Highlights of the Bill
Key Issues and Analysis
PART A: HIGHLIGHTS OF THE BILL
Context
The Code of Criminal Procedure, 1973 (CrPC) is a procedural law established for the administration of the Indian Penal Code, 1860 (IPC). It governs the procedure for investigation, arrest, prosecution, and bail for offences . The CrPC was first passed in 1861 to address the problem of multiplicity of legal systems in India.[1] Since then it has been revised on multiple occasions. In 1973, the erstwhile act was repealed and replaced by the existing CrPC, and changes like anticipatory bail were introduced. [2] It was amended in 2005 to add changes such as provisions for plea bargaining and rights of arrested persons. [3]
Over the years, the Supreme Court has interpreted the CrPC in varied ways and revised its application. These include: (i) mandating the registration of an FIR if the complaint relates to a cognisable offence, (ii) making arrests an exception when the punishment is less than seven years of imprisonment, (iii) ensuring bail for bailable offence is an absolute and in-defeasible right and no discretion is exercised in such matters. 4 The Court has also ruled on procedural aspects such as establishing guidelines for custodial interrogations and emphasising the importance of speedy trials. [4] However, the criminal justice system continues to face challenges like case backlogs, trial delays, and concerns about treatment of underprivileged groups. [5]
The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) was introduced on August 11, 2023 to replace the CrPC. It amends provisions on bail, expands the scope of property seizure, and alters powers of police and Magistrates. The Bill has been examined by the Standing Committee on Home Affairs.
Key Features
The CrPC governs the procedural aspects of criminal justice in India. The key features of the Act include:
The BNSS retains most of the provisions of the CrPC. Key changes proposed include:
PART B: KEY ISSUES AND ANALYSIS
The Bill may expand the powers of the police
The CrPC governs the powers of the police to maintain public order, prevent crimes, and undertake criminal investigations. These powers include arrests, detention, search, seizure, and use of force. These powers are subject to restrictions to safeguard individuals from misuse of police powers leading to excessive use of force, illegal detentions, custodial torture, and abuse of authority. [6] The Supreme Court has also issued various guidelines to prevent such arbitrary exercise of police powers. 4 , [7] The Bill amends the provisions related to detention, police custody and use of handcuffs, which may present some issues.
Procedure of police custody altered
The Constitution and CrPC prohibit detention in police custody beyond 24 hours.[8] The Magistrate is empowered to extend it up to 15 days in case investigation cannot be completed within 24 hours. He may further extend judicial custody beyond 15 days if he is satisfied that adequate grounds exist to do so. However, overall detention cannot exceed 60 or 90 days (depending on the offence). The BNSS modifies this procedure. It adds that the police custody of 15 days can be authorised in whole or in parts at any time during the initial 40 or 60 days out of the 60 or 90 days period. This could lead to bail being denied during this period if the police argue that they need to take the person back in police custody.
