ANALYSIS OF “THE BHARTIYA NAGRIK SURAKSHA SANHITA”:- FROM COLONIAL CODES TO MODERN JUSTICE.

 

AUTHORED BY: - SHIWANI ANAND

UNIVERSITY; - AMITY LAW SCHOOL, NOIDA AMITY UNIVERSITY, NOIDA

SEMESTER/YEAR;-10TH SEMESTER, 5TH YEAR

COURSE/BATCH: - BBA-LLB (H), 2019-2024

 

ABSTRACT
The Citizen Safety Act (BNSS also known as the Citizen Safety Act) and its effects on civil liberties and individual rights in India are examined critically in this article. Using historical comparisons to laws from the British colonial era, the paper investigates whether the Act threatens fundamental liberties more severely than laws that were once harsh. Important Act clauses, including those pertaining to surveillance authorities, arrest and detention procedures, speech limits, and court supervision constraints, are examined in light of India's democratic system. The essay acknowledges the Act's possible relevance in preserving national security while highlighting the significance of supervision and vigilance in defending people's rights. In the end, it advocates for a reasonable strategy that addresses current security issues while upholding constitutional values.

 

INTRODUCTION
The esteemed Home Minister[1] of India, Mr. Amit Shah, introduced "the Bharatiya Nagrik Suraksha Sanhita Bill" in the Lok Sabha on August[2] 11, 2023, marking a significant day in Indian history. Together with two other proposed bills to replace the Indian Penal Code, 1860 (IPC) as well as (Evidence Act), the bill aims to repeal and replace the existing Code of Criminal Procedure, 1973 (CrPC). It should be mentioned that the BNSS has 533 parts in total, of which 160 have been modified from the previous legislation, 9 have been added, and 9 have been removed. Even though the BNSS hasn't been passed or put into effect yet, it has been the focus of discussion and controversy since its inception. Critics contend that it seriously jeopardizes the fundamental liberties and rights of Indian citizens; while supporters say it is an essential step in protecting the country's security. This essay will look at the main features of the Act and investigate if it is really worse than the British laws from the colonial era that India battled so hard to abolish. The proposed legislation attentively addresses the changing requirements of our society by incorporating a number of adjustments. It is an important attempt to bring the legal system into line with today's fast-moving technology and ever-changing sociocultural environment. The administration's resolve to do away with laws from the colonial eras that are essentially out of date in the contemporary world is reflected in this new legislation. The proposed bill prioritizes citizens above punitive measures, embracing digital modernization, promoting gender equality, and placing a higher priority on justice.

 

METHODS OF RESEARCH
The primary topic [3]of the study is whether the (BNSS) Bill, additionally referred to as the Citizen Safety Act, offers a legal framework which is more regressive and repressive than the laws of the colonial past that it seeks to replace. The research strives to critically analyze and assess the bill. To give a thorough evaluation, the study will use an extensive research technique founded in qualitative methods. In addition to public viewpoints, additional information in the shape of publications by several well-known proponents has been used. The BNSS was analyzed analytically before writing this work. As a result, a thorough analysis of the new law has been provided using primary as well as secondary data.

 

 

REVIEW OF LITERATURE

In order to protect India's sovereignty, this research explores the underlying reasons for the establishment of this important law and how it separates the legal system from its colonial past. It methodically explains the main changes and additions made through the BNSS Bill, highlighting in particular how crucial it is to achieving the goals of a Digital India, strengthening legal protections for Indian nationals, and resolving the pressing need to speed up legal proceedings. As of July 2023, it is concerning to learn that there is an excessive backlog of over 5.02 Crore cases in India's courts, which highlights the urgent need for speedy and effective trials. It is expected that the recent change would lighten the load on the courts, making justice more accessible and in line with the values of a democratic country.
The document goes on to say that the need for more efficiency, clarity, and conformity with constitutional principles is one of the main justifications for updating existing laws. Particularly the IPC, according to critics, is riddled with ambiguous language and outdated clauses that might make it difficult to interpret the law. They also draw attention to the fact that the procedural elements of the CrPC have grown challenging, which has caused delays in the legal system. Simplifying legal language, updating terminology, and expediting procedures are highlighted in the request for reforms in order to guarantee the prompt and equitable administration of justice. The study evaluates the improvements and drawbacks of the amendments by contrasting the CrPC with the recently passed draft.

