-Prasun Nabiyal
Last week, the centre presented its revised version of the new CrPC Bill (also known as the “Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 ”) in the Parliament. The purpose of such revised editions is to incorporate changes suggested during the legislative process. These changes may arise out of any phase of the legislative process— proposal and introduction of the bill, the first reading, the second reading and committee stage, as well as the third reading and voting. At each stage, revisions can be made to the bill based on the discussions and feedback received. This iterative process helps in refining the bill before it becomes an Act. Revision, thus, aims to ensure that the final Act is as effective, fair, and comprehensive as possible. Similarly, the 2nd draft of the BNSS Bill attempts to incorporate the required changes from the first draft. The first draft of the BNSS Bill, released on 11th August 2023, stirred a lot of controversy around the new procedural provisions. This post focuses on one such provision of section 187, specifically on the issue of police custody.
What is the issue with section 187?
Section 187 is the BNSS’s counterpart provision of section 167 of the CrPC. It regulates the detention period (both police and judicial custody) during criminal investigations and specifies the permissible duration of such custody. It also specifies the conditions under which such custody may be extended and the necessity for obtaining the magistrate’s authorization for prolonged detention. However, despite being a counterpart provision, section 187 deviates from its predecessor section in significant ways. Notably, clause 3 of the new section completely omits the phrase “otherwise than in the custody of the police”. This phrase is present in the CrPC counterpart proviso— explicitly prohibiting detention in police custody beyond 15 days. These provisos were further reaffirmed and upheld in CBI v. Anupam J Kulkarni. This omission, thus, marks a seismic shift in the legal landscape surrounding police custody in India. Hence, according to the new bill, an accused can be kept in police custody for 60/90 days, contingent wholly on the concerned magistrate’s satisfaction. This raises grave concerns about the erosion of individual liberties and the potential for abuse of power. In the landmark judgment of D.K. Basu v. State of West Bengal, the Supreme Court underscored the significance of protecting the rights of the accused during custodial detention, emphasizing the need for stringent adherence to due process. The 15-day limit was established as a safeguard against the arbitrary exercise of coercive state authority. The proposed extension, however, tilts the delicate balance between the state’s investigative powers and an individual’s right to personal liberty. D.K. Basu enshrined the principle that custodial interrogation is an inevitable intrusion into the life and privacy of an individual, demanding the highest degree of care and scrutiny. Further, as held in Babu Nandan Mallah v. The State, the underlying principle of the 15-day limit is to ensure that a Magistrate may not adjourn an inquiry/trial and remand an accused for a term exceeding 15 days at a time. Hence, removing the same is tantamount to giving the Magistrate unlimited power in this setting. Granting such extended periods without robust checks risks transforming the investigative process into a protracted tool of harassment, paving the way for potential abuse, and compromising the sanctity of justice.
Standing Committee Insights and Legislative Responsiveness
As mentioned at the beginning of this post, a bill is subject to discussions and feedback at various stages of the process. A Parliamentary Standing Committee is also such a significant cog in this wheel. The suggestions made by a Parliamentary Standing Committee on the revision of an introduced bill are, however, not binding. The Standing Committee acts in an advisory capacity, and its recommendations serve as valuable input for the consideration of the Parliament. Similar valuable inputs were thus provided by the Standing Committee on section 187 of the BNSS Bill. The Standing Committee, in its report, posited that the recent legislative changes, extending the period of detention, not only expose detainees to potential risks of mistreatment but also undermine the protective role of judicial custody— signalling an era of increased police authority. The report (in its “Dissent on Criminal Law Bills” section) further posited that the legislative elongation of the combined police and judicial custody period from 15 to 90 days places a significant psychological burden on the accused, subjecting them to prolonged distress and anguish. In light of this recognised danger of section 187, the Standing Committee gave 2 types of drafting suggestions. First, P. Chidambaram (Chairman of SCHA) suggested retaining section 167 of the CrPC in its entirety; whereas, N.R. Elango suggested re-drafting section 187 of the BNSS Bill in its current form. Elango’s suggestion attempts to find a middle ground between the need for extended police custody and protecting people’s rights. His proposed amendment sets a clear rule: no police custody beyond fifteen days initially, with all subsequent remands going straight to judicial custody. Elango, however, also introduces an exception to the rule— vesting Magistrates with discretionary powers to authorize police custody under exceptional circumstances; specifically, when an individual’s conduct or extraneous factors beyond the Investigation Officer’s control necessitate such an extension. Despite such detailed coverage of section 187 in the Report, the revised BNSS Bill made no attempt to incorporate any changes and re-introduced section 187 in word-by-word reiteration. The centre thus completely ignored the Parliamentary Standing Committee’s clarion towards section 187’s abuse-prone nature and the necessary changes to be made. As aforementioned, Parliamentary Standing Committees are not binding in nature, and function in an advisory capacity. However, the outright dismissal of the comprehensive recommendations provided by the committee, particularly in the context of Section 187 of the BNSS Bill, raises substantial concerns regarding the democratic integrity of the legislative process. To disregard the entirety of its report, which diligently highlighted the potential risks and inadequacies of Section 187, suggests a reluctance to engage with dissenting voices and alternative viewpoints. Such legislative inflexibility undermines the core tenets of democratic governance. Moreover, ignoring the nuanced suggestions put forth by the committee also implies a disconcerting determination to persist with the original draft, even in the face of recognized flaws that could lead to abuse. The refusal to incorporate valuable insights from the committee’s report raises questions about the government’s dedication to a genuine and participatory legislative process.
Conclusion
The revised version of the CrPC Bill, particularly Section 187 of the BNSS Bill, underscores a critical juncture in the legislative process, epitomizing the delicate balance between law enforcement imperatives and the protection of individual rights. The proposed extension of police custody from 15 to 90 days, disregarding crucial safeguards and the parliamentary committee’s comprehensive recommendations, is a cause for concern. This move, coupled with the government’s reluctance to incorporate essential amendments, raises questions about the democratic integrity of the legislative process.
The way forward demands a re-evaluation of Section 187, incorporating the nuanced suggestions provided by the committee. However, the centre need not limit itself to consider only the Standing Committee’s suggestions but also proactively institute any changes that mitigate the potential for abuse within Section 187. Any modification to section 187 that sets up a robust check and balance system would be sufficient. The modification just needs to ensure that the extension of police custody is judicious, proportionate, and respectful of fundamental rights— as illustrated in Elango’s suggestion.
Finally, in the words of Justice Madan Lokur, “Let us create laws that better the lives of future generations, avoiding the pitfalls of repressive legal frameworks.”
The blog has been authored by Prasun Nabiyal. The author is a 3rd year undergraduate student pursuing BA.LL.B (Hons.) at NLSIU, Bangalore.
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