BNSS: THE NEW FACE OF INDIAN JUSTICE - WHAT’S IN,WHAT’S OUT AND WHAT’S MISSING?

BNSS: THE NEW FACE OF INDIAN JUSTICE - WHAT’S IN,WHAT’S OUT AND WHAT’S MISSING?

DEVIKA S R , MAR GREGORIOS COLLEGE OF LAW

ABSTRACT

BNSS, Bharatiya Nagarik Suraksha Sanhita, 2023 is one of the three new laws introduced as a “game changer” for the Indian criminal justice system on 2023. It aims to replace the Code of Criminal Procedure 1973 (CrPC). BNSS continues to build on the structural foundations of the CrPC but seeks to make justice systems more accessible by procedural innovations, integrating technology, and reinforcing victim rights. For all of the positive changes BNSS offers, some innovations do not sufficiently address concerns that have now become new and unexplained legal and constitutional issues. This article analyzes the main changes to the new procedural codes in contrast with the old, thereby illuminating the new, the improved, and the missing with the help of appropriate case laws.

INTRODUCTION

The Code of Criminal Procedure, 1973 (CrPC) has been the bedrock of criminal procedure in India for over five decades. It outlined the machinery for the investigation of crime, apprehension of suspected criminals, collection of evidence, determination of guilt or innocence of the accused, and the imposition of suitable punishments. In a historic move, the Indian Parliament has replaced the CrPC with the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), aiming to create a more modern, efficient, and victim-centric justice system. This article provides a detailed comparison between the old and new regimes, analyzing what is new, what is missing, and the potential impact of these changes, supported by relevant judicial precedents.

What's New and Innovative: A Leap Towards Modernization

1)"Zero FIR" and the Mandatory Registration of the FIR - Strengthening the First Step of Justice

The Old Regime (CrPC, 1973): Section 154 of the CrPC dealt with the registration of an FIR. The Supreme Court clearly ruled in a series of judgments that an FIR was to be registered by the police in the event that the police received any information related to a cognizable offence. The specific term "zero FIR" was a judicial creative invention and not found in the text of the Code.

The New Regime (BNSS, 2023): Section 173 of the BNSS formally makes a provision for a zero FIR. Regardless of the jurisdiction where a crime occurs, a police station must have the duty to register an FIR and then transfer it to the competent police station for the investigation. The objective of this provision is to ensure that the victim is not delayed at the very earliest stage of the process, regardless of the police jurisdiction.

:Case Law: Lalita Kumari v. Government of Uttar Pradesh (2014) 2 SCC 1: In a landmark judgement made by a Constitution Bench of the Supreme Court, it was held that it is compulsory for the police to register an FIR where the information discloses a cognizable offence. The judgement clearly establishes the procedures that are to be followed or prescribe; a preliminary enquiry is an exception and should not be the norm. The BNSS also makes registration compulsory.

Discussion and Alternative Approaches: This is a welcome and noteworthy change. This is especially important because now victims, in particular in respect of cross-jurisdictional crimes like those occurring on highways or cybercrimes, will not be turned away. The BNSS puts a statutory obligation on police, so a failure to register will not only logically be a dereliction of police duty, but will also be a dereliction of the law.

2)Utilization of Technology – The Shift from Physical Attendance to Digital Integration

The Old Law (CrPC, 1973):The CrPC was passed in an age where technology was not as advanced as it is today. Although the amendments allowed for video-conferencing, the CrPC assumed witnesses, parties and others in attendance at trials, recordings of statements, and remands would all be in-person.

The New Law (BNSS, 2023):The BNSS uses technology for the entire process:

(a)Electronic Summons (Section 64): Notice provisions for summonses via electronic means (i.e., email, messaging apps).

(b)Video-Conferencing for Trials (Section 254): The use of video-conferencing to record the evidence of witnesses. The plan is to save time and costs in cases where vulnerable witnesses are unable to travel or distant witnesses who would cost too much to bring to the trial.

(c) Electronic FIR (Section 173): A provision of the BNSS allowing for the electronic registration of FIRs.

(d) Electronic Recording of Statements (Section 180): The audio-video recording of statements made to the police by certain individuals who are not the "accused," as a new step to curb coercion of witnesses and ensure police practices are accessible.

Case Law :

State of Maharashtra v. Dr. Praful B. Desai (2003) 4 SCC 601: The Supreme Court ruled the use of video-conferencing for evidence is acceptable and meets the provisions of "evidence" to be "present" to the accused. This decision allowed the statutory use of video-conferencing as could be accepted under the BNSS to ensure the accused right was met with respect to cross-examination. In the case D.K. Basu v. State of West Bengal (1997) 1 SCC 416, the Supreme Court of India addressed the issue of custodial torture and the rights of arrested individuals. Although the case primarily concerned these issues, the Court sought to ensure transparency of the police mannerisms. In this regard, the BNSS's requirement for electronic recording of statements and searches can be viewed as a legislative step towards fulfilling the ideals expressed in D.K. Basu, as it creates an objective record to resolve disputes as to what occurred within the police custody hearing.

