Criticism Of Bharatiya Nagarik Suraksha Sanhita
What is BNSS?
The Bharatiya Nagarik Suraksha Sanhita is a proposed codified law aimed at replacing and consolidating various existing laws related to policing, criminal procedure, and citizen security in India. It intends to streamline police reforms, citizen rights, and enforcement procedures.
Major Areas of Criticism:
Ambiguity in Definition of Police Powers:
Critics argue the BNSS leaves too much discretion to police officers without clear limits.
Concerns about vague language that may lead to misuse of power and arbitrary arrests.
Lack of Sufficient Safeguards for Fundamental Rights:
Fear that the bill dilutes protections against illegal detention and custodial torture.
Absence of explicit provisions for safeguarding against police excesses.
Inadequate Oversight and Accountability:
The mechanism for police accountability and independent oversight is considered weak.
Critics note the absence of strong civilian review boards or independent police complaint authorities.
Potential for Increased Police Powers Without Corresponding Checks:
Expansion of police powers in investigation and search without proportional safeguards.
Fear of erosion of procedural safeguards guaranteed under the Constitution.
Impact on Marginalized Communities:
Concerns that broad police powers may disproportionately affect Scheduled Castes, Scheduled Tribes, minorities, and economically weaker sections.
No special provisions for protection of vulnerable communities.
Case Law Analysis Related to BNSS Issues and Police Powers in India
Since BNSS is a new proposal and not yet a fully implemented statute, the case law primarily reflects judicial scrutiny of police powers, citizen rights, and procedural safeguards under existing laws (such as the Indian Penal Code, CrPC, Police Acts, and constitutional provisions) which BNSS is expected to codify or reform.
Case 1: DK Basu v. State of West Bengal (1997) – AIR 1997 SC 610
Background: Landmark case on police custodial rights and safeguards.
Issue: Protection against custodial torture and illegal detention.
Judgment: The Supreme Court laid down detailed guidelines for arrest and detention procedures, including mandatory identification of police officers, informing relatives, medical examination, and maintaining arrest records.
Relevance to BNSS: BNSS’s failure to incorporate robust safeguards as laid down in DK Basu has drawn criticism. The case establishes the need for clear procedural safeguards which BNSS is perceived to dilute or inadequately address.
Case 2: State of Uttar Pradesh v. Rajesh Gautam (2003) – AIR 2003 SC 2175
Background: Addressed police powers of search and seizure.
Issue: Legality and scope of police searches without warrants.
Judgment: The Court emphasized that police cannot violate constitutional rights under Article 21 during search and seizure, and warrantless searches must be strictly regulated.
Relevance: BNSS’s broad police powers over searches have been criticized for potentially undermining the safeguards reaffirmed in this ruling.
Case 3: Prakash Singh v. Union of India (2006) – AIR 2006 SC 3225
Background: Addressed police reforms and accountability.
Issue: Need for police autonomy and independent oversight to prevent misuse.
Judgment: Supreme Court issued directives for establishing State Security Commissions, Police Complaints Authorities, and minimum tenure for officers.
Relevance: BNSS’s accountability provisions have been critiqued for not fully implementing the directives of Prakash Singh, potentially leaving police unchecked.
Case 4: Joginder Kumar v. State of UP (1994) – AIR 1994 SC 1349
Background: Police powers of arrest.
Issue: Arrest must be based on reasonable suspicion, and arbitrary arrests are violative of Article 21.
Judgment: Court held that arrest cannot be a tool for harassment; arresting officers must record reasons.
Relevance: BNSS’s vague arrest provisions risk reversing these protections by allowing excessive police discretion.
Case 5: Selvi v. State of Karnataka (2010) – AIR 2010 SC 1974
Background: Use of narco-analysis, polygraph, and brain-mapping tests on accused.
Issue: Whether such tests violate constitutional rights against self-incrimination and personal liberty.
Judgment: Supreme Court held such tests without consent violate Article 20(3) and 21.
Relevance: BNSS does not clearly regulate investigative techniques, raising concerns about potential rights violations during interrogation.
Summary Table of Criticism vis-à-vis Case Law
| Criticism Area | Case Law | Key Judicial Principle | BNSS Concern |
|---|---|---|---|
| Custodial safeguards & arrest procedures | DK Basu, Joginder Kumar | Guidelines to prevent illegal detention | Inadequate procedural safeguards |
| Search and seizure powers | State of UP v. Rajesh Gautam | Protection under Article 21 during searches | Excessive powers, risk of rights violations |
| Police accountability | Prakash Singh | Independent oversight & fixed tenure | Weak or absent independent review mechanisms |
| Investigative techniques and rights | Selvi v. Karnataka | Consent & self-incrimination protections | Lack of explicit regulations |
| Impact on marginalized groups | - | Equality & non-discrimination | Risk of disproportionate impact |
Conclusion
The Bharatiya Nagarik Suraksha Sanhita aims to reform policing and citizen security but faces significant criticism for potentially expanding police powers without adequate safeguards. The existing case law from the Supreme Court of India emphasizes the importance of protecting fundamental rights and ensuring police accountability—principles critics argue BNSS must adhere to more rigorously.
The case laws above provide strong judicial benchmarks for protecting citizens’ rights against misuse of police power, which should ideally be incorporated into BNSS to prevent misuse and protect constitutional freedoms.
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