This differs from laws like the Unlawful Activities (Prevention) Act, 1976, where police custody is limited to the first 30 days.[9] The Supreme Court has held that as a general rule, police custody should be taken in the first 15 days of remand.[10] The extension of 40 or 60 days should be utilised as an exception. The BNSS does not require the investigating officer to provide reasons when seeking police custody for someone in judicial custody. The Standing Committee (2023) recommended that the interpretation of this clause be clarified.[11]
Powers of detention amended
Article 22 of the Constitution requires a person in police custody to be produced before a judicial Magistrate within 24 hours. 8 The CrPC also provides this. The BNSS retains this provision. It adds that police may detain or remove any person who resists, refuses or ignores directions given by an officer to prevent cognisable offences. Post detention, the detained person may either: (i) be produced in front of a Magistrate, or (ii) in the case of petty cases, be released when the occasion is past. The phrase ‘occasion is past’ is not defined. The Standing Committee (2023) recommended establishing a clear timeframe for detention in such circumstances. 11
The power to use handcuffs may infringe on the accused’s personal liberty
The BNSS provides for the use of handcuffs during arrest. Handcuffs may only be used to arrest: (i) a habitual or repeat offender who has escaped custody, or (ii) a person accused of offences such as rape, acid attack, organised crime, economic offences, acts endangering sovereignty, unity and integrity of India. The provision contravenes judgements of the Supreme Court and guidelines of the National Human Rights Commission. [12]
The Supreme Court has held that the use of handcuffs is inhumane, unreasonable, arbitrary, and repugnant to Article 21. [13] In extreme cases, when handcuffs have to be used, the escorting authority must record reasons to do so. 13 Further, it has ruled that no prisoners undergoing trial can be handcuffed without obtaining judicial consent. [14] The Court has therefore left the discretion to decide use of handcuffs on the trial court. 12 The Standing Committee (2023) recommended excluding economic offences from the offences where handcuffs may be used. 11 A dissent note in the Committee report states that handcuffs should be used only if there is a risk of violence or the suspect is likely to escape custody. 11
Rights of the accused
Scope of mandatory bail limited in case of multiple charges
As per the CrPC, if an undertrial has served half the maximum imprisonment for an offence, he must be released on a personal bond. This provision does not apply to offences punishable by death. The BNSS retains this provision and adds that first-time offenders get bail after serving one-third of the maximum sentence. However, it adds that this provision will not apply to: (i) offences punishable by life imprisonment, and (ii) where an investigation, inquiry or trial in more than one offence or in multiple cases are pending. Since chargesheets often list multiple offences, this may make many undertrial prisoners ineligible for mandatory bail.
For example, in 2014, the Supreme Court held that illegal mining constitutes an offence under the Mines and Minerals (Development and Regulations) Act, 1957, and also qualifies as theft under the IPC.[15] Similarly, rash and dangerous driving is a punishable offence under the Motor Vehicles Act, 1988 as well as the IPC.[16] Persons accused in such cases will not be eligible to obtain mandatory bail.
Bail allows accused to be released from custody while awaiting trial, provided they meet certain conditions.[17] Detention before conviction is done to ensure easy availability of an accused for trial and there is no tampering with evidence. If these are ensured, detention is not needed. The Supreme Court has held that bail is the rule and incarceration is the exception.[18] Further, it has observed that undertrial prisoners should be released at the earliest and those who cannot furnish bail bonds due to poverty are not incarcerated only for that reason.[19]
Scope for plea bargaining may be limited
Plea bargaining is an agreement between the defence and prosecution where the accused pleads guilty for a lesser offence or a reduced sentence. Plea bargaining was added to the CrPC in 2005. 3 It is not allowed for offences punishable with a death penalty, life imprisonment, or imprisonment term exceeding seven years. The CrPC does not permit a bargain to be struck for a lesser offence or for compounding the offence – the accused will be considered to have confessed and been convicted of the offence. The BNSS retains this provision. This limits plea bargaining in India to sentence bargaining, that is getting a lighter sentence in exchange for the accused’s guilty plea.
Further, the BNSS adds a stipulation that the accused must file an application for plea bargaining within 30 days from the date of framing of charge. This time limit can impact the effectiveness of plea bargaining by limiting the opportunity for seeking a reduced sentence.
Congestion in the prison system
Restricting bail, and limiting the scope for plea bargaining could deter decongesting of prisons. As of December 2021, India’s prisons housed over 5.5 lakh prisoners, with an overall occupancy rate of 130%. 20 In 2021, under-trials constituted 77% of the total prisoners in India. [20] Approximately 30% of under-trial prisoners were in detention for a year or more. 20 About 8% of under-trial prisoners were in detention for three years or more. 20
Successors deposing for transferred or retired officers
The BNSS states that if an officer who prepared a document or report for an inquiry or trial is unavailable, the Court will ensure that their successor officer deposes on the document. Officers covered by this provision include public servants, medical officers, and Investigating Officers (IOs). Reasons for unavailability include: (i) death, (ii) transfer, (iii) retirement, and (iv) likeliness to cause delay. While allowing successor officers to depose before the Court may help expedite cases, it may contradict the normal rules of evidence.
