Is the Process Always the Punishment?


By Prof Upendra Baxi

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), proposes several important changes to the Criminal Procedure Code (CrPC). The changes largely focus on new statutory beings and processes to address the menacing problems of “delay” in the criminal justice administration (CJA). An increased use of digital technology, named as “audio-video electronic” (Clause 2) and planned timelines for relatively quick handling of investigation and disposal are the principal strategies. Is there a new dawning, after all?

Shastra and Sanhita

Well, not quite, because the re-codification chooses the maxim generalia specialibus non-derogant (general provisions do not derogate from special one) over the more general one: leges posteriores priores abrogant (when two statutes conflict, the one enacted last prevails.) The result is that investigation or inquiry for money laundering, drugs or other economic and dragnet security laws shall prevail over the Sanhitas in case of any inconsistency. 

The Parliamentary Standing Committee (PSC) will have to decide at the very outset the nature of the difference between a code and a statute. Is it the case that a code is merely a niyam-sanghra (a collection of rules) or altogether different in nature and scope—a type of legislative action that provides a complete system of laws? And if codification is to avoid merely articulating a majoritarian might, ought not it to be a historically calibrated state venture at social consensus?1 Here, adjudicatory leadership matters as much as national leadership. 

Shastras are different from Sanhitas because they go beyond the normative cleansing of a statute (which ought to respect its judicial interpretation); rather, they generate a fresh normative start altogether—a new quest for juridical and social meaning. Do prior judicial interpretations matter to a code or are they flushed away in an interplay of implied and express repeal of prior laws? Or are the Sanhitas neither, being a sui generis hybrid of elements (and aspirations), wavering between a complete code and merely statutory reform?

Access and Justice  

The BNSS is welcome because it emphasises, in big and small ways, the duty to keep under review old cases and to ensure their quick disposal. The duties of the new police directorate will severally include monitoring cases, expediting proceedings and streamlining discretionary practices. Undoubtedly, all this illustrates the virtues of good governance. But the PSC must also pause to ask: how far, if at all, the new provisions intrude on the constitutionally mandated administrative functions of High Courts?

The BNSS proposes that the trial and appellate proceedings, recording of depositions, including those of public servants and police officers, the statement of the accused, summons, warrants, all documents, police reports and statements of evidence may be maintained electronically. E-justice reform measures necessitated since the early days of the SARS-Covid-19 are now fully flourishing, as the great advance in digital archiving of all judicial proceedings shows. Yet the PSC must at least relate to two threshold  concerns: access and equity.

The “Internet in India Report 2022”, released on May 2, 2023, measures the percentage of internet “penetration”, with urban India scoring higher with over 70% of coverage, while rural India scores lower, though by 2025, nearly 56% of all new internet users will be from rural India. The “speed and the depth” of “digital penetration” have increased, and so has the use of internet by women. 

Yet, deep digital divide exists across states and regions, aggravating issues of access and justice. I suggest that what is good (efficient) for the managers of people may or may not be so for the good (justice) for the people. Not all changes in criminal law (such as improved and efficient access to CJA), are just, for example those subject to police cultures, or the non-beneficiaries and victims of constitutionally indifferent policing and prosecution. Even the maginalised urban population may continue to be vulnerable to the two current strident CJA assertions—“law will take its own course” and “process is the punishment”. Digital dependence by itself does not arrest (what Ghanian thinker Claude Ake long ago called) the “democratization of disempowerment”. What rights to privacy costs would be involved through data retention (and eventual sale in later years) or by new search and seizure of articles and properties, forensic data, and other  recordings are not hard to guesstimate. A similar fate may visit data concerning the name and address of an arrested accused and the nature of the offence being maintained by a designated officer in each police station and district, and the “prominently displayed” requirement (including in digital mode) in every police station and district headquarters. 

