GS Paper: Governance, Transparency & Accountability, Citizens Charters

What’s the news?

• The government recently introduced three key penal bills in a bid to reform the justice system.

Central idea

• In August, the central government introduced three significant bills in Parliament – Bharatiya Nyaya Sanhita (BNS), 2023, Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, and Bharatiya Sakshya (BS) Bill, 2023 – aiming to replace the long-standing Indian Penal Code, 1860, Code of Criminal Procedure (CrPC), 1973, and Indian Evidence Act, 1872. These changes warrant a careful examination of their potential impact on law enforcement agencies

Key changes in The Bharatiya Nagarik Suraksha Sanhita (BNSS)

• Formalizing FIR Registration:

• The BNSS introduces a provision that mandates the registration of cognizable offenses at any police station, regardless of the location where the offense occurred.
• This move, commonly known as recording FIR at Zero, promises easier access for complainants and streamlines the registration process.

• Preliminary Inquiry Dilemma:

• An added provision allows for a preliminary inquiry in cases involving cognizable offenses punishable with more than three but less than seven years of imprisonment.
• This differs from the Supreme Court’s stance in Lalita Kumari versus Govt. of Uttar Pradesh (2013), which emphasized immediate FIR registration.

• Restrictions on Arrest:

• In cases of offenses punishable with less than three years of imprisonment, the BNSS permits arrests only with the prior permission of the Deputy Superintendent of Police for individuals over 60 or infirm.

• Handcuffing Guidelines:

• The BNSS permits handcuffing in specific instances like terrorism, murder, rape, acid attacks, or offenses against the state.
• However, the enabling section retains the requirement that restraints should only be used as necessary to prevent escape.
• Hence, the Supreme Court’s guidelines on handcuffing continue to apply.

At the Scene of the Crime

• Forensic Evidence Collection:  The BNSS mandates a forensic expert’s visit to the crime scene and the collection of forensic evidence for offenses punishable with over seven years of imprisonment.
• Use of Audio-Video Means:

• The BNSS encourages the use of audio-video recording in investigations, including searches.
• While the recommended use of smartphones has limitations, progress is underway, following the Supreme Court’s directive in Shafhi Mohammad vs. The State Of Himachal Pradesh (2018).

• Two-Finger Test: Despite the Supreme Court’s ban on the two-finger test in rape cases (Lillu @ Rajesh & Anr vs State Of Haryana, 2013), the BNSS fails to explicitly include this prohibition.
• Disclosure of Rape Victim’s Identity:  The provision authorizing the disclosure of a minor victim’s identity to their next of kin may be redundant, given the existing Protection of Children from Sexual Offenses Act.

Duration of Police Custody

• Extended Police Custody:

• The BNSS extends the period of police custody beyond the 15-day limit outlined in the CrPC.
• However, this extension can only occur after the initial 40 or 60 days, depending on the offense’s severity, with the accused still eligible for default bail.
• Suspicious Deaths and Statements: While the BNSS broadens the scope of judicial inquiries into suspicious deaths, it relaxes the mandatory recording of statements of women and males under 15 or above 60 at their residence based on their willingness.

• Inquest Enhancements: The BNSS could enhance the inquest process by including provisions for the videography and photography of post-mortems, especially in cases of custodial deaths or deaths in confrontations with authorities.

Potential Impact

• Streamlined FIR Registration: The formalized recording FIR at Zero practice may lead to quicker and more efficient FIR registration. Law enforcement agencies could experience reduced paperwork and administrative burdens, allowing them to focus on investigations promptly.
• Reduced Case Backlog: The provision for preliminary inquiries, while introducing a variation from previous practices, has the potential to reduce the backlog of cases. By addressing non-prima facie cases early or facilitating compromises, law enforcement agencies may clear cases more efficiently.
• Improved Evidence Collection: Mandating forensic expert visits and forensic evidence collection for serious offenses can enhance the quality of evidence presented in court. Law enforcement agencies may see stronger cases and higher conviction rates.
• Enhanced Accountability: Encouraging the use of audio-video means in investigations increases transparency and accountability. Law enforcement agencies may benefit from clearer evidence documentation and reduced allegations of misconduct.
• Modernization through Technology: Embracing audio-video recording and other modern technologies can help law enforcement agencies adapt to contemporary investigative practices. This could lead to more effective and efficient investigations.

