How the Experts Decode the New Laws?

Common Cause-CJAR Discussion on their Aims and Efficacy

These three common elements are being attacked on the grounds of public order. We actually are fighting against an attempt to destroy order. We are fighting for the rule of law. We are fighting for the rights that will ensure peace and harmony in society. The first challenge is to defend Article 19 and particularly Article 19(1)(a), (b)and (c).

Terrorism, Treason, and Petty Crime: We need to focus on double barrelling of terrorism and organised crime. One barrel was bad enough and now we have two barrels. There is no order on how this is going to work. The police vested with the statutory power can decide under which statute, BNS or UAPA, or both, (the accused) will be charged with, depending on whichever is convenient for them, and then convicted and punished.

We also have petty organised crime, which is actually targeted at the lower, economically marginalised social groups. It is very easy to charge someone with petty organised crime.

But the big one is Section 152. (According to Section 152 of BNS, ‘Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial mean, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act, shall be punished with imprisonment for life or with imprisonment which may extend to seven years and shall also be liable to fine.’) I would not dignify by calling it treason; I would call it sedition plus. It is a lie that the sedition has been deleted; it is sedition plus treason, not just treason. As the Home Minister has said, they have converted Raj droh into Desh droh. And desh we know means the Hindu Rashtra. It is basically an effort to attack those who question their idea of the nation.

Unless we are ideologically and politically combative, there’s a very limited scope to defend it in the court, trying to get bail and acquittal for the convicted.

Criminalising Religious Offences: : Let’s look at Section 302, which is not new. We are looking at instruments that are used against us. Section 302 of BNS says, ‘Whoever, with the deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in the hearing of that person or makes any gesture in the sight of that person or places any object in the sight of that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.’

So, we have the full panoply of provisions on causing division between communities and groups. All of those are still in place and have been misused under Sections 153 and 153A, except 153 AA, which has been deleted. Section 153 AA was never notified under the influence of Nagpur. It said that organising mass drills carrying weapons, including lathis, in public is a crime. That has been deleted, which means BNS is exhorting us to have mass drills and carry arms on the street.

Open-ended Definitions of Organised Crime: Let’s come to Section 111 and Section 112. Section 111 deals with organised crime and Section 112 with petty organised crime. The definition of organised crime is very open-ended and includes any ‘continuing unlawful activity’. This means activity prohibited by law, and one can be charged under it if a chargesheet is filed. There’s no need for conviction; a chargesheet is filed and you can be accused of working with an organised group and can be charged with organised crime.

Then there is petty organised crime which is directed at the poor of the country. It (Section 112) says, ‘Whoever being a member of group either singly or jointly commits any act of theft snatching, cheating, unauthorised selling of tickets, unauthorised betting or gambling, selling public examination question papers or any other similar or similar criminal act is said to commit petty organised crime’. The definition of theft has been expanded from the earlier penal code. Theft includes, ‘trick theft, theft from vehicle, dwelling houses of business premises, cargo theft, pickpocketing, theft through card scheming, shop-lifting and theft of ATMs.’ The penalty is, ‘Whoever commits any petty organised crime shall be punished with imprisonment which shall not be less than one year but which may extend to seven years and shall also be liable to fine’.

Further, a law has been introduced saying you have to obey public officials. There is a provision saying that you have to obey any lawful direction of any police officer (Clause 172 under BNSS in ‘Preventive Action of the Police’). If the police officer says you are not obeying his lawful order, he can detain you for 24 hours on the spot. Imagine what that would do to people from the marginalised sections.

Criminal law was an instrument to define crime and punishment. But now we have a penal law which has nothing to do with crime and punishment. An element has been introduced in it which will be used to suppress dissent and opposition. We are seeing a new and unprecedented use of the criminal law. We will have to invoke constitutional law in trial courts from the date of applying the bail onwards.

Vrinda Grover

Particularly if there is any challenge -- which can even be through an article -- to any powers that the state may exercise. I would want to foreground Article 21 of the Indian Constitution which deals with personal liberty and right to life. We need to constantly keep Articles 19 and 21 in focus. The new laws must meet the test of constitutionality.

