The Criminal Codes are Dead; Long Live the Criminal Codes

[This is a long post]

Prologue

For over a century, the foundations of the Indian criminal process have been identified by its three codes: the Indian Penal Code of 1860 [IPC], the Criminal Procedure Code of 1973 [Cr.P.C.], and the Indian Evidence Act of 1872 [IEA]. Not anymore. Henceforth, unless some last minute surprise is sprung upon us, the three codes are to be replaced by the Bharatiya Nyaya Sanhita [BNS], the Bharatiya Nagarik Suraksha Sanhita [BNSS] and the Bharatiya Sakshya Adhiniyam [BSA] of 2023.

There are many questions that come to mind when considering this development. Perhaps many of them combine into a single, big, question: Why? Was the existing set of laws problematic, and if so, then in what way was it problematic? Were the Codes failing to strike a just, fair, and reasonable approach to questions on defining and punishing crime? Were the structures proving to be outmoded given the fast technological pace of society? Or, all of the above?

None of these questions have uniform answers, or objective positions. One can only speak for oneself. In that regard, I would unhesitatingly state that the 19th Century Colonial Codes (or their 20th century avatar in case of the Cr.P.C.] were deeply problematic and required a brutal re-examination. A comprehensive study of how courts had interpreted the clauses across these Codes was required to update the statutory position. The archaic language of the IPC required revisiting, its punishments needed streamlining, and the general law of crime required to be harmonised with the burgeoning field of laws defining specific crimes. Far more important was the need to tear down the Cr.P.C. and IEA and rebuild again to solve what the most pressing concerns of the criminal process, which have been rotting it from the core since independence (and even before): delays, significant pre-trial incarceration rates, and a complete surrender of personal liberty and privacy to batons and lathis wielded by the police.

The fainthearted would be pleased to note that none of this has come to pass. The Codes are dead, but they gloriously live on in the BNS, BNSS, and BSA. What we have just witnessed is a grand sequence where the villain sheds an exoskeleton to assume a more monstrous form appropriate with the times. In other words, the new Sanhitas do not offer a new perspective on administering the weighty notion of 'criminal justice' for an independent, democratic, republic as we were promised, but merely offer a shiny new vessel to sustain the beating heart of colonial ideas that the Codes represented. 

With that sombre prologue out of the way, it is time to look at what appears to be in store for us.

Repeal and Savings

Now that the new laws are almost here, arguably most important is the question is what happens to all that was done under the old laws? When it comes to offences themselves, the constitutional prohibition of any criminal liability retrospectively allows us to assume that the new BNS offences (deceitful sexual acts; terrorism; organised crime, etc.) will not apply to acts done on a date prior to the date when the BNS is brought into force (whenever that is). However, at the same time experience has taught us that things are never straightforward when it comes to interpreting law. The iron-clad prohibition of Article 20(1) may be done away where offences are continuous, and so we may still be presented with situations where prosecutions are brought under the BNS for acts which began prior to the date of its enactment but continued subsequently to create an unbroken chain of conduct. In respect of acts that were offences under the IPC but are not covered by the BNS, even as the BNS repeals the IPC, nothing in the BNS overrides application of Section 6 of the colonial General Clauses Act 1897 which ensures that such prosecutions do not automatically lapse. So while there is no Section 124-A IPC prosecuting sedition, or Section 377 IPC prosecuting unnatural sexual acts, existing cases would not die a natural death. Similarly, till such time as other laws are amended to erase all presence of the colonial IPC from the statute books, we would have to keep referring to Sections 6 and 6A of the General Clauses Act to make sense of how will such references to the IPC be read [think the PMLA schedule, for instance].

