The Bharatiya Nagarik Suraksha (Second) Sanhita, 2023

This Blog examines the proposed changes introduced by the Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 (BNSS2), a bill aiming to replace the existing Code of Criminal Procedure, 1973 (CrPC).

Key Provisions of Bharatiya Nagarik Suraksha (Second) Sanhita, 2023

Focus on Forensics and Electronic Proceedings

• The BNSS2 mandates forensic investigations for serious offences, requiring experts to collect evidence and document the process electronically.
• Trials, inquiries, and legal proceedings can now be conducted electronically, potentially expediting the justice system.

New Rules for Evidence Collection

The BNSS2 allows authorities to seize electronic communication devices suspected of containing digital evidence relevant to investigations.

• In addition to traditional methods, the collection of fingerprints and voice samples, along with signatures and handwriting samples, may be authorized for investigations or proceedings, even from individuals not yet arrested.

Trial in Absence

Gone are the days of stalling trials. If an accused flees to avoid facing justice, the proceedings can now continue, and a verdict can be reached in their absence.

Enhanced Investigation Tools

Law enforcement now has a wider range of tools for gathering evidence. Alongside traditional methods like collecting signatures and handwriting samples, investigators can obtain fingerprints and voice recordings for investigations and court use. This applies even to individuals who haven’t been formally arrested.

Timely Justice 

The new law emphasizes speedier legal processes. Specific timeframes are outlined for various procedures:

• Medical professionals examining rape victims must submit reports to the investigating officer within 7 days.
• Judgments must be delivered within 30 days of closing arguments, with a possible extension to 45 days in exceptional circumstances.
• Victims have the right to be informed about the progress of their case within 90 days.

Use of Handcuffs with Restraint

Handcuffs are no longer a routine procedure. Their use is restricted to the following situations:

• During an arrest itself.
• In cases involving repeat offenders or those who have previously escaped custody.
• For individuals accused of serious crimes like rape, acid attacks, organized crime, drug offences, or crimes against the state.

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Key Areas of Concern

The extended period of police custody (up to 15 days) within the initial judicial custody period might restrict access to bail during this time.

• The power to seize property suspected to be derived from criminal activity lacks safeguards similar to those found in the Prevention of Money Laundering Act.
• The BNSS2 limits bail access for individuals facing multiple charges, potentially impacting a significant number of cases.
• The use of handcuffs in a wider range of cases, including organized crime, goes against existing Supreme Court directives.
• The BNSS2 retains sections of the CrPC related to maintaining public order. Some argue that these distinct functions (trial procedures and public order) might be better addressed by separate laws.
• The bill fails to incorporate recommendations from high-level committees regarding sentencing reforms and codifying accused rights.

Contextualizing the Changes

The CrPC, established in 1973, governs the investigation, arrest, prosecution, and bail procedures for criminal offences in India. Over time, the Supreme Court has interpreted and revised its application, focusing on areas like mandatory FIR registration for cognizable offences, prioritizing bail for offences with less than seven years imprisonment, and ensuring speedy trials. However, challenges like case backlogs and concerns about fairness for underprivileged groups persist.

The BNSS2, introduced in December 2023, proposes significant changes to the criminal justice system. While it introduces advancements in forensic investigation and electronic proceedings, concerns exist regarding potential limitations on bail access, a lack of proper safeguards for seized property, and the merging of distinct legal functions under one law.

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Difference Between CrPC and BNSS2

This analysis compares the existing Code of Criminal Procedure (CrPC) with the proposed Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 (BNSS2).

The CrPC: A Foundation for Criminal Justice Procedures

The CrPC outlines the procedures followed in Indian criminal justice. Key features include:

• Classifying Offenses: The CrPC categorizes offences as cognizable (allowing police arrest without a warrant) and non-cognizable (requiring a warrant or victim complaint).
• Offence Nature and Bail: The CrPC distinguishes between bailable and non-bailable offences, specifying which offences allow bail during police custody.

