The new laws infringe upon fundamental rights and undermine the constitutional guarantees that have long been the cornerstone of our criminal justice system.
In this column, I will expose the anti-people elements of these laws and highlight the undemocratic process of their enactment. Through thorough research, I will delve into the specifics of the Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA), which has replaced the Indian Penal Code, Code of Criminal Procedure, and Indian Evidence Act, respectively.

Prolonged Or Extended Police Custody BNSS s.187(3)- CrPC s.167(2):

By extending police custody from the current limit of 15 days to an extended period of 60 or 90 days, the new provision significantly raises the likelihood of custodial torture. This extended detention period also represents a serious violation of the detainee's right to liberty, as it allows the state to hold individuals for an extended time without formal charges or trial, thereby undermining fundamental human rights and freedoms.

Violation Of The Right To Privacy S. 37 BNSS:

The requirement for the "prominent display" of the arrestee's details disregards the constitutional right to privacy. This mandate neglects international conventions and overlooks well-established principles concerning the rights of those arrested. By publicly sharing personal information, it undermines privacy protections and fails to align with global standards on the treatment of detainees.

Expanding Surveillance: The Privacy Implications Of BNSS S. 349 - CrPC S. 31 IA:

Section 349 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) extends the authority of a Magistrate to include the collection of fingerprint and voice samples from any individual, in addition to previously established methods.

This expansion of power raises significant concerns about the infringement on the right to privacy and individual autonomy. I beg to argue that this provision undermines personal freedoms, allowing for intrusive measures without adequate safeguards, thereby posing a threat to fundamental civil liberties.

Ignores/Disregards Foundational Principles Of Criminal Law BNSS S. 262 - Crpc 239:

The Bharatiya Nagarik Suraksha Sanhita (BNSS), through provisions like Section 107, appears to undermine the bedrock legal principle of 'innocent until proven guilty'. This particular section empowers the Magistrate to authorize the distribution of property labeled as "proceeds of crime" even during the investigation phase, based solely on a police request. By doing so, the BNSS presumes criminality before any formal guilt has been established, raising significant concerns about due process and the protection of individual rights.

Weakens/Dilutes Due-Process Requirements BNSS S. 172:

Under Chapter XII, a police officer is empowered to "detain or remove any person resisting, refusing, ignoring, or disregarding to conform to any direction." This clause effectively grants law enforcement the authority to carry out arbitrary detentions and impose restrictions on personal liberty, without sufficient safeguards or oversight mechanisms in place. This raises significant concerns about potential abuses of power and the erosion of individual freedoms.

Eroding Safeguards In Authorizing Armed Force Deployment - BNSS S. 149(1) - Crpc 130(1):

The new provision significantly lowers the bar for authorizing the use of armed forces to disperse assemblies. Under the previous Code of Criminal Procedure (CrPC), only an "Executive Magistrate of the highest rank" had the authority to give such orders.

Now, the requirement is merely for a "district magistrate or any other executive magistrate authorized by him who is present" to permit this action. This dilution of the hierarchical safeguard opens the door to potential misuse and arbitrary exercise of power, posing a serious threat to constitutionally guaranteed rights. By relaxing these stringent requirements, the risk of unchecked and unaccountable use of force against assemblies is greatly increased. This shift poses a threat to constitutionally guaranteed rights, undermining the safeguards intended to protect civil liberties.

Bail Denied:

S. 481(2) BNSS states that: If an individual faces multiple charges or cases simultaneously, the court is prohibited from granting bail even if the individual has already served half or one-third of the maximum sentence for the alleged crimes. This provision contravenes fundamental legal principles, including the presumption of innocence and the right to bail.
Furthermore, Section 482 BNSS significantly alters the concept of anticipatory bail as previously outlined in Section 438 of the Criminal Procedure Code (CrPC). The new section has removed the detailed explanations and guidelines that were once part of the anticipatory bail provision. This omission renders the new law arbitrary, leaving it open to the broad and potentially inconsistent discretion of judges.

Permits Trial In Absentia:

Section 356 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) grants judges the discretionary authority to continue legal proceedings in the absence of the accused, provided the judge is convinced that the personal attendance of the accused is not essential for the interests of justice. This provision poses a significant threat to the fundamental rights of the accused, undermining the core principles of a fair trial and an impartial hearing.

By allowing the court to bypass the accused's presence, the section risks compromising the transparency and equity of the judicial process, potentially leading to miscarriages of justice. This encroachment on the accused's rights raises serious concerns about the adherence to due process and the preservation of judicial integrity.

Sedition Altered, More Draconian:

The Bharatiya Nyaya Sanhita (BNS) Section 150, though it sidesteps the explicit mention of "sedition," poses a significant threat to the right to liberty and freedom of expression due to its extraordinary vagueness. The absence of clear and precise legal terminology in this section inherently undermines these fundamental rights.

In a democratic society, laws must be defined with precision and clarity to ensure that they do not overreach or lead to arbitrary enforcement, which can stifle legitimate dissent and debate. The lack of specific language in BNS Section 150 creates an environment where subjective interpretation can easily infringe on individual freedoms, thereby constituting a violation of the right to liberty itself.

Neglects Legal Precedents:

The new laws represent a stark departure from established legal norms, regressing our efforts in shaping a genuinely equitable justice system. Take, for example, Section 173(3) of BNSS, which replaces the FIR provision under Section 154 of the CrPC. This change blatantly disregards the Supreme Court's directive in Lalita Kumari v. State of Uttar Pradesh (2014), which mandated FIR registration by the Station House Officer (SHO).

These criminal codes not only fail to justify their purported mission of decolonization but also impose draconian measures on the public. They normalize stringent terror laws, grant excessive powers to the police arbitrarily, disregard legal precedents, and ignore existing institutional shortcomings. This approach undermines the very foundations of a fair and accountable legal framework.

Conclusion:
In conclusion, the introduction of the Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA) represents a perilous departure from our established constitutional protections and legal standards. These laws, by infringing upon fundamental rights and sidestepping due process, jeopardize the integrity of our justice system.

They empower authorities with unchecked discretion, eroding safeguards against arbitrary detention, invasion of privacy, and denial of fair trial. Such regressive measures not only undermine individual liberties but also threaten the democratic fabric upon which our legal system stands. As we navigate these turbulent legal waters, it is imperative to uphold our constitutional guarantees and resist the erosion of justice in the name of misguided reform.

Written By: Advocate Tarun Choudhury (Supreme Court of India).