Introduction:

The Supreme Court of India recently deliberated on the constitutional validity of several provisions of the Bharatiya Nyaya Sanhita, 2023 (BNS), and the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced the Indian Penal Code (IPC) and the Code of Criminal Procedure (CrPC) effective July 1, 2023. A bench comprising Justices Surya Kant and Ujjal Bhuyan heard a petition filed by retired BSF Commandant Azad Singh Kataria, who challenged the new provisions regarding alleged violations of constitutional safeguards under Articles 14, 19, and 21. Senior Advocate Dr. Menaka Guruswamy, representing the petitioner, argued that the BNS and BNSS provisions dilute specialized safeguards previously available under laws like the Maharashtra Control of Organized Crime Act (MCOCA) and the Unlawful Activities Prevention Act (UAPA). These concerns were juxtaposed against arguments raised by Justice Kant about societal safety and the legislative wisdom in addressing rising organized crime.

Arguments:

Dr Guruswamy contended that the integration of offences like organized crime and terrorism under the general criminal law framework (BNS) undermines procedural protections that specialized statutes such as MCOCA offer. She highlighted the safeguards enshrined in such laws, such as fair trial rights, protections against self-incrimination, and judicial oversight, which were critical in upholding their constitutionality. For instance, the definitions and provisions in Sections 111 and 113 of the BNS were allegedly lifted from MCOCA but without the corresponding procedural protections. Guruswamy warned that treating minor offenders or first-time criminals on par with organized crime syndicates would overwhelm investigative frameworks, leading to misuse and inefficiency in combating serious crimes.

She further criticized the reintroduction of sedition under Section 152 BNS, asserting that its vague language and potential for misuse curbed free expression and dissent, especially when the original sedition law under IPC Section 124A was under reconsideration by a five-judge bench. Addressing Section 187(3) BNSS, she expressed grave concerns over the removal of the 15-day cap on police custody, now extended to 60-90 days. This, she argued, would lead to mental and physical duress on the accused, potentially coercing forced confessions and violating safeguards established in DK Basu v. State of West Bengal. Guruswamy also flagged Section 173(3) BNSS, which permits police discretion in registering FIRs after a preliminary inquiry for offences with punishment ranging between 3-7 years. This discretion, she claimed, violated the Supreme Court’s dictum in Lalita Kumari v. Govt. of U.P., which mandates FIR registration upon disclosure of a cognizable offence. Finally, she highlighted the discriminatory nature of Section 223 BNSS, which denies the accused in FIR-based cases the right to be heard before cognizance, unlike complaint-based cases.

Court’s Observations and Questions:

Justice Surya Kant raised pivotal questions, particularly on whether Parliament was obligated to replicate safeguards from state laws like MCOCA in national legislation. While acknowledging that the legality of the new provisions could be independently examined, he emphasized the legislative wisdom and deliberation that likely went into drafting the BNS and BNSS. Justice Kant suggested that apprehensions about the misuse of the provisions might be speculative at this stage and stressed the need to balance societal safety with the rights of the accused. He pointed to the increasing prevalence of organized crimes, ranging from drug trafficking and abductions to cybercrimes, and questioned whether more stringent measures, rather than safeguards, were needed to address such threats effectively.

Referring to the contentious reintroduction of sedition, Justice Kant remarked that if the Parliament had adequately addressed the constitutional concerns raised against the old sedition law, the new provision could not be summarily invalidated. On the topic of police custody, he suggested that judicial monitoring would likely prevent misuse, just as under prior laws. Responding to the petitioner’s argument about the ineffectiveness of stringent laws as deterrents, the judge opined that increasing the probability of apprehension and legal coverage might indeed help curb organized crime. He also drew a comparison with U.S. practices, where even minor violations lead to immediate and stringent enforcement, citing their higher conviction rates as a potential model.

Court’s Judgement:

While no final verdict was delivered, the bench adjourned the matter to allow the petitioner to furnish a comparative analysis of the impugned provisions with their predecessors. Justice Kant also instructed Dr Guruswamy to examine the interplay between Sections 58, 187(1), and 187(3) of the BNSS to determine which would prevail in practice. The Court expressed a cautious approach, balancing the need for constitutional safeguards with the legislative intent to combat organized crime effectively. The matter remains sub judice, with the Court poised to scrutinize the implications of the BNS and BNSS on civil liberties and their alignment with constitutional values.