Systemic Silence: What are the ‘silences’ in the new laws? Torture is something that a colonial regime inflicts on its subjects to control and put fear in them. National Human Rights Commission’s (NHRC) reports have been annually recording multiple cases of torture across the country. It’s a different matter that they usually only talk of compensation and have only once asked for prosecution. But there is absolute silence in codifying it. Although the Indian state signed the convention against torture at the UN in 1977 and said it will enact a separate law – it is a requirement under the Indian Constitution to have a domestic law before you ratify.

In 2005, an amendment was made in the Code of Criminal Procedure that if any person dies, disappears or is raped in police custody or police action, there will be a judicial magistrate inquiry. The criminal procedure code of BNSS has a very interesting provision -- judicial magistrate has been replaced with a magistrate. The magistrate can be an executive magistrate, an SDM, or a district magistrate. To expect a district magistrate or an SDM to conduct an inquiry to probe whether the police has been responsible is not something that -- our experiences will verify – will turn out well.

Let me give you an example of extrajudicial killings, euphemistically called encounters in this country. There was the death of a farmer in police firing in Haryana (in February 2024). The Haryana police said the farmer didn’t die because of their bullet. There is a controversy over the facts. How will it be resolved? If the law was to be adhered to, there should have been a judicial magistrate inquiry into the matter. But the judicial magistrate has been removed and the magistrate has been brought back. So, we have actually moved back to colonial powers rather than moving forward.

Police Remand and Torture: Another aspect I would like to link torture to is the expansion of the period within which the police remand can be taken. The earlier law said the police could take 15-day police remand after arrest within the first 15 days. Once the first 15 days of arrest were over, the police could not take a person into police custody under ordinary law for investigation or recovery. That kept a check on coercion, torture, etc., by the police.

As I read Section 187 (of BNSS), it says those 15 days can be staggered over a period -- if an offence is such that the chargesheet is to be filed within 60 days, then till the 40th day; if the chargesheet is to be filed within 90 days, as in a murder case, then till the 60th day. The total period remains 15 days. You can send a person to judicial custody but the police can say that ‘I want to ask one more question’. The person then can be brought out.

This is going to have ramifications. First, the ability to coerce, torture and the power of the police over of the person arrested is going to amplify because the remand doesn’t end in the first 15 days. Second, when you apply for bail, the first thing the prosecutor and the IO are going to say in court is that we still need to do custodial interrogation as our investigation is not complete. They just have to move an application. Anything can be written in it and nobody can ask serious questions. They will say, we are still investigating it, still looking at the CDR -- taking anybody’s devices is completely routine whether it is required in the case or not. Pre-chargesheet bail is thus going to be stultified to the point of negation. Actually, the more time we give the police, the less rigorous the investigation will be.

Handcuffing -- Loss of Dignity: Another aspect of torture is handcuffing, I remember in the Parliament attack case, the police were not allowed to handcuff anybody. People were brought to Patiala House -- if the police wanted to handcuff somebody, it had to move an application in the court and the court had to be satisfied with the reasons. Today the cop is going to decide. So, the point of dignity is totally lost.

Rights of Men, Transgender Persons and Women: Another gap is regarding Section 377 of IPC that criminalised unnatural sex. It was held unconstitutional by the Supreme Court to the extent that it covered consensual sexual acts. By completely removing Section 377 from BNS, there is no possible legal remedy for forced or non-consensual sexual acts against men, transgender persons and animals. POCSO covers boys and girls till the age of 18. What is the protection for adult men and transgender men -- transgender men, in any case, face severe police and custodial sexual violence.

I want to point out another aspect here. There’s a misunderstanding that in India women have a right to abortion. A colonial perspective in the penal code has been retained in the BNS which says that even if a woman voluntarily tries to have an abortion, she will be penalised. The Medical Termination of Pregnancy Act was created as an exception to the penal provision so that doctors and medical professionals were not penalised when enabling an abortion. You can have an abortion, but the doctor gets to decide, not the woman. If a woman does it voluntarily, she can be punished and those provisions continue to be here.

