Understanding the Implications of Expanded Police Authority

Newsreel Asia Insight #265
June 28, 2024

As India prepares to replace long-standing British-era criminal laws with the newly introduced penal code, criminal procedure code and the law on evidence, which will take effect on July 1, concerns are growing about the potential consequences for ordinary citizens.

The newly enacted laws – Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS) and Bharatiya Sakshya Adhiniyam (BSA) – aim to overhaul the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act, purportedly to decolonise the existing legal framework.

However, upon close inspection, it appears that the provisions from the old laws have been retained, casting doubt on the effectiveness and the intent behind these reforms. This retention raises fundamental questions about the necessity of replacing the laws rather than amending them.

A public interest litigation (PIL) filed before the Supreme Court of India, seeking the formation of an Expert Committee to assess the viability of the new laws, points out that new criminal bills do not introduce any changes from the earlier versions, as reported by LawBeat. They serve to confuse citizens and give more authority to the police, undermining the fundamental rights of individuals, it argues. Although the primary aim of these bills was to decolonise Indian laws, they instead repeat the same statutes without new clarifications, granting extra powers to the police to govern through fear and infringe on fundamental rights, it adds.

One of the most contentious aspects of the new laws is the expansion of police powers. For example, the BNSS has extended the maximum period of police custody from the existing 15 days to up to 90 days based on the severity of the offence.

Extending the detention period may lead to increased instances of abuse and torture, as prolonged custody without judicial oversight offers more opportunities for misconduct. Moreover, it challenges the principle of presumption of innocence, as it allows individuals to be held for extended periods without being proven guilty, potentially leading to wrongful detentions. This could also strain judicial processes, as longer detentions may not necessarily correlate with more efficient or fair investigations, potentially undermining the justice system’s integrity and fairness.

This change is a significant escalation from the current practices under laws like the Unlawful Activities (Prevention) Act (UAPA) and others, which already push the boundaries of police custody durations. Such an extension not only raises concerns about potential abuses of power but also about the safeguarding of civil liberties.

The PIL adds, as reported by Deccan Herald, “The BNSS 2023, provides for the use of handcuffs during arrest. The power to use handcuffs may infringe on the accused’s personal liberty. Handcuffs may only be used to arrest a habitual or repeat offender who has escaped custody, or a person accused of offences such as rape, acid attack, organised crime, economic offences, acts endangering sovereignty, unity and integrity of India. The provision contravenes judgments of the Supreme Court and guidelines of the National Human Rights Commission.”

Further, the new laws have introduced vague new offences, such as those related to “false and misleading information” and acts that purportedly endanger the “sovereignty, unity and integrity of India.” These offences are so broadly defined that they leave a wide scope for interpretation, potentially leading to arbitrary enforcement and a chilling effect on free speech and expression.

The introduction of trials in-absentia is another alarming development, as reported by The Indian Express. Under the new BNSS, the legal system can conduct full trials and pronounce judgments against defendants who are not present to defend themselves, a stark departure from the current system which ensures a defendant’s right to be present at their trial.

Trials in-absentia can severely undermine an accused’s ability to defend themselves effectively, which would be a violation of international human rights norms. Without the presence of the defendant, the opportunity to contest evidence, cross-examine witnesses and provide a personal account or defense is drastically limited, which could result in unjust convictions. This practice could potentially also lead to breaches of due process, as the accused may not be adequately informed of the proceedings against them or might not have the means to participate effectively from a distance.

The PIL also questions the manner in which the laws were passed—highlighting the lack of adequate debate and the suspension of parliamentary members during the passage of the bills—as well as the vague naming and stated purposes of the laws which do not clearly communicate their intent or implications, as reported by The Hindu.

The push for decolonisation and reform of the criminal justice system must not be done at the cost of undermining the very principles of justice the criminal law must seek to uphold.