A few thoughts on the New Indian Criminal Laws. (Part 2)

This is Part 2 in a series on the analysis of the new proposed amendments to the criminal laws. You can find the 1st part here.

*Caveat : This piece was written on the first draft, that is, before the first draft went to the Select Committee and a new version was put up for consideration and finally passed by the Legislature.

“Sometimes the best solution is to leave things as they are.”
– Unknown

Part 2 – The Bad

They range from the unconstitutionally vague/suspect and violative of due process, to the internally inconsistent/contradictory.

2.1. The definition of Organised Crime (109)

“I don’t contradict myself; I am large, I contain multitudes”
Section 109 of the BNS

The section reads:

From a bare perusal of this section what becomes apparent is:

It is extremely wide, vague and catch-all.
It runs contrary to the fundamental principle that, there cannot and should not be : blurred signposts to criminality.
A provision making something criminal, it is trite law, has to set-out the culpability – precisely and specifically. That is, if it has to pass constitutional muster. (but that ship sailed long time ago!)
In simpler words, A citizen cannot be kept guessing on what the law really is.
The use of phrase ‘including’ in a criminal law provision (S.109(1) BNS) (providing for liability) is always most disconcerting.
The definition of ‘organised crime syndicate’ (S.109(1) Explanation (ii) and the use of undefined and subjective phraseology such as ‘criminal organisation’ and ‘syndicate’, ‘gang’ ‘mafia’, ‘(crime)ring’, is deeply problematic.
S.109(1)Explanation (iii) – definition of “continuing unlawful activity” also is too wide and includes any cognizance offence. This is problematic.
One chargesheet (and cognisance) in the last ten years for a cognizable offence may render one liable for Organised Crime. This may cast the net too wide.
Further, the internal inconsistencies within the section become clear when one sees that different sub-sections (in the law) use different expressions:
- S.109(1) illustrates certain offences. S.109 Explanation (ii) makes a reference to ‘serious offences’, which is an undefined term.
- S.109 (iii) includes within its ambit any cognizance offence.

Further, as per sub-section (6) even the mere act of “holding” property “derived, or obtained from the commission of an organised crime or proceeds of any organised crime” is punishable. There is – notably – no mens rea requirement here and – arguably – even the innocent holding of such property (without knowledge of the taint that attaches to that property) may also become criminal.
Sub-section (7) takes it even further and potentially makes the act of holding of even untainted property itself culpable if one is (or alleged) to be a member of an organised crime syndicate.
They read :

(6) Whoever, holds any property derived, or obtained from the commission of an organised crime or proceeds of any organised crime or which has been acquired through the organised crime syndicate funds shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for life and shall also be liable to fine which shall not be less than rupees two lakhs.

(7) If any person on behalf of a member of an organised crime syndicate is, or at any time has been in possession of movable or immovable property which he cannot satisfactorily account for, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for ten years and shall also be liable to fine which shall not be less than rupees one lakh and such property shall also be liable for attachment and forfeiture.
Section 109 (6) and (7) of BNS

Further, there is an immense possibility of over implication of individuals who, unmindful of the larger purpose or even the existence of a Crime Syndicate, find themselves liable for it because of some tenuous connection or any having played some part (even unwittingly) in an activity which is later found to be connected with some organised crime syndicate.

The following part making mere ‘membership’ of an organised crime syndicate culpable (coupled with extremely wide/vague definitions above) is capable of great misuse, as has been the case with other similar laws. (s.109(4) of BVNS)

(4) Any person who is a member of an organised crime syndicate shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine which shall not be less than rupees five lakhs.
S.109 (4) of BNS

2.2. Attempt to Commit Suicide to compel or to restrain a public servant from doing her duty. (S.224).

S.224, BNSS

A bare perusal raises the following questions:

This one is a big problem; more so in the land of Satyagraha.
Would a peaceful hunger strike be included within the ambit of this section?
If yes, at what point would a hunger strike become an attempt to commit suicide? 1st day or 6th day or whenever the police determines it to.
This is important because, as per the prevailing jurisprudence on the Law on Attempt, where when a person is being prosecuted for Attempt to commit an offence, the act done by the accused need not be the penultimate Act in order for one to be liable for Attempt.

