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Delhi Records First FIR Under BNS: How is New Criminal Law Different From IPC?

A street vendor was booked under the new law for allegedly obstructing a bridge at New Delhi Railway Station.

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Starting 1 July, the three new criminal laws came into effect across India. In an overhaul nearly six months back on 21 December 2023, the Parliament had passed three Bills — Bharatiya Nyaya (Second) Sanhita (BNS), Bharatiya Nagarik Suraksha (Second) Sanhita (BNSS) and the Bharatiya Sakshya (Second) (BSB2) Bill.

The first FIR in Delhi was lodged at the Kamla Market police station at 1:30 am on Monday under the BNS, which replaces the British-era Indian Penal Code (IPC), against a street vendor for allegedly creating obstruction under a foot over bridge at New Delhi Railway Station.

The accused was identified as Pankaj Kumar, 23, a resident of Bihar. Registered under Section 285 of the BNS, which pertains to danger or obstruction in public way or line of navigation, the FIR stated:

"He (accused) had set up a stall and was selling water, cigarette and other items, hence creating encroachment to the path and blocking the public’s way… He was repeatedly asked to remove the stall on the said day, however, he did not abide by the directions of the sub-Inspector,” the FIR said.
Delhi Police FIR
FIRs under the BNS were also filed in Madhya Pradesh's Gwalior, Hyderabad, Chhattisgarh's Kabirdham, Uttar Pradesh's Amroha and Bareilly, to name a few, on the first day of its implementation.

From expanding detention in police custody from the 15-day limit to up to 90 days, to bringing terrorism, and mob lynching under ordinary legislation for the first time – some key changes have been made to India's criminal law system.

What are these key changes? How do they impact civil liberties? The Quint spoke to experts to help decode.

Delhi Records First FIR Under BNS: How is New Criminal Law Different From IPC?

  1. 1. Police Custody to Extend Beyond 15-Day Limit

    One significant change is the expansion of possible duration of police custody beyond the initial 15 days of the arrest, according to BNSS Bill.

    Section 187(3) of the bill states:

    "The Magistrate to whom an accused person is forwarded under this section may, irrespective of whether he has or has no jurisdiction to try the case, after taking into consideration whether such person has not been released on bail or his bail has been cancelled, authorise, from time to time, the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole, or in parts, at any time during the initial forty days or sixty days out of detention period of sixty days or ninety days, as the case may be, as provided in sub-section (3), and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction."

    "The change implies that the prescribed 15-day period of custody can now be split into shorter periods of custody sought over the period of 40 days for offences punishable up to 10 years or 60 days for other offences. This will make the police less circumspect while making an arrest, as the right of the police to have police custody will not be limited to the first 15 days. You can take three-day custody today and not do anything for a month. Then again, five days, and investigate on some other lines, and so on," Abhir Datt, a Delhi-based lawyer, told The Quint.

    According to Pratiksha Basarkar, Senior Associate (Litigation) at Project39A, a criminal justice initiative by National Law University (NLU), expanding the duration of such custody "heightens the risk of police excesses."

    The Parliamentary Standing Committee on Home Affairs, headed by BJP MP Brij Lal, also flagged this issue on custodial violence. However, the revised Bill did not consider it.

    "Police custody is a well-documented site for torture. Expanding the duration of such custody heightens the risk of such police excesses and consequently also increases the risk of forced confessions and the fabrication of evidence," Basarkar said.

    Giving an example, Basarkar said that individuals who are routinely tortured in police custody will be "forced to sign blank papers, which are then used by the police to fabricate 'disclosure statements'."

    Agreeing with Basarkar, Abhinav Sekhri, a Delhi-based lawyer who specialises in criminal law, said, "The reason to restrict police custody was the recognition that it is oppressive and enables police to extract false statements from accused persons."

    Sekhri believed that while it is unclear how the clause was going to work in practice, it could hamper the cause of bail, "as police can claim that the investigation is still ongoing."
    Expand
  2. 2. Revised BNS & Definition of 'Terrorist Act'

    Another important change in the second version of the BNS Bill is in Section 113, where the definition of a "terrorist act" has been modified to adopt the existing definition under Section 15 of the Unlawful Activities (Prevention) Act, 1967 (UAPA).

    The revised BNS defined a 'terrorist act' as "intent to threaten or likely to threaten the unity, integrity, sovereignty, security, or economic security of India or with the intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country."

    It also specifies that “an officer not below the rank of the Superintendent of Police shall decide whether to register the case under this provision or the Unlawful Activities (Prevention) Act, 1967”.

    Experts, however, questioned the lack of clarity of applicability of BNS over UAPA.