 

WHAT WAS THE MAIN DRIVING FORCE BEHIND THE "BHARATIYA NAGRIK SURAKSHA SANHITA BILL'S "INTRODUCTION?
The BNSS Bill[4], popularly referred to as the Citizen Safety Act, was primarily motivated by the need to update India's legal system in order to effectively address changing security threats. The purpose of the Bill was to protect Indian people' interests and strengthen national security in an increasingly complex and internationally interconnected world. One of its main goals was to update and replace outmoded legislation from the colonial era, which was inadequate to address modern security concerns. Long-standing colonial remnants of India's legal system have proven unable to combat contemporary challenges such as cybercrimes, terrorism, and global organized crime. Acknowledging this necessity, the Bill aimed to implement a thorough overhaul that would bring the legal system into line with modern-day reality. The adoption of the Bill was also significantly influenced by the spread of technology as well as the advent of the digital era. With the speed at which technology developed, terrorists and criminals found new ways to operate, which made it necessary to update laws to address cybercrimes and other digital dangers. As a result, the Bill included measures that addressed cyber security and digital transformation issues.

MAJOR CHANGES IN CRPC THROUGH BNSS BILL 2023

1. Promoting empathy and avoiding stereotyped language: -
The draft promotes inclusivity and is a progressive move in the direction of doing away with the long-standing discriminatory practices that have long existed in Indian culture. The BNSS's [5]attempt to modernize language and eliminate offensive terms is one of its admirable features. A language that is more sympathetic, such as "having an intellectual disability" or "person with mental illness," has replaced outdated phrases like "lunatic person" and "person of unsound mind." The phrase "mental health establishment" has been used instead of the incorrect word "lunatic asylum." Additionally, certain out-of-date references have been removed by the BNSS, most notably Section 10, which removed the nonexistent designation of "Assistant Sessions Judges." Parallel to this, the word "advocate" has been suitably used in place of any references to "pleader." Important changes have been made to a number of regressive laws. Prior to Sections 66 as well as 474 in the BNSS, Section 64 in the CrPC limited summonses to adult "male" family members only. In both situations, however, the term "male" has been rightly eliminated. Additionally, Section 153 within the CrPC was amended by the BNSS to remove an outdated clause that gave police the authority to enter a building without a warrant in order to conduct weights and measures check (Section 124). Important changes have been made to a number of regressive laws. Additionally, Section 153 within the CrPC was amended by the BNSS to remove an outdated clause that gave police the authority to enter a building without a warrant in order to conduct weights and measures check (Section 124). One positive change with regard to India's sovereignty is the removal of any mentions of the "Metropolitan Area" and "Magistrates." The goal of this revision is to correct colonial-era designations that wrongfully excluded judges in other locations from the position of metropolitan magistrates, including Calcutta, Mumbai, and Madras. This change upholds equality values by correcting historical inequality.

2. Evolution of Technology
Section 532 [6]is a noteworthy addition to the BNSS that is in line with our commitment to achieving the Digital India vision. This clause brings numerous judicial procedures, including trials, investigations, evidence collection, exams, summonses, warrant issuing, and their execution, into the digital age. Section 176 [7]of the Bill allows victim testimony to be electronically recorded using audio-visual techniques, including the use of a mobile phone. This section mirrors Section 15714 of the CrPC and relates to investigations into cognizable offences. Electronic methods can also be used to record witness statements. The Bill requires all searches to be electronically documented, with preference given for mobile devices. Electronic submission of (FIRs) is now possible because to the digitization of this process. Electronic records are now required for managing perishable property during trials. One significant change to Section 176(3) concerns offences that carry a sentence of seven years or more in jail. It requires police station personnel to collect evidence and conduct crime scene investigations with forensic specialists. Mobile phones or additional technological devices must be used to carefully document this operation on video. State governments now share the power to name scientific experts, which is a major decentralization from the central government's previous exclusive authority.

3. Improving the legal system
A great[8] deal of work has gone into improving the legal system while rendering it more user-friendly for Indian residents. In the past, the accused had to be released from custody when the complaint was not present. However, the complainant now has the chance to have sufficient representation thanks to the new Section 272 [9]within the BNSS; a provision equivalent to the provisions of Section 249 in the CrPC. Section 232 within the BNSS now has an extra provision that is similar to Section 209 in the CrPC. This provision states that any application filed by the victim during the committal process would also be forwarded by the Sessions Court for review. This modification seeks to improve legal accessibility and expedite the administration of justice, hence improving convenience for all stakeholders. "Trial in absentia" is another recent inclusion. Regardless of the seriousness of the charges, a person facing criminal accusations may be tried and maybe found guilty in their absence, just as if they were in person and had freely given up their freedom of a fair trial. Additionally, a "Zero FIR" can now be filed at any police station. It has to be transferred to the police station having jurisdiction over the crime scene within 15 days after the first registration. A zero FIR can be submitted by any police station, regardless of whether the offence is under that station's jurisdiction, in contrast to ordinary FIRs, which are limited by geographic jurisdiction. There is conjecture, though, that this kind of modification would create some ambiguity and perhaps cause the legal procedure to drag out.
 

