bill, Indian Evidence Act, Directive Principles of State Policy etc
  • Mains GS Paper II & IV: Government policies and interventions for development of various sectors, weaker sections of society and interventions for their development etc

 

ARTICLE HIGHLIGHTS

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

 

INSIGHTS ON THE ISSUE

Context

Major provisions of the three new bills:

      

Significance:

  • The new laws aim to expedite justice delivery while protecting citizens’ rights and addressing modern challenges.
  • They emphasize accountability, digitization, and justice rather than mere punishment.
  • In May 2020, an Expert Committee led by Ranbir Singh was established to propose reforms in the realm of criminal law.

 

The Bharatiya Nagarik Suraksha Sanhita

  • Registration of a cognisable offense in any police station, irrespective of the area where the offense is committed.
    • Its formal inclusion in the BNSS may help complainants get their cases registered as a matter of right without running around.
  • Permit the conduct of a preliminary inquiry to ascertain the existence of a prima facie case
    • Even if the information discloses commission of a cognisable offense punishable with more than three years but less than seven years of imprisonment.
    • This is at variance with the SC judgment in Lalita Kumari versus Govt. of Uttar Pradesh (2013): It was held that the police have no option but to register an FIR if the information discloses commission of a cognisable offense.
    • This was only to ascertain commission of a cognisable offense and not check their truthfulness.
    • Advantages and disadvantages of this clause:
      • The parties at dispute may arrive at a compromise in the given limit of 14 days to conduct a preliminary inquiry
      • Cases may not turn out to be true, prima facie, to proceed further.
      • Police may misuse this period and avoid registering even true cases.
    • Offenses 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 will help police, who may be short staffed, to secure their custody.

 

Issues and Solutions:

  • All provisions of the CrPC on arrest have been retained in the BNSS: It would have been appropriate to include the ratio of the Supreme Court judgment in Arnesh Kumar versus State of Bihar (2014):
    • To justify an arrest by making it mandatory
      • For the police officer to mention reasons of arrest supported with justifiable material
      • For the judicial magistrate to record satisfaction and make it a formal part of the BNSS.
    • The enabling section that guides handcuffing has not changed: It says that ‘the person arrested shall not be subjected to more restraint than is necessary to prevent his escape’.
      • Investigating officers will still have to justify handcuffing with the possibility of escape (or physical attack) when such criminals are produced before court.
      • Since the constitutional provision and enabling provision of the law remain unaltered
        • The Supreme Court’s guidelines on handcuffing will still prevail.
      • It provides for a mandatory visit of the crime scene by a forensic expert and the collection of forensic evidence for offenses punishable with more than seven years of imprisonment.
        • Ground reality: Because of the limited forensic infrastructure at field level
          • A maximum five years of leverage has been given to State governments to bring this clause into operation.
          • State governments need to commit themselves to the provision of sufficient resources for the development of forensic infrastructure (technology and manpower) for the impact of this change.
        • It 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.
          • SC in Shafhi Mohammad vs The State Of Himachal Pradesh (2018) directed the MHA and States to develop facilities for the videography and photography of crime scenes during investigation at the level of the police station.
        • Despite a ban on the two-finger test in a case of rape: This test having been termed by the SC as unscientific and violative of the dignity and privacy of a rape victim/survivor ( Lillu @ Rajesh & Anr vs State Of Haryana, 2013)
          • The ban does not have a place in the Code.
        • 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
          • It 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.
          • SC in Nipun Saxena vs Union Of India (2018) expressed reservations as the next of kin may not be an appropriate party to delegate such authority.
        • 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.
          • There must be adequate grounds to permit an extension.
          • The 15 day limit can be exceeded only after the initial 40 days or 60 days out of a total detention of 60 days or 90 days (depending on whether an offense is punishable with imprisonment of up to 10 years, or more).
          • The accused will still be eligible to be released on default bail after a total detention of 60 days or 90 days, as provided in the CrPC.
          • Thus, the discretion to permit additional police custody rests with the judiciary.
        • It proposes enlarging the scope of judicial inquiry into suspicious deaths by including dowry deaths
          • but relaxes the provision of the mandatory recording of statements 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.
          • This provision may be misused by the police, especially in crimes against women and children.

 

Way Forward

  • A standing order that could have been included in the Sanhita with respect to inquest is the videography and photography of a post-mortem
    • particularly in cases where it is a custodial death or is a death caused in an exchange of fire with the police or other authorities.
    • The Supreme Court and the National Human Rights Commission have repeatedly asked States to comply with such instructions.
    • The observation of the Court to make a spot sketch of the scene of crime drawn on scale by a draftsman in order to make it admissible in court
      • It could also be included in the Sanhita to improve the quality of investigation.
    • Some of the proposed changes are definitely progressive in nature, but cannot be termed as path-breaking or radical.
    • Police stations are generally under-staffed, have poor mobility, insufficient training infrastructure and poor housing facilities.
      • Police personnel work under stressful conditions.
      • 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.
    • The Bills hold the potential to shape the future landscape of criminal law, Therefore, the task of testing their sustainability; efficacy; adherence to rule of law; and, justice delivery capacity, becomes paramount.

 

QUESTION FOR PRACTICE

Constitutional Morality’ is rooted in the Constitution itself and is founded on its essential facets. Explain the doctrine of ‘Constitutional Morality’ with the help of relevant judicial decisions. (UPSC 2021) (200 WORDS, 10 MARKS)