Tuesday, July 16, 2024

BNSS Repeal and Savings - Initial Views

Section 531 of the Bharatiya Nagarik Suraksha Sanhita 2023 [BNSS] states that:

531. Repeal and savings.—

(1) The Code of Criminal Procedure, 1973 (2 of 1974) is hereby repealed.

(2) Notwithstanding such repeal—

(a) if, immediately before the date on which this Sanhita comes into force, there is any appeal, application, trial, inquiry or investigation pending, then, such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), as in force immediately before such commencement (hereinafter referred to as the said Code), as if this Sanhita had not come into force;

(b) all notifications published, proclamations issued, powers conferred, forms provided by rules, local jurisdictions defined, sentences passed and orders, rules and appointments, not being appointments as Special Magistrates, made under the said Code and which are in force immediately before the commencement of this Sanhita, shall be deemed, respectively, to have been published, issued, conferred, specified, defined, passed or made under the corresponding provisions of this Sanhita;

(c) any sanction accorded or consent given under the said Code in pursuance of which no proceeding was commenced under that Code, shall be deemed to have been accorded or given under the corresponding provisions of this Sanhita and proceedings may be commenced under this Sanhita in pursuance of such sanction or consent.

(3) Where the period specified for an application or other proceeding under the said Code had expired on or before the commencement of this Sanhita, nothing in this Sanhita shall be construed as enabling any such application to be made or proceeding to be commenced under this Sanhita by reason only of the fact that a longer period therefor is specified by this Sanhita or provisions are made in this Sanhita for the extension of time.

Note that the date on which the Act came into force was 01.07.2024. With that in mind, the following points emerge:
  • The 1973 Criminal Procedure Code stood repealed with effect from 01.07.2024.
  • In case of every pending "appeal, application, trial, inquiry or investigation" as on that date i.e. 01.07.2024, such appeal shall be disposed of, application continued, trial held, and inquiry or investigation made, in accordance with the 1973 Code.
  • Practically, action taken under the old Code in the form of issuing proclamations or passing sentences or orders, shall be deemed to be passed under the provisions of the BNSS.
  • Sanctions granted under the old Code shall be deemed to be granted under BNSS for proceedings to commence under BNSS
  • Nothing in the BNSS will extend limitation periods, where such periods had been prescribed under the 1973 Code and had expired prior to the enforcement of the BNSS.    

The decolonisation project of the BNSS is of such ferocity that it has adopted the identically peculiar and confounding language of the repeal and savings clause of Section 484 of the repealed 1973 Code. It comes as no surprise therefore that a clause which caused a fair degree of confusion in the decades after April 1974 has begun to spread the same mischief in 2024. 

This post tries to do three things. First, as always, it gives a little bit of context, and turns to the repeal and savings process under the 1973 Code. It is difficult to predict whether we are in for a lesser degree of trouble thanks to the scarcity of change brought about by the BNSS as compared to the changes which the 1973 Code brought about in its day. Second, it culls out some very broad principles to help navigate the issue of which is the regime to apply. Third, it tries to unravel that sense of certainty about setting rules of thumb by looking at the kinds of issues that may crop up in deciding which regime to apply. 

Repeal and Savings in the Aftermath of the 1973 Code.
The 1973 Code came into effect from 01.04.1974; perhaps somebody's idea of an April Fool's play on the entire legal fraternity which would grapple with issues about which legal regime governs criminal cases for the better part of a decade thereafter. 

Section 484 of the 1973 Code gave us the formula which Section 531 of the BNSS has adopted, whereby in pending appeals / applications / trials / inquiries / investigations the old law prevails. Such a clause is, in fact, an exception to ordinary rules of statutory interpretation whereby procedural laws are always given retrospective effect. No person has any vested right in the procedure by which the law works, so the idea goes. Which is why Section 6 of the General Clauses Act 1897 primarily concerned itself with statutes that touched matters of substantive law and only had fleeting things to say about procedural or adjectival laws.

So far so good. What was the deviation from general law? Did Section 484 safeguard applicability of the old 1898 Code in its entirety to all cases that may have been pending as on 01.04.1974? It did not. Instead, what Parliament attempted was to divide a criminal proceeding into various constituents or stages: appeals / applications / trials / inquiries / investigations. Where such a stage was pending, the old law continued to govern its disposal. When that stage ended, then the next stage would be governed by the new law. So, for instance. An FIR was lodged on 01.03.1974 and investigation was pending on 01.04.1974. Section 484 required that investigation continues to be governed by the old 1898 Code, but once the police report is filed, then anything subsequent would be governed by the new Code. I will come to this again in the next section.

Why did Section 484 cause so much litigation? A part of it is down to language, as the third section in this post will discuss, but a big reason was the sizeable changes brought about to the criminal process. There were notable changes at all stages: default bail in investigations, truncating committal proceedings at trial, significantly curbing scope of revisions. Then there was the administrative shake-up with a stricter degree of separation between executive and judiciary, and modification of the magistracy as well. All this meant that litigants now had a lot to gain or lose on the basis of which procedural regime governed their fates.

