Supreme Court To Hear Challenge To Validity Of BNS & BNSS Provisions On December 18

The Supreme Court today (December 2) directed that the writ petitions challenging provisions of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) will now be comprehensively heard on December 18. 

A bench of Justices Surya Kant and Ujjal Bhuyan was hearing two writ petitions filed by the Mannargudi Bar Association and Azad Singh Kataria, a retired BSF Commandant.

The first petition challenges the constitutionality of four provisions namely: Sections 43(3) (Handcuffing), 107 (attachment, forfeiture of property), 223 (non-taking of cognizance in a complaint case without opportunity of hearing to accused) and 356 (trial in absence of accused) of the BNSS. The petitioner is represented by Senior Advocate S Nagamuthu.

Whereas, in the retired BSF Commandant's petition, the petitioner has challenged Sections 111 and 113, BNS - which introduces the offences of Organised Crime and Terrorist Act; Section 152 (which reintroduces offence of sedition), Section 173(3) BNSS (provision confers unfettered discretion on the police to pick and choose when an FIR may be registered based on preliminary enquiry in complaints involving punishment ranging from 3-7 years) and Section 187(3) BNSS (does away with a maximum 15 days of police custody and thereby, nullifying safeguards against police excesses and an undertrial's right under Art. 21) and Section 223 of the BNSS 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 by the concerned magistrate.

At the outset, Senior Advocate Menaka Guruswamy today apprised the bench that a detailed compilation of the provisions pertaining to BNSS and Bharatiya Nyaya Sanhita (BNS) has been filed. She added that these include provisions related to police custody and preliminary inquiry, which is now being allowed contrary to the 2013 Lalita Kumari judgment of this Court.

When Justice Kant asked if there were other provisions up for challenge before the Court, Guruswamy responded that they were challenging the substantive provisions of the BNS (previously Indian Penal Code) including Section 152 (Section 124A- Sedition under the IPC). She clarified that it is the case of the petitioner that contrary to the claims, provision relating to Sedition has been reinserted. 

To this, Justice Kant responded that it would be better to also mention the judgments including where the Court may not have directly made an observation on the concerned provisions but still the judgment has a bearing on the interpretation of the provision. 

Justice Kant said: "There may be an observation by the Court or a principle evolved by this Court in a case which does not pertain to Section 124A. But has can have bearing on the new provision. We want to have how Section 124A, so long as it was there in the Statute, how it has been understood by the Supreme Court."

Guruswamy then asked if a similar compilation is required for BNSS as well since the present compilation clearly specifies the omission of the "safeguard language". For instance, Section 167 of the Code of Criminal Procedure states that police custody should not be beyond the period of 15 days. However, in Section 187 of the BNSS, the word "custody of the police beyond 15 days" has been omitted as stated by Guruswamy.

To this, Justice Kant orally remarked: "Don't you think 'beyond the period' is a very dicey language. Beyond, endless? You mean there is no limit? That's why we are requesting you. Beyond has been given a judicial meaning by this Court. Beyond is not endless. Whether the principle has been reflected in the new provision or now? Give revised compilation...Give us chart by weekend...Don't hesitate in giving us an elaborate chart.

Case Details: MANNARGUDI BAR ASSOCIATION v. UNION OF INDIA AND ORS.,W.P.(C) No. 625/2024 and AZAD SINGH KATARIA v. UNION OF INDIA W.P.(Crl.) No. 461/2024