Concerns and Challenges

• Arrest Protocol: The BNSS retains all existing provisions of the CrPC regarding arrests, failing to incorporate the Supreme Court’s ruling in Arnesh Kumar versus State of Bihar (2014), which stresses the need for justifiable reasons for arrest and recording them formally.
• Variation in Practice: The introduction of preliminary inquiries may lead to variations in how law enforcement agencies handle cases. Inconsistent practices could pose challenges for standardization and training.
• Resource Allocation: Implementing forensic evidence collection may require additional resources, including forensic experts and equipment. Law enforcement agencies may need adequate funding and training to meet these demands.
• Misuse of Powers: Concerns about potential misuse of provisions, such as handcuffing, need to be addressed through proper training and oversight to ensure responsible use of authority.
• Compliance with Supreme Court Directives: The absence of an explicit ban on the two-finger test in rape cases may raise concerns about compliance with Supreme Court directives. Law enforcement agencies should ensure alignment with established legal standards.
• Privacy and Victim Protection: Authorizing the disclosure of a minor rape victim’s identity to their next of kin requires sensitivity and strict adherence to privacy and protection provisions. Law enforcement agencies should handle such information with care.

Way forward

• Review Preliminary Inquiry Provision: Reevaluate the provision allowing preliminary inquiries to ensure it aligns intelligently with other cognizable cases and stands up to constitutional scrutiny.
• Implement Arrest Justification: Include the Supreme Court’s Arnesh Kumar vs. State of Bihar (2014) judgment to make it mandatory for police officers to justify arrests with reasons supported by justifiable material.
• Enhance Forensic Infrastructure: Commit to providing sufficient resources for developing forensic infrastructure, including technology and manpower, to strengthen evidence collection and analysis.
• Modernize Investigation Techniques: Develop facilities for videography and photography of crime scenes during investigations at the police station level, embracing modern technology for evidence documentation.
• Ban Two-Finger Test: Explicitly include the ban on the two-finger test in rape cases to ensure compliance with the Supreme Court’s directives and protect the dignity and privacy of survivors.
• Comprehensive Police Reformation: Recognize the need for comprehensive police reformation, addressing challenges such as understaffing, poor mobility, insufficient training infrastructure, and inadequate housing facilities, to ensure a more effective and accountable law enforcement system.

Conclusion

• While some proposed changes in the BNSS demonstrate progress, they do not qualify as groundbreaking or radical. It is crucial to remember that police stations face numerous challenges, including understaffing, limited resources, inadequate training infrastructure, and poor housing facilities. To bring about true reform, a comprehensive approach to police reformation, rather than merely tweaking legal provisions, is necessary.

What’s the news?

• The government recently introduced three key penal bills in a bid to reform the justice system.

Central Idea

• The recent introduction of three penal bills in the Lok Sabha by the government, aimed at decolonizing the Indian justice system, is a significant step in the realm of legal reform. While this initiative is commendable, it is crucial to recognize that the process of law-making and reform requires careful consideration and empirical validation.

Bharatiya Nyaya Sanhita Bill

• This bill aims to replace the existing Indian Penal Code (IPC) of 1860.

• The IPC defines crimes, sets out their elements, and prescribes corresponding penalties.

• The Bharatiya Nyaya Sanhita Bill seeks to update and modernize the criminal laws to better reflect evolving societal values and democratic aspirations.

Why Public Participation Matters in Legal Reform?

• The Colonial Legacy: Learning from Past Mistakes
  • The colonial penal law was replaced not due to inherent flaws but because it lacked participation from the Indian populace, imposing foreign ideas and values.
  • Recognizing the crucial need for broad public participation to avoid repeating this historical oversight
• Macaulay’s Principle Revisited: Seeking Legal Certainty Through Debate
  • Reflecting on Thomas Babington Macaulay’s principle of “uniformity when you can have it, diversity where you must have it, but in all cases certainty.”
  • Emphasizing the goal of achieving equal and uniform application of the law through meaningful debate.
  • Stressing the significance of precise legal terminology for clarity and legal certainty.

