Introduction
A petition which will be represented by Dr. Menaka Guruswamy, Senior Advocate, assisted by Lavkesh Bhambhani, Utkarsh Pratap, Arunima Das, and Aditi Tripathi, Advocates, with Tushar Jain, AOR, has been submitted to the Supreme Court contesting the constitutional validity of specific provisions within the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) and the Bharatiya Nyaya Sanhita, 2023 (BNS). These laws, which took effect on July 1, 2023, replaced the Code of Criminal Procedure, 1973 and the Indian Penal Code, 1860, respectively.
Key Provisions Challenged
- Sections 111 and 113 of the BNS:
These sections introduce the offences of Organised Crime and Terrorist Acts into BNS, 2023. The petition argues that unlike special statutes such as UAPA and MCOCA, these provisions lack adequate procedural safeguards. As a result, they are claimed to violate the right to equality (Article 14) and right to life and liberty (Article 21).The Bharatiya Nyaya Sanhita (BNS) 2023 introduces legal provisions to address the growing challenges of organized crime and terrorism in India. This modern legal framework replaces the outdated sections of the Indian Penal Code (IPC) to tackle complex criminal enterprises and terrorist activities with precision and efficiency.Organized Crime: Section 111
Definition and Scope:
Section 111 provides a comprehensive definition of organized crime, covering continuous unlawful activities committed by individuals or groups for material or financial gain. The offenses include a wide range of crimes such as drug trafficking, extortion, human trafficking, cybercrime, contract killings, and economic offenses.Key Features:
- Severe Penalties: Offenders can face life imprisonment or the death penalty if their actions result in loss of life. Lesser offenses attract long-term imprisonment, substantial fines, and confiscation of assets derived from criminal activities.
- Special Investigative Powers: Law enforcement agencies are empowered to conduct surveillance, intercept communications, seize assets, and undertake undercover operations to dismantle organized crime networks.
- Dedicated Courts: Special courts will expedite trials involving organized crime cases, ensuring swift and effective justice.
Petty Organized Crime: Section 112
For minor offenses involving organized crime, Section 112 prescribes reduced penalties, targeting lower-level operatives. This aims to disrupt syndicate operations from the ground up while providing proportionate justice.
Terrorist Acts: Section 113
Focus and Penalties:
This section addresses terrorism comprehensively, recognizing its links with organized crime. Offenders involved in terrorism face life imprisonment or capital punishment for acts causing significant harm. The provisions also facilitate enhanced collaboration with international agencies to address cross-border terrorism.Modern Features and Enhancements
- Witness Protection: Witnesses in organized crime and terrorism cases are offered secure housing, financial assistance, and identity protection to encourage their cooperation in investigations and trials.
- Inter-Agency Coordination: The framework strengthens collaboration between key agencies like the Central Bureau of Investigation (CBI), National Investigation Agency (NIA), and the Enforcement Directorate (ED).
Why These Changes Matter
The introduction of Sections 111, 112, and 113 under the BNS, 2023, marks a significant shift in India’s approach to organized crime and terrorism. By providing clear definitions, empowering law enforcement, and incorporating modern investigative tools, the BNS seeks to dismantle criminal enterprises and protect national security effectively.
- Section 152 of the BNS:
This section reintroduces the offence of sedition, which was previously contained in Section 124A of the IPC and has been suspended following the Supreme Court’s order on May 11, 2022, in S.G. Vombatkere vs Union Of India on 12 September, 2023 WP (C) No. 682/2021 (Click Here To Read/Download OrderThe petitioner contends:- The reintroduction of sedition contravenes the Union of India’s assurance in the above case that it was reconsidering its stance on sedition.
- The language of Section 152 is vague, overly broad, and prone to misuse, potentially suppressing dissent against the government.
Consequently, it is argued that Section 152 violates Articles 14, 19, and 21 of the Constitution.
- Section 173(3) of the BNSS: Information on cognizable offence cases or FIR
This provision allows the police discretion to decide when to register an FIR after a preliminary inquiry for offences punishable by 3 to 7 years. The petitioner claims this contradicts the Supreme Court’s judgment in Lalita Kumari v. Govt. of U.P. (2014), which mandated the registration of an FIR if a cognizable offence is disclosed.According to Section 173(3) of the Bharatiya Nagrik Suraksha Sanhita (BNSS), 2023, if the officer in charge of a police station receives a complaint related to a cognizable offense with a prescribed punishment of three to seven years under the BNS, 2023, then police officer may register the complaint or file an FIR and proceed with the investigation. However, this action requires prior approval from an officer not below the rank of Deputy Superintendent of Police.This discretionary power granted to the officer in charge of the police station has been challenged in a petition. The petition argues that such authority could result in significant injustice in society, as it potentially grants the police unchecked powers to register FIRs.This concern contrasts with the Supreme Court’s judgment in the case of Lalita Kumari v. Government of Uttar Pradesh (2014), where the court emphasized the need for mandatory FIR registration in cognizable offenses, limiting police discretion in such matters. - Section 187(3) of the BNSS: Procedure when investigation cannot be completed in 24 hours.
By removing the 15-day limit on police custody, this provision allegedly weakens safeguards against police abuse and undermines the fundamental rights of undertrials under Article 21. According to the said section, magistrates are authorized to place the accused in custody for more than 15 days if the magistrate finds adequate grounds. However, Section 187(2) clearly states that no magistrate shall permit police custody of an accused to exceed 15 days. This section introduces significant changes regarding police custody, allowing magistrates flexibility to authorize such custody in parts or as a whole, but only within the total detention period of 40 or 60 days. For offenses where the punishment is the death sentence, life imprisonment, or imprisonment for 10 years or more, the magistrate may send the accused to police custody within the first 60 days of arrest and for 40 days for other offences. However, even in such cases, police custody must not exceed a total of 15 days. For example, a magistrate may initially order 10 days of judicial custody, followed by 5 days of police custody. If deemed necessary, the magistrate can later transfer the accused back to judicial custody and then again to police custody for an additional 10 days. However, the total period in police custody must not exceed 15 days, and these shifts between judicial and police custody can only occur within the maximum detention period of 40 or 60 days from the date of arrest. - Section 223 of the BNSS:
This section differentiates between complaint-based cases and FIR-based cases, allowing the accused in complaint-based cases to be heard before the magistrate takes cognizance of the offence. The petition describes this distinction as discriminatory and arbitrary.
Legal Representation and Background
The petition was filed by Azad Singh Kataria, a retired BSF Commandant. Representing him is Dr. Menaka Guruswamy, Senior Advocate, assisted by a legal team comprising Lavkesh Bhambhani, Utkarsh Pratap, Arunima Das, Aditi Tripathi, and Tushar Jain (Advocate-on-Record).
Earlier, the Mannargudi Bar Association also challenged provisions of the BNSS through a writ petition in the Supreme Court.