    "This provision leaves this decision to the police without offering any guidance on how the decision is to be made. This can certainly result in arbitrary decision making and misuse."
    Pratiksha Basarkar, Senior Associate (Litigation) at Project 39A

    "It is unclear as to why this offence was added separately. In practice, how might a police officer know if the offence falls under BNS or UAPA? According to me, the police will take caution and invoke both sections. It gives them more latitude. If UAPA doesn't suit them, they can put the activity under the expansive interpretation of BNS and charge the person," Abhir Datt said.

    He explained that it was not on the courts to decide "which offence the prosecuting agency will choose to invoke. The court’s role will come only after the chargesheet is filed and the court will only decide under which provisions the accused will be tried. This change, however, is not going to make much of a difference as India as it is has had a very bad history with terrorism laws. They have been very draconian and harsh... but yes, it does make it difficult for a person to get bail or prove that, perhaps, he is innocent."

    However, Sekhri said "It is speculative to think in terms of misuse."

    "... But one version of the terrorism offence carries a distinctly harsher procedural regime [UAPA] while the other doesn't [BNS], so there is perhaps a perverse incentive being created," Sekhri told The Quint.
    Expand
  3. 3. 'Proposed Changes Raise Concern of Over-Criminalisation'

    According to Pratiksha Basarkar, certain changes proposed in the bills raise concerns of over-criminalisation due to the use of "vague and unclear language in drafting."

    "This is especially seen in offences that concern protecting the security of the State. An instance is the provision criminalising the making or publishing of “false and misleading information jeopardising the sovereignty, unity, integrity, or security of India." This contains several widely worded phrases (as italicised) which can increase the scope of actions that are criminalised," Basarkar to The Quint.

    Basarkar also flagged that the revised bills presented a missed opportunity to rectify extensive over-criminalisation and wider police powers that aggravate state control.
    Expand
  4. 4. Do The New Bills Decolonise India's Criminal Laws?

    Introducing the three bills for the first time in August, Union Home Minister Amit Shah had said that the old laws, which date back to the 19th century, were a symbol of gulami (slavery), referring to the British colonial rule.

    In December 2023, speaking at the Rajya Sabha, Shah had said, “After 75 years of Independence, this law has been framed by Indians, for Indians and through the Parliament of India. It has the aroma of Indian soil, Indian culture and Indian philosophy."

    So, have the three bills decolonised India's existing criminal laws? Not really, experts told The Quint.

    "Apart from changing the name of the Acts, at least 90 percent of the Indian Penal Code (IPC), Code of Criminal Procedure (CrPC) and Indian Evidence Act (IEA) have been retained verbatim in the respective Bills and rightly so.”
    Delhi-based lawyer Abhir Datt.

    Meanwhile, Pratiksha Basarkar from Project 39A believed that the Bills did not "succeed in their decolonisation agenda and in fact, entrench colonial logic – of the State using criminal law to exercising control over its subjects to the maximum possible extent."

    "Even though the reform was marketed as an attempt to break from the colonial origins of criminal law, it actually represents a resurgence of the colonial-style authoritarian approach, rather than an effort to build upon the relatively modest progress made half a century ago in advancing individual freedom and civil rights," wrote Abhinav Sekhri.

    (This piece has been updated and republished from The Quint's archives as the new criminal laws came into effect on 1 July. It was originally published on 23 December 2023.)

    (At The Quint, we are answerable only to our audience. Play an active role in shaping our journalism by becoming a member. Because the truth is worth it.)

    Expand

Police Custody to Extend Beyond 15-Day Limit

One significant change is the expansion of possible duration of police custody beyond the initial 15 days of the arrest, according to BNSS Bill.

Section 187(3) of the bill states:

"The Magistrate to whom an accused person is forwarded under this section may, irrespective of whether he has or has no jurisdiction to try the case, after taking into consideration whether such person has not been released on bail or his bail has been cancelled, authorise, from time to time, the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole, or in parts, at any time during the initial forty days or sixty days out of detention period of sixty days or ninety days, as the case may be, as provided in sub-section (3), and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction."

"The change implies that the prescribed 15-day period of custody can now be split into shorter periods of custody sought over the period of 40 days for offences punishable up to 10 years or 60 days for other offences. This will make the police less circumspect while making an arrest, as the right of the police to have police custody will not be limited to the first 15 days. You can take three-day custody today and not do anything for a month. Then again, five days, and investigate on some other lines, and so on," Abhir Datt, a Delhi-based lawyer, told The Quint.

According to Pratiksha Basarkar, Senior Associate (Litigation) at Project39A, a criminal justice initiative by National Law University (NLU), expanding the duration of such custody "heightens the risk of police excesses."

The Parliamentary Standing Committee on Home Affairs, headed by BJP MP Brij Lal, also flagged this issue on custodial violence. However, the revised Bill did not consider it.

