A critique of the new criminal laws, 2023
Neeraj P.R
Law Student | RGSOIPL | IIT-KGP | Commercial Law | Arbitration | Tech Law | Criminal Law.
The new criminal law has come into force since July 1, and the reactions have come in a mixed bag amongst luminaries. Much discussion has already pointed out the "the good, the bad, and the ugly" sides of these laws. This article would be more of an effort to critique or point out some of the things that need some serious attention. Also, include those commentaries for your further reading.
PART 1: Wait and Watch
My reasons not to review the changes that have been hailed as positive ones stems from the French maxim "en ventre sa mere" (Or as most commonly used in TP Act in terms of section 13, let the child be born.)? Given the optimism, the only part left is to wait and watch, put the assertion to the test, let them play out, and see how they benefit society. You can find all the recent changes regarding the bill here, here and here. Also, you may find all the provisions of the new act and its respective counterpart to the old law through the following app released by NCRB.
Apple store link:
Google Play Store link:
PART 2: Need for review
"Ubla Fundamento Cadit Opus"- A foundation being removed, the superstructure falls.
What are some of the criticisms raised regarding the new criminal laws?
In law, a fortiori argument means as follows: "If something less likely is true, then something more likely will probably be true as well." Absorbing the realities of our criminal system, I construct the fortiori legal that if something as less likely as a rich person can be wronged within the framework of the new law is true, then it's highly probable that a poor person will surely be wronged under the same law. Given this premise, I proceed to narrow down the subject matter of this discussion to issues of FIR, Arrest, bail, and Chargesheet, legal aid, Mercy petition, which shall be a matter of concern to the most indigent, downtrodden and suppressed sections of the society. However, this doesn't absolve the new laws of the other criticisms, which can be classified into two baskets: one is with regard to DUE PROCESS, and the second one is INDIANISATION OF COLONIAL LAWS by retaining them with larger repercussions. The criticisms regarding due process are that there has been a lack of consultation with various rightful Stakeholders, such as the bar council & subsequent lack of due procedure in the institution of the bill in the Parliament. As to Indianisation of colonial law, some of which are unconstitutional in the first place are that sedition is back with more ambiguity (S. 152 BNS), arbitrariness in charging terrorism under the BNS (s.113 BNS) or UAPA (S 15 UAPA), scraping of legal provisions to criminalize rapes on homosexual and transgender people(Navtej Singh Johar), ?holding adultery still as a provision to deny maintenance. (s.144 BNS), retention of adultery (S. 84 BNS is in direct conflict with Joseph Shine v UOI, 2017). ?
Was repeal the only way forward?
The objective of bringing such overhaul to the criminal law has been stated as to get rid of the British colonial law; if one were to separate the optics from this, it is an agreed fact that the laws need change, but the fact that all three of the main criminal laws currently in use have proven their effectiveness over time and may only require minor adjustments, if any. Even if significant changes were deemed unavoidable, they could have been accomplished by making appropriate amendments to the current laws. Withstanding this thought, I am still irked by the question of whether the new law is a complete overhaul of the old one and here is what I found.
?????????????? I.???????? Annotated section-wise Comparison of Bharatiya Nagarik Suraksha Sanhita, 2023 and The Code of Criminal Procedure, 1973
???????????? II.???????? Annotated section-wise Comparison of Bharatiya Nyaya Sanhita, 2023 and Indian Penal Code, 1860
?Furthermore, from the perspective of a litigant, judges, magistrates and other legal practitioners, if these changes were through an amendment to the existing laws, this could have helped achieve two things: Firstly, by making necessary amendments to the existing laws while keeping the sections intact, the chaos and potential legal disputes at various levels of the court system could have been avoided. Secondly, this would have retained precedence to already settled principles of the old law, which are now mostly just retained as it is. Still, with the new law, any change in phraseology or challenges to the new law has to pass the test of judicial scrutiny once again and arrive at settled interpretations From SC. All of this is nothing but a direct deterrent to the idea of "speedy trial" guaranteed by Article 21 of the Constitution of India. A look at the National Judicial Data Grid of District and Taluk courts alone shows that there are around 34267499 cases that are pending, out of which 68.32 % are more than a year old. The Matter Type Pendency, as per NJDC, is that most of these pending matters are original in nature; this results in another conundrum; it's an established principle that the substantive laws, unless expressly mentioned, cannot be applied retrospectively; however, a retrospective application of procedural law like the new CRPC is possible unless it doesn't prejudice the rights of the accused. (Shyam Sunder and others V. Ram Kumar and Another, 2001 8 SCC 24) So, this implies that even if an FIR is filed under CRPC, the state may insist on the application of BNSS to try the offence in subsequent proceedings, thereby muddling the above scenarios by making it a tug-of-war between the old and new law.
"If one really wishes to know how justice is administered in a country, one does not question the policemen, the lawyers, the judges, or the protected members of the middle class. One goes to the unprotected-those, precisely, who need the law's protection most! -and listens to their testimony." ? - James Baldwin,"No Name in the Street"
PART 3: JUSTICE FOR ALL?
