Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023 | Legal Reasoning for CLAT PDF Download

Provisions of Bharatiya Nagarik Suraksha Sanhita (BNSS)

Detention of Undertrials:

• CrPC mandates release on personal bond if an undertrial has served half the maximum sentence, excluding death penalty cases.
• BNSSadds exclusions for:
  • Offenses punishable by life imprisonment.
  • Individuals with multiple pending cases.

Detention by Police:

• BNSS introduces provisions allowing police to detain those who resist preventive actions.
• The term "Judicial Magistrate" is replaced by "Magistrate," aligning magistrates directly with government control.

Medical Examination:

• The CrPC allowed medical examination of the accused in certain cases on the request of a sub-inspector or higher.
• BNSS permits any police officer to request such examinations.

Forensic Investigation:

• BNSS mandates forensic investigations for offenses carrying a punishment of at least seven years.
• States without forensics facilities must collaborate with neighboring states.

Signatures and Finger Impressions:

• BNSS expands powers to collect finger impressions and voice samples, even from individuals who have not been arrested.

Hierarchy of Courts:

• BNSS removes the classification of metropolitan areas and magistrates, simplifying the hierarchy of courts.

Use of Technology:

• Full digitization of processes from FIR registration to judgments.
• Trials, including cross-examination, can be conducted via video conferencing.
• Mandatory videography for sexual crime victim statements, crime scene examinations, and seizure of articles.

Zero FIR:

• Formal provision to ensure FIR copies are provided to both accused and victims within 14 days.
• Zero FIRs can now be filed from anywhere in the country, with transfer of investigation within 15 days.

Use of Handcuffs:

• Handcuffs may be used for habitual offenders, organized crime, terrorism, and serious offenses like murder, rape, and drug trafficking.

Mercy Petitions:

• Convicts sentenced to death can submit mercy petitions to the Governor within 30 days, and to the President within 60 days if rejected.
• No appeal against Presidential or Governor’s orders is allowed.

Commutation of Offenses:

• Summary trials now apply to offenses punishable by up to three years, which could reduce caseloads in higher courts.
• Commutation of penalties:
  • Death penalty to life imprisonment.
  • Life imprisonment to 7 years.
  • 7 years to 3 years imprisonment.

Specific Safeguards (Section 41A of CrPC):

• Individuals over 60 or charged with minor offenses (punishable by less than three years) cannot be arrested without special permission.
• Offenses with punishments between 3-7 years require a preliminary inquiry.

Sanction to Prosecute:

• Government must decide on sanction requests within 120 days; otherwise, sanction is deemed granted.
• No sanction is needed for offenses like sexual crimes and human trafficking.

In-absentia Trials:

• Provision for trials in the absence of the accused, common in stringent anti-terror legislation like UAPA.

Community Service:

• BNSS introduces community service as a form of punishment for certain offenses, providing a socially beneficial alternative.

Electronic FIR & Bail:

• Preliminary inquiry introduced for offenses punishable by 3-7 years.
• Early bail provisions for first-time undertrials and acquittal cases.
• Simplified rules for bail in acquittal cases and undertrial release after serving one-third of maximum punishment.

Witness Protection & Legal Procedures:

• Witness protection schemes introduced.
• No more than two adjournments permitted in trials.
• Streamlined processes for filing charges, completing investigations, and delivering judgments within specific timeframes.

Attachment of Property:

• BNSS extends attachment rules to immovable property derived from criminal activities, previously limited to movable assets under CrPC.

Congestion in Prison Systems:

• Restrictions on bail and plea bargaining may hinder efforts to reduce prison overcrowding, as undertrials make up 77% of India's prison population.

Key Issues and Analysis

• Alteration in Police Custody Procedure: BNSS allows for police custody during initial remand periods without specifying reasons, diverging from previous norms and SC rulings on custody limits.
• Handcuffs and Personal Liberty: BNSS allows handcuffing, which may conflict with SC rulings on the arbitrary use of handcuffs as an infringement of personal liberty.
• Bail Limitations: New bail rules may exclude undertrials with multiple charges, limiting access to mandatory bail.
• Congested Prisons: Restricting bail and plea bargaining could exacerbate prison overcrowding.
• Property Seizure: New provisions extend property attachment to immovable assets without defined limits, which may differ from provisions under PMLA.

The Bharatiya Nagarik Suraksha Sanhita (BNSS) introduces various provisions related to detention, use of handcuffs, bail, and plea bargaining, many of which could potentially impact the rights of the accused, prison congestion, and the handling of seized property.

Key Provisions and Analysis

1. Use of Handcuffs:

   • BNSS Provision: The law allows police officers to use handcuffs during arrest for specific serious crimes (e.g., terrorism, murder, organized crime).
   • Legal Challenge: The Supreme Court (SC) and National Human Rights Commission (NHRC) have previously ruled that the use of handcuffs is inhumane and violates Article 21 (Right to Life and Liberty). Handcuffing is permitted only in extreme cases with recorded reasons, and judicial consent is needed to handcuff trial prisoners.
   • Standing Committee (2023): It recommended excluding economic offences from cases where handcuffs may be used, but this suggestion was not incorporated into BNSS.

2. Mandatory Bail for Undertrial Prisoners:

   • BNSS Retention: First-time offenders may be granted bail after serving one-third of their maximum sentence.
   • New Restrictions: BNSS excludes bail for offences punishable by life imprisonment and situations where multiple cases are pending against an accused.
   • Supreme Court Ruling: The SC held that bail is the rule, and jail is the exception. Detention before conviction is meant to ensure the accused’s availability for trial and prevent tampering with evidence. Where these concerns do not apply, bail should be granted.

3. Plea Bargaining:

   • BNSS Restriction: The accused must apply for plea bargaining within 30 days from the date of framing charges, which could reduce the effectiveness of plea deals by limiting the timeframe for negotiation.
   • Current Scope: Introduced in 2005, plea bargaining is limited to offences with a maximum sentence of seven years. It excludes cases involving death penalties, life imprisonment, or serious crimes.

4. Congestion in Prisons:

   • Impact of BNSS: Restrictive bail provisions and limited plea bargaining could contribute to the ongoing issue of prison overcrowding. As of 2021, India's prisons had an occupancy rate of 130%, with 77% of prisoners being undertrials.
   • Undertrial detention in Indian prisons often exceeds several years, contributing significantly to prison congestion.

5. Attachment of Property:

   • BNSS Expansion: It extends police authority to attach not only movable but also immovable properties suspected of being involved in criminal activities.
   • Lack of Time Limits: Unlike other laws, such as the Prevention of Money Laundering Act (PMLA), the BNSS does not specify time limits on how long property can be attached.

These provisions raise concerns about the potential impact on individual rights, prison conditions, and the handling of criminal property, particularly in relation to bail, the use of handcuffs, and prolonged undertrial detention.

[Intext Quetsion]

Conclusion:

BNSS represents a major overhaul of India's criminal justice system with significant technological integration, expanded forensic mandates, and streamlined legal processes. However, certain provisions, such as the use of handcuffs and restrictions on bail, could raise concerns about personal liberty and prison congestion.