A plea has been filed in the Supreme Court challenging certain provisions of the recently introduced criminal laws, including the Bharatiya Nyaya Sanhita (BNS) 2023. The petition raises concerns over alleged violations of fundamental rights and inconsistencies with constitutional principles. It seeks the court’s intervention to review and strike down these provisions.
New Delhi: A petition filed in the Supreme Court challenging the constitutionality of specific provisions in the new criminal laws, including the Bhartiya Nagrik Surakhsha Sanhita 2023.
The plea, submitted by advocate Vishal Tiwari, contests the validity of certain sections of the criminal laws passed by the Lok Sabha on December 20, 2023. Tiwari requested the Supreme Court to declare Sections 187(2), 187(3), 43(3), 173(3), and 85 of the Bhartiya Nagrik Surakhsha Sanhita as ultra vires and unconstitutional, arguing that they violate Article 21 of the Constitution of India.
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Sections 187(2) and 187(3) relate to the detention of accused individuals during investigations. Section 43(3) permits the use of handcuffs for habitual or repeat offenders during their arrest or presentation in court. Section 173(3) mandates that the investigating officer conduct a preliminary inquiry within 14 days before filing an FIR.
The petitioner urged,
“Issue writ of mandamus or any other appropriate writs and direct the Judicial Courts through Registrars of the High Courts to abide by the directions given in the case of Lalita Kumari versus State of Uttar Pradesh, Writ Petition Criminal No. 68/2008, Judgment dated November 12, 2013, for the registration of First Information Reports in cognizable offenses.”
Tiwari criticized the new legislation, asserting that it indicates a shift towards a police state rather than a welfare state, granting excessive powers to the police which could result in brutality and arbitrary arrests. He further claimed that these laws violate the basic structure doctrine and infringe upon the fundamental rights outlined in Part III of the Indian Constitution.
The petition notes that the Lok Sabha passed three amended bills aiming to repeal and replace colonial-era criminal laws: the Bharatiya Nyaya (Second) Sanhita Bill will replace the Indian Penal Code of 1860, the Bharatiya Sakshya (Second) Bill will supplant the Indian Evidence Act of 1872, and the Bharatiya Nagarik Suraksha (Second) Sanhita Bill will replace the Code of Criminal Procedure of 1898.
All three bills were passed via voice vote while many opposition members were absent due to suspensions.
The petitioner referenced the Supreme Court’s observation on May 3 in the case of Achin Gupta versus State of Haryana, in which the court urged the legislature to reconsider the implementation of Sections 85 and 86 of the new Bhartiya Nyay Sanhita, noting their similarity to Section 498A of the IPC.
According to the petition,
“Sections 85 and 86 of the Bhartiya Nyay Sanhita are essentially identical to Section 498A IPC, with no significant changes except for the section numbers.”
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The petitioner argued that the new criminal laws are far more oppressive, effectively establishing a police state and violating fundamental rights. He emphasized that while British laws were seen as colonial and harsh, the current Indian laws are even more severe; during the British period, custody was limited to a maximum of 15 days.
The petition declared,
“Extending this period to 90 days or more is a shocking provision that enables police torture,”
Additionally, the petitioner pointed out the absence of provisions addressing deaths in police custody and criticized the increase in permissible custody duration, claiming it fosters a police state and contributes to anarchy.
He stated that the abolition of Section 41-A of the CrPC, which served as a cornerstone of criminal procedural law, renders the Supreme Court’s judgment in Arnesh Kumar vs. State of Bihar ineffective.