What constitutes undesirable behavior?

• Changing Norms: The Evolution of Legal Definitions
  • Highlighting the evolving societal perceptions concerning behaviors deemed undesirable.
  • Citing examples like the transition of attempted suicide from a criminal offense to a recognized mental health issue under Section 115(1) of the Mental Health Care Act, 2017.
  • Examining the Supreme Court’s role in redefining adultery and its legal implications
• From Offense to Health Issue: The Case of Attempted Suicide
  • Illustrating the transformation of attempted suicide from a crime to a mental health concern, reflecting a more compassionate and holistic approach.
• Challenging Tradition: Adultery and the Supreme Court Decision
  • Analyzing the Supreme Court’s decision to redefine adultery and emphasizing the judiciary’s role in adapting to evolving social norms
• The Call for Social Audit: Rethinking “Undesirable” Behavior
  • Advocating for a comprehensive social audit to redefine the concept of “undesirable” behavior, taking into account changing societal perspectives.
  • Stressing the importance of empirical analysis in this process.
• Independent Oversight: The Need for Impartiality
  • underscoring the necessity of an independent and impartial body to conduct the social audit to ensure fairness and objectivity in evaluating behavioral norms.

How to Balance Simplicity and Complexity in Penal Laws?

• Simplification’s Promise: Streamlining the Legal Framework
  • Acknowledging efforts to simplify the legal framework through the Bharatiya Nyaya Sanhita and highlighting potential benefits like enhanced clarity and efficiency in legal procedures.
• The Challenge of Overload: Retaining and Adding Offenses
  • Addressing concerns about the risk of retaining and introducing new offenses, which could offset the advantages of simplification and potentially overwhelm the legal system.
• Revisiting Special Laws: The Malimath Committee’s Proposal
  • Noting the proliferation of special penal laws post-Indian Penal Code to address emerging crimes.
  • Suggesting an evaluation of whether these should be incorporated into the Bharatiya Nyaya Sanhita or managed through existing special laws or a new composite law, as proposed by the Malimath Committee.

Addressing Gender and Children’s Rights: What the Bill Says?

• Constitutional Alignment: Article 15(3) and Article 51A(e)
  • Recognizing the alignment of the proposed Offenses Against Women and Children’ with the constitutional vision, specifically referencing Article 15(3) and Article 51A(e),
• Outdated Notions: Analyzing Clause 63 on Marital Rape
  • Highlighting concerns with Clause 63, which excludes sexual intercourse between spouses above 18 from the definition of rape, and drawing parallels with colonial-era legal thinking
• Contradictory Provisions: Clauses 20 and 21 vs. Juvenile Justice Act of 2015
  • Pointing out inconsistencies between retaining Clauses 20 and 21 in Chapter III (General Exceptions) and the philosophy of special laws for children outlined in Section 1(4) of the Juvenile Justice Act of 2015.

What does the new penal law prioritize?

• A Shift in Focus: Departing from the Colonial Framework
  • Recognizing a departure from the colonial chapter scheme that favored the interests of the ruling class over body and property offenses.
  • Placing bodily interests in Chapter VI, just before offenses against the state, indicating a significant shift in priorities.
• Measuring against the Constitution: Article 13(2)
  • Raising questions about whether the proposed reforms will align with the constitutional vision enshrined in Article 13(2), which prohibits laws that infringe upon fundamental rights.
• Upholding Values: Autonomy, Equality, and Fraternity
  • Highlighting the vital role of the proposed reforms in upholding principles of autonomy, equality, and fraternity as guaranteed by the Preamble of the Constitution

Conclusion

• The government’s initiative to reform the Indian justice system is laudable, but it must be accompanied by extensive public participation, a thorough examination of undesirable behavior, and a balanced approach to legal complexity. Only through careful consideration and a commitment to justice can the Bharatiya Nyaya Sanhita Bill truly decolonize and rejuvenate the Indian justice system.