Police Investigation- FIR& Charge Sheet
As per the judicial precedents set out in Lalitha Kumari v Government of Uttar Pradesh, registration of FIR is mandatory if the information disclosed is cognizable, and there cannot be any scope of preliminary inquiry in any manner whatsoever unless it falls in the exceptions enlisted by the apex court in the same case. Whereas if the information disclosed is not cognizable, the police may make a preliminary inquiry to ascertain cognizable offences. However, section 175 (3), BNSS reads as follows.
"(3) Without prejudice to the provisions contained in section 175, on receipt of information relating to the commission of any cognizable offence, which is made punishable for three years or more but less than seven years, the officer in charge of the police station may with the prior permission from an officer not below the rank of Deputy Superintendent of Police, considering the nature and gravity of the offence,-
(i) proceed to conduct preliminary enquiry to ascertain whether there exists a prima facie case for proceeding in the matter within a period of fourteen days; or
(ii) proceed with investigation when there exists a prima facie case."
The new phraseology is in direct contravention of the already existing Judicial mandates; apart from that, it is problematic at multiple levels;
1.???? Firstly, it changes the threshold of a preliminary enquiry from checking if the information discloses a cognizable offence to ascertaining if there is a prima facie case.
2.???? Secondly, a preliminary inquiry is something that has evolved through judicial precedents[1] and is not something that has ever been vested with police except in corruption cases. A preliminary inquiry is considered to be the territory of a magistrate who shall ascertain if there is a prima facie case, which has also been reiterated in Lalitha Kumari[2]. The same has also been mentioned in S.178 of BNSS. Hence, vesting even such power with an SHO seems an excess of power and is liable to be misused by police officers, consolidating the existing discriminatory attitude towards the informants.
3.???? Thirdly, Section 173 (3) for a Punishment between 3 – 7 years requires preliminary inquiry and necessitates the SHO to seek permission from a superior officer and then carry out a preliminary investigation to determine if there is sufficient evidence to proceed with a case. The conundrum here is that the statute only mandates an outer period for conducting the inquiry within 14 days but doesn't mention the time for the SHO to obtain such permission to start the investigation. Consequently, the first complainant who contacted the Station House Officer (SHO) to file his First Information Report (FIR) may have an indefinite delay in determining whether his FIR will be officially recorded or not.
Police custody, Remant and Bail
As per s.187 (2) of BNSS, the accused has to be produced after 24 hours of arrest to the nearest Magistrate and cannot be withheld in custody for more than 15 days. However, the catch here is that the accused may be held in "the whole or in parts any time within the default period of 60 days or 90 days as the case may be".Therefore, with the new act, the accused can be sent back to police custody intermittently ?3 or? 4 times in this default period of 60 or 90 respective days, which is against the existing norm of mandatory judicial custody after the 15 days in the default period laid down.[3] [4] [5] [6] [7]S.187 (3) of BNSS is a reproduction of S. 167, but with the deletion of the word "otherwise than in custody", which puts it in direct ?conflict with clause ?2 of s.187, a part of clause 3 of s.187 ?reads as? follows;
"The Magistrate may authorize the detention of the accused person, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so."
Therefore, even though clause 2 of s. 187 BNSS says an accused can only be held in custody for 15 days at a time; clause 3 serves as a caveat that can allow the accused to be kept in custody for more than the custody beyond 15 days, extending up to 90 days. The Home Minister, after implementation of the act, has clarified that an accused can be held only for 15 days, but the general presumption is that it was about s.187 (2); there needs to be more clarity on whether this clarification also applies to clause 187 (3 ) of BNSS. If so, swift action to amend the said provisions needs to be seen to put an end to this confusion.
Implication of s. 187 on bail
When seeking bail, an accepted norm is that once an accused is sent to judicial custody, an application for bail is moved, however, with new powers for investigating authorities to request custody haphazardly. It shall incline the magistrates to deny the bail, most often giving a free pass for investigating authorities to withhold the accused for the entire default period.[8] The provision may also result in an overlap of powers of the nearest Magistrate (need not always be the jurisdictional Magistrate)with the jurisdictional Magistrate. In criminal proceedings, once the accused is sent into judicial custody, the powers of the nearest Magistrate terminate there, and the jurisdictional Magistrate is further vested with the power to remand or grant bail to the accused. However, the BNSS empowers the nearest Magistrate to order police custody or judicial custody or even check if the person is on bail or not, alternatively making it a blatant violation of the existing jurisdictional norms.