Analysis: The integration of technology is undoubtedly one of the most impactful components of the BNSS. It has the potential to speed up trials, lessen logistical pressures, and improve transparency. However, the efficacy of technology is contingent upon overall digital infrastructure and literacy levels across the country, especially in rural and remote regions.

3) Stronger Timelines - An Effort to Address Delays

The Old Regime (CrPC, 1973):The CrPC did not have strong, enforceable timelines related to the completion of investigations and trials, contributing to the enormous backlog of cases.

The New Regime (BNSS, 2023): The BNSS provides specific timelines to motivate 'urgency':

• Section 184: In cases of rape, a medical report is required to be provided to the investigating officer within seven days.

• Section 193 (3): An investigation of an offence punishable by more than three years but less than seven years imprisonment shall be completed within six months. (This time can be extended with written reasons.)

• Section 254 (2): A judgment shall be delivered within thirty days of the conclusion of arguments or an additional fifteen days in specified circumstances.

Case Laws : Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar(1980) 1 SCC 81:

The case exposed that undertrial prisoners who could not post bail languished in jail for periods longer than what was the maximum sentence on the basis of the charges. In a very stern manner, the Supreme Court emphasized the right to a speedy trial as it is incorporated in Article 21 (Right to Life and Personal Liberty); and the timelines in the BNSS are a legislative reaction to the constitutional mandate that was established in Hussainara Khatoon.

In the case of Kartar Singh v. State of Punjab (1994) 3 SCC 569,The Court reiterated that a speedy trial is a fundamental right too. The BNSS prescribes timelines to try and operationalize the fundamental right.

Analysis: Despite the laudable intent of legislation that will create timelines, the implementation becomes a challenge. The judiciary, and investigative agencies, were already stretched thin at the time of writing. If they do not get an increase in resources (and consequently infrastructure and manpower), these timelines will result in sloppy investigations and/or become a routine request for extensions which could be counterproductive to the spirit of the reform.

4)Mercy Petitions and Community Service -New Features

The Old Regime (Code of Criminal Procedure, 1973): The CrPC lacks provisions for community service as punishment.

The New Regime (The Bihar Nagarik Suraksha Sanhita Act, 2023):

·(a) Section 136: The addition of community service is implemented for the first time as a punishment for petty offences(e.g. Theft of property valued less than ₹5000). This is reformative in nature, determined to decongest prisons.

(b) ·Section 473: The time-frame by which the death convict must file a mercy petition (in 30 days) is specified under the words of the Act once they have received communication from the Superintendent of Jail that the Supreme Court has dismissed their appeal.

Cases on the Context: In Shatrughan Chauhan v. Union of India (2014) 3 SCC 1, The Supreme Court laid down exhaustive guidelines on the rights of death row convicts, including the process to file mercy petitions. It pinpointed the suffering of an excessive delay in the mercy petition disposal process. The BNSS provision clarifies this process and prioritises the initial step of informing and allowing the convict to triage to presidential clemency in the timeframe specified.

Analysis: The addition of community service is a progressive step in the law in accordance with modern penological views. Similarly, the added time-frame for the submission of mercy petitions adds procedural rigor to these oft-criticized processes.

Critical Omissions in the BNSS

Even with its broad-reaching and ambitious changes, there are numerous key recommendations and modifications from Law Commission reports and Supreme Court judgments that are missing in the new regime(BNSS,2023),they are:

1) No Overarching Provisions regarding police reforms: The BNSS does not mention the crucial separation of investigation and law & order functions of police, as the Supreme Court mandated in Prakash Singh v. Union of India (2006) 8 SCC 1. The absence of such an omission is a significant failure regarding the functionality and quality of investigations.

2) Sedition not fully addressed: Although the offence of sedition (Section 124A IPC) is repealed in the new Bharatiya Nyaya Sanhita (BNS), the BNSS includes no provisions/overview for special procedural protections regarding the new offence ("Acts endangering sovereignty, unity, and integrity of India"). Many critics and practitioners would have argued for protections that would include higher procedural safeguards given the serious nature of the offence.

3)Victim Compensation is too Limited: The provisions for victim compensation remain mostly untouched and do not create a more equipped or prescribed automatic compensation process to all victims of violent crimes.

Conclusion

The BNSS ,Bharatiya Nagarik Suraksha Sanhita, 2023, constitutes a major legislative step in updating criminal procedural law in India. In doing so, it recognizes the desirability of codifying the courts' innovative practices, like Zero FIR, recognizing technology, and fixing timelines, with the overall goal of making a responsive criminal justice system in India.

There is, however, a major test in actually implementing the BNSS. The success of its tech-driven and time-bound provisions will rely upon massive investments in infrastructure and capacity-building. In addition, although it is disappointing that the BNSS has not considered the long awaited police reforms or other breakdowns in structure, it means we are still a long way from a restructuring of India's criminal justice system. The BNSS is a new vessel; it remains to be seen if it can navigate old waters delayed by backlogs.