Offences by Public Servants: What was the shortest chapter of IPC? It was on offences by the state. What is the shortest chapter of BNS? It is the offences by public servants. Many of us worked to create a law that took on the impunity of mob violence, particularly communal violence. What was the public servant doing at that time? What was the civil servant or administrative authority doing? If this was the ‘Bharatiya’ non-colonial law, it would have created accountability of the public servant and the civilian authority to the citizen. It does not do so at all. Chapter 12, which is from Section 196 to Section 201, does not create any such accountability despite there being a wealth of documentation as to what it does to us.

Prof Anup Surendranath

The new law deletes the words ‘otherwise than in the custody of the police’ and says you can have custody of 60 or 90 days, depending upon the offence. So, for me, there is an expansion of the potential of police custody currently from total of 15 days to a total of 60 or 90 days, depending on what the offence is. There is a lack of clarity on this.

Narrowing of Bail Provision: There is a massive shrinking of bail provisions in the BNSS. Under Section 433 of CrPC, if you had served half of your sentence without a conviction, you could be let out. Those who were not eligible for this benefit were prisoners sentenced to death. Under the new law, this exception is broadened; it says even if you are sentenced to life imprisonment you cannot take the benefit of this provision. It is a very significant expansion of exclusion and, therefore, narrowing of bail provision.

There is also a provision that says if there is a pending inquiry or trial against you, you will not be given bail. It is possible that within one case there could be multiple offences. The provision is saying if there are multiple offences pending against a person, he shall not be released on bail. This is a staggering provision in terms of the impact it will have on the ground. If a person has a pending inquiry or trial, it also excludes him from the provision of getting bail if half the maximum sentence is served and the trial has been concluded.

Issues With Forensic Evidence: The new laws are big on forensic evidence. A change is sought to be brought in through Section 176(3) of BNSS regarding all offences which potentially can carry a punishment of seven years or more. Forensic evidence shall necessarily be collected and the law gives five years to the state to implement this provision. There is a push for ‘scientific investigation’.

I want to delve into how scientific investigations are being constructed in the new laws. Even earlier, certain government experts were exempted from being called to court for the reports they had given. The new laws expand the universe of the government and scientific experts are exempted from being called to court.

Also, the samples that can be collected from a person have been expanded under the new laws. In addition to signatures and handwriting under the earlier law, fingerprints and voice samples can be collected not just from persons arrested in connection with an offence -- either currently in custody or previously arrested -- it extends to anybody the magistrate wants.

Challenging Genuineness of Documentary Evidence: Perhaps the most crucial exemption is in Section 330 of BNSS where it says that genuineness of the document has to be challenged initially (within 30 days) if you want that to be examined by the court. One party has to challenge the genuineness of the document. It also extends it to the expert opinion: Unless a party challenges the genuineness of the expert opinion, that expert cannot be called to court. It is no longer open to the court to call an expert witness and examine whether the report of that expert is genuine or not unless it is challenged by one of the parties. Who will bear the brunt? It is the poor and it obviously would raise questions on the quality of legal aid.

Further, what can be challenged is only the genuineness of the report. One cannot challenge that the science (in the report) is invalid -- how valid is bite mark evidence, or how valid is footprint evidence, or how valid is blood spatter evidence? So, while there’s an expansion of the use of forensic evidence, there is constriction of judicial scrutiny of that forensic evidence.

Definition of Terrorism: Under the UAPA, whatever is its worth, terrorism charges are investigated by an officer of the rank of Superintendent of Police (SP) or above. But now, by bringing the same definition of terrorism under BNS also, the investigation into a terrorist offence can be done by an SHO or at a local police station as well. Even the bare minimum protections in the UAPA have been taken away in terms of who is investigating this case.

The Intersection Between Constitutional Law and Criminal Law: The weak intersection between criminal law and constitutional law is going to haunt us. Constitutional reflection and constitutional jurisprudence on criminal law are rather weak. Is there any discourse on what we should criminalise and what we can’t criminalise, or what is the proportionate punishment for certain offences?