Though – in criminal law – the Attempt to precisely define ‘Attempt’ is an Attempt in futile but one must – still – Attempt.
From a judgment the citation of which I can’t remember at the moment!

This provision can, therefore, be used to suppress dissent and non-violent modes of protest.

Further, as my colleague Mayank correctly points out, the use of the phrase ‘to compel’ in the section considerably widens its punitive sweep. Now a hunger-strike to make a public servant do her job, may also be rendered punishable.

2.3. The addition of S.223 to the BNS is odd; it stipulates that in a Complaint Case (private prosecution as opposed to a State/FIR based case), no cognisance shall be taken without giving accused an opportunity of being heard.

It reads:

This seems to be absolutely bizarre and is something totally alien to criminal law.

It also – arguably – misunderstands the concept of cognisance, as cognisance is not really the issuance of summons to the accused (as is commonly believed) but application of judicial mind by the Court on the case with a view to take further steps.

This provision when read together with the jurisprudence on the concept of Cognizance may lead to a situation where a (proposed) accused is required to be heard even before the Complainant (in a private complaint) is examined in evidence (s.200 CrpC) and has had an opportunity of leading evidence.

Well, even if the section were to be read otherwise : that is, to mean that the proposed accused has to be heard after pre-summoning evidence but before issuance of summons, even that is problematic. This may greatly delay trials and may well amount to a trial before a trial. Especially when the Accused is not remediless upon issuance of summons and is empowered to seek discharge in the case even post-summoning, or otherwise challenge the order in a revision petition or a 482 petition.

2.4. The proposed S.262(1) suggests that a discharge application should be filed within 60 days of framing of charges. This appears to be a case of clear drafting error.

This is so because – technically – a discharge cannot take place AFTER the ‘framing of charges’, as a discharge – in itself – implies that no charges are warranted or framed on account of the inherent baselessness of the case.

S.262(1), BNSS vis-à-vis S.239 CrPC

2.5. Police custody even beyond the first 15 days.

Proposed amendments to S.167 of the CrPC permitting Police Custody even beyond the first 15 days is deeply problematic. This may further increase instances of custodial torture and extorted confessions.

Police stations and lock-ups are not meant to house people for longer durations.

The argument that the police cannot engage with the Accused after first 15 days, even for legitimate investigative, needs is legally untenable.Jail manuals permit police to engage with undertrials at the Jail after necessary permissions.

The mischief in some cases of : Accused getting admitted to a hospital for the first 15 days and defeating police’s rights to PC could have been very well addressed by a very narrowly tailored exception.

But a general power to seek PC even after first 15 days is likely to lead to a dismissal of a lot of bail applications, on the ground of ‘PC being sought by the police’, and not because of a bona fide need but only as a response to bail application and merely with a view to defeat the right to bail.

S.187(2), BNSS vis-à-vis S.167,CrPC

It is clear that the section is not very happily worded. While it appears that it certainly provides for PC even beyond the first 15 days but it is not very clear on the total length of PC vis-à-vis JC.

Earlier S.167, CrPC

2.6. In Absentia Trials:

The law laid under S.356 as ‘In Absentia Trial’ of proclaimed offender seems to violate all canons of due process.

As per the existing jurisprudence, if there is an accused who is absconding then her trial should be suspended/separated, though, if any evidence is at the risk of being lost – that may be recorded/safeguarded, but such person cannot be convicted in her absence or without an opportunity of being heard.

The prevailing S.299 r/w 317 of CrPC struck the right balance between the needs of preservation of evidence (which may get obliterated with time) and due process, but this new addition is capable of great misuse.

This is especially true given the dismal state of affairs as far as declaration of POs (Proclaimed Offenders) in the country is concerned. Many people have been known to be declared to be POs without their knowledge and proper compliance and adherence to the provisions of S.82 CrPC and jurisprudence in that regard. We’ve seen numerous cases of service of summons/process being manipulated and people being proceeded ex parte in their absence in civil cases. This may open criminal cases also to that mischief.

The proposed provision in this regard S.356, BNSS reads: