CrPC, IPC changes fall short of expectations

Provisions in new bills do not address issues like rising prison population and excessive arrests

The three bills — Bhartiya Nyaya Sanhita (BNS) Bill 2023, Bhartiya Nagarik Suraksha Sanhita (BNSS) Bill 2023 and the Bhartiya Sakshya (BS) Bill 2023 — were introduced in Parliament in August as key to reforming the criminal justice system. Alas, reformation may not be as easy as proposed, especially when safeguards essential to protect the rights of citizens are not included in the laws. The parliamentary standing committee constituted to review the bills now has a pivotal task. As legal practitioners who are engaged in promoting systemic reforms and who visit prisons frequently, we have a different picture of the criminal justice system. Prisoners rarely get to experience constitutional and statutory guarantees such as information on grounds of arrest, medical examination before first production, production within 24 hours of arrest, and the presence of a lawyer at the time of interrogation. We have prisoners’ testimonies of never having seen a magistrate in five years of detention.

More people, less resources and limited space are the harsh reality of Indian prisons (For Representation)

The inclusion of provisions in the new bills that promise digitisation of First Information Reports (FIRs), the proposed emphasis on the use of forensic science in investigation, time limitations on investigation and certain trial processes, computerisation of courts and stricter punishments for certain offences are praiseworthy, of course. These, however, do not address issues such as the rising prison population (23% increase between 2017 and 2021) and the increasing proportion of undertrials (from 68% in 2017 to 77% in 2021).

Speedy trials and increased conviction rates do not address the root problem, which is an excess of arrests. With a staggering 15 million arrests in 2021 alone — 3.45 million under the Indian Penal Code (IPC), 2.3 million under special local laws and 8.9 million arrests under the Code of Criminal Procedure (CrPC), it would have been prudent for the committee that reviewed the existing laws to identify the pitfalls and include provisions that would place effective checks on the police’s powers to arrest.

Key safeguards that need to be included in the two bills are:

One, enable internal reviews of all arrests by senior police officers every six or nine hours, like it is done in the United Kingdom and Australia; two, articulate a clear and comprehensive definition of an illegal arrest as provided in Rwandan laws; three, frame remedies such as compensation, prosecution of erring officers for illegal arrests; four, make it mandatory for the investigating officer to inform suspects and arrested persons of their right to legal representation, similar to the provision available in the laws of Queensland, Australia and Belize; five, make it mandatory for the police to delay questioning of a suspect or accused till the presence of a lawyer is secured; six, make it mandatory for police officers and judicial officers to inform the accused of their right to legal aid; and, specify consequences when an accused is unrepresented in court.

Further, provisions that enable the use of video conferencing in trial processes without the inclusion of procedural safeguards necessary to ensure a fair trial for both the victim and the accused, need review. Convenience must not be allowed to trump the realisation of rights. There should be no balancing factors at play, when it comes to upholding fair trial rights, especially those that can impact the life and liberty of a person.

More people, less resources and limited space are the harsh reality of Indian prisons. A plethora of reports produced by parliamentary committees, law commissions, the National Human Rights Commission, and civil society organisations have drawn a causal connection between excessive arrests and prison overcrowding. Recent reports submitted in the Supreme Court by the Justice Amitava Roy Committee on Prison Reforms and the report of the parliamentary standing committee on home affairs on ‘Prison: Conditions, Infrastructure and Reforms’, mention overcrowding as the primary cause of the compromised standards in India’s prisons.

If the motive was to bring about changes in the law to create a system that is at par with the contemporary needs and aspirations of the people, then it was prudent for the committee that drafted these bills to include robust safeguards that protect the rights of citizens. The Bhartiya Nagarik Suraksha Sanhita will in all likelihood fail to protect the rights of citizens, contrary to its purpose. The parliamentary standing committee must conduct a meticulous scrutiny of the bills and address the procedural gaps. Otherwise, the well-intentioned effort to reform penal laws will be in vain.

Madhurima Dhanuka is programme head, prison reforms programme, Commonwealth Human Rights Initiative. The views expressed are personal