4. Protections
Many laws have been put in place to safeguard Indian citizens' rights and welfare against wrongdoing and illegal activity. This is a major contributing factor to the new (IPC) reputation as being "citizen-centric."
In order to guarantee that statements provided by a magistrate of the court are appropriately recorded, two additional provisions have been introduced to Section 183(6) (a) [10]within the BNSS, in line therewith Section 164(5A) (a) in the CrPC. First off, it is now required that a female magistrate record any statement made by a woman. Secondly, magistrates are now required to record the statements of those accused of major offences that carry sentences of more than ten years in jail. It is now mandatory to notify a jailed woman's friends or family of her detention as well. A clause like Section 175(1) within the CrPC about the police's authority to call people has been added to Section 195(1) under the BNSS, marking a significant shift. This clause removes the obligation for members of vulnerable groups must "appear at anywhere apart from their residence.” The new law also aims to broaden the definition of legal aid. Legal assistance was originally required “in a trial before a Court of Session” under Section 304(1) [11]within the CrPC. However, this has been substituted by “in a trial as well as an appeal before a Court” in updated Section 341(1) in the BNSS, greatly expanding its application. Section 144A no longer has the jurisdiction to forbid the carrying of firearms during processions, mass exercises, or training sessions, even if the provisions under Section 144 within the CrPC that allow district magistrates authority remain in place. The Sanhita plans to remove the word "sedition" and add a new section with definitions for terminology like "armed rebellion," "separatist activities," "secession," and "subversive activities" by 2023. Previously left vague under Section 124A within the IPC, these amendments aim to strike a compromise between the country's unity and security and the right of individuals to free speech. For similar offences, the maximum sentence is now seven years in jail instead of life, with possible penalties. These changes show an all-encompassing effort to make the legal system better, more equitable, and more in line with the changing needs of Indian society.

5. Simplifying Processes
Many admirable changes have been made to lighten the load on the judiciary and speed up the legal procedure. These changes are critical, particularly in view of the growing backlog of unresolved cases.
One significant change relates to "mercy petitions." As per the BNSS, 2023,[12] a convict on death row forfeits their legal right to contest the president's decision to grant their mercy request. Although there is no deadline for the president's decision, BNSS Section 473 requires the federal government to submit suggestions to the president for consideration within 60 days of gathering feedback from state governments. In terms of summons, magistrates have the authority to dismiss defendants who make baseless accusations, as long as they present an explanation for their decision. This modification recognizes that special judges of the caliber of (Additional) Sessions Judges may be appointed. In order to address concerns about the increasing number of inmates awaiting trial, the law includes compassionate changes that grant leniency to fenders who are first-time offenders for less serious circumstances. There are currently several processes in the judicial and executive branches that must be completed within the allotted time frames.

1. Accelerated Police Investigations: Notwithstanding Sections 173(8) within the CrPC or 193(9) of the BNSS, police investigations carried out during trials now have to be concluded within ninety days.
2. Time Frame for Nuisance Proceedings: Under Section 152 of the BNSS, proceedings pertaining to "Conditional orders for the elimination of nuisances" must now be finished within a set ninety-day period.
3. Frequent Reporting of Non-Cognizable Offences: As a result of a change to Section 155 (now Section 174) within the BNSS, police are required to send information to the appropriate authorities every two weeks about non-cognizable offences.
4. Reimbursement for Innocent Purchasers: Although a precise timeline was not previously established, innocent purchasers of stolen goods are entitled to reimbursement within six months of their receipt of the compensation order.
5. Accelerated Committal Procedures: As per Section 232 in the BNSS, "Committal proceedings" between a magistrate and a Sessions court must now be finished within 90 days of the day of cognizance, with an extension possible up to 180 days with sufficient explanation.
6. Deadline-driven Rape Victim Examination[13]: In lieu of the prior ambiguous "without delay," Section 184(6) [14]now requires medical exams of rape victims to take place within seven days.

