Editorial of the Day: An overhaul, the criminal law Bills, and the big picture (The Hindu)

Context: The article is discussing three bills introduced by the central government in India in August 2023 namely the Bharatiya Nyaya Sanhita (BNS), 2023; the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023; and the Bharatiya Sakshya (BS) Bill, 2023 that intended to replace the existing Indian Penal Code, 1860; the Code of Criminal Procedure (CrPC), 1973; and the Indian Evidence Act, 1872, respectively. The article examines how these proposed changes in the legal framework will impact law enforcement agencies in India. It mentions that while some of the proposed changes are seen as progressive, there is also a larger issue raised in the article about the need for comprehensive police reform. Therefore, the article is not just focused on the specific legal amendments but also on broader issues related to the functioning and reform of law enforcement agencies in the country.

Decoding the Editorial

• Registration of Cognizable Offences:
  • The BNSS includes a provision that allows the registration of a cognizable offence in any police station, regardless of where the offence was committed.
  • This practice, known as recording a First Information Report (FIR) at Zero, has been informally used for some time.
  • The inclusion of this provision in the BNSS makes it a formal right for complainants to have their cases registered without unnecessary delays or complications.
• Preliminary Inquiry:
  • The BNSS permits the conduct of a preliminary inquiry, even for offences punishable with more than three but less than seven years of imprisonment.
  • This is different from the Supreme Court’s Lalita Kumari judgement, which mandated the registration of an FIR for cognizable offences.
• Arrest Provisions:
  • The BNSS retains all the provisions regarding arrest from the existing Code of Criminal Procedure (CrPC).
  • However, it would have been better to include the Supreme Court’s Arnesh Kumar judgement, which mandates that the police officer must justify the arrest with valid reasons, and the judicial magistrate must record satisfaction as part of the BNSS.
• Arrest for Certain Offences:
• • The BNSS introduces a clause stating that for offences punishable with less than three years of imprisonment, an arrest can only be made with prior permission from the Deputy Superintendent of Police if the accused person is infirm or aged over 60.
  • This provision aims to provide relief to these categories of persons, but its effectiveness depends on the judicious use of this clause by the Deputy Superintendent of Police.
• Handcuffing:
  • The BNSS allows for handcuffing in specific cases, such as those involving serious offenses like terrorism, murder, rape, acid attacks, or offenses against the state.
  • However, the enabling section still requires that the person arrested should not be subjected to more restraint than necessary to prevent escape.
  • This means that the police must justify handcuffing based on the possibility of escape or physical harm.
  • The Supreme Court’s guidelines on handcuffing remain applicable.

Crime Scene Investigation:

The article discusses several aspects related to crime scene investigation, forensic evidence collection, and the legal provisions in the new Sanhita (law):

• Mandatory Crime Scene Visit and Forensic Evidence:
  • The new Sanhita mandates a visit by a forensic expert to the crime scene and the collection of forensic evidence for offences that carry a punishment of more than seven years of imprisonment.
  • However, there is a recognition that many states may not have the necessary forensic infrastructure at the field level.
  • To address this issue, state governments are given up to five years to implement this provision.
• Use of Audio-Video Means in Investigations:
  • The Sanhita encourages the use of audio-video means to record various investigative steps, including searches.
  • While smartphones are recommended for this purpose, there are limitations to their use.
  • The Supreme Court had directed the Ministry of Home Affairs and states to develop facilities for videography and photography of crime scenes at the police station level.
• Ban on Two-Finger Test in Rape Cases:
  • Despite a ban on the two-finger test in cases of rape and the Supreme Court’s declaration that this test is unscientific and violates the dignity and privacy of rape victims, the new Sanhita does not explicitly include this ban.
  • The central government had previously issued instructions and guidelines against the test, and the article suggests that this was an opportunity for the government to legally ensure compliance with its own instructions.
• Disclosure of Identity of Rape Victims:
• • The article mentions a provision related to disclosing the identity of a rape victim.
  • It suggests that the provision allowing the victim’s next of kin to authorise the disclosure of identity in cases involving minors might be unnecessary.
  • This is because there is already a separate law called the Protection of Children from Sexual Offences Act that exclusively deals with this issue and does not have a similar provision.
  • The Supreme Court had also expressed reservations about designating the next of kin as the appropriate party to grant such authority.

Duration of Police Custody:

• Duration of Police Custody:
  • The Sanhita proposes an increase in the maximum duration of police custody beyond the 15 days provided in the Code of Criminal Procedure (CrPC).
  • This extension is allowed to permit the police to interrogate an accused person again if additional evidence is discovered during an investigation.
  • However, two important conditions apply: (a) there must be adequate grounds for this extension, and (b) the extension beyond 15 days can only occur after the initial 40 days (for a total detention of 60 days) or 60 days (for a total detention of 90 days), depending on the severity of the offence.
  • The accused person is still eligible to be released on default bail after the maximum detention period, and the discretion to permit additional police custody rests with the judiciary.
• Scope of Judicial Inquiry into Suspicious Deaths:
  • The Sanhita proposes expanding the scope of judicial inquiry into suspicious deaths, including dowry deaths.
  •  However, it relaxes the mandatory requirement for recording the statement of a woman, a male under the age of 15, or above 60 (65 years in the CrPC) at their place of residence based on their willingness.
  • The concern is that this relaxation might be misused by the police, especially in cases involving crimes against women and children.
• Videography and Photography of Post-Mortems:
  • The article suggests that the Sanhita could have included provisions for videography and photography of post-mortems, especially in cases of custodial deaths or deaths resulting from encounters with the police or other authorities.
  • The Supreme Court and the National Human Rights Commission of India have previously emphasised the importance of such practices.
  • It has also been suggested to include the requirement of a spot sketch of the crime scene drawn to scale by a draftsman to improve the quality of investigations.
• Overall Police Reformation:
• • The article concludes by highlighting that while some proposed changes in the Sanhita are considered progressive, they may not be considered groundbreaking or radical.
  • It emphasizes that for meaningful reform in the police force, it’s essential to address various systemic issues, including understaffing, inadequate resources, training infrastructure, and living conditions for police personnel.
  • The article suggests that merely tweaking legal provisions may not be sufficient, and comprehensive police reform is needed to change the colonial-era mindset.

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