When it comes to the Cr.P.C. and IEA, the general rule being created with repeal is that the entry of the BNSS / BSA will not disturb pending investigations, inquiries, trials, or appeals. However there will certainly be cracks which lawyers will explore to try and make use of. For instance, what happens to a case where the police filed a closure report and it has been accepted, or a case where proceedings have been terminated prior to the enforcement of the BNSS, and the aggrieved party now wishes to revive the litigation. What about cases where the police registers a fresh FIR invoking slightly different offences to now make use of the broader remit of police custody? Would these count as 'pending' cases? Or, what happens for a case that is closed for non-appearance of a person who was declared a proclaimed offender - would it be possible to revive such a case using the new BNSS clauses allowing for trials in absentia? These are only the easy examples, and I am sure more tricky ones will come up in the next few years. Courts will want to turn to the years after the 1973 Code was introduced in 1974 to see how some of these issues were dealt with back then (although many of those dealt with retrospective application of the new Cr.P.C. clauses that enhanced the sphere of liberty, rather than truncate it further).    

Even though the BNSS declares that pending cases / investigations / inquiries will be governed by the Cr.P.C., this is not going to prevent serious changes to their working because the BNSS carries out serious changes to the administrative structures of our courts. I refer to the abolition of the cadre of metropolitan magistrates altogether in the BNSS, without any provisions accounting for how areas where this system is in vogue (Delhi, for instance) will carry out the transition to now erect a new system with Chief Judicial Magistrates, First Class Magistrates, and Second Class Magistrates. One wonders how this transformation will be carried out, and whether it will give rise to service law related issues if metropolitan magistrates — who are at par with First Class Magistrates under Cr.P.C. — will be divided up into the two categories. 

Changes to the Criminal Process

For most practising lawyers, what really matters is whether, and how, the rules of the criminal process are being altered by the introduction of the new laws. This post looks at some important changes in this regard that have been introduced. Note, however, that it does not look at specific issues that are going to arise because of, say, the introduction of offences in the BNS that are at present criminalised through special statutes with special procedural regimes. Nor does it look at specific issues arising within the realm of preventive powers of police and magistrates.  

Arrest, Custody, and Bail

There are small tweaks in the arrest provisions of the BNSS from the Cr.P.C. regime, besides the sorry re-introduction of handcuffing. There is hardly any change when it comes to the issue of granting bail in non-bailable cases — either in terms of the guiding judicial discretion in this process, or by reducing the number of non-bailable and cognizable offences. There is rather slight confusion introduced because of the tweaks between the first and final versions of the BNSS. The key changes here are, firstly, to the legal regime on custody post arrest during an investigation, and secondly to granting default bail where a person has spent a significant time in prison as an undertrial.

On the former, the BNSS appears to have done away with the limits on police custody being restricted to the first fifteen days after arrest to allow it within a period of the first forty or first sixty days after arrest. What is more uncertain is whether the BNSS has also done away with the maximum limit on police custody being fifteen days. If so, then it would signal a significant shift in the legal position which has had the duration of police custody capped on fifteen days since even prior to the 1973 Code. The wording of the BNSS clauses would make it seem that the absence of 'police' custody in Section 187(2) of the BNSS is not deliberate but an inadvertent omission. It would, nevertheless, be clarified only after some person suffers the consequences, and courts rule on the issue. Unless parliament acts proactively - which as the passage of the BNSS shows us, it certainly can.  

Why restrict police custody, and what is the consequence of removing the shackles so to speak? A colonial and post-colonial learning about the administration of criminal law in India has been that the police resort to unfair practices to solve a case. This involves extracting pressure on people in their custody to make a false statement. Enhancing the period to take police custody proportionately raises this risk, especially as this enhancement is being conceived of without any increase in the rights of the detained person. Placing a limit on police custody as being available only in the first fifteen days furthers a separate goal of ensuring that the police work with promptitude. Removing this limit takes away any incentive for the police to try and solve cases quickly. This would mean that more and more investigations only end when nearing the upper limit of 60 or 90 days — cementing the perverted turn over the last fifty years (and manifesting the fears of legislators) where ceilings that had been installed by the 1973 Code became default periods for the investigation to complete.        

The extension of police custody also has an impact on bail. In practice, courts are reluctant to grant bail if it appears that custodial detention is required to secure some investigative purpose. Most lawyers thus do advise clients to wait till the first fifteen days expire, or police say that they do not require further custody. Now, police will have a card up their sleeve to invoke custodial detention at any stage during the period of investigation, creating a practical difficulty for courts who had become used to working a certain way. It would require re-programming how courts view these claims if we are to ensure that two / three months without bail do not become default periods of incarceration in all cases.  