It may be argued that statements recorded by an IO must be provided by the same officer, as the successor may not be able to attest for the investigation undertaken by the IO. The Standing Committee on Home Affairs (2023) noted that IOs possess crucial knowledge of the case under investigation. 11 Their cross-examination is significantly valuable, especially when documents prepared by them are used as evidence. 11 The Committee recommended removing IOs from this provision. 11 A dissenting member stated that all officers should be available for cross-examination, with the exception only in case of the officer’s death.11
Safeguards on attachment of property
Property that is derived or obtained, directly or indirectly, as a result of criminal activity is referred to as proceeds of crime. The CrPC provides police the power to seize property when it is: (i) alleged or suspected to have been stolen, or (ii) found under circumstances creating suspicion of commission of any offence. This is applicable only to movable properties.[21] The BNSS extends this to immovable properties as well. Provisions on the treatment of seized property in BNSS differ from the provisions in the Prevention of Money Laundering Act, 2002 (PMLA). The PMLA provides for confiscation of property derived from money laundering in relation to specified offences.[22]
Certain safeguards provided under PMLA are not available under the BNSS. Under PMLA, attachment is provisional in nature for up to 180 days. 22 A notice period of at least 30 days needs to be given to show cause why an attachment order must not be made. 22 During the attachment, enjoying of immovable property cannot be denied. 22 The BNSS does not provide a time limit up to which property can be attached. It provides a show cause notice of 14 days to be given to the accused.
Overlaps with existing laws
Over the years, special laws have been enacted to regulate various aspects of criminal procedure. However, the BNSS retains some of the procedures.
Data collection for criminal identification
In 2005, the CrPC was amended to empower a Magistrate to obtain handwriting or signature specimens from arrested persons. [23] The Bill expands this provision by empowering the Magistrate to also collect finger impressions and voice samples. It also allows collection of this data from persons who have not been arrested under any investigation. The Criminal Procedure (Identification) Act, 2022 allows a broader range of data to be collected including fingerprints, handwriting, and biological samples.[24] Such data may be collected from convicts, those who have been arrested for an offence, or non-accused persons as well, and can be stored up to 75 years. With a broader law recently being passed to allow for data collection of criminals and accused, the need for retaining data collection provisions and expanding on them in the BNSS is unclear. The constitutional validity of the 2022 Act is under consideration before the Delhi High Court .[25]
Maintenance of senior citizens
Under CrPC, a Magistrate may order a person having sufficient means to make a monthly allowance for the maintenance of their father or mother (who are unable to maintain themselves). If the order is not followed, the Magistrate may issue a warrant for levying the amount due and sentence the person to imprisonment of up to a month or till the payment is made. The BNSS retains this provision which duplicates the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. That Act requires state governments to constitute Maintenance Tribunals to decide on the maintenance payable to senior citizens and parents.[26] The Tribunal may issue a warrant for levying the amount due, and sentence the person to imprisonment of up to a month or till the payment is made. That Act specifically overrides all other laws.
Public order functions retained in BNSS
The CrPC provides for the procedure for investigation and trial for offences. It also contains provisions for security to maintain peace, and maintenance of public order and tranquillity. It contains provisions that allow a District Magistrate to issue orders needed to preserve public order. The BNSS has retained these provisions (in separate chapters). Since trial procedure and maintenance of public order are distinct functions, the question is whether they should be included under the same law or if they should be dealt with separately. As per the Seventh Schedule of the Constitution, public order is a state subject.[27] However, matters under the CrPC (prior to the commencement of the Constitution fall) under the Concurrent List.[28]
Recommendations of various Committees
Table 1 provides a list of key recommendations of various Committees and Law Commission constituted by the central government to advise the government on criminal reforms.
