'When Organised Crimes Are On Rise, Should Legislature Think Of Safeguards For Accused?' : Supreme Court In Plea Challenging BNS, BNSS Provisions

While hearing a petition challenging the constitutional validity of provisions of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) and the Bharatiya Nyaya Sanhita, 2023 (BNS), the Supreme Court today questioned as to whether there should in fact be protective safeguards in place insofar as persons accused of organized crimes are concerned.

A bench of Justices Surya Kant and Ujjal Bhuyan heard the matter. It may be recalled that the BNSS and BNS replaced the Code of Criminal Procedure and the Indian Penal Code with effect from July 1.

Senior Advocate Dr Menaka Guruswamy appeared for the petitioner and argued that by virtue of the new laws, organized crimes (such as those under MCOCA) have been brought under the purview of general penal law (BNS), without the requisite safeguards and protections contained in the specialized statute(s).

Hearing the senior counsel, Justice Kant questioned whether it is incumbent upon the Parliament to introduce safeguards in central legislation (BNS) merely because a state legislature did so (MCOCA). Although, the judge expressed that the legality of the provisions under the new laws can be examined independently.

In response to Justice Kant's observation, Guruswamy said,

"As a polity, when we have adopted specialist legislation (MCOCA, UAPA, etc.), those laws have been found to be constitutional because those specialist regimes had procedural safeguards, which then upheld the principal of fair trial, protections against self-incrimination, etc...with specialist legislation, you have always found for their constitutionality because there were procedural safeguards that then rendered the Articles of the Constitution as being upheld...that is why general criminal law, which is devoid of the protections of the specialist legislations, then in fact negates the constitutional values of fair trial, protection against self-incrimination, rights to legal representation...we have allowed for that in specialist legislation." 

Subsequently, Justice Kant queried if it is stated anywhere in the BNS that the impugned provision (Section 111) was incorporated from MCOCA. To this, Guruswamy responded by saying that the relevant definitions have been copy-pasted. Taking objection, Justice Kant remarked that the Parliament has its own wisdom and can't be said to have copy-pasted a provision from a state legislation.

"There are very heavy presumptions in their favor, not only they deliberated, but applied mind...they were aware of the consequences, of the implications if they add/delete something."

Justice Kant further conveyed that when something new (like BNS and BNSS) is brought in, there are many "imaginary" apprehensions, but the same may not actualize. Referring to a recent incident of crime and society's expectations to be safe, the judge probed Guruswamy on whether there should in fact be any safeguards in place for persons accused of organized crime.

"Just look how society is suffering nowadays with organized crime. Let us talk of the rights of the people, rights of the society. They have a right to live free from crime, from threats, fear in mind...are your buses safe? are your railways safe? are you safe on roads? you will find gangs emerging, whether it's drug supply, whether it's other kind of illicit trades...even children's abduction. Look at cyber crime. Can't even imagine...Do you think that legislature in such a regime and time should think of providing safeguards?" 

In reply, Guruswamy asserted that when specialist legislations are diluted and brought under general law, it infact works against fighting organized crime. "To treat 2 pick-pockets, 2 juveniles as akin to MCOCA level organized crime defeats the purpose. We do not have that array of investigative foundations to treat every small offense as organized crime", she said.

On her expression of an apprehension regarding misuse of BNS and BNSS provisions, Justice Kant remarked that as under the old laws, there will likely be misuse. But, there will be judicial monitoring to ensure no provision is misused by those to whom power is granted, as has been the case in the past.

As against the submission that making laws more stringent is not known to have a deterrent effect, the judge said that the same may be true in cases where term of punishment is enhanced; but, if a person feels that his chance of getting apprehended, or being covered by the definition of "organized crime", has increased, there may be an effect on controlling organized crime.

At one point, Justice Kant also gave the example of United States' laws, where even for a traffic violation, people are handcuffed on the spot. In response to this, Guruswamy highlighted that the conviction rate of white-collar crimes in US is 82%, unlike India, where it is under 3%. She submitted that organized crime needs to be controlled, but the appropriate way to do that would be to increase police force, etc.