In respect of bail, one must mention the lip-service paid to the Supreme Court's endeavours in Satender Antil. The BNSS changes provisions that were being interpreted in some states as mandatorily requiring an arrest before the chargesheet was filed in court, which was what started the litigation in Antil. However, as we know, Antil went far and beyond that to suggest policies on guiding judicial discretion for bail. None of that has made its way into the statute. What the BNSS does do is bring in significant changes in respect of the provisions on default bail. Currently, Section 436A of the Cr.P.C. carried a rule where a person was entitled to bail if she had spent a time in custody that was equivalent to half the maximum possible punishment for a crime. Lets be clear — 436A was not a ringing endorsement to liberty, but a damning hang-your-head-in-shame indictment of the legal process. Section 479, BNSS reduces this period undergone to one-third of the maximum imprisonment but only for 'first-time offenders' [not 'offenders' for undertrials]. But what one hand giveth, the other taketh far more. Section 479 carries a new explanation which excludes persons against whom there is an "investigation, inquiry, or trial in more than one offence or in multiple cases". Make no mistake, this is the overwhelming majority of persons who are ensnared by the system. Practically every FIR has more than offence invoked if you add conspiracy to the mix. Thus, in other words, the BNSS renders 436-A practically redundant, and replaces it with a rule that such undertrials can be released if they have already served out the maximum possible term of imprisonment.   

Investigations and Inquiries

The big-ticket declamations on the floor of the House and outside were the introduction of technology in how police conduct investigations and inquiries. A close look at the BNSS reveals the hollowness of the claim. The bogey is made apparent by the extension for police custody remands and confirms that what the BNSS does is continue how investigations have been (and arguably makes them poorer by encouraging police to rely on custodial interrogations more) whilst using technological means to smooth things over at times. For instance, allowing statements to be recorded over video by police during investigations, or by recording the conduct of a search. Again, this shows that the BNSS does not change how investigations are being done. If anything, this can add to troubles later, because there will be doubts during trial as to reliability of what has been recorded as standardised practices will not easily emerge given vast disparities of funding for police stations across India. A real commitment to introducing technology would mean the introduction of provisions in the BNSS that regulate the practice of agencies when it comes to seizing our personal devices and rummaging through them on the pretext of an investigation to safeguard privacy, but of course the BNSS is silent on all that while simply expanding the scope of what material can agencies demand persons to give and include electronic devices / electronic communications [Section 94, BNSS].   

Another noteworthy addition is a set of provisions allowing for seizure of property. This is Sections 115 to 122 of the BNSS. This introduces new powers for police officers to effect seizures and even provisional attachments of property [Section 117] and allows for forfeitures of property where a court concludes that these are proceeds of crime even though the trial has not concluded, without specifying any rights for the aggrieved to challenge orders or specify what happens if the trial results in an acquittal. In this fashion, the BNSS may have impliedly repealed the Criminal Law (Amendment) Ordinance of 1944 and replaced it with the broadest civil forfeiture regime ever seen in Indian law, that is modelled on provisions tried by certain states in context of corruption crimes. Provisions which, though deeply problematic, were blessed by the Supreme Court in 2015 [Both the 1944 Ordinance and the 2015 judgment have been discussed on the Blog and elsewhere]. 

There are some crucial new provisions on registration of cases. Practices that had been in vogue for years i.e. the registration of FIRs online and the registration of 'Zero FIRs', are now given statutory force with Section 173 of the BNSS. At the same time, the BNSS dilutes and further muddles the legal position on the very concept of registering an FIR. It gives statutory backing to the police conducting preliminary inquiries for a category of cases (punishable for three years but less than seven years) and determining if a 'prima facie' case exists. If it does exist, then they proceed to investigate. But if not, then what? Logically, they do not investigate. Which then begs the question, what about all other cases — would they be lodged on the basis of some non-statutory inquiry showing existence of a prima facie case? What does that mean for the idea that the police must register FIRs? Again, it is not that the BNSS drafters were helped by the Supreme Court's take on these issues in Lalita Kumari either [critiqued on the Blog]. But what they have done is only make things worse.

