Bhartiya Nagarik Suraksha Sanhita, 2023

Three new criminal laws –Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita and the Bharatiya Sakshya Adhiniyam -came into effect across the country on July 1, 2024. These laws will replace the colonial-era Indian Penal Code, Code of Criminal Procedure and the Indian Evidence Act, respectively.

What is Bhartiya Nagarik Suraksha Sanhita?

• The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) was introduced on August 11, 2023 to replace the CrPC.  It amends provisions on bail, expands the scope of property seizure, and alters powers of police and Magistrates.  The Bill has been examined by the Standing Committee on Home Affairs.
• Bharatiya Nagrik Suraksha Sanhita has 531 sections (in place of 484 sections of CrPC). A total of 177 provisions have been changed in the Sanhita and nine new sections as well as 39 new sub-sections have been added to it. The act has added 44 new provisions and clarifications.

Highlights of the Bill

• The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) seeks to replace the Criminal Procedure Code, 1973 (CrPC).  The CrPC provides for the procedure for arrest, prosecution, and bail.
• BNSS mandates forensic investigation for offences punishable with seven years of imprisonment or more. Forensic experts will visit crime scenes to collect forensic evidence and record the process.
• All trials, inquiries, and proceedings may be held in electronic mode. Production of electronic communication devices, likely to contain digital evidence, will be allowed for investigation, inquiry, or trial.
• If a proclaimed offender has absconded to evade trial and there is no immediate prospect of arresting him, the trial can be conducted and judgement pronounced in his absence.
• Along with specimen signatures or handwriting, finger impressions and voice samples may be collected for investigation or proceedings.  Samples may be taken from a person who has not been arrested.

Key Issues and Analysis

• The BNSS allows up to 15 days of police custody, which can be authorised in parts during the initial 40 or 60 days of the 60 or 90 days period of judicial custody.  This may lead to denial of bail for the entire period if the police has not exhausted the 15 days custody.
• The powers to attach property from proceeds of crime does not have safeguards provided in the Prevention of Money Laundering Act.
• The CrPC provides for bail for an accused who has been detained for half the maximum imprisonment for the offence.   The BNSS denies this facility for anyone facing multiple charges. As many cases involve charges under multiple sections, this may limit such bail.
• The use of handcuffs is permitted in a range of cases including economic offences, contradicting Supreme Court directions.
• The BNSS allows evidence collected by retired or transferred investigating officers to be presented by their successors. This violates normal rules of evidence when the author of the document can be cross examined.

• Recommendations of high level committees on changes to the CrPC such as reforms in sentencing guidelines and codifying rights of the accused have not been incorporated in the BNSS.

Difference between New Law (Bhartiya Nagarik Suraksha Sanhita 2023) and Old Law

Aspect	Old Law (Code of Criminal Procedure, 1973)	New Law (Bhartiya Nagarik Suraksha Sanhita, 2023)
Introduction Date	1973	2023
Colonial Influence	Retained elements from British colonial rule	Drafted to reflect post-independence and modern Indian values
Language and Terminology	Archaic legal language	Simplified and modernized language
Structure	Detailed procedural code with 484 sections	Revised structure, updated sections
Arrests	Procedures for arrests detailed in Sections 41-60	New provisions for digital warrants, use of technology in arrests
Investigation	Traditional methods of investigation	Emphasis on forensic evidence, cyber investigations
Bail and Bonds	Detailed provisions in Sections 436-450	Streamlined process, emphasis on bail reform
Trial Procedures	Detailed trial procedures	Simplified and expedited trial processes
Witness Protection	Limited provisions	Comprehensive witness protection programs
Victim Rights	Basic recognition of victim rights	Enhanced victim compensation and support mechanisms
Speedy Trial	Emphasis on speedy trial, often delayed	Stronger provisions for ensuring speedy trial
Digital Evidence	Limited recognition	Comprehensive recognition and procedures for digital evidence
Police Reforms	Basic guidelines	Detailed guidelines on police reforms, accountability mechanisms
Appeals and Revisions	Detailed in Sections 372-394	Updated to include digital submission of appeals, faster processes
Juvenile Procedures	Governed by Juvenile Justice Act, 2015	Integrated approach with special provisions for juveniles
Technology Use	Limited use	Extensive use of technology in legal processes
Alternative Dispute Resolution	Basic provisions	Expanded focus on ADR mechanisms
Preventive Measures	Sections on preventive actions like Section 107, 144	Strengthened preventive measures, modern context considerations
Community Policing	Limited provisions	Emphasis on community policing and involvement
Special Courts	Provisions for special courts	Expansion and more specific guidelines for special courts
Inter-State Coordination	Basic guidelines	Enhanced inter-state coordination mechanisms
Legal Aid	Basic provisions for free legal aid	Strengthened and expanded legal aid provisions
Electronic Monitoring	Not covered	Provisions for electronic monitoring of offenders
Public Participation	Limited mechanisms	Increased focus on public participation in criminal justice