领英推è
Complaint
S.223 (1) of the BNSS says that cognizance of an offence on a "complaint" shall be taken by the Magistrate only after giving the accused an opportunity to be heard. However, the conventional norm is that cognizance is taken through "INITIATION OF PROCEEDINGS" which is the first step even before the accused is summoned to the Court under "Chapter XIV Cr. PC "(retained in Chapter XV BNSS), and the accused can take part in proceedings only after the COMMENCEMENT OF PROCEEDINGS" under Chapter XVI Cr. PC (retained Chapter XVII of BNSS). The fact is that when an accused is served notice even before cognizance, it may give the accused an opportunity to appeal to higher courts and bring about a stay in the proceedings. Furthermore, how would the Magistrate judge the statements of the accused without going into something akin to the process of a mini-trial? Similar aspersions are there for S.223 (2), which disallows a magistrate to take cognizance of the offence against a public servant without giving an opportunity to be heard, and it even goes further to mandate a magistrate to seek a report from the superior officer of a public servant. These provisions may significantly dampen the speed at which a complaint proceeding is disposed of and also obstruct the way in which justice is served.
Legal Aid
Legal aid is referred to in s.341 of BNSS and allows legal aid when an advocate at the stages of a trial does not represent an accused. A perusal of the pendency of cases from NJDC of the district and Taluk courts shows that a staggering 33.4 % (5102350 ?out of a total of 15274255 pending cases) - is due to lack of counsel. However, many states, such as Mumbai and Delhi, have created a statutory mandate for legal aid from the time of arrest. Such a fundamental right needs to be availed to the indigents not only when the trial commences but from the moment an accused is produced before the Magistrate since that is the first step where they can apply for bail and prevent them from remand or custody.[9] At this crucial stage, it is imperative that an accused person receives skilled legal guidance and representation. Any procedure that denies them access to legal advice and representation would be deemed unreasonable, unfair, and unjust. As discussed in the first part of this criticism, when the objective was to get rid of the colonial legacy, BNSS was expected to mitigate this deliberate drastic curtailment of the rights that existed in Cr. PC.
Mercy Petition
The right to apply for a mercy petition is a newly incorporated provision in BNSS. However, the section has been incorporated without taking mandates of the Apex Court on executing mercy petitions and the power of the Court to review if required. A detailed analysis of the same can be found here; in addition to this, one of the problems that section has not fathomed is that in a country like India, where approximately 70% of the population residing in rural areas lacks literacy (National Sample Survey, 2014), needless to say, the number of people without legal awareness about the rights guaranteed by the law will be significantly higher. To top this, a ?Prison Statistics Report of 2019[10] ?suggests that a significant majority of these undertrials belong to marginalized communities, and the likelihood that the case is the same in mercy petition is just a sequitur. Also, with a legal aid mechanism that is itself on life aid, the intent of the legislature to not allow a third party to file a mercy petition seems to be really detached from the ground reality.
"If all you have is a hammer, everything looks like a nail."
PART4: CONCLUSION
All in all, the recent initiative to bring changes to criminal law was sure an opportunity to reform our criminal system. However, it has greatly fallen short of its purported objective of wiping colonial legacy from the system, with much of the laws being retained; the dynamics remain the same- to control the population through police power. It's not too late, though; with a critical mindset, the legislature must accommodate the shortcomings and look forward to correcting the defective sections. Though this might help bring a newfound optimism, One pertinent question needs to be raised: will passing these new legislations without addressing the root causes of the problems be a solution to bring about a fundamental shift in the relationship between the state and its citizens that can erase the colonial legacy? The answer shall be negative, without bringing about changes to the vehicles of the criminal system ( police, prosecution, judicial setup, prison system) that are nothing but ?relics ?that are still reminiscent of ?the same "colonial hangover that tried to control its citizens through logic of control and power."
Further Readings
1.???? BNS
2.???? BNSS
References
[1] State of Gujarat v. Shyamlal Mohanlal Choksi AIR 1965 SC 1251
[2] ?AIR 2014 SC 187
[3] Chaganti Satyanarayana v. State of A. P. AIR 1986 SC 2130
[4] CBI v. Anupam J. Kulkarni AIR 1992 SC 1768
[5] Budh Singh v. State of Punjab (2000) 9 SCC 266
[6] Naresh Kumar Yadav?v. Ravindra Kumar AIR 2008 SC 218 ?
[7] Devender Kumar v. State of Haryana (2010) 6 SCC 753
[8] A flagrant violation of article 22, COI
[9] . In ?Khatri (II) vs. State of Bihar (1981) 1 SCC 627
SLSN'27 || Upcoming Intern at Trilegal || Intern RRG & Associates || Singhania & Co. || Aspiring Corporate Lawyer || General Corporate Laws || M&A || Paralegal volunteer at LAC, SLS'N || Pursuing CS (executive).
7 个月Amazing ??
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8 个月Good Job Neeraj!
Head of External Relations (Corporate and Alumni), ILNU | Managing Editor, The Red Letter (Blog), CCLS, ILNU | Fourth Year Law Student at Nirma University, Ahmedabad.
8 个月Super interesting Neeraj, your research is clearly reflected through the article!
Law Student | Pursuing Bachelor of Laws - B.A.,LL.B.(Hons.)
8 个月Well done Neeraj!