Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023
Some Frequently Asked Questions
Rishikesh Kumar*
What is the Bharatiya Nagarik Suraksha Sanhita?
The BNSS 2023 has replaced the Code of Criminal Procedure (CrPC) 1973, marking a major shift in India’s criminal justice system. A key highlight of BNSS is its emphasis on technology, enabling faster and more transparent justice. From e-FIRs and app-based complaints to mobile-based investigations and video-recorded crime scenes, BNSS integrates digital tools across all stages -- making justice quicker, more accountable, and tamper-proof.
Section 154 of BNSS allows electronic FIRs through emails, portals, or mobile apps, cutting delays and enabling remote filings. Investigative processes, including arrest and seizure memos, will now be videorecorded to prevent manipulation. This tech-driven approach aims to enhance fairness and accuracy.
BNSS has, however, faced criticism for retaining 75 per cent of CrPC’s provisions, raising concerns about whether it is truly ‘decolonised’. Police custody under Section 187 has been extended from 15 days to 60 or 90 days, sparking fears of potential misuse. Vague crime definitions, like ‘false information’ and ‘acts endangering sovereignty’, add to the concerns as they could lead to arbitrary enforcement. Moreover, the controversial provision allowing trials in absentia, challenges the accused’s right to defend themselves.
How does BNSS reshape the laws on detention and arrest?
BNSS introduces significant changes to the laws on detention and arrest, especially regarding police custody. Under the CrPC, police custody was limited to a maximum of 15 days, providing crucial protection against prolonged police control. However, Section 187 of the BNSS omits this safeguard, allowing Magistrates to authorise police custody for periods beyond 15 days. This creates a risk of extended police control, which can increase the potential for custodial violence and abuse.
While the BNSS retains the broader timelines present in the CrPC of 60 or 90 days for detention and default bail, the removal of the 15-day limit on police custody undermines the protection previously enjoyed by the accused. This change violates the right to personal liberty under Article 21 of the Constitution, which includes protection against torture and custodial abuse, as upheld by the Supreme Court in D K Basu v. State of West Bengal1 .
The distinction between police and judicial custody is crucial here: police custody is typically harsher as the accused remains under direct police control, while judicial custody places the accused in jail, where institutional safeguards are in place. The BNSS, by weakening the limits on police custody, erodes safeguards against police excesses, potentially compromising the dignity and rights of undertrials.
Is it more difficult to secure bail under the BNSS?
BNSS has brought notable changes to bail provisions, redefining terms like ‘bail’, ‘bail bond’, and ‘bond’, which were previously undefined in the CrPC. BNSS has also altered how long someone can be held before trial and revamped the rules for anticipatory bail.
One of the key reforms is the provision for early release of first-time offenders who have served up to one-third of their sentence while awaiting trial -- something the CrPC did not allow. However, BNSS has introduced restrictions, such as denying bail if multiple cases are pending, even if the trial is incomplete. This is a major shift from previous rules, which granted automatic bail to undertrials who had served half their sentence without the conclusion of a trial.
Section 154 of BNSS allows electronic FIRs through emails, portals, or mobile apps, cutting delays and enabling remote filings.
Critics argue that BNSS tightens bail provisions, shrinking civil liberties. It disregards the Supreme Court’s 2023 ruling in Satender Kumar Antil v. CBI2 , which emphasised ‘bail, not jail’ and condemned the overpopulation of undertrial prisoners, stressing the presumption of innocence. BNSS may worsen the crisis of overcrowding of prisons by undertrials, making bail harder to obtain and justice harder to achieve.
Does the BNSS undermine civil liberties?
The BNSS dramatically expands police authority, sparking serious concerns about the balance between law enforcement powers and civil liberties. One of the most alarming changes is the increase in police custody duration -- from the current 15-day limit under the CrPC to 60 or 90 days, depending on the offence. This unprecedented extension vastly raises the risk of police excesses, with detainees being more vulnerable to coerced confessions, torture, and fabricated evidence. The longer a person is held in police custody, the greater the threat of abuse, violating fundamental rights under Article 21 of the Constitution.
Unlike ‘special laws’ like UAPA under CrPC, where investigations are handled by officers of the rank of Superintendent of Police or higher, under the BNSS, even a Station House Officer (SHO) can investigate serious offences, including terrorism-related charges. This dilution of oversight heightens the risk of misuse and undermines accountability.
BNSS reintroduces handcuffing without requiring prior court approval, a stark departure from the existing practice where police had to seek court permission. This not only enhances police power but also impacts the dignity of individuals, creating an atmosphere of unchecked authority.
In essence, BNSS shifts the balance heavily in favour of the police, eroding key safeguards meant to protect citizens from abuse.
What are Zero FIR and e-FIR under the BNSS?
Zero FIR and e-FIR under BNSS are game-changing reforms that are reshaping how citizens engage with law enforcement in India.
Zero FIR removes the barriers of jurisdiction, allowing victims to report crimes at any police station. This means that if you witness or experience a crime, you can immediately seek help without the stress of figuring out jurisdictions etc. This swift access is crucial in emergencies, ensuring that help is always within reach.
E-FIR takes this convenience to the next level by enabling citizens to file complaints electronically through WhatsApp or email. This saves time and encourages more people to come forward without the hassle of a physical visit. Once a complaint is submitted online, the complainant has 72 hours to confirm it in person, making the process both efficient and user-friendly.
For more serious offences, with potential jail terms of 3 to 7 years, the system allows police to conduct a preliminary inquiry for up to 14 days before officially filing the FIR. This measure helps filter out baseless complaints.
BNSS reintroduces handcuffing without requiring prior court approval, a stark departure from the existing practice where police had to seek court permission.
References
- AIR 1997 SC 610
- (2022) 10 SCC 51
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