The BNSS2: Proposed Changes and Potential Concerns

The BNSS2 proposes significant changes to the CrPC, with some areas raising concerns:

• Detention of Undertrials: The BNSS2 restricts bail access for those facing life imprisonment or multiple charges, potentially impacting a larger number of cases compared to the CrPC’s provision based on maximum imprisonment duration.
• Medical Examinations: The BNSS2 expands the authority to request medical examinations of the accused (including rape cases) to any police officer, raising concerns about potential misuse compared to the CrPC’s requirement of a sub-inspector level officer.
• Focus on Forensics: The BNSS2 mandates forensic investigations for serious offences, requiring experts to collect evidence and document the process electronically. While a positive step, concerns arise if states lack forensic facilities.
• Signatures and Sample Collection: The BNSS2 allows collecting fingerprints and voice samples, along with signatures and handwriting samples, even from individuals not yet arrested. This raises questions about the balance between investigation needs and individual rights.
• Timelines for Procedures: The BNSS2 introduces timelines for specific procedures, aiming to expedite the justice system. However, the effectiveness of these timelines will depend on implementation.
• Court Hierarchy: The BNSS2 removes the classification of metropolitan areas and Metropolitan Magistrates, potentially impacting court structures in large cities.

Disadvantages of BNSS2

Potential Expansion of Police Powers?

The BNSS2 modifies provisions related to detention and police custody, which might raise concerns about increased police powers:

• Altered Police Custody Procedure: The BNSS2 allows dividing the 15-day police custody period into parts during the initial judicial custody period. This could restrict access to bail if police argue for further custody.
• Use of Handcuffs: The BNSS2 permits handcuffing during arrest for a wider range of offences, including economic crimes, which contradicts Supreme Court rulings emphasizing the right to personal liberty.

Impact on Accused Rights and the Prison System

This section explores how the proposed Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 (BNSS2) might affect the rights of the accused and prison congestion in India, compared to the existing Code of Criminal Procedure (CrPC).

Limited Bail for Multiple Charges

The CrPC offers mandatory bail after serving a portion of the maximum sentence. The BNSS2 retains this but excludes cases with life imprisonment or multiple ongoing investigations. This could significantly reduce the number of accused eligible for bail, especially considering chargesheets often include multiple offences.

For instance, the Supreme Court has deemed illegal mining to violate both the Mines and Minerals Act and the IPC. Similarly, reckless driving falls under both the Motor Vehicles Act and the IPC. These situations could prevent accused individuals from obtaining bail.

Potential Impact on Plea Bargaining

Plea bargaining, where the accused pleads guilty for a lesser charge or sentence, is restricted in the CrPC and BNSS2. Only sentence bargaining, where a guilty plea leads to a lighter sentence, is allowed. The BNSS2 further restricts plea bargaining by mandating an application within 30 days of charge framing. This time limit might limit the effectiveness of plea bargaining for those considering reduced sentences.

Impact on Prison Congestion

Limiting bail and plea bargaining options could hinder efforts to reduce overcrowding in Indian prisons. As of December 2021, over 77% of India’s prison population were undertrials, with many detained for extended periods. Restricting bail and plea bargaining could exacerbate this issue.

Attachment of Property: Balancing Needs

The CrPC allows police to seize movable property suspected of criminal activity. The BNSS2 expands this to immovable property as well. However, the BNSS2 differs from the Prevention of Money Laundering Act (PMLA) which offers safeguards for attached property. The PMLA provides time limits for attachment, requires show-cause notices, and allows continued use of the property. The BNSS2 lacks these safeguards, potentially impacting property rights.

Overlapping of BNSS with Existing Law

This section examines areas where the Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 (BNSS2) overlaps with existing laws or introduces potentially conflicting provisions.