7. On-time Documentation Disclosure: According to Section 230 in the BNS, replicas of police reports as well as additional documents—as opposed to the previous, ambiguous wording of "without delay"—must be given to the person charged within 14 days of their production or appearance.
8. Prompt Inquest Reporting: The police are required to provide a report to the appropriate District/Executive magistrate in an inquest procedure pursuant to Section 194 within the BNSS as well as Section 174 of the CrPC, and they must do so within 24 hours.
9. Duration of Discharge Application: In accordance with Section 250 of the BNSS (which is identical to Section 227 within the CrPC), accused persons who wish to be discharged from a Sessions trial have sixty days from the date of committal to file an application.

10. Charges Framing Due Date: Within 60 days of the initial charge hearing, charges must be formed during both Sessions Trials as well as Magistrate Trials involving warrant cases.
11. Quick Judgments and Online Publication: Every trial's judgment must be rendered within 45 days of the trial's conclusion, in accordance with Section 392(1) in the BNSS as well as Section 353(1) of the CrPC. Additionally; these rulings have to be posted online within seven days of being rendered.

 

SUGGESTED FAULTS IN THE BILL: -
The goal of the BNSS draft bill is to modernize antiquated and troublesome legislation in order to expedite court cases and resolve problems with the Indian legal system. Critics are worried about it, though. Section 262 of the BNSS, which is akin to the provisions of section 239 of the CrPC, is one of the main points of disagreement. This modification enables an accused person to request a discharge before 60 days of the accusations being made. Although this seems to set up a deadline, it could permit release even before official charges are made. The phrase "filing of a charge sheet as well as police report" may have been more suitable. The bill also eliminates Section 260(1) (I) under the CrPC and permits summary trials for offences carrying punishments of a maximum of three years in prison per Section 283(2) [15]as of the BNSS, giving judges more authority to accelerate case processes. It might be more accurate, though, if the meaning of a "warrant case" in Section 2(y) under the BNSS were changed to only include offences with sentences of more than three years, as opposed to the original two years. This modification may help magistrates avoid misunderstandings when deciding which trial process is best for offences with sentences ranging from two to three years.

 

CONCLUSION
The proposed law code aims to achieve equality, effectiveness, and responsiveness to social requirements, bringing about significant reform in India's criminal justice system. It's critical to understand that this code is still in its draft phase and will not be enacted. Nonetheless, a few of these suggested changes have raised questions. These include increased authority for search and seizure, more authority for sample collection, restrictions on the commuting of sentences, the reinstatement of preliminary questions prior to filing a formal complaint, and the use of handcuffs. It is noteworthy that the Code of Criminal Procedure (CrPC), which was created in 1973, is comparatively more recent than the IPC as well as the Evidence Act, which was created in 1860 and 1872. It is therefore subjective to determine if the latest law is superior to legislation from the British colonial era.

 

 

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[1] https://sites.google.com/site/jailorup/Bharatiya-Nagarik-Suraksha-Sanhita-2023

[2] https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1947941

[3] https://primelegal.in/2023/08/15/bharatiya-nagarik-suraksha-sanhita-bill-2023-an-overview/

[4] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4677357

[5] https://www.livelaw.in/pdf_upload/bharatiya-nagarik-suraksha-sanhita-511325.pdf

[6] https://www.researchgate.net/publication/374723311_BHARATIYA_NAGARIK_SURAKSHA_SANHITA_BNSS_BILL_2023

[7] https://www.livelaw.in/pdf_upload/bharatiya-nagarik-suraksha-sanhita-511325.pdf

[8] https://p39ablog.com/2023/10/bharatiya-nagarik-suraksha-sanhita-bill-2023-and-bharatiya-sakshya-bill-2023-a-substantive-analysis/

[9] https://www.livelaw.in/pdf_upload/bharatiya-nagarik-suraksha-sanhita-511325.pdf

[10] https://www.taxmann.com/post/blog/bharatiya-nagarik-suraksha-sanhita-bnss

[11] https://www.livelaw.in/pdf_upload/bharatiya-nagarik-suraksha-sanhita-511325.pdf

[12] https://www.livelaw.in/pdf_upload/bharatiya-nagarik-suraksha-sanhita-511325.pdf

[13] https://pure.jgu.edu.in/id/eprint/6634/1/livelaw.in-Discussing%20The%20Discrepancies%20And%20Errors%20In%20The%20Bharatiya%20Sakshya%20Bill%202023.pdf

[14] https://www.livelaw.in/pdf_upload/bharatiya-nagarik-suraksha-sanhita-511325.pdf

[15] https://www.livelaw.in/pdf_upload/bharatiya-nagarik-suraksha-sanhita-511325.pdf