The Bharatiya Nagarik Suraksha Sanhita (BNSS), launched in 2023, replaces the longstanding Criminal Procedure Code (CrPC) enacted in 1973, signifying a significant transformation within India's criminal justice system. This new law has sparked comprehensive scrutiny and assessment from academics, legal practitioners, and specialists in the area.

They have examined the BNSS from multiple perspectives, particularly focusing on its capacity to modernize the legal processes within the country. However, this transformation has also raised important questions and concerns regarding its implementation and interpretation in various judicial contexts. As India navigates this change, the ongoing discourse surrounding the BNSS will be crucial in shaping its effectiveness and alignment with contemporary legal standards and societal needs.

Key Flaws in the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023:

The 2023 Bharatiya Nagarik Suraksha Sanhita (BNSS) has been enacted to supplant the 1973 Criminal Procedure Code (CrPC), marking a significant transformation in the Indian criminal justice framework. Legal experts and scholars have scrutinized this legislative development from multiple perspectives, underscoring its promise to modernize judicial procedures while also raising apprehensions about its execution and interpretation. This reform aims to enhance the efficiency of the justice system in India, necessitating a careful examination of its implications.

However, the Bharatiya Nagarik Suraksha Sanhita, 2023 has some major flaws which are noted below:

1. Section 2 (f) of the Bharatiya Nyaya Sanhita (BNS), 2023 introduces a potentially groundbreaking provision by empowering courts to mandate unpaid community service as a form of punishment. This is viewed by many as a progressive step, representing a shift away from solely punitive measures towards restorative justice. However, the current absence of concrete guidelines regarding the practical application of this provision within the BNS (Bharatiya Nagarik Suraksha Sanhita) is a significant concern. Specifically, the legislation fails to specify the duration of community service assignments, nor does it clearly delineate which offences would be suitable for this type of penalty.
   
   This lack of clarity raises serious concerns about the possibility of inconsistent sentencing across different jurisdictions and cases. Without well-defined standards for the scope and implementation of community service, this otherwise beneficial provision risks becoming a source of disparate and potentially unfair judgments, ultimately undermining the principles of fairness and equality within the legal system. Therefore, addressing this critical gap through the establishment of precise guidelines is paramount to ensuring equitable punishment and the effective implementation of this positive legal development.
    
2. Section 40 (1) of the BNSS requires private individuals making arrests to hand over detainees to police within six hours. However, the law doesn't explain what to do if this is impossible due to unforeseen circumstances. This lack of guidance creates problems, particularly in remote areas, and could lead to misuse of arrest powers and inconsistent enforcement.
    
3. The shift from "shall re-arrest" to "shall take him into custody" in Section 40(2) of the BNSS is significant. This wording change impacts how private arrests are handled, potentially complicating individual rights. This change creates interpretive challenges for courts and law enforcement, highlighting the tension between individual liberties and government power.
    
4. Contrary to the Supreme Court's ruling in Prem Shankar Shukla Case, BNSS Section 43(3) permits handcuffing individuals with past custody records or those accused of serious crimes like rape or organized crime etc. This departure from established guidelines raises concerns about potential judicial violations.
    
5. A significant challenge arises during searches and seizures, particularly those videographed in compliance with Section 105 of the BNSS: locating witnesses for seizure lists. This difficulty is exacerbated by the lack of established protocols to address refusals to witness filmed searches, hindering the proper process and reducing accountability.
    
6. The need to comply with Section 105 of the BNSS regarding audio-video recording of searches and seizures often forces police to use personal phones due to a lack of proper cameras. However, relying on these devices presents challenges including short battery life, limited storage, and unreliable files, which ultimately undermines the integrity of evidence.
    
7. Section 105 of the BNSS provides a basis to challenge the validity of evidence in spontaneous recovery scenarios, where video documentation is often absent in situations like surprise checks and raids. The practicalities of daily police work make consistent audio-visual recording a logistical impossibility, thus creating a fertile ground for legal disputes and contentions regarding the circumstances surrounding the recovery of evidence.
    
8. The three-day signature requirement for electronic FIRs under Section 173(1) of the BNSS is problematic in practice. The law's silence on actions to be taken when this deadline isn't met creates potential for significant delays. Furthermore, the lack of explicit permission for regional language submissions raises concerns about accessibility. Despite the positive step towards digital FIRs, these procedural uncertainties may limit its intended benefits.
    
9. The BNSS's Section 173(3) allows a 14-day preliminary inquiry by police (with Dy. SP approval) for 3-7-year sentence offences before filing an FIR, contradicting the Supreme Court's Lalita Kumari ruling, which requires immediate FIR registration for cognizable offences. Critics fear this grants excessive police discretion, potentially infringing citizen rights and leading to inaction and corruption by allowing pre-FIR summons of suspects and non-registration of cognizable cases. This provision applies to about 98 offences under the Bharatiya Nyaya Sanhita (BNS), 2023.
    
10. Section 174(1)(ii) of the BNSS requires Magistrates to receive biweekly reports on non-cognizable cases, but fails to specify the report's content. This lack of clarity regarding whether the report should draw from the General Diary, Non-Cognizable Register, or be a separate document, hinders proper compliance.
     
11. The BNSS mandates that police send a forensic expert to 7+ year offence scenes immediately (Section 176(3)). This must be implemented within 5 years. States lacking resources will seek help from neighbouring states. However, current forensic labs are overloaded and underfunded, raising concerns about their capacity to handle increased forensic/digital evidence analysis, especially without additional funding for upgrades or new labs.
     