Data Collection: Balancing Security and Privacy

The CrPC allows the collection of handwriting or signature specimens from arrested persons. The BNSS2 expands this to fingerprints and voice samples, even from individuals not yet arrested. However, the Criminal Procedure (Identification) Act, 2022 already grants broader data collection powers, raising questions about the need for the BNSS2’s provisions. The constitutionality of the 2022 Act is currently under review.

Duplication of Provisions

The BNSS2 retains a provision from the CrPC allowing magistrates to order maintenance payments for parents. However, this duplicates the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, which establishes specific procedures for such cases.

Public Order Functions: Merging or Separating?

The CrPC includes procedures for both investigating and maintaining public order. The BNSS2 retains these provisions. Some argue that these are distinct functions and should be addressed in separate legislation. The allocation of legislative power between the central government and states for public order is also a consideration.

Partial Adoption of Existing Procedures

The BNSS2 adopts some existing procedures from the CrPC but not others. For instance, requiring a medical examination after arrest is included, but not the requirement for repeat examinations every 48 hours. Similarly, the BNSS2 retains the CrPC provision regarding informing arrested persons of the reason for arrest but omits the requirement for a written explanation when denying bail.

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Legislative Journey of the Bharatiya Nagarik Suraksha Sanhita Bill, 2023

• August 11, 2023: The Bharatiya Nagarik Suraksha Sanhita Bill, 2023, introduced by Union Home Minister Amit Shah, makes its debut in the Lok Sabha.
  
• December 12, 2023: The original Bharatiya Nagarik Suraksha Sanhita Bill, 2023, is withdrawn.
  
• December 12, 2023: A revised version, the Bharatiya Nagarik Suraksha (Second) Sanhita Bill, 2023, takes its place in the Lok Sabha.
  
• December 20, 2023: The Bharatiya Nagarik Suraksha (Second) Sanhita Bill, 2023, receives approval in the Lok Sabha.
  
• December 21, 2023: The Bharatiya Nagarik Suraksha (Second) Sanhita Bill, 2023, clears the Rajya Sabha hurdle.
  
• December 25, 2023: The Bharatiya Nagarik Suraksha (Second) Sanhita Bill, 2023, receives the President’s assent, becoming law.
  

Key Points:

• The Bharatiya Nagarik Suraksha Sanhita Bill, 2023, underwent a revision before its final passage.
  
• The Bill successfully navigated both houses of Parliament, the Lok Sabha and the Rajya Sabha.
  
• The Bill received the President’s assent on December 25, 2023, marking its official enactment.

Detailed comparison of the Code of Criminal Procedure (CrPC) and the Bharatiya Nagrik Suraksha Sanhita (BNSS)

Feature	Code of Criminal Procedure (CrPC)	Bharatiya Nagrik Suraksha Sanhita (BNSS)
Year of Enactment	1973	2023
Objective	To provide a comprehensive framework for the investigation, arrest, prosecution, trial, and punishment of criminal offences in India.	To modernize and streamline criminal procedure, enhance efficiency, strengthen safeguards for citizen rights, and address emerging crimes.
Scope	Covers a wide range of criminal offences, including offences against the state, person, property, reputation, and religion.	Retains most offences from the CrPC, but adds new offences like terrorism, organized crime, and murder/grievous hurt by a group on certain grounds.
Investigation	Police are primarily responsible for conducting investigations.	Mandates forensic investigation for serious offences (punishment of 7+ years).
Arrest	Similar provisions for grounds and procedures for arrest.	May allow for longer police custody in specific cases (with judicial authorization).
Bail	Bail is granted for various offences based on specific criteria.	May limit bail availability for those facing multiple charges.
Trial	Option for traditional paper-based proceedings.	Allows for electronic mode of trials, inquiries, and proceedings.
Evidence	Relies on traditional forms of evidence, such as oral testimony, documentary evidence, and physical evidence.	Recognizes electronic records as primary evidence with provisions for ensuring authenticity.
Confessions	Confessions made to police officers are generally inadmissible, except if recorded by a Magistrate.	Similar provisions, but stricter requirements for admissibility. May allow exceptions for confessions leading to fact discovery.
Legal Aid	Limited provisions for legal aid.	Expands access to legal aid for the accused throughout the trial or appeal process.
Additional Features	– Classification of offences into cognizable and non-cognizable offences – Provisions for preliminary inquiry – Role of Magistrates in various stages of the criminal process – Provisions for appeals and revisions	– New chapters on offences against women and children, and “inchoate offences” (attempt, abetment and conspiracy) – Community service as an alternative punishment – Replacement of sedition with a new offence for endangering national security- Modernization of terminology and concepts

