Issues with Bharatiya Nagarik Suraksha Sanhita

Source-This post on Issues with Bharatiya Nagarik Suraksha Sanhita has been created based on the article “Menaka Guruswamy writes: In new criminal codes, fundamental rights are in danger” published in “The Indian Express” on 20 July 2024.

UPSC Syllabus-GS Paper-2- Indian Constitution—Historical Underpinnings, Evolution, Features, Amendments, Significant Provisions and Basic Structure.

Context- The article discusses a major change in India’s criminal procedure law with the Bharatiya Nagarik Suraksha Sanhita, 2023. The most worrying change is the possible increase in police custody from a maximum of 15 days under the old CrPC to up to 90 days under the new law. This raises serious constitutional and human rights issues.

CrPC is called the “Accuseds’ Constitution,” providing vital protections during detention and interrogation. Thus, no law is more crucial than the CrPC in supporting any accused.

What are the different types of Custody?

Police custody: Police have principal control and physical custody. This is generally considered the harshest experience for the accused.

Judicial custody: Accused are placed in jail with institutional rules. It allows gegulated visiting hours, police access, mealtimes, and sleep time

What are the Changes in Custody Duration Under BNSS?

CrPC-Section 167 of the CrPC allowed custody for up to 60 or 90 days, depending on the severity of the punishment, with police custody limited to 15 days unless extended by the Magistrate. The aim was to curb police custody abuse and ensure it did not surpass 15 days.

BNSS-Section 187 of the BNSS diverges by retaining the 60 or 90-day timelines and default bail concept while eliminating the 15-day police custody limit. This allows Magistrates to authorize police custody exceeding 15 days.

A detailed article on Bhartiya Nyaya Sanhita- Significance and Concerns can be read here.

What are the issues with these changes?

1) Infringement of Article 21– Extended police custody raises concerns about potential violations of the right to life, health, and fair trial. This also increases the risk of custodial violence and torture.

2)  Violation of Supreme Court judgments: The D K Basu v State of West Bengal case emphasizes that Article 21 ensures the right to live with dignity, protects against torture and assault by state officials, and extends these rights to convicts, undertrials, and detainees. The provisions of BNSS appear to contradict the Supreme Court’s stance on custodial rights. V.

3) Safeguards against police excesses: BNSS removes existing protections in CrPC, exposing accused individuals to potential abuse.

4) Impact on fair trial -Extended police custody can undermine the accused’s defense preparation and increase the risk of coerced confessions or statements.

5) Comparison with Harsh laws: The Unlawful Activities (Prevention) Act, 1967 (UAPA) restricts police custody to 30 days and mandates an affidavit for extending police custody beyond judicial custody. In contrast, the BNSS permits a three-fold increase in police custody compared to the UAPA.

Question for practice

What are the changes in custody duration under BNSS? What concerns arise from these modifications?