Comments of Indian Police Foundation

---

The Indian Police Foundation (IPF), an independent think tank dedicated to working for a professional, ethical, and service-oriented police force, compiled its comments and recommendations as a memorandum to the Parliamentary Committee working on the three new criminal laws. After a rigorous and exhaustive study of the Draft Criminal Law Bills and extensive consultations with police officers from across India, the memorandum was forwarded by former DGP Mr N Ramachandran, the President of the IPF, to Mr Brij Lal, MP, and Chairman of the Parliamentary committee.

The Executive Summary of the memorandum is enclosed below. (For the full text please visit the website https://www.policefoundationindia.org/ )

IPF calls for fundamental changes in the three criminal law statutes; we need much greater imagination and innovation to deal with a deeply flawed criminal justice system ridden with numerous gaps. There is a need for far more consultation and systemic changes to meet the aspirations of an emerging nation.

The British colonial administration used the Indian police to suppress the natives, but they never trusted the brown policeman. This inherent distrust of the police was built into the colonial criminal laws. The laws gave the police extensive powers of arrest, detention and use of force, with limited resources and accountability against misuse. In the absence of adequate resources or training, policepersons used crude methods to maintain law and order, investigate crimes and question witnesses and accused. The presumption that police cannot be and should not be trusted, continues to be ingrained in the new criminal law bills BNS, BNSS and BSB and no efforts have been made in them to fundamentally reform India’s law enforcement and crime investigation. Below is a gist of IPF’s major recommendations:

• (1) The regressive provisions in the criminal laws continue to undermine police efficiency and the quality of police investigations even 75 years after independence. IPF calls for changes that bring credibility in the investigation process and make the prosecution apparatus more effective.
• (2) Empower the police, allow them operational freedom to function, but institute strong accountability standards, with zero tolerance against misuse.
• (3) Bring Clarity and Precision: There are too many errors, ambiguities, inconsistencies and even incomplete sentences. The new codes should provide clear and precise definitions of procedures and legal provisions to minimise ambiguity and variances in interpretation.
• (4) The legislations should establish clear and realistic timeframes for both investigations and trials, to expedite the criminal justice process and reduce the backlog of cases. This should of course be supported by the provision of essential resources, including personnel, forensic facilities, technology, mobility, communication and other infrastructure for realisation of these timelines. Without these foundational resources, the police will struggle to meet the high demands and expectations of citizens.
• (5) Retain existing Section numbering schemes: Considering that the substantive changes introduced by the proposed legislations are relatively few, with the new bills largely retaining the essence of the prior laws while incorporating a few changes to accommodate the evolving nature of crime and justice, we recommend that the existing section numbering schemes may be retained in all three laws, inserting new legal provisions, and deleting obsolete ones through suitable amendments, to preserve legal continuity and a smoother transition to the new framework.

BHARATIYA NYAYA SANHITA (BNS)

• (6) Special Acts: To avoid variances in definitions and confusion, we recommend that offences which are already defined under Special laws like the UAPA Act 1967, Juvenile Justice Act 2015, Prevention of Corruption Act 1988, Prevention of Cruelty to Animals Act, 1960, and FSSA Act 2006, should not be repeated in the BNS.
• (7) Mob lynching: Clause 101 (1) (2) concerning murder or grievous hurt by persons acting in concert on grounds of race, caste, community, etc., should be carefully redrafted to address ’mob lynching’. The term ’acting in concert’ needs a precise definition. In the listing of grounds for the offence, ’religion’ should be added. Mob lynching is a heinous offence, but Clause 101(2) amounts to dilution of the punishment for murder committed by a group of persons acting in concert, as it could end in a sentence of 7 years whereas for the offence of murder, the punishment is death or life imprisonment.
• (8) Re-draft BNS Clause 150 regarding acts that endanger the sovereignty, unity, and integrity of India, akin to sedition laws. To prevent its misuse, clear definitions and safeguards must be incorporated into the provision, eliminating vague terms like “subversive activities.” These safeguards should require reasonable evidence of acts to excite secession, armed rebellion, separatist activities, violence or public disorder that endangers the sovereignty, unity and integrity of India, before filing FIRs. Also, provide for oversight by senior officers, and establish review mechanisms to prevent arbitrary use, ensuring that the law is not weaponised for political purposes.
• (9) Similarly, Clause 195 deals with imputations or assertions prejudicial to national integration. A sub-clause (d), that was not in the IPC has been inserted making “false or misleading information jeopardising the sovereignty, unity and integrity or security of India” an offence. We recommend that this clause may be omitted, as mere statements without incitement to violence or clear subversive activities, if criminalised, would be liable to misuse. In any case, these clauses are broadly covered in Clauses 111 and 150.
• (10) While welcoming new non-incarcerative punishments like Community Service, IPF recommends the implementation of electronic tagging systems for non-violent convicts, by which authorities can effectively monitor and rehabilitate offenders while allowing them to serve their sentences in less restrictive environments, which can help reduce prison congestion.

