Plea In Supreme Court Challenges Validity Of BNS & BNSS Provisions, Says 'Sedition' Reintroduced & Police Custody Powers Enhanced

A petition has been filed in the Supreme Court challenging the constitutional validity of the various provisions of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) and the Bharatiya Nyaya Sanhita, 2023 (BNS) which replaced the Code of Criminal Procedure, 1973 and the Indian Penal Code, 1860 with effect from July 1,

The petition challenges the following provisions of BNS and BNSS.

- Sections 111 and 113, BNS - which introduces the offences of Organised 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, the said provisions are violative of Articles 14 and 21.

- Section 152 BNS – The petitioner argues that this provision reintroduces the offence of Sedition as contained under Section 124A of the IPC which has been kept in abeyance since the SC's order dt. 11.05.2022 in WP (C) No. 682/2021. It is argued that the reintroduction of the offence of sedition vide Section 152 of the BNS in a new avatar is a defiance of undertaking given by the Union of India 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 of the BNS is vague and overbroad and thus, capable of being misused to curb the dissent against ruling dispensation. Hence, Section 152 of the BNS deserves to be struck for being violative of Article 14, 19 and 21.

- Section 173(3) BNSS - It is contended that the 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 3y to 7y. This violates the dictum of Lalita Kumari vs. Govt. of U.P., (2014) 2 SCC 1 which held that FIR is mandatory if the information discloses the commission of cognizable offence.

- 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.

- 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.

The petition is filed by Azad Singh Kataria, a retired BSF Commandant.

Last month, Mannargudi Bar Association had filed a writ petition in the Supreme Court challenging certain provisions of the BNSS.

The petitioner will be represented by Dr. Menaka Guruswamy, Senior Advocate, assisted by Lavkesh Bhambhani, Utkarsh Pratap, Arunima Das, and Aditi Tripathi, Advocates, with Tushar Jain, AOR.