Then there is the issue of vagueness that runs across legislations, be it UAPA, PMLA and many other IPC provisions. Why is there a stress on overhaul (of earlier laws)? What is the political significance of using the word overhaul when 80-85 per cent of text is exactly the same as in earlier laws; mostly it is reordering? The remaining 15 per cent is full of problems. It might be useful for all of us to reflect on what is being attempted here.

Sarim Naved

Bail Provisions: : In the debate we have about bail, I tend to stand with the interpretation that 15 days of police remand can be split because there’s Section 480 (regarding giving bail in case of nonbailable offence) where it says that in certain cases if police custody is not taken in the first 15 days, bail can be given. The police can’t say that don’t give bail just because it might need custody later.

Vaguely Worded Evidence Act: In the new laws, nothing much has changed. Ninety per cent of laws are the same, especially the Evidence Act where 99 per cent of what it used to be earlier, apart from changes in section numbers and headings. But there is confusion regarding secondary evidence – that a person who is an expert in examining a document or other documents (pertaining to a case), can get evidence about that. I don’t know what that means. It could be very narrow or it could be very wide. A CBI officer, for example, could say there is no need to bring evidence about these documents or proof as we have an expert.

Terrorism and Organised Crime: What has been said in terrorism and organised crime sections is brazen. Never in the history of this country, the police had a choice to prosecute a person under two laws for the same offence -- under the IPC or UAPA. Why should the accused not know what he’ll be prosecuted under? The rule of law is that a special law will always have precedence over general law. That doesn’t seem to be the case now.

There is an issue with defining things under the new laws. There is a section that says that ‘every state government must bring a witness protection scheme’. But what will be in the scheme and who is going to fund it? Or, every state will a have different scheme. This is pure laziness. You can’t delegate the entire power to the state government.

Public Servants -- Terrifying Powers: There is a terrifying provision that says contempt of a lawful order by a public servant can put a person in jail for 24 hours prior to being produced before a magistrate. There is no counter to it. A policeman could say don’t stand here, and if I say no, technically I’m in jail. It is not linked to any offence, it is not linked to any act; it is bizarre.

Issues about Audio & Video Evidence: There is some focus on audio and video evidence. That’s excellent because post-Covid we all are struggling with it. But there are problems with it too. Even wonderful things like every search and procedure should be video recorded. But I know what is going to happen, nothing will be filed in the court. Videos will be corrupted, something will be blocked by a hand and there will be no consequences. The biggest colonial aspect of this law is that the state or police officers face no consequences when they violate a person’s rights. This has continued.

There is no clarity about how audio and video evidence should be recorded, or about summons to be sent through ‘electronical’ means. What is meant by electronical means? Perhaps it will be served on my phone number. But maybe the number is five years out-of-date. What happens then? Then there is a provision for trials in absentia. But if I’m not served the summons, it’s easy to put me in that stream. I have no remedies after I find out that I have been convicted inabsentia.

There is a provision that says that judgment is to be given in 45 days. That’s very nice. But the problem is that there is also a provision that says you will have to file a discharge application within 60 days. So, if it’s done on the 61st day, what happens? Do I give up my right to plead not guilty? What is the thought behind it?

Justice Madan B Lokur

So, we want to expedite the disposal of cases and that is why we need to have a new legislation. Colonialism is also one aspect because the system was such that it gave rise to delays.

From that point of view, I think it is important that society gets involved because society is the one that actually has an interest in the cases being decided quickly. That has already been seen – the Parliament attack case was decided by the trial courts in less than a year, in just about a year in the High Court and similarly in a year in the Supreme Court. So, in two three years the Parliament attack case, which was very important, was decided. We had the Nirbhaya case which was also decided soon. So, expeditious trial is possible. I really don’t see the reason for bringing about these changes.