Dr Satayjit Mohanty, a former deputy commissioner of police, Odisha, demonstrates2 that police “decision making is more likely to be influenced by the policing environment and subcultures than the organizational policies”, given the “vast jurisdiction” of policing. For example, the pre-Sanhita amended Section 41 of the CrPC provided for a “service of notice” instead of a formal arrest of an accused person (for offences punishable with imprisonment up to seven years). This had virtually no effect on the arrest discretion behaviour or structure; and, unsurprisingly, resulted in “very insignificant reduction in the arrest figure”. Incredibly, as many as “3,38,000 officers, as late as 2020, stood  empowered to arrest without a warrant” across “16,955 police stations, 800 police districts, 189 police ranges, 95 police zones and sixty-three Commissioners of police in India”.

For how long may we keep the personnel planning aspects wholly aside, even when the collapse of CJA is so regularly proclaimed by the Bench and the Bar, the media and civil society? Must the PSC at least consider systematic, prompt and just compensation and punishment of errant police for unlawful arrests and unfortunately long pretrial detention?

Timelines for Enquiry and Disposal

The BNSS “timelines” for preliminary enquiry, investigation and duties of speedy trials are the most impressive. For example, Clause (4) provides that if the police does not investigate a cognizable case, the complainant may file an application to the magistrate to register an FIR. Crucially, Clause 193 now casts an obligation on the police to inform the victim or informant of the progress of the investigation, including by electronic communication, within a period of 90 days, even though after the charge­sheet, the Court may be extend the same for an additional period. Section 173(3) prescribes (for offences punishable for three years or more but less than seven years) that with the prior permission of the DSP, the officer in charge may proceed to conduct a preliminary enquiry within 14 days to ascertain if there exists a prima facie case and proceed further.  

However, not all changes proposed are accused-friendly. For example, information in relation to a cognizable offence can be given to the police, irrespective of the area where the offence has been committed, either orally or through electronic communication. Further, Clause 174(1) provides a time of a fortnight for a police officer to forward the daily diary report to the magistrate.

Clause 232 of the Bill stipulates a time of 90 days to commit the offences to the sessions court, which may be extended for a period not exceeding 180 days for reasons to be recorded in writing. A timeline of 60 days has been specified for the sessions judge from the date of the first hearing to frame in writing a charge against the accused. Why should it take twice the period to frame the charges, and during this time is the accused always entitled to bail? Welcome remain the requirements of judgment within 30 days from the completion of arguments and uploading a copy of it on the portal within seven days. The further provision of discharge for “groundless” accusation and the power to issue a release order are worthy of endorsement. But again, the PSC may more specifically revisit these some periods and the regime of award of compensation or damages for such accusations.

Jallianwala Bagh Syndrome

The Sanhita maintains a stoic silence on the use of fatal force by the police.3 This Jallianwala Bagh Syndrome should not tarnish the landscape of India that is Bharat, now racing towards the centennial of the Constitution. The use of such force occurs at least in four situations: 

  • Chasing a fugitive felon from, or even a suspect (in cases of jailbreak or prison riots)
  • Custodial deaths, encounter killings and situations of dealings with threats to national security, mainly by armed opposition groups within or across the border.
  • Special regimes of law and policy that invoke national security and integrity as a prime value, increasingly cast also as human rights value.

This last remains distinct from CJA, but the first three raise many a worrisome issue, especially from the perspective of avoidable victimage in law enforcement. How may the SC strictures and suggestions be carried forward in this Sanhita remains here as everywhere a major task before the JPC. 

—The author is an internationally-renowned law scholar, an acclaimed teacher and a well-known writer. This is the second in a three-part series that looks at the three recent re-codification bills.

References

1 Who do the new Sanhitas describes provisions as “clauses” instead of sections! Mercifully, the change seems consistently followed, though it is unreasoned.

2 In his Police Discretion in India: Legal and Extralegal Factors (London, Routledge, 2024, forthcoming). 

3 Arvind Narrain, “Reflections on The Use of Fatal Force by The Indian State: Colonial and Postcolonial Legalities” in Om Prakash Dwivedi and V.G. Julie Raja (ed), Human Rights in Postcolonial India, 145-174 (Delhi, Routledge, 1996).