When Guruswamy pointed out that the offense of sedition, substantive provision relating to which under the IPC was kept in abeyance by a three-judge bench of the Court, is sought to be reintroduced under the new laws, Justice Kant commented, "If the foundation of a provision which was found unconstitutional, if that has been taken care of by the Parliament, by enacting a new law, that cannot...it would not amount to overruling of the judgment". At this juncture, Guruswamy informed that a reference pertaining to the sedition law, covering the new Section 152 BNS, is pending before a five-judge bench. She was asked by the bench to furnish a copy of the reference.

Raising a challenge to Section 187(3) of BNSS, Guruswamy asserted that it is the provision which is of utmost concern to the petitioner. She submitted that the provision has replaced Section 167(2)(a) CrPC, which limited police custody to a maximum of 15 days. It was explained that the need for police custody is so that police can have access to the accused without the protections/regulations (access to lawyer, specific meal and sleep time, etc.) that come with judicial custody. However, if police custody is extended to 60-90 days, there would be wide ramifications.

"for an accused to survive for 60-90 days, the toll on mental and physical health...and the toll on forced confessions...the word 'except police custody' in proviso to Section 167(2) have been removed...can any accused survive for upto 60 days in police custody? Will we not have a spate of forced confessions? Mental health issues, physical torture? Is DK Basu not being attacked by this provision?" Guruswamy argued.

Considering the submissions, Justice Kant asked Guruswamy to examine if Sections 58 and 187(1) shall overpower Section 187(3) BNSS or vice versa. The matter was adjourned to enable the senior counsel to bring on record a comparative chart of the provisions involved.

Background

The petition is filed by one Azad Singh Kataria - a retired BSF Commandant - challenging the following provisions of BNS and BNSS:

- Sections 111 and 113, BNS: These introduced the offences of organized crime and terrorist act. The primary ground of challenge is that the said offences have been introduced in general penal law without any procedural safeguards as are contained under special statutes like UAPA, MCOCA. Thus, they are violative of Articles 14 and 21.

- Section 152 BNS: This reintroduced the offence of 'Sedition' contained in Section 124A of IPC, which has been in abeyance since the Supreme Court's order dated 11.05.2022 in WP (C) No. 682/2021. It is argued that the reintroduction of the offence of sedition, in a new avatar, is defiance of the undertaking given by the Union in W.P. (C) No. 682/2021 (stating that it is reconsidering its position with respect to the offence of sedition). Moreover, the language of Section 152 BNS is vague and capable of being misused to curb dissent against ruling dispensation. Hence, the petitioner urges, it deserves to be struck for being violative of Articles 14, 19 and 21.

- Section 173(3) BNSS: It is contended that the provision confers unfettered discretion on the police to pick and choose if an FIR is registered based on preliminary enquiry in complaints involving punishment of 3-7 years. The petitioner asserts that this violates the dictum of Lalita Kumari v. Govt. of U.P. (2014) 2 SCC 1 where it was held that FIR is mandatory if the information discloses commission of cognizable offence.

- Section 187(3) BNSS: It is contended that the provision does away with the maximum limit of 15 days on police custody, thereby nullifying safeguards against police excesses and an undertrial's right under Article 21.

- Section 223 BNSS: It is contended that the provision creates a discriminatory distinction between complaint-based cases and those initiated by FIR, allowing an accused in complaint-based cases to be heard before cognizance of the offence is taken by the concerned Magistrate.

It is worthwhile to mention that another petition has been filed before the Court, by the Mannargudi Bar Association, challenging certain provisions of the BNSS.

Counsels for petitioner: Senior Advocate Dr. Menaka Guruswamy; Advocates Lavkesh Bhambhani, Utkarsh Pratap, Arunima Das, and Aditi Tripathi; AoR Tushar Jain

Case Title: AZAD SINGH KATARIA Versus UNION OF INDIA, W.P.(Crl.) No. 461/2024