I would argue that there are comparably fewer changes brought about by the BNSS in terms of quantity. There is very little development on separating the executive and judiciary further. No real changes have been made to the appellate process. Trials look the same barring non-enforceable time limits. This makes for good reading, and a hope that litigation will be smoother to adjust to the change. But, at the same time, it is arguable (and this is the view I subscribe to) that the BNSS brings about some qualitatively massive shifts to the 1973 regime. The digitisation of investigations, the attachment and confiscation of properties suspected to be derived from crime, introduction of new opportunities for accused persons to be heard, trials in absentia, subtle but significant shifts on recording evidence, a potentially devastating annulment of one species of default bail, and the straitjacketing of the mercy plea process — all of these are hugely significant changes in areas that may be bitterly contested in courts for years to come. 

One would hope that the judiciary sets aside the time that these cases will require to help usher in clarity on the BNSS as fast as possible.   
 
Thumb Rules to Navigate Choppy Waters
Going by the interpretation of Section 484 by various High Courts and the Supreme Court as well as the reports issued by committees at the time, it is possible to try and arrive at some broad thumb rules to help navigate choppy waters at least for the time being till courts interpret Section 531 of the BNSS. 

With a great degree of trepidation, I would argue that ordinarily:

  • For FIRs lodged after 01.07.2024, the BNSS applies.
  • Where an FIR was lodged before 01.07.2024, the 1973 code will apply till investigation ends. After that, the BNSS applies.
  • Pending trials will be governed by the 1973 Code. Post their conclusion, the BNSS will apply.
  • Pending appeals / revision petitions etc. as on 01.07.2024 would be governed by the 1973 Code.
  • Proceeding before appellate courts in pending trials — say, revision / quashing petitions etc. — will operate under BNSS and not the 1973 Code.
  • Where a trial had concluded prior to 01.07.2024, an appeal would have to be filed under the BNSS and not the 1973 Code.
  • Persons sentenced by judgments dated prior to 01.07.2024 would be deemed to be sentenced under the BNSS, and their subsequent remission / mercy etc. proceedings would be governed by BNSS.  

Subject to the exception that where 'vested rights' are at play, the change of law cannot be to a person's detriment. 

So, to reiterate, Section 531 BNSS does not mean that everything in the life of a case registered prior to 01.07.2024 shall continue to be governed by the 1973 Code. Judgments which conclude otherwise and do so without engaging with the law under Section 484 of the 1973 Code are arguably incorrect as well as per incuriam.

The Huge Asterisk Following the Thumb Rules
Looking at the litigation surrounding Section 484 of the 1973 Code, the one clear lesson which emerges is that splitting up the criminal process into five constituents — appeals / applications / trials / inquiries / investigations — was a method of remarkable inexactitude to execute the task of shifting litigation from the old regime to the new. 

This inexactitude issue operates at two levels. First, most of these words are either not defined anywhere or when defined they have circular meanings which are not usable for this specific task of identifying a stage in the life of a case. Which means that courts are left with the task of conferring meaning upon these terms and, naturally, this invites differences of opinion. One court may think trials are everything in the life of a case from the moment cognizance is taken. Another court may disagree and say that trials only start when the accused is brought to court. Yet another may disagree with both of them and conclude that only after a charge is framed that trial begins. So how do we consistently decide when the old law is to be consigned to oblivion and the new law ushered in during the life of a litigation?

The second level at which the inexactitude issue operates is linked to the first, in that there are a lot many stages besides these five which are relevant to the criminal process. As a result courts are left with the task of shoehorning these other parts of the process into one of the five identified categories. So, are revision petitions appeals or are they applications? What about private complaints where accused have not yet been summoned — are they pending applications or inquiries? What about protest petitions? What about all of the post-trial procedures? And so on. 

There is then the issue of vested rights which I identified in the previous section. The ordinary rule that the procedural law retrospectively applies is qualified by this exception that it cannot disturb vested rights. It was an issue which led to conflicts on how to treat Section 484 when it came to appeals in trials that had been going on under the old code — one view was to construe the right to file appeals as vested rights and thus appeals would continue under the old law, another view was that if there was no deprivation of the right itself then the procedure of the new law would follow. 

To decide whether a procedural rule had cast a vested right or not is, thus, a point of judicial interpretation since nothing in Section 531 of the BNSS explicitly says that "XYZ clause shall continue notwithstanding any change" in some scenarios. One clear category which comes to mind in this conversation about vested rights is Section 436A of the 1973 Code which defined one species of default bail where persons who had been incarcerated for more than half their maximum sentence pending trial were entitled to bail. Section 436A of the earlier code has been dramatically modified under Section 479 BNSS. So did a person who is arrested prior to 01.07.2024 have a vested right insofar as Section 436A was concerned, such that the new clause cannot deprive them of that right even though trial was very far on the horizon?


Appendix
These are only some issues. Many others are likely to emerge as the new codes are implemented in earnest and the three sets of repeals and savings clauses across the new codes are read together. As a result, the asterisk at the end of the thumb rules is probably going to become even bigger in size.

As a supplement, this post ends with a small, in-exhaustive list, of judgments rendered under Section 484 of the 1973 Code which readers may find helpful and hopefully courts can turn to this clause sooner rather than later:

Supreme Court:
High Courts:
 
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