The Indian criminal justice system is set for a major overhaul that portends increased police and state power over citizens and a shrinking of the rights of citizens, especially those accused of criminal offences.

The three main criminal laws that had formed the foundation of this system – the Indian Penal Code, 1860, the Indian Evidence Act, 1872 and the Code of Criminal Procedure, 1973 – are set to be replaced soon.

In the final week of its recently concluded winter session last month, Parliament passed the Bharatiya Nyaya (Second) Sanhita, 2023, the Bharatiya Sakshya (Second) Bill, 2023 and the Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 to replace these three laws.

This is what Scroll found when it examined some of the key changes.

Lower safeguards

According to the current legal framework under the Criminal Procedure Code, an accused person cannot be kept in police custody for more than 15 days after being apprehended. After this period, they must necessarily be committed into judicial custody. The overarching condition is that total detention must not last 60 or 90 days, depending on the nature of offence.

Under the Bharatiya Nagarik Suraksha (Second) Sanhita, though, the 15-day custody can be sought in parts throughout the 60- or 90-day period by the police. As a result, the police may be able to seek custody of someone committed to judicial custody. No criteria or guidelines are given for the use of this power, which means that the police will have unchecked discretion to do this.

Such switching between the two types of custody may effectively negate the ability of the accused to secure bail, since bail for cognisable offences can only be secured from judicial custody.

Another roadblock in securing bail has been inserted by the Bharatiya Nagarik Suraksha (Second) Sanhita through the provision that those charged with multiple offences cannot secure mandatory bail currently available under the Criminal Procedure Code.

Under the Code, an undertrial who has served half the maximum prescribed imprisonment for an offence must be released on a personal bond, except when the offence is punishable by death.

Because of the new provision, the police may be able to cut off the possibility of mandatory bail by booking an accused person under multiple similar offences.

The Bharatiya Nagarik Suraksha (Second) Sanhita also limits the scope for plea bargaining, wherein an accused, for certain categories of offences, may plead guilty to a lesser offence and a reduced sentence. It is now stipulated that the accused must apply for plea bargaining within 30 days of the framing of charges.

Due to these provisions, the problem of overcrowding of prisons in India could get even worse.

Representational image. Athar Hussain/Reuters

Excessive policing power

There are certain key areas in which the power of the police over citizens has risen under these new laws.

Under the Bharatiya Nagarik Suraksha (Second) Sanhita and the Bharatiya Sakshya (Second) Bill, police officers can compel an accused person to produce their digital devices for investigation and access their contents. There are no guidelines provided for how the police may handle these devices.

This opens the possibility that the police could manipulate and misuse these devices. This also impinges on the fundamental right to privacy of accused persons. It opens the possibility of the police accessing privileged communications, such as those between the accused and their lawyers or their spouse, which are otherwise protected under the Bharatiya Sakshya (Second) Bill.

Privacy concerns also arise from the provision of the Bharatiya Nagarik Suraksha (Second) Sanhita that empowers a magistrate to collect the fingerprints and voice samples of any person, regardless of whether they are accused of an offence.

Under the Criminal Procedure Code, a magistrate can only collect handwriting or signature samples of those arrested in connection with an offence.

The Criminal Procedure (Identification) Act, 2022, that allows the police to collect a broader range of personal data from any person, including various biological samples, is currently under challenge before the Delhi High Court on the grounds that it violates privacy.

Diluting current laws

Secondly, the Bharatiya Nagarik Suraksha (Second) Sanhita also provides the police with nearly unchecked discretion to seize the property of an accused or a convict that is suspected to have been obtained because of an offence.

Even existing safeguards for attaching the proceeds of crime under the Prevention of Money Laundering Act, 2002 are missing here. The property of an accused can be attached without even a hearing by a magistrate, leaving someone not yet proven guilty of an offence vulnerable to losing their assets. This potentially violates their right to a fair trial.

The new law allows the property of the accused person to be attached before a trial and even distributed to the alleged victims. This essentially serves as punishment before the crime has been proved and is goes against the presumption of innocence.

For certain categories of offences – those punishable by a maximum sentence of between three and seven years of imprisonment – the police may conduct a preliminary inquiry within 14 days on receiving a complaint to decide whether to register a first information report.

This directly violates a landmark judgment by a Constitution bench of the Supreme Court that mandates that a first information report be registered upon a complaint alleging a cognisable offence.

The preliminary inquiry provision will let police decide if a case exists even before a full investigation is conducted. Legal experts have raised concerns about the potential this creates for the police to harass complainants and refuse to register first information reports for legitimate complaints.

Representational image. | PTI

Broad definitions

The Bharatiya Nyaya (Second) Sanhita introduces two new offences that did not exist in the Indian Penal Code: a “terrorist act” and an “[a]ct endangering sovereignty, unity and integrity of India”.

The definition of a terrorist act is virtually the same as that in the Unlawful Activities (Prevention) Act, 1967, the anti-terror legislation in India. Just like with the Unlawful Activities (Prevention) Act, this means that the definition is loosely worded enough to allow the police to book political dissidents under its garb. It punishes even the advice and incitement of “threats” to India’s “unity, integrity, sovereignty, security or economic security”.

Similarly, the offence of an act endangering the sovereignty, unity and integrity of India uses wide and ambiguous terminology. It punishes, among other things, “subversive activities”.

Elsewhere, the Bharatiya Nyaya (Second) Sanhita makes it an offence to publish “false or misleading information, jeopardising the sovereignty, unity and integrity or security of India”.

In the absence of guidelines to interpret these terms, the state has vast discretion to cast a wide net with these offences. For instance, “false or misleading information” could be used by the state to target media outlets and journalists who reveal information inconvenient to the government.

Rights experts have noted that these provisions endanger civil liberties.