There are even more innovations when it comes to registration of cases against certain persons — public servants. The final version of the BNSS does away with some provisions in the earlier draft published in August, but it retains a mighty set of new protections in Section 175 insulating public servants from police investigations being directed by magistrates on the basis of private complaints. This is reiterated when it comes to private complaints filed against public servants directly in court [Section 223] Here, the BNSS has taken a step on an issue which was pending before the Supreme Court after its M.K. Aiyappa decision which had sought to introduce such a protection was referred to a larger bench. It has gone above and beyond even what M.K. Aiyappa envisaged by giving the prospective accused a right to be heard before start of a case. In a setup where prior sanction was already required to instituting prosecutions, introducing this rule only blunts the idea of holding those in power accountable to the public even further. 

Lastly, in respect of completing investigations, a notable addition has been the introduction of some time limit within which further investigation must be completed unless extended by courts [Section 193(9)]. This is a useful addition, which at the same time makes one wonder why not introduce such a clause for completing investigations generally. The answer, as most lawyers know, is because that time limit has long since been seen in Section 167 Cr.P.C. [now 187 BNSS] which directs release on bail unless investigations conclude within 60 / 90 days, making 60 / 90 days the usual time for investigations to conclude. Again, this was, and is a gross misreading of what the law required — 60 / 90 days was the upper limit, which has become the usual course of time for investigations to conclude only because police know they must file something to avoid release on bail. Furthermore, Section 193 requires some communication to victims about the progress of investigations, which is hailed as some revolutionary step since this was absent in the old Section 173 Cr.P.C. In reality, it is a cop-out, and a failure to incorporate mandates of the Supreme Court which require copies of the Chargesheet (or Closure Report) filed by police with victims so that they can pursue their remedies. Adding the requirement to share copies at a post cognizance stage, as the BNSS does, worsens the position of victims by only entitling them to copies where chargesheets are filed but not allowing them to clearly contest the failure of police to do proper investigations by filing protest petitions. 

Trials and Appeals

A case will end in three years under the BNSS was the battle-cry. Well, so what is the response? NCRB data shows that many cases already end within three years. It would be quite something if all cases will end within three years was the claim on the floor of the House. Which, obviously, it was not. And cannot be either, because like all other parts of the BNSS, its parts on governing trials and appeals also retain the beating heart of the Cr.P.C. process while tweaking a few things here and there.

The sales-pitch changes here were time limits and introducing provisions for conducting trial even when an accused obstructs the progress of a trial by refusing to show up, where currently such cases would have to be kept in cold storage as there is nobody to condemn. Let's take both of these in turn. The only time limits are on conducting arguments on charge—for sessions triable and warrant triable cases instituted on police reports, but not warrant triable cases on complaint or summons triable cases—and on pronouncing judgment. There are no time limits on conducting evidence. This begs the question "Was argument on charge or pronouncement of judgment a stage which took so much time that placing time limits on it will solve delay?" The answer, obviously, is no. Arguments on charge in most cases do not take long. Similarly, judgments are pronounced with promptitude and where they cannot be so pronounced the Cr.P.C. allows for a court to release an accused on bail. Where it does take time for courts to hear such arguments or write judgments is where state agencies register FIRs against 40 people based across the country on some amorphous notions of them being involved in a 'larger conspiracy' and file Chargesheets with documents that run into ten thousand pages. And, make no mistake, since the BNSS does not change how such cases are investigated, arguments on charge in 'larger conspiracy' cases that the agencies love will continue to take much longer to finish than the few months that the BNSS has in mind, as will writing judgments at the end of such trials. 

In short, the marginal gains by introducing these time limits are imaginary at best. Especially if we take a look beyond cases instituted on police reports to cases instituted upon complaints. Here, fresh avenues for delay have been created by giving accused persons a right to be heard where previously none existed. Section 223 prohibits taking cognizance on any complaint without giving such an opportunity, and Section 274 provides a fresh right of hearing before framing notice / charge in summons triable cases. Of course, what seems a provision for delay to the victim will be heralded as a boon by defence lawyers to nip false cases in the bud. But, ultimately, it is unquestionable that such cases will take longer under the BNSS. 