BHARATIYA NAGRIK SURAKSHA SANHITA (BNSS)

• (11) Procedural law should empower the police for effective law enforcement, while defending the constitutional rights of citizens.
• (12) Modernise Arrest Laws, Reduce Unnecessary Arrests and Decongest Prisons: While empowering the police to effectively handle crime, terrorism and violence, serious reform of arrest laws is called for. It is important to introduce legal and administrative safeguards to stop the colonial-era practice of indiscriminate and arbitrary arrests, detention and incarceration.
• (a) IPF recommends that the Parliament, while enacting the BNSS, should review and streamline the existing provisions of arrest under Section 41 CrPC, integrating the principles laid down by the Supreme Court of India in Joginder Kumar v. State of UP (AIR 1994 SC 1349), Arnesh Kumar v. State of Bihar (2014) 8 SCC 273, and D K Basu v. State of West Bengal (AIR 1997 SC 610).
• (b) Prohibit arbitrary arrests; a person should not be arrested unless absolutely necessary under the law and in the interests of maintenance of peace, crime prevention, investigation and prosecution of crime.
• (c) Add a subclause mandating that when an accused person is presented for remand, the Magistrate must review the recorded justifications for arrest. If the justification supports remand, he should make explicit comments to that effect in the remand order; however, if the Magistrate is unconvinced, he may order the release of the accused on bail.
• (d) Police should respect the honour and dignity of persons while making arrests, searches, and seizures. While exercising police powers, no deliberate inconvenience, insult or humiliation should be caused.
• (13) With a view to reducing overcrowding of prisons, especially by reducing the number of Under Trial Prisoners (UTPs), a proviso may be added that no arrest shall be made under offences which are punishable with imprisonment for two years or less, unless the offence is committed in the presence of the police officer and even in such cases, the SHO shall release the accused on bail on his own personal bond.
• (14) India’s criminal laws should adopt the universally accepted and sound principle that statements recorded by police of witnesses as well as suspects have to be truthful. If statements made under oath are found to have been based on deliberate deception and falsehood, there must be consequences like perjury. Enforce accountability for all parties, including police officers, witnesses, and suspects, who practice deception and fabricate statements. Police officers who deliberately fabricate and falsify evidence must be awarded major punishments including removal from service.
• (15) Separate custody management from police stations. Establish Custody Management Centres / Central Lock-ups at Circle, Sub-division and District levels, each with dedicated and trained custody officers. The custody centres should have all basic facilities like full CCTV coverage, lock ups, hygienic toilets/ bathrooms arrangements for food and medical attendance where necessary. This will help reduce custodial violence.
• (16) BNSS should enable modern principles of interviewing witnesses and scientific interrogation of accused and suspected persons. IPF recommends introducing Section 180A in the BNSS, outlining the procedures for interviewing accused or suspects, enabling the recording of such interviews using tamper- proof audio-video devices and allowing for interviews in the presence of a lawyer, with stringent protocols for sealing and submission of the recorded conversation to the magistrate, ensuring transparency and accountability in the investigative process.
• (17) To ensure the integrity and fairness of the interrogation process, several crucial measures should be established. Firstly, an interrogation room should be linked to the custody centre, allowing for proper and controlled questioning of the accused. A dedicated and well-trained custody officer should be assigned to ensure strict compliance with statutory requirements and the ”duty of care” towards individuals in custody.
• (18) We recommend that the Bar Council of India should establish a code of ethics and guidelines for lawyers assisting clients during police interrogations, ensuring their proper conduct and safeguarding the accused’s rights, without defeating the purpose of police investigations.
• (19) We recommend that a national police interrogation and interview training framework should be recommended to educate police officers in appropriate and scientific interrogation techniques and the respect of individuals’ rights. These safeguards would potentially incentivise lawful behaviour among police officers, as lawfully obtained statements would become admissible in court.
• (20) Statements made by witnesses and recorded in writing by a police officer must be signed by the person making the statement. Redraft Clause
  