"Police custody is a well-documented site for torture. Expanding the duration of such custody heightens the risk of such police excesses and consequently also increases the risk of forced confessions and the fabrication of evidence," Basarkar said.

Giving an example, Basarkar said that individuals who are routinely tortured in police custody will be "forced to sign blank papers, which are then used by the police to fabricate 'disclosure statements'."

Agreeing with Basarkar, Abhinav Sekhri, a Delhi-based lawyer who specialises in criminal law, said, "The reason to restrict police custody was the recognition that it is oppressive and enables police to extract false statements from accused persons."

Sekhri believed that while it is unclear how the clause was going to work in practice, it could hamper the cause of bail, "as police can claim that the investigation is still ongoing."
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Revised BNS & Definition of 'Terrorist Act'

Another important change in the second version of the BNS Bill is in Section 113, where the definition of a "terrorist act" has been modified to adopt the existing definition under Section 15 of the Unlawful Activities (Prevention) Act, 1967 (UAPA).

The revised BNS defined a 'terrorist act' as "intent to threaten or likely to threaten the unity, integrity, sovereignty, security, or economic security of India or with the intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country."

It also specifies that “an officer not below the rank of the Superintendent of Police shall decide whether to register the case under this provision or the Unlawful Activities (Prevention) Act, 1967”.

Experts, however, questioned the lack of clarity of applicability of BNS over UAPA.

"This provision leaves this decision to the police without offering any guidance on how the decision is to be made. This can certainly result in arbitrary decision making and misuse."
Pratiksha Basarkar, Senior Associate (Litigation) at Project 39A

"It is unclear as to why this offence was added separately. In practice, how might a police officer know if the offence falls under BNS or UAPA? According to me, the police will take caution and invoke both sections. It gives them more latitude. If UAPA doesn't suit them, they can put the activity under the expansive interpretation of BNS and charge the person," Abhir Datt said.

He explained that it was not on the courts to decide "which offence the prosecuting agency will choose to invoke. The court’s role will come only after the chargesheet is filed and the court will only decide under which provisions the accused will be tried. This change, however, is not going to make much of a difference as India as it is has had a very bad history with terrorism laws. They have been very draconian and harsh... but yes, it does make it difficult for a person to get bail or prove that, perhaps, he is innocent."

However, Sekhri said "It is speculative to think in terms of misuse."

"... But one version of the terrorism offence carries a distinctly harsher procedural regime [UAPA] while the other doesn't [BNS], so there is perhaps a perverse incentive being created," Sekhri told The Quint.

'Proposed Changes Raise Concern of Over-Criminalisation'

According to Pratiksha Basarkar, certain changes proposed in the bills raise concerns of over-criminalisation due to the use of "vague and unclear language in drafting."

"This is especially seen in offences that concern protecting the security of the State. An instance is the provision criminalising the making or publishing of “false and misleading information jeopardising the sovereignty, unity, integrity, or security of India." This contains several widely worded phrases (as italicised) which can increase the scope of actions that are criminalised," Basarkar to The Quint.

Basarkar also flagged that the revised bills presented a missed opportunity to rectify extensive over-criminalisation and wider police powers that aggravate state control.
ADVERTISEMENTREMOVE AD

Do The New Bills Decolonise India's Criminal Laws?

Introducing the three bills for the first time in August, Union Home Minister Amit Shah had said that the old laws, which date back to the 19th century, were a symbol of gulami (slavery), referring to the British colonial rule.

In December 2023, speaking at the Rajya Sabha, Shah had said, “After 75 years of Independence, this law has been framed by Indians, for Indians and through the Parliament of India. It has the aroma of Indian soil, Indian culture and Indian philosophy."

So, have the three bills decolonised India's existing criminal laws? Not really, experts told The Quint.

"Apart from changing the name of the Acts, at least 90 percent of the Indian Penal Code (IPC), Code of Criminal Procedure (CrPC) and Indian Evidence Act (IEA) have been retained verbatim in the respective Bills and rightly so.”
Delhi-based lawyer Abhir Datt.

Meanwhile, Pratiksha Basarkar from Project 39A believed that the Bills did not "succeed in their decolonisation agenda and in fact, entrench colonial logic – of the State using criminal law to exercising control over its subjects to the maximum possible extent."

"Even though the reform was marketed as an attempt to break from the colonial origins of criminal law, it actually represents a resurgence of the colonial-style authoritarian approach, rather than an effort to build upon the relatively modest progress made half a century ago in advancing individual freedom and civil rights," wrote Abhinav Sekhri.

(This piece has been updated and republished from The Quint's archives as the new criminal laws came into effect on 1 July. It was originally published on 23 December 2023.)

(At The Quint, we are answerable only to our audience. Play an active role in shaping our journalism by becoming a member. Because the truth is worth it.)

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