Studies conducted by the government and judiciary itself have shown that the real stage which takes time in a case is recording evidence. Time limits or schedules to finish this process are not introduced. What the BNSS does is introduce a peculiar provision [Section 336] which allows for recording evidence of 'successors in office' when the original government officer who prepared a report is unavailable. This even includes police officers. The provision has been retained in the final version despite criticism by the Select Committee; and, naturally, the ceremonial debate on the floor of the house did not explain why this is the case. It pains me to say this, but in a bid to rush reform, the government appears to have sponsored a move that would encourage acquittals by asking that prosecution leads incompetent evidence of witnesses who are not the authors of documents to sustain its charge. 

Which brings us to the second major reform under Section 356 of the BNSS. Conducting trials against a person who has absconded is, thankfully, not a bludgeon. It appears to create a procedure that needs some application of mind before a court proceeds on that path, and allows for the decision to be revisited once an accused does show up either voluntarily or after being apprehended. I say 'appear' because it is unclear exactly how the procedure will operate. What is meant by giving the accused an opportunity to 'examine' evidence? What impact will conducting trials on mobile phones have on the reliability of what has been recorded? What will be a constitutionally compliant reading of sub-clause (8) which allows extending the clause to any absconder by notification? A well-drafted code would not leave all this up for grabs. 

Execution of Sentences

Despite the Select Committee recommending some more clarity on community service as punishment, no such clarity came in the final version of the BNS or BNSS that have now been passed except for helpfully telling us that community service is punishment that benefits the community [Section 23, BNSS]. So much for a new dawn.

There are two other important developments in respect of the execution of sentences which I would want to mention here. First, we have legislative sanction for imposing solitary confinement [Sections 11, 12, BNS], allowing it to be granted in any case where rigorous imprisonment is imposed for a sentence of six months or more in prison. In other words, practically any convict may be subject to solitary confinement. One wonders if this is in consonance with Article 21 and its reformative ideals. 

Second, we have a procedure outlined for filing mercy petitions [Section 472 Cr.P.C.]. In theory it is not a bad idea as it now allows every convict to know that such a right exists and how it is to be availed. The devil, as always, lies in the details. There are unnecessary restrictions on who may file such a plea on behalf of the convict. More potentially problematic is the idea that there is a time limit of thirty days on filing such plea based on when the convict is informed by jail authorities of the rejection / dismissal of her petition by court. That the statute does not clarify that the intimation must be clearly recorded in writing and must be communicated separately to family members / counsel is startling, considering what is at stake and knowing that there will be precious time lost in the convict informing the persons on the outside who will study the order and frame the plea. Or, perhaps it is not so startling, given that the statute allows for practically all convicts to be subjected to solitary confinement for up to a week if not more.

Summing Up: Little Reform Amidst much Posturing?

Many commentators found it difficult to describe a system comprising of the existing trifecta of the IPC, Cr.P.C., and IEA as a system of 'criminal justice'. It is quite unlikely that they will find it any easier to do so with the BNS, BNSS and BSA triumvirate that will soon be upon us. There is little reform in these pages amidst the posturing, if we stick to the classical notion of reform as a measure which seeks to improve the lot of the individual. Rather, in sync with the communitarian ideologies in vogue today, the emphasis of these laws is to strengthen the already powerful state by enhancing police powers while reducing the scope for liberty. 

Such an approach is expected from a government which places duties before rights, demands that citizens do not question but obey, and treats all those who do question as potential threats to the stability of society and thus wants as much power as possible to adequately deal with the threats to restore stability. To use a now infamous analogy from another era in India's past here, these are laws to ensure that the trains run on time.    

Worryingly enough, once the dust settles, I wonder if the very fact that the BNS, BNSS, and BSA do not attempt any meaningful reform will ensure that they manage to embed themselves within the system without evoking fervent protests from various quarters. The baseline for acceptable incursions by the state into a citizen's life and personal liberty having been lowered even further will probably stop mattering after a while, since it was not very high to start with.