Table of Contents
THE CONTEXT: The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which has replaced the Code of Criminal Procedure, 1973 (CrPC), introduces significant changes to the procedural protections for accused individuals, particularly concerning the duration of police custody. It leads to a troubling shift in the legal landscape, focusing on how the BNSS impacts the rights of the accused under Article 21 of the Indian Constitution.
THE ISSUES:
- Extended Police Custody Beyond 15 Days: Under the CrPC, police custody was limited to 15 days. However, the BNSS appears to allow police custody to be extended beyond this period, up to 60 or 90 days, depending on the severity of the offense. This change can potentially lead to prolonged periods of police custody, raising concerns about the increased risk of custodial violence and torture.
- Violation of Article 21 Rights: Article 21 of the Indian Constitution guarantees the right to life and personal liberty, which includes protection against torture and cruel or inhuman treatment. The extended period of police custody under the BNSS could infringe upon these rights, as it subjects the accused to prolonged exposure to police control, which can be mentally and physically debilitating.
- Comparison with Other Harsh Statutes: Even under stringent laws like the Unlawful Activities (Prevention) Act (UAPA), police custody is capped at 30 days. The BNSS, a general criminal law allowing up to 90 days of police custody, is seen as excessively harsh in comparison. This discrepancy highlights the potential overreach and the severe implications for the accused.
- Judicial Oversight and Safeguards: The CrPC mandated that any extension of custody beyond 15 days be judicial custody, thereby protecting against police excesses. The BNSS’s omission of this safeguard means that magistrates can authorize extended police custody without the same level of judicial oversight, potentially leading to abuse of power.
- Impact on Fair Trial Rights: Prolonged police custody can adversely affect the accused’s fair trial rights. It can lead to coerced confessions, hinder the accused’s ability to prepare a defense and impact their mental and physical health. These factors collectively undermine the principle of a fair trial, a cornerstone of the criminal justice system.
- Constitutional and Human Rights Concerns: The Supreme Court of India, in cases like D.K. Basu v. State of West Bengal, has emphasized that Article 21 includes the right to live with dignity and protection against torture by state functionaries. The BNSS’s provisions for extended police custody seem to contradict these judicial pronouncements, raising significant constitutional and human rights concerns.
THE WAY FORWARD:
- Reinstating the 15-Day Limit on Police Custody: The 15-day limit on police custody, as stipulated in the CrPC, is essential to prevent abuse and ensure humane treatment of the accused. Amend Section 187 of the BNSS to reinstate the 15-day limit on police custody explicitly. Ensure that any extension beyond this period is justified for substantial reasons and subject to judicial scrutiny.
- Mandatory Judicial Oversight and Affidavit Requirement: Introduce a provision in BNSS requiring investigating officers to submit a detailed affidavit to the Magistrate, justifying the need for extended police custody. Ensure that the Magistrate thoroughly reviews the affidavit before granting any extension.
- Establishing Independent Oversight Mechanisms: Create an independent oversight body under respective state human rights commissions comprising retired judges, human rights activists, and legal experts to monitor police custody practices. Mandate regular audits and inspections of police stations to ensure compliance with legal standards.
- Enhancing Legal Aid and Access to Counsel: Strengthen legal aid services to ensure all accused individuals have access to competent legal representation from arrest. Implement mechanisms to ensure that legal counsel is present during interrogations and other critical stages of custody.
- Incorporating Technological Safeguards: Mandate the video recording of all interrogations and interactions between the police and the accused. Ensure that these recordings are reviewed by judicial authorities to detect and prevent abuse or misconduct.
THE CONCLUSION:
The BNSS’s removal of the 15-day limit on police custody represents a significant erosion of procedural protections for the accused, potentially leading to increased instances of custodial violence and violations of fundamental rights under Article 21. This change marks a troubling shift away from the principles of fair trial and humane treatment enshrined in the CrPC, raising serious concerns about the balance of power between the state and individual liberties in India’s criminal justice system.
UPSC PAST YEAR QUESTIONS:
Q.1 Who are entitled to receive free legal aid? Assess the role of the National Legal Services Authority (NALSA) in rendering free legal aid in India. 2023
Q.2 Though the Human Rights Commissions have contributed immensely to protecting human rights in India, they have failed to assert themselves against the mighty. Analyzing their structural and practical limitations, suggest remedial measures. 2021
Q.3 In the Indian governance system, the role of non-state actors has been only marginal.” Critically examine this statement. 2016
MAINS PRACTICE QUESTION:
Q.1 The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), has replaced the Code of Criminal Procedure, 1973 (CrPC). Critically analyze the implications of these changes on the rights of the accused and relevant constitutional provisions.
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