A petition was moved in the Supreme Court on June 27 seeking a stay on the implementation and operation of three new criminal laws, Bharatiya Nyaya Sanhita 2023, Bharatiya Nagrik Suraksha Sanhita 2023 and Bharatiya Sakshya Adhiniyam 2023, scheduled to come into effect from July 1.
The writ petition filed by Anjale Patel and Chhaya Mishra, represented by advocates Sanjeev Malhotra and Kunwar Sidharth, has urged the apex court to constitute an expert committee immediately to assess viability of the three new laws which overhauls the criminal procedure and justice system and replaces the Indian Penal Code (IPC), the Code Of Criminal Procedure (CrPC) and the Indian Evidence Act.
The plea highlighted that the three laws were passed without detailed debate or effective discussion in the Parliament as a large number of Members from the Opposition were suspended.
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“The passing of the Bills in the Parliament was irregular as many Members of Parliament were suspended. There was very little people’s participation in the passage of the Bills,” the petition submitted.
The petition, extensively referred to reports in The Hindu, about the suspension of 146 Opposition MPs from the Parliament. It quoted representations from the Tamil Nadu and West Bengal Chief Ministers to the Home Minister, objecting to the new laws.
It contended that the new laws were ambiguous, anti-bail, provided extensive powers to the police and even “inhumane” at some points like the revival of handcuffs during arrest.
Bharatiya Nyaya Sanhita (BNS), which replaces the IPC, does not define terms like ‘gang’, ‘mobile organised crime groups’, etc.
The petition pointed out that BNS protects persons with mental illness from prosecution. However, the definition of mental illness excludes mental retardation. This would mean persons with mental retardation are liable to be prosecuted. Again, a new offence replaces sedition for acts which endanger the sovereignty, unity and integrity of India. Terrorism is also an offence under the BNS.
The Bharatiya Nagarik Suraksha (Second) Sanhita, 2023, which replaces CrPC, allows 15 days of police custody, either to be taken all at once or in a staggered manner.
“BNSS further empowers the police to seek custody in tranches for an extended period which may be at any time during the initial 40 or 60 days… A serious concern with this provision is that the investigating agency will be able to negate the bail granted to an accused by seeking custody in tranches. The prolongation of the period during which police custody can be sought also creates a problem as there is no criteria or guideline for exercise of such a power,” the petition argued.
The petition also pointed out that BNSS has left Section 144 CrPC (Executive Magistrate’s power to pass prohibitory orders) intact, thus failing to depart from the colonial legacy.
“Bharatiya Nagrik Suraksha (Second) Sanhita Bill, 2023 falls far short of the proclaimed ‘decolonisation’ as it continues to give power to the police to suppress the rights of citizens and make a ‘Police State’ just like the colonial period,” it pointed out.
The Bharatiya Sakshya Adhiniyam, 2023, which takes over from the Evidence Act, has classified electronic records as primary evidence. The Evidence Act had categorised them as secondary evidence. It has further expanded electronic evidence to include information stored in semiconductor memory or any communication devices (smartphones, laptops).
While the Bharatiya Sakshya Adhiniyam, 2023 provides for the admissibility of such records, there are no safeguards provided to ensure that they are not tampered with during the search and seizure or investigation process,” the petition said. EOM