Conclusion

The Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 (BNSS2) proposes significant changes to India’s criminal justice system. While the BNSS2 includes positive steps like mandating forensic investigations, it raises concerns in several areas:

• Limited Bail and Plea Bargaining: Changes to bail provisions and restrictions on plea bargaining could limit the rights of the accused and exacerbate prison overcrowding.
• Data Collection and Due Process: The BNSS2 expands data collection powers, but these might overlap with existing legislation and raise privacy concerns. Additionally, property attachment procedures lack safeguards compared to the PMLA.
• Redundancies and Overlooked Reforms: The BNSS2 replicates provisions from existing laws, creating redundancy. Furthermore, it fails to incorporate well-established recommendations for reform in areas like sentencing guidelines and wrongful accusation compensation.

Frequently Asked Questions on the Bharatiya Nagrik Suraksha Sanhita (BNSS)

Q1. What is the Bharatiya Nagrik Suraksha Sanhita (BNSS)?

Ans1. The BNSS is a new law in India that aims to modernize and reform the country’s criminal procedure. It replaces the existing Code of Criminal Procedure (CrPC).

Q2. What are the key objectives of the BNSS?

Ans2. The BNSS focuses on three main areas:

• Efficiency: Faster investigations and trials through procedures like mandatory forensics for serious crimes.
• Citizen Rights: Strengthening safeguards like broader legal aid access and potentially stricter rules for confessions.
• Modernization: Addressing new crime types like cybercrime and allowing electronic evidence and court proceedings.

Q3. How does the BNSS impact investigations?

Ans3. The BNSS mandates forensic investigations for serious offences, potentially leading to more scientific evidence and stronger cases. It may also allow for longer police custody in specific situations with judicial approval.

Q4. Does the BNSS affect bail provisions?

Ans4. The BNSS might limit bail availability for individuals facing multiple charges. This raises concerns about potential pre-trial detention and access to justice.

Q5. How does the BNSS handle electronic evidence?

Ans5. The BNSS recognizes electronic records as primary evidence, unlike the CrPC. This allows for digital evidence like emails, chats, and social media posts to be used in court, but also raises questions about authentication and data security.

Q6. What are the benefits of electronic court proceedings?

Ans6. Electronic trials and inquiries can potentially expedite the legal process and improve access to justice, especially in remote areas. However, concerns exist regarding digital literacy and ensuring a fair trial for all parties involved.

Q7. Does the BNSS introduce new types of offences?

Ans7. Yes, the BNSS adds new offences like organized crime and hate crimes targeting specific groups. This aims to address emerging threats and strengthen legal frameworks for such situations.

Q8. When will the BNSS be implemented?

Ans8. The BNSS was enacted in December 2023, but the exact implementation date is still to be determined by the government.

Q9. Where can I find the full text of the BNSS?

Ans9. The full text of the Bharatiya Nagrik Suraksha Sanhita (BNSS) is officially referred to as the Bharatiya Nagarik Suraksha Sanhita. It is a comprehensive legislation that aims to modernize and streamline India’s criminal procedure, replacing the existing Code of Criminal Procedure (CrPC).

Q10. How can I stay updated on developments related to the BNSS?

Ans10. Follow government press releases, and legal news websites, or consult legal professionals for ongoing discussions and analysis of the BNSS and its implementation.