Repercussions for an Accused: : From the point of view of an accused person, what will be his interest in the law? One, is that the investigation should be completed quickly. The underlying premise of producing a person before court within 24 hours is that the investigation should be completed within that time. If it is not completed within 24 hours, you ask the magistrate for remand. You justify the remand by saying that there is a good reason to believe that this person has committed the offence and I need to further investigate this person for these reasons. There are certain parameters laid down by the Supreme Court for this – the person may influence the witness or destroy the evidence, etc. Therefore, he should be kept in custody, police custody or judicial custody.

Some of the provisions which deal with investigation don’t seem to keep in mind that police have to try and complete the investigation within 24 hours. These provisions seem to suggest that the investigation could go on. The accused person could be remanded to the police at any time. The accused is also interested in having the chargesheet filed against him quickly. If the prosecution believes he is guilty, file the chargesheet and prove the case. If he is not guilty or you don’t have evidence, why keep him in custody by saying we are going to file the chargesheet at any point of time. Now this system of supplementary chargesheets has become more or less the rule. You file a chargesheet and then you say further investigations are required, and we will file a supplementary chargesheet.

This not only keeps the accused under threat, it also gives the prosecution a reason to keep that person in custody. The provision of default bail has been completely diluted by the recent Judgement of the Supreme Court. Even though the investigation was not complete and the chargesheet had not been filed, a person was entitled to statutory bail under CrPC after 60 days and in some cases after 90 days. That provision has been given a go-by.

I don’t know to what extent the new code changes the position. In any case, there is a judgement of the Supreme Court, there is a very little that a magistrate can do about it. The bail jurisprudence has not been liberalised. In fact, it has made it even more stringent.

As far as the accused is concerned, he is in trouble. Earlier he would have been given bail; the fact that courts are not giving bail is all together another matter. But if you could have got bail under the earlier provisions, perhaps he will not get bail under the new law. So, the law is functioning detriment to the accused in matters of bail, which means a loss of personal liberty.

The accused is also interested in the trial. I’m not sure whether there is any provision for expediting the trial other than saying that don’t grant adjournments for asking. It is good to say that. Under the Civil Procedure Code, there is a provision that there should be no more than three adjournments. I don’t think it has ever been implemented. So, what is it really expediting the trial?

Complications with Electronic Evidence: : It is nice to talk about electronic evidence, videography, etc. But there is a complication in that as well. Today we have all kinds of videos going around – made through artificial intelligence, morphing of images, etc. If somebody says it’s not his face in the video, what are you going to do? Are you going to send it to a forensic laboratory? If you are going to do that, how are you going to expedite the trial.

As far as the terms of liberty of an accused is concerned, I don’t think the purpose of bringing the new code has succeeded. On the contrary, it has got defeated by some of the provisions.

Witness Left in the Cold Again: There has been no provision for witness protection for a long time. This was an opportunity to do so, but it has not been done. You read in a newspaper about a person who has been a rape victim, she probably has been beaten up for something. What kind of protection does she have? We had instances of parents of rape victims being threatened. What kind of witness protection do we have? Has the new code provided for that?

The chaos is one thing. The load on the court will increase because of the interpretation of various provisions. As it is, courts are overburdened. If you are going to ask them to keep interpreting each new section, it is going to take time. Also, you are going to get different interpretations. There will be an appeal or revision filed in the High Court and the matter will get delayed. So, from the points of view of the judiciary and the witness, I don’t think any dramatic purpose is going to be served.

Rights of the Victim: By and large, provisions of the law are more in favour of the prosecution. I’m not particularly worried about that, they can look after themselves. There have been some amendments in law, which give certain rights to the victims. I’m not sure whether those rights have been increased or retained (in new laws). They appear to be the same.

If you have to bring changes, these are the areas which concern us as a society. Why should the victim go through this, why should the family of the victim go through this? The effort should have been to look at the interests of the accused person – which, I think, is a constitutional right -- as well as witnesses who have nothing to do with the crime. In the new law, they should have strengthened the rights of the victim by enabling the victim to say what he or she wants to say in court, filing the appeal and taking the matter to a logical end. All this has been given a go by.

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