New Delhi [India], December 8: A petition has been filed in the Supreme Court challenging the constitutionality of certain provisions in the newly enacted criminal laws, including the Bhartiya Nagrik Surakhsha Sanhita 2023.
The petition, filed by advocate Vishal Tiwari, raises concerns about specific sections of the law passed by the Lok Sabha on December 20, 2023. The petition seeks a declaration from the Court that provisions such as Section 187(2), 187(3), 43(3), 173(3), and 85 of the Bhartiya Nagrik Surakhsha Sanhita 2023 are unconstitutional and violate Article 21 of the Indian Constitution.
Sections 187(2) and 187(3) pertain to the detention of an accused during the investigation process. Section 43(3) relates to the use of handcuffs during arrests, specifically for habitual or repeat offenders. Section 173(3) requires a preliminary inquiry by the investigating officer before registering an FIR within 14 days.
The petition also calls for a writ of Mandamus to direct judicial courts, through the Registrars of High Courts, to adhere to the guidelines set in the Lalita Kumari vs. State of Uttar Pradesh case (2013), which governs the registration of FIRs in cognizable offenses.
Tiwari expressed concerns that the new provisions give the police excessive power, which could lead to police brutality and arbitrary arrests, and transform India from a welfare state into a police state. He also argued that these provisions violate the basic structure doctrine and infringe upon the fundamental rights of citizens guaranteed under Part III of the Constitution.
The petition further points out that the Lok Sabha passed three bills to replace colonial-era criminal laws, including the Bharatiya Nyaya (Second) Sanhita Bill (BNSS), which will replace the Indian Penal Code (IPC), 1860; the Bharatiya Sakshya (Second) Bill (BSS), which will replace the Indian Evidence Act, 1872; and the Bharatiya Nagarik Suraksha (Second) Sanhita Bill (BNSSS), which will replace the Code of Criminal Procedure, 1898. These bills were passed by voice vote in the absence of opposition members from the INDIA bloc, with 97 opposition MPs suspended during the session.
The petition also references a Supreme Court observation in the case of Achin Gupta vs. State of Haryana (2023), where the Court had urged the government to reconsider certain sections of the new law, particularly Sections 85 and 86 of the Bharatiya Nyay Sanhita (BNS), which are nearly identical to Section 498A of the IPC.
Tiwari argues that the new provisions are even more draconian than the colonial laws, citing the extension of police custody from 15 days to 90 days, which he claims could lead to police torture. The petition also highlights the absence of provisions for addressing deaths in police custody and police brutality, further asserting that the law establishes a police state and contributes to anarchy.
Additionally, the petition challenges the abolition of Section 41-A of the CrPC, which was considered a cornerstone of criminal procedural law, making the Supreme Court’s judgment in the case of Arnesh Kumar vs. State of Bihar ineffective.