New Delhi: No handcuffing for economic offences, ‘robust safeguards’ against misuse of electronic evidence, and clarity around police detention beyond 15 days – these are some of the recommendations that the Parliamentary Standing Committee on Home Affairs has made in its report on the proposed legislation, Bharatiya Nagarik Suraksha Sanhita Bill, 2023, which seeks to replace the Code of Criminal Procedure, 1973.
The Bill, along with the Bharatiya Nyaya Sanhita Bill (which seeks to replace the Indian Penal Code, 1870) and the Bharatiya Sakshya Adhiniyam Bill (which seeks to replace the Indian Evidence Act, 1872), was introduced in parliament on August 11 by Union home minister Amit Shah. They were then referred to the 31-member Parliamentary Standing Committee, headed by BJP MP Brij Lal. The panel adopted its report last week.
The Wire analyses the recommendations and observations of the Bharatiya Nagarik Suraksha Sanhita Bill.
No handcuffs for economic offences
While the Supreme Court in an order in 1980 had said that handcuffs are against human dignity, the Bill provides for its use under clause 43(3) for certain offences.
Opposition MPs in their dissent note had also flagged the return of the use of handcuffs and said that the Section was in line with the “colonial mindset of punitive control of state”.
In its report, however, the parliamentary panel has not objected to its use, except in the case of economic offences.
“The committee believes that the use of handcuffs, as outlined in Clause 43(3), is appropriately restricted to select heinous crimes, which is necessary for preventing the escape of individuals accused of serious offences and ensuring the safety of police officers and staff during arrests,” it said.
“However, the committee is of the view that ‘economic offences’ should not be included in this category. This is because the term ‘economic offences’ encompasses a wide range of offences, ranging from petty to serious, and therefore, it may not be suitable for blanket application of handcuffing in all cases falling under this category. The committee, therefore, recommends that Clause 43(3) may be suitably amended to delete the words ‘economic offences’ from the clause.”
Safeguards against misuse of electronic evidence
While the Bill advocates for the increasing utilisation of technology, the parliamentary panel report, however, cautions against electronic data usage without safeguards.
The Bill says that trials, inquiries, proceedings can be held in electronic mode, along with the production of electronic communication devices (such as mobiles, computers, etc.), for potential digital evidence for investigation, inquiry or trial.
The panel report said that “while the increased utilisation of technology offers numerous advantages, it also creates opportunities for manipulation and misuse.”
It also said that the collection and storage of electronic evidence raises “concerns about data security and the possibility of unauthorised breaches” and has called for “robust safeguards” against it.
“The committee, therefore, recommends that the adoption of electronic means for communication and trials should proceed only after the establishment of robust safeguards to ensure the secure usage and authentication of electronically available data. This will help safeguard the integrity of the justice system and ensure that justice is administered fairly and accurately,” it said.
It has also said that while enabling online/electronic FIR registration is a positive step forward in the proposed legislation, it feels that such online/electronic registration should be allowed only through modes specified by the State.
The committee also said that while the Bill provides for formal adoption of audio-visual and electronic means to undertake various processes, a clause may be inserted for facilitating audio-video recording of evidence of defence, after ensuring proper safeguards. It said that to avoid the possibility of tutoring or intimidation of witnesses, such recording should only be allowed at select government places.
Need clarity on the extended period of police custody
The panel has also sought greater clarity on the issue of the increased period of police custody, an issue that had been raised by the opposition MPs in their dissent notes. The MPs had referred to Clause 187 that allows the magistrate to increase the period of police custody beyond 15 days under certain circumstances, and said that increasing the period of police custody without proper safeguards could lead to human rights violations.
The committee report noted that Clause 187(2) stipulates a total of 15 days for police custody, to be utilised in whole or in parts at any time during the initial 40 days or 60 days out of the detention period of 60 days or 90 days, as applicable.
“However, there is a concern that this clause could be vulnerable to misuse by authorities, as it does not explicitly clarify that the custody was not taken in the first 15 days either due to the conduct of the accused or due to extraneous circumstances beyond the control of the investigating officer. The committee recommends that a suitable amendment may be brought to provide greater clarity in the interpretation of this clause,” it said.
Government must provide reasons for commuting sentences
The opposition MPs had also raised concerns about the power of the government to commute a sentence under Clause 475 of the new Bill.
The committee in its report has, however, only recommended amending Clause 475(b) to specify both a minimum and maximum sentence that can be imposed on convicts while commuting imprisonment for life to a shorter term. It has also directed that the government must provide reasons for commuting a sentence.
“To ensure that the power given to the appropriate government to commute a sentence is judiciously used and the commutation is justified, the committee recommends that appropriate reasons may be cited before commutation of a sentence,” it said.
