‘Society has a right to safety’: SC on 3 new laws
A bench comprising justices Surya Kant and Ujjal Bhuyan emphasised the need to assess the effectiveness of these new laws rather than dismissing them prematurely, adding citizens have a right to live free of crime.
New Delhi The Supreme Court on Friday underscored the importance of striking a balance between protecting the rights of the accused and addressing society’s demand for safety and justice, as it took up a challenge to various provisions of the Bharatiya Nyaya Sanhita, (BNS) and the Bharatiya Nagarik Suraksha Sanhita (BNSS).
The new laws, which replaced the Indian Penal Code and the Code of Criminal Procedure from July 1, include provisions for tackling organised crime, but their constitutional validity has been assailed for allegedly diluting safeguards present in specialised legislations.
A bench comprising justices Surya Kant and Ujjal Bhuyan emphasised the need to assess the effectiveness of these new laws rather than dismissing them prematurely, adding citizens have a right to live free of crime.
“When something new is brought in, there are many imaginary apprehensions, but they may not materialize. Society has a right to live free from crime, fear, and threats. Are your buses safe? Are your railways safe? Organised crime, drug supply, cybercrimes -- they are rampant. Can we expect the legislature, in such a regime and time, to prioritise safeguards for those accused of these crimes?” asked the bench.
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The court’s remarks came in response to arguments by senior advocate Menaka Guruswamy, representing the petitioner, retired BSF commandant Azad Singh Kataria, who contended that Section 111 of BNS incorporates provisions against organised crime without procedural safeguards akin to those in specialised laws like the Maharashtra Control of Organised Crime Act (MCOCA). Guruswamy contended that the absence of such safeguards risks violating constitutional guarantees, including the right to a fair trial and protection against self-incrimination.
Responding, the bench questioned whether Parliament is obliged to replicate state-level safeguards. “The Parliament has its own wisdom. Heavy presumptions favour the legislature -- they deliberate, apply their mind and are aware of the consequences of their decisions when they add or delete something.
The court also highlighted the societal expectations of effective legal frameworks, saying: “Unless there is an effective law, it will not impact. A toothless tiger cannot help.”
Guruswamy, however, argued that folding specialised provisions into general criminal law risks diluting their effectiveness and creating disparities. “To treat two pickpockets the same as MCOCA-level organised criminals defeats the purpose. We lack the investigative resources to classify every minor offense as organised crime,” she said.
On concerns about potential misuse of the new provisions, the bench acknowledged the possibility but stressed the role of judicial oversight in preventing abuse. “Possibility of abuse of a provision or even a real abuse will not make a law unconstitutional even though such acts will be illegal,” said the court, adding there will be judicial monitoring to ensure no provision is misused by those to whom power is granted, as with the older laws.
The debate also touched on the alleged reintroduction of the sedition offence under Section 152 of BNS. While Guruswamy highlighted its similarity to Section 124A, which was suspended by the Supreme Court in 2022, the bench remarked that if Parliament has addressed the previous provision’s flaws, the new enactment cannot be dismissed outright. To this, Guruswamy informed that a reference pertaining to the sedition law, covering the new Section 152 BNS, is pending before a five-judge bench.
The petition also challenged the extension of police custody limits under BNSS, from 15 days to a potential 60-90 days, arguing this could lead to forced confessions and abuse. Guruswamy described it as an attack on safeguards established in the DK Basu case, arguing the toll such provisions could take on the physical and mental well-being of the accused.
The court, however, adjourned the matter, requesting Guruswamy to adduce a comparative chart of the provisions under challenge for a detailed hearing.
BNS, BNSS and Bharatiya Sakshya Adhiniyam (which replaced the Indian Evidence Act) heralded a major reform in the manner criminal laws are perceived in the country with the central government announcing that while the colonial British rulers administered these laws with an intent to inflict punishment on the Indian subjects, the new laws will seek to render justice to citizens by overhauling the punishment and procedure applicable for investigation and prosecution of crimes.
The new laws also sought to march with the times incorporating several technological aids for investigation by police, trial by courts and plugging loopholes that delayed justice and gave little scope for lawyers, judges and prosecutors to complete the trial.
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