  181 of the BNSS which retains the provision from Sec 162 CrPC, prohibiting police officers from obtaining the signature of witnesses on their recorded statements. This is another colonial era legal provision that perpetuates distrust of the police.
• (21) Re-organise the prosecution system: Prosecution being a state subject, states may be mandated to establish a dedicated cadre of prosecutors. Currently, temporary public prosecutors, often practicing lawyers, handle prosecution in Sessions Courts and High Courts, leading to limited dedication and interest, with unlimited scope for chaos. A dedicated cadre of prosecutors will help develop professionalism and nurture talent.
• (22) Appoint a police officer of the rank of Director General of Police / ADGP as the Director of Prosecution in consultation with the Advocate General of the State, for better coordination, systemised monitoring and also making appeal and follow up decisions.
• (23) Multiple FIRs: The evil and often deliberate practice of registering numerous FIR’s in multiple police stations in the country, based on contents of various electronic / print / social media needs to be taken note of by the new law, introducing better clarity in the procedural law. The lack of legal clarity has not only become a tool of harassment, but it has also led to the affected persons approaching High Courts and Supreme Court to club them, causing unnecessary work for Constitutional Courts. BNSS should address this.
• (24) The concept of Preliminary Enquiries by SHOs introduced in BNSS Bill’s Clause 173(3) for offences punishable for three to seven years may have justification in certain cases, but is likely to exacerbate burking of crimes, delays in registration and harassment. We recommend that BNSS should incorporate principles laid down in the Lalita Kumari judgment, allowing preliminary inquiries only in rare cases with safeguards against misuse. Stringent penalties should deter false and frivolous FIRs while ensuring that genuine complaints are not ignored.
• (25) Though Supreme Court has held that no First Information Report (FIR) is necessary for the police to investigate, it is desirable to write this in the law as a sub-section (1) of Clause 175.
• (26) Clause 45(3) should address existing ambiguities on the use of handcuffs. It should allow for the use of handcuffs by the police when arresting dangerous persons, habitual and repeat offenders, escapees, or individuals involved in serious crimes like terrorism, organised crimes, crimes against the State, drug offenses, illegal possession of weapons, murder, rape, human trafficking, sexual offenses against children, among others. Currently, this clause limits handcuff usage to specific circumstances. It should be clarified whether handcuffing is permissible when escorting individuals to court or prison.
• (27) There is no mention of Police Commissionerate system in the new BNSS Bill. Police Commissionerate in major Indian cities have proven to be a highly effective model for streamlining law enforcement and expeditious police service delivery. The system allows the appointment of senior police officers as Police Commissioners, who have extensive experience and expertise in handling the complexities of urban policing, and who can provide the leadership and coordination to address the multifarious and complex law enforcement needs of urban areas. We strongly recommend that suitable enabling clauses be added in Chapter II to establish Police Commissionerate systems wherever required.
• (28) The new laws should factor in the Crime Criminal Tracking and Networking System (CCTNS) and the Inter-operable Criminal Justice System (ICJS), instead of recognising only manual processes and paper registers.
• (29) Empower the constabulary: Considering that many well-educated persons are joining the constabulary today, the new laws should enable selected subordinate staff to participate in investigative process, as may be determined by the Superintendent of Police.

BHARATIYA SAKSHYA BILL (BSB)

• (30) As a first step towards reform, it is recommended to insert an exception to Clause 23 of the Bharatiya Sakshya Bill, together with suitable changes in Clause 148, allowing admissibility of statements and confessions made before the police and recorded by police officers during the course of investigation and following the procedure as prescribed in the BNSS, under strict safeguards such as the use of tamper-proof audio-video recording, presence of a defence lawyer, sealing and submission to the magistrate, informing the accused of their rights, and the requirement of corroborative evidence.
• (31) Establish strong accountability standards against any form of misuse or abuse of the process of recording statements / confessions by accused and suspected persons.
• (32) For the above scheme to succeed, it is important to build / make available the resources and supportive infrastructure like the introduction of body-worn cameras, CCTVs at police stations and Custody Facilities capable of recording the proceedings and produce the artifacts in the trial with the required chain of custody.
• (33) Considering the inadvertent errors that have crept in as pointed out in the comments on individual Bills, we recommend a clause-by- clause review of all the three Bills. Even if it is time-consuming, this is essential as these enactments will have a lasting impact on our criminal justice system over long years to come.

---

NEXT »

Common Cause Case Updates >>