Bharatiya Nagarik Suraksha Sanhita: No ‘decolonisation’ here

Regrettably, the BNSS fails to make a substantial departure from the existing system's colonial legacy.

The Bharatiya Nagrik Suraksha Sanhita Bill (BNSS), 2023, was tabled in parliament last month, to replace the Code of Criminal Procedure (CrPC), 1973. The main thrust of BNSS is to “decolonise” India’s criminal procedures and make them citizen-centric. While these objectives are undeniably necessary and aligned with the long-standing demands for reform, the question is: Does BNSS effectively deliver on these promises? Does the bill genuinely signify a departure from the colonial-era framework?

CrPC in British India

Prior to the enactment of CrPC in 1882, criminal procedures in British India were based on a complex web of religious laws, English law and (East India) Company Regulations. There was a diverse range of courts, each applying different laws. Furthermore, the Mofussil and other subordinate courts had no jurisdiction to prosecute British-born subjects and executive officers of the government, which created a system of legal inequality in the application of criminal law.

This lack of uniformity necessitated the enactment of comprehensive penal and procedural codes. The Indian Penal Code (IPC) was formulated in 1837, and recognising the need for complementary procedures, the first draft of the CrPC was introduced in 1856 and enacted in 1861. This code was applied uniformly across British India, except for the Presidency towns. Subsequently, a revised code was passed in 1872. All these laws were eventually consolidated under the CrPC 1882, amended again in 1898.

CrPC 1973, and its colonial legacy

The CrPC, 1882, was enacted against the backdrop of extreme political unrest and rebellions against British colonial rule. The code, therefore, was designed to quell dissent and suppress any form of political opposition. This intention was evident in the code’s provisions for preventive arrests, prohibiting public gatherings, and restrictions on bail.

Post-Independence, the criminal justice system in India underwent a substantial change with the adoption of the Constitution and the establishment of a new hierarchy of courts. The criminal procedures were amended to harmonise them with the principles of the Constitution, culminating in the enactment of CrPC in 1973. The basic structure of the code, however, remained the same. Rooted in the colonial understanding of crime prevention and policing, CrPC, 1973, imported most of the provisions as they were.

Section 144, for instance, which empowers District Magistrates to issue orders in urgent cases of nuisance or apprehended danger, was retained from the 1882 code. The provision was originally intended as a tool to clamp down on any protests, public gatherings or assemblies that posed potential threats to the colonial administration. However, it is now disproportionately used even for non-essential purposes. A report titled ‘Use and Misuse of  Section 144 CrPC’ revealed that in Delhi alone, around 6,100 orders were issued under Section 144 in one year. Out of the 5,400 orders that were analysed, 43% were for regulating business, 25.6% were for CCTV installation, and only 1.5% were for regulating public order.

Similarly, the provisions that granted unbridled power for surveillance and control to the police were imported as they were. The provision for preventive action by the police (Section 151) and imposition of security for keeping good behaviour (Section 107-110) grants unfettered discretion to arrest people with minimal oversight. NCRB data shows that out of the total 1,48,20,298 arrests made in 2021, 89,00,174  (60.5%) were made under these provisions. A similar trend can be seen in the preceding years as well.

BNSS: Not much difference

The colonial approach to the administration of criminal justice in India was characterised by the need to control the native population. This led to empowering the police and the courts with excessive power and discretion, thus creating a ‘Police State’. Regrettably, the BNSS fails to to make a substantial departure from this colonial legacy.

The BNSS leaves Section 144 almost untouched, thereby preserving the magistrate’s extraordinary authority to issue urgent orders, except to, counterintuitively (if prevention of violence or crime is the objective), remove Section 144A, which gave the magistrate the authority to prohibit the carrying of arms in any procession or drill.

It has also expanded the preventive powers of the police by adding a provision authorising the detention or removal of any person resisting or refusing to follow the directions passed by a police officer (Clause 172). The code has also increased the scope of seeking police custody by allowing the custody period of 15 days to be spread over a period of 40 days or 60 days, depending upon the gravity of the offence. This has bolstered the discretionary powers of the police when seeking remand, raising serious concerns about potential misuse.

Eroding safeguards

The BNSS has also expanded the use of handcuffs, allowing them to be used in cases involving grave offences such as murder, rape, and acid attack or when the accused is a repeat or habitual offender. This is a significant departure from the current law established through judicial precedents, which only permits the use of handcuffs in exceptional cases where there is a risk of escape or harm. This new provision is likely to have a significant impact on the dignity and human rights of the accused. 

Furthermore, a provision has been added to permit the continuation of trial and delivery of a judgement even if the accused’s attendance cannot be obtained. While expediting trials to reduce delays is the need of the hour, it should not come at the cost of compromising the fairness of the trial and the accused’s rights.

While the BNSS has taken some noteworthy steps forward, including restricting the power to arrest for specific offences, integrating technology in investigations, mandatory bail provisions and setting timelines for processes, it has not adequately shed the colonial vestiges. There is no substantial attempt to regulate and curtail police authority or to mitigate the overarching control the State exercises over its citizens. All things considered, the BNSS falls far short of the proclaimed ‘decolonisation’.

(The writer is with the Vidhi Centre for Legal Policy) 

(This is the third article in a DH-Vidhi Centre for Legal Policy series on the proposed new criminal law codes)