Table 1: Key recommendations of various Committees and the Law Commission on CrPC
Recommendations
Whether incorporated in the Bill
Broader reforms in the criminal justice system
Constitute a statutory committee to prescribe sentencing guidelines under the Chairmanship of a former Supreme Court judge or Chief Justice of a High Court. [29]
Rights of the accused as recognised by the Supreme Court be included in CrPC. 30
Procedure when investigation cannot be completed in 24 hours (CrPC s.167) - Maximum period of police custody to be 30 days in respect offences punishable with sentence more than seven years. 29
No. The maximum period of police custody is 15 days. It may be spread over: (i) 60 days where the offence is punishable with at least 10 years of imprisonment, or (ii) 40 days for any other offence. (BNSS Clause 187).
Provide compensation to people who are wrongfully accused. [30]
An arrested person must be examined by a medical officer after arrest (CrPC s.54). The officer must record any injuries on the person and the approximate time of such injuries. The examination must be repeated every 48 hours during the detention.
Partly. Does not provide for a medical examination every 48 hours of detention.
Statements/ Confessions to Police
Statements to police (CrPC s.162) - Statements to be read over and signed by the statement maker and a copy given to him. Such statements can be used for contradicting and corroborating the statement maker. 30
No. Original provision retained in BNSS Clause 181.
Define bail as the temporary release o f a person suspected or accused of a crime, with a guarantee that they will appear in court at a later date.
Clause 479 of BNSS provides for a different definition for bail.
Person arrested to be informed of grounds of arrest (CrPC s.50) - cannot be meaningful unless the arrestee is informed in writing in a language he understands.
No. Original provision retained in BNSS (Clause 47).
Upon postponement or adjournment of the trial, the Court will release the accused on bail or remand him to further custody and record the reasons CrPC s.309 (2).
No. Original provision retained in BNSS (Clause 346)
When bail is denied, the court must provide a brief explanation for the refusal.
Notes: This Table highlights some important recommendations made by various committees and Law Commission on CrPC. It is not an exhaustive list.
Sources: See endnotes; PRS.
Drafting Issues
Table 2 provides an illustration of drafting issues in the Bill.
Table 2: Drafting Issues in the BNSS
Drafting issues
Clause
Issue
Refers to “seditious matters” in BNS (clauses 150, 195, 297), despite the word sedition not appearing in BNS.
There is a typographical error where the word ‘Policy’ has been used in place of ‘Police’ in the newly added proviso.
States that Court may not take cognizance of offence under Chapter VI of BNS without prior sanction of government. Chapter VI of BNS contains offences against the human body such as assault, kidnapping and murder. The corresponding section in CrPC referred to Chapter VI of IPC (offences against the state) which is Chapter VII of BNS.
Bail conditions refer to Chapters of BNSS. These should refer to the same Chapters of BNS.
Bond to maintain peace refers to Chapter VIII of BNS (which contains offences related to the military). This should refer to Chapter IX of BNS (offences against public tranquillity).
Clause is missing. Clause 376 is followed by Clause 378
BNS replaces references of unsound mind with mental illness. Clause 372 in BNSS refers to accused of sound mind.
The Supreme Court struck down ‘adultery’ as an offence in the IPC. The BNS does not have adultery as an offence. However, illustrations in BNSS treat adultery as an offence.
Refers to ‘Code’ instead of ‘Sanhita’ in BNSS.
Sources: The Bharatiya Nyaya Sanhita, 2023, the Bharatiya Nagarik Suraksha Sanhita, 2023, and the Bharatiya Sakshya Bill, 2023; PRS.
[4]. AIR 1997 SC 610, D.K. Basu v. State of West Bengal, Supreme Court, December 18, 1996, 1979 AIR 1360, Hussainara Khatoon v. State of Bihar, Supreme Court, February 12, 1979.
[5]. Report No. 78, Law Commission of India, 1979.
[6]. Report No. 273, Law Commission of India, 2017.
[7]. 1978 AIR 597, Maneka Gandhi v. Union of India, Supreme Court, January 25, 1978.
[8]. Article 22, The Constitution of India, 1950, Section 51, The Code of Criminal Procedure, 1973.
[9]. Section 43D, the Unlawful Activities (Prevention Act), 1967.
[11]. Report No. 247, ‘the Bharatiya Nagarik Suraksha Sanhita’, Standing Committee on Home Affairs, November 10, 2023.