12. According to Section 179(1) of the BNSS, a police officer investigating a case can issue a written summons for a witness to appear, provided that witness resides within the officer's jurisdiction or a neighboring police station's jurisdiction and is believed to have relevant information. This provision raises questions about the limits of this power, specifically whether police can compel attendance beyond their immediate area and how those witnesses are examined. These issues highlight the legal parameters of police authority when dealing with witnesses from other locations.
     
13. According to BNSS Section 179(2), the State Government can reimburse witnesses for travel expenses requested by police. However, the lack of clear guidelines on "reasonable expenses" and reimbursement procedures has prevented any state from implementing these rules, hindering the establishment of a structured system.
     
14. Section 180 of the BNSS and related laws are unclear on whether police can use audio-video technology to record witness statements remotely or from foreign countries. This lack of clarity raises questions about the legality and practicality of using such methods for investigations.
     
15. The BNSS Section 187(2) allows police to detain a suspect for up to 15 days within a 60 or 90-day period, unlike the CrPC's Section 167(2) which limited custody requests to the first 15 days. Experts worry that police could repeatedly seek remand even after bail is granted, throughout that 60- or 90-day period.
     
16. Section 356(1) of the BNSS allows trials without the accused present (in absentia) if they are serious offenders under Section 84(4) BNSS, fled during trial, and weren't quickly caught, etc. This forfeits their right to be present, risking unfair convictions and potential manipulation, ultimately threatening a fair trial.
     
17. The "Witness Protection Scheme" (Section 398, BNSS) is ineffective due to the lack of clear timelines and implementation protocols. This has resulted in states failing to proactively develop the scheme, with no recorded instances of successful implementation. Critics argue this lack of guidance has led to state negligence, leaving witnesses vulnerable to intimidation and jeopardizing the justice system's integrity. Without a robust framework, important witnesses face risks that undermine the judicial process.
     
18. Section 473 of the BNSS enables death row inmates, or their legal heirs/relatives, to file mercy petitions with the President or Governor per the Constitution. This process has been narrowed, restricting who can apply, and this impacts many poorly educated inmates who struggle to access this right. While courts allow reapplication for clemency based on changing circumstances, the new law limits accessibility, regardless of potential case changes.
     
19. Section 482 of the BNSS, concerning anticipatory bail, has sparked debate due to its removal of specific criteria used in the CrPC, like crime severity and prior convictions. This gives courts more discretion, potentially leading to inconsistent bail decisions. Experts are divided: some see this flexibility as necessary, while others fear it could result in unfair applications of justice.
     
20. Proviso 3 of Subsection 483 (1) of the BNSS outlines the authority to revoke bail for individuals who have been released on bail. However, it fails to detail the specific reasons that the High Court or Court of Session may invoke to cancel an accused person's bail. Similarly, Subsection 480 (5) of the BNSS permits any court that has granted bail under Subsection (1) or Subsection (2) to rescind that bail, when necessary, yet it does not provide any grounds for such cancellation in these subsections or in any other part of the BNSS.
     
21. The BNSS missed opportunities to use alternative dispute resolution (ADR) methods, like negotiation, mediation, and arbitration. These methods, common in countries like the US and UK, could have saved resources and led to faster, less costly resolutions. For example, they could have used negotiation for contract disputes, mediation for family issues, arbitration for labour conflicts, settlement meetings for car accident claims, collaborative law for divorces, restorative justice for juvenile crimes, and mini-trials for corporate contract disagreements.
     
22. The significant backlogs plaguing forensic laboratories are impeding their ability to provide prompt expert analysis reports in POCSO and rape cases. This delay jeopardizes the timely investigation of these sensitive cases and makes the 60-day charge sheet deadline nearly impossible to meet, potentially delaying justice for victims.
     
23. The BNSS Section 107 allows authorities to seize property suspected to be from criminal activity, potentially harming innocent individuals caught in legal issues. This broad power lacks the safeguards found in the Money Laundering Prevention Act, increasing the risk of unfair asset confiscation. This imbalance between law enforcement powers and individual rights needs careful consideration.
     
24. While Section 436A of the Code of Criminal Procedure typically allows for bail after an individual has served half of their potential sentence, this avenue is unfortunately closed off under Section 479(2) of the Bharatiya Nyaya Sanhita (BNSS) for individuals facing multiple charges. This discrepancy creates a significant problem, as it can contribute to overcrowding in prisons and raises serious concerns regarding the equitable application of justice within the legal system.

 
Conclusion:
Bharatiya Nagarik Suraksha Sanhita (BNSS) of 2023 brings significant changes to India's criminal justice system, yet it encounters multiple challenges in implementation. Unclear private arrest procedures and inconsistent custody terminology, along with deficiencies in the electronic FIR process, result in uncertainties for law enforcement agencies. Furthermore, the absence of explicit guidelines for community service as a punishment and insufficient forensic resources hinder operational effectiveness.

These flaws could jeopardize the BNSS's ability to modernize the legal framework. To guarantee the system's efficiency and fairness, it is essential to tackle these issues by providing clearer guidelines, enhancing forensic capabilities, and ensuring better procedural clarity.

Written By: Md.Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: imranwahab216@gmail.com, Ph no: 9836576565