The Bharatiya Nagarika Suraksha Sanhita (BNSS) 2023 is one of the three newly enacted criminal laws that are aimed at replacing colonial-era legislations in India. Modernising the criminal justice system as well as increasing security is a necessary step. But although the law should bring greater efficiency and accountability, it has been strongly criticised by legal professionals, human rights groups, as well as civil society organisations.
The BNSS, replacing the Code of Criminal Procedure of 1973, is viewed as seriously flawed given the issue with overreach by the police, civil liberties undermined, and even possible abuse directed at citizens. Let us learn more about the subject.
Understanding the Bharatiya Nagarika Suraksha Sanhita 2023
The BNSS was enacted by the Parliament in December 2023, along with two other Acts—the Bharatiya Nyaya Sanhita (BNS) 2023 and the Bharatiya Sakshya Adhiniyam (BSA) 2023—replacing the Indian Penal Code (IPC) and the Indian Evidence Act (IEA), respectively. The BNSS is mainly concerned with procedural criminal law, such as arrests, investigations, trials, and the dispensation of justice.
The government contends that the BNSS brings in essential reforms like technology use in investigations, expeditious trials, strengthening of victim rights, and deterrence against terrorism and organised crime. On closer inspection, however, there are a number of problematic provisions that can compromise basic rights and constitutional values.
The Key Flaws in BNSS 2023
- Increased Police Powers and Threat to Civil Liberties
One of the most disturbing features of the BNSS is the huge increase in police powers. Opponents hold that the law grants too much power to police forces, which increases the risk of arbitrary detention, custodial torture, and infringement of constitutional rights.
Extended Police Custody: The BNSS increases the maximum term of police detention from 15 days to 90 days in some instances. This creates legitimate concerns about custodial torture and coerced confessions, both of which are common occurrences in India.
Extended Preventive Detention: The legislation authorises longer preventive detentions without robust judicial scrutiny, permitting the authorities to hold people without trial for long periods.
Warrantless Arrests: The BNSS widens the extent of warrantless arrests in the name of national security and prevention of crime, which may result in abuse at the hands of authorities, particularly against activists, journalists, and political dissidents.
2. Weakening of Judicial Oversight
The BNSS greatly undermines the judicial oversight of police conduct and can result in abuse of powers and miscarriages of justice.
The legislation empowers police officers to record the statements of suspects using electronic devices without necessitating judicial observation.
It allows for evidence collected through electronic eavesdropping without explicit guidance regarding privacy safeguards.
There is a dilution of protection against unjust prosecution, which would result in the entrapment of innocent citizens in the criminal justice system with no redress.
3. Increased Surveillance and Privacy Concerns
The BNSS encourages mass deployment of technology during investigations, such as facial recognition, collection of biometric information, and mass surveillance tools. Although advancements in technology can facilitate crime prevention, the absence of robust data protection legislation in India is problematic given the likelihood of misuse.
Mass Surveillance: There is a concern that greater digital surveillance may be used to monitor particular groups, such as political opponents and activists.
Lack of Data Protection: India lacks a general data protection legislation, so personal data gathered under the BNSS might be abused or leaked without responsibility.
4. Overcriminalisation and Vague Definitions
The legislation provides ambiguous and wide definitions of some crimes, which may result in abuse.
Terrorism and Organised Crime Provisions: The act contains broad definitions of terrorism and organised crime that can be utilised to prosecute political dissidents, journalists, and activists.
Criminalisation of Minor Offenses: Minor offenses are being excessively punished, adding to the workload of the judicial system.
Unclear Implementation Rules: Most provisions are made ambiguous and subject to interpretation, leading to legal uncertainty and scope for selective implementation.
5. Potential for Political Misuse
Excessive police powers in laws have been misused in India for political vendettas in the past. A number of previous instances, such as the abuse of sedition laws and anti-terror laws like UAPA, illustrate how vague definitions and unbridled powers can be used to persecute political opponents, student activists, and journalists.
The BNSS enables the government to preempt judicial intervention in some instances, which can permit politically motivated detention and extended detention without trial.
It is capable of muzzling critics and suppressing free speech as well as democratic rights.
6. Impact on Marginalised Communities
In the past, marginalised communities like Dalits, Adivasis, religious minorities, and the LGBTQ+ have suffered disproportionately at the hands of police brutality and indiscriminate arrests. The extension of police power by the BNSS could compound system-wide discrimination within the judicial apparatus.
More surveillance and profiling may disproportionately affect some communities.
Inadequate protection for vulnerable groups may lead to increased numbers of custodial violence and wrongful prosecutions.
The Need for Reform
Based on these issues, there is a compelling call for review and change of the BNSS prior to its complete adoption. Some of the fundamental actions that ought to be undertaken are:
Judicial Oversight and Accountability: There should be improved judicial balances on police conduct to discourage abuse and safeguard citizens’ rights.
Prevention against Misuse: Certain provisions must be included to avoid unjustifiable arrests, custodial torture, and politically influenced detentions.
Clear Provisions and Definitions: Indistinct crime definitions must be sharpened so as not to result in arbitrary enforcement.
Laws on Protecting Data: An effective framework for protecting data should exist before the mass surveillance and collection of biometric information is permitted.
Independent Review Body: A distinct independent body has to be formed in order to screen cases involving improper detentions and abuse.
Public Consultation: Legal professionals, civil society groups, and human rights activists must be consulted by the government in designing the law to make sure that it follows the constitutional principles.
Wrap Up
The Bharatiya Nagarika Suraksha Sanhita 2023 is a landmark change in the criminal justice system of India but its underlying weaknesses are a serious cause for concern regarding civil liberties, police powers, and the possibility of misuse. Modernisation of the laws is needed, but it needs to be accomplished in a way that reinforces democracy and constitutional rights and not diminishes freedom.
A criminal justice system must seek to balance protection with human rights. The BNSS, as it stands, is too much focused on control and not enough on protection of individual liberties. Unless there are substantial reforms and checks in place, it can turn into an instrument of oppression and not justice. The government needs to revisit these provisions and ensure that law enforcement accountability, transparency, and human rights are at the center of India’s new legal order.
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