Publicising accused details:
Section 37 of BNSS mandates the “pro-minent display”, both physically and digitally, of the name, address and the nature of the offense of an arrested accused, in every police station and district headquarters. This provision in addition to violating the right to privacy and human dignity of a person, facilitates the profiling and targeting of individuals by the police prior to any formal conviction.
Statutorily mandating hand-cuffing:
Another weapon given to the police is the introduction of handcuffing vide section 43(3) of the BNSS, which was not only was absent in the CrPC but was held by the Courts to be prima facie inhuman, unreasonable and akin to treating human beings like animals. This provision allows the use of handcuffs during arrests, if the person fits the criteria of a habitual repeat offender, an escapee from custody, or if they stand accused of certain offenses like organized crime or terrorist acts.
Empowering the police to avoid registering FIRs:
Under section 173 of the BNSS, the police are not required to register an FIR based on a complaint on a category of cases which is punishable with three years but less than seven years. Instead the police are given the option to hold “preliminary inquiries” and determine if a “prima facie” case exists before registering an FIR. This is dangerous because it provides the police arbitrary discretion. It is known that “burking of crime” i.e. the turning away of complainants by the police without registering their complaints, is a reality in the country and the number of FIRs not registered is approximately equivalent to the number of FIRs actually registered. Section 173 of the BNSS effectively grants statutory backing to the vice of burking of crimes.
Sanctioning custodial violence – enhancing police custody from 15 days to 60/90 days:
Atrocities perpetrated by the police are rampant. The dehumanizing torture, assault and deaths in custody have assumed alarming proportions and raise serious questions about the credibility of rule of law and administration of criminal justice system. In this regard, limiting police custody is one of the protections afforded to accused persons. Section 167 of the CrPC mandates that the accused can be remanded to police custody only for up to fifteen days within the first fifteen days of the accused being presented before the Magistrate after their arrest. This stands completely altered by section 187 of BNSS which deals with the duration of police custody, and enhances policy custody from the present limit of 15 days of police custody, to 60 or 90 days (depending on the offence). This prolonged custody period would expose the accused to intimidation, torture and danger, by encouraging the men in ‘Khaki’ to consider themselves above the law and sometimes even to become law unto themselves. \
Half-measures at tackling mob lynching:
While introducing the BNS, 2023 in Parliament in August, 2023, Union Home Minister Amit Shah loudly declared that in response to the widespread hue and cry about mob lynching by civil society, his government has introduced provisions for tackling mob lynching. However, the BNS does not per se mention “mob lynching”; but sections 103(2) and 117(4) criminalises such actions without specifically calling it as such. Murder and causing grievous hurt by “a group of five or more persons acting in concert commits murder on the ground of race, caste or community, sex, place of birth, language, personal belief or any other similar ground” is made a special crime.
What is glaring is the absence of “religion” as one of the explicit grounds in these provisions, despite universal recognition that religion is one among the prime motivating factors for mob lynching. Public executions or mob lynching of Muslims, much like caste murders, is an every-day and inescapable reality in new India. As such, the failure to mention religion cannot be accidental or oversight.
Sanctioning arbitrary and inhuman punishments:
Community service:
Section 23 of the BNS has introduced “community service” as a form of punishment, for certain offences: theft of property less than Rs. 5,000/-, drunken behaviour in public, defamation, etc. It is evident that the failure to specifically define community service, is deliberate. This clause, which on the face appears as progressive, has the potential for serious misuse and abuse. This stems from the fact that no definition of community service is provided, except that it benefits the community. This lack of definition and statutory framework for what constitutes community service is a matter of grave concern, particularly in light of arbitrary and problematic orders passed by the Courts directing arbitrary and illegal acts of community service, as part of bail conditions or punishment for minor offences. These include orders to plant tree saplings, enlist as Covid Warriors, donate to PM Cares Fund, tie rakhi to rape survivor, etc. Essentially these orders on community service become a way of judges to further their own prejudices and biases in the name of judicial discretion.
Solitary confinement:
Alongside handcuffing, section 11 of the BNSS backs the inhuman punishment of solitary confinement, which has been recognised as psychological torture and a violation of the right to dignity by the Supreme Court. Section 11 of the BNS offers the Court the discretion to sentence an offender to upto 3 months solitary confinement according to the following scale:
(a) a time not exceeding one month if the term of imprisonment shall not exceed six months;
(b) a time not exceeding two months if the term of imprisonment shall exceed six months and shall not exceed one year;
(c) a time not exceeding three months if the term of imprisonment shall exceed one year.
Thus, any offender, convicted of any crime, can be forced into solitary confinement at the untrammelled discretion of the judge. Moreover, it exposes the hollow claim of the Union government of elevating justice above punitive measures. The Union government’s claim that the intention behind the criminal codes is decolonisation is patently false, given the fact that the punishment for solitary confinement under the new codes is far worse than the provisions that existed before. The provision of solitary confinement under the old laws can be traced to sections 73 and 74 of the Indian Penal Code and section 29 of Prisons Act, 1894. Under the old laws there is a mandate that the inmate must have a means of communicating with a prison officer during solitary confinement, and, in cases where the inmate is confined in a cell for more than twenty-four hours, s/he shall be visited at least once a day by a medical officer. Solitary punishment in the BNS does not provide these cursory safeguards that the colonial-era Prisons Act, 1894 mandated.
Conclusion:
At its core, the substantial changes introduced through these three criminal laws, “equip the government with adequate power to hollow out our democracy and transform India into a fascist state – should the government choose to deploy the new laws to their fullest extent” and can facilitate the clampdown on legitimate political dissent and protest against social and economic exploitation. The only possible obstacle to India becoming the police state which the new criminal laws envisage is the voice of the people on the street with the Union government rendering parliament virtually powerless, and the courts abdicating their duty to hold the government responsible. It is only the people that can teach the Modi government a stern lesson, like the truck driver unions who have successfully protested against the new criminal laws. In fact, the truck drivers have just followed the farmers who came out against the three Farm Laws, the working class whose struggle has left the Labour Codes in limbo, and the struggle of the Muslim community against the communal Citizenship Amendment Act. In the coming days, many such agitations are inevitable as the consequences of these new criminal laws become apparent to the people.
