Navigating Criminal Justice Reform: A Critical Analysis of the Bharatiya Nagarik Suraksha Sanhita, 2023

Introduction

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), one of India’s most substantial legal overhaul of the last fifty years, which substituted the Code of Criminal Procedure, 1973 (CrPC). The BNSS, which commenced on 1 July 2024, fundamentally changes India’s criminal procedure through new technologies, enhanced standards for conducting investigations, improved police powers, and by rolling back certain provisions that previously protected citizens who had been accused of a crime. This paper engages with some of the main reforms of the BNSS, highlights serious concerns relating to civil liberties, and assesses if the legislation fulfills its stated purpose of speeding up the trial process while preserving the protection of due process.

The legislative journey of the BNSS reflects India’s attempt to modernize a procedural code formulated in the colonial era to address contemporary challenges: case backlogs, delayed verdicts, and the need for technological advancement in criminal investigations. However, as shall be demonstrated, several provisions of the BNSS present substantial challenges to fundamental constitutional rights and may inadvertently expand the prosecutorial advantage disproportionately against vulnerable accused persons.

Background and Context: From Colonial Procedure to Contemporary Justice

A. The 1973 CrPC: Legacy and Limitations

The Code of Criminal Procedure, 1973, which the BNSS is replacing, was itself a significant departure from its predecessor, which had been put in place in 1861.The 1973 CrPC included some innovative elements, such as pre-arrest bail, thereby incorporating the principle that liberty is fundamental, and arrest ought to be the exception, not the rule. Over the years, various judicial interpretations by the Supreme Court have further refined and improved procedural protections resulting in various precedents, including:

(i) registration of FIRs is mandatory for cognizable offences;
(ii) arrest is an exception when a sentence is below seven years; and
(iii) bail is an absolute and indefeasible right for bailable offences.
Notwithstanding these protections in evolution, the criminal justice system in India has longstanding institutional challenges.

By 2024, Indian courts will be presumably managing more than 60 million pending cases, in a criminal trial that lasts only about 3-5 years. The undertrial population also remains alarming, with 77% of inmates classified as undertrials as of 2021, creating a serious overcrowding situation in prisons raising Article 21 constitutional issues.

B. The Need for Criminal Law Reform: Challenges and Drivers

The motivation for the BNSS emanated from several sources: Committees at a high level, such as the Malimath Committee (2003), and Law Commission Reports, recommended overall procedural modernization. Rapidly increasing cybercrime, organized crime, prosecutions in relation to terrorism, and the emergence of digital forensic capabilities necessitated procedural evolution, to which the 1973 code written in a pre-internet age could not adequately respond. The BNSS, in tandem with the Bharatiya Nyaya Sanhita (BNS) 2023 and Bharatiya Sakshya Adhiniyam (BSA) 2023, are part of a unified criminal law trilogy, drafted to modernize India’s criminal justice system; however, the interrelation of all three statutes can result in complications.

Key Procedural Innovations: Technological Integration and Forensic Modernization

A. Mandatory Forensic Investigation

One of the most significant innovations of the BNSS is the requirement for crimes punishable by imprisonment exceeding seven years to have a forensic investigation, which had previously been at the discretion of investigating officers and this led to inconsistency and poor-quality evidence. They must record the investigation electronically, including the forensic expert visiting the crime scene and collecting forensic evidence.
Benefits: The idea behind this provision is to improve evidential standards, reduce contamination, and document chains of custody. This reform will be an important development in the context of violent crimes, murder, sexual assaults and some organized crimes, or even crimes where forensic evidence has privilege due to its uniqueness.
Limitations: The requirement assumes some level of forensic uniform capacity among the States where this is enacted. Many states simply do not have the requisite laboratories to do forensic work, which can lead to delays to the investigation and trial again, conflicts and issues of time when invoking the act for purposes of investigation under the statute period. The states within districts may be too far for investigative team to rely on, and in some situations there just may not be resources.

B. Electronic Evidence and Digital Devices

The BNSS broadens the admissibility standard for electronic evidence and allows investigation authorities to take possession of communication devices that might contain digital evidence. This provision recognizes the prevalence of cybercrime and the need for digital investigation in modern criminality.
However, Section 65B, of the Indian Evidence Act, 1872, as amended, imposes strict certification requirements on electronic evidence for admissibility. The Supreme Court held that certification is mandatory with its decision in Anvar P.V. v. P.K. Basheer, although Shafhi Mohammad v. State of Himachal Pradesh (2018) created a narrow exception when the evidence holder does not control the device.
The BNSS framework, however, arguably does not provide clarity regarding how the case precedents are to be read with the new provisions, and what may arise in relation to litigation and admissibility of evidence.

C. Biometric and Voice Sample Collection

BNSS expands the base of data collection from the usual specimen signatures and handwriting to fingerprints, voice samples, and perhaps any other biometric identifier. On its part, the Criminal Procedure Identification Act, 2022, allows the gathering of more data from convicted persons, arrested persons, and those who were not charged, and permits retention periods of up to 75 years.
This has the effect of creating two parallel systems that result in redundancy and ambiguity regarding compliance with the Digital Personal Data Protection Act, 2023. Second, without safeguards, an increase in collection of biometrics has the potential to lead to mission creep since the jurisprudence of data protection in India is still in its infancy.

III. Detention, Custody, and Bail: Erosion of Protective Mechanisms

A. Police Custody: The 15-Day Fragmentation Problem
One of the “central controversies” in the BNSS is the duration and nature of police custody. Under the CrPC, police custody had to be for a maximum of 15 days and only fell within an initial 40 (or sometimes 60) day period for judicial custody. The BNSS changed this, stating the police can be given custody for “in whole or in parts” the entire maximum 15 day period at any point in the first 40 (or sometimes 60) days. This change raises significant civil liberties issues. Previously, bail was usually granted after police had exhausted their time limit of custody. The fragmentation nature of the BNSS allows police to ask for extensions of custody and deny bail multiple times over an extended remand period. The Supreme Court’s suggestion that police custody should be always exceptional and that 15 days in custody are avoidable.
Judicial Response: The Standing Committee on Home Affairs, 2023felt that there was no stipulation to even require investigating officers to state reasons when asking for custody from any time in judicial custody and recommended a clearer threshold for this clause. Judicial interpretation to follow shall indicate whether the courts scrutinize such applications with some proper scrutiny.
B. Mandatory Bail Restrictions for Multiple Charges
The BNSS creates a significant change in regard to the mandatory eligibility for bail. Section 436(1) of the 1973 CrPC entitled an accused who had completed half of the maximum imprisonment term for an offence to be released on bail on their personal bond unless the charge was punishable by death. The BNSS keeps this principle intact, but introduces some critical caveats: that subsection does not apply to an offence punishable by ‘life imprisonment’, nor to any matter or case in which there are two or more punishable offences with proceedings before the Court. Practical effects: The BRSS provisions removes mandatory bail from approximately 70-80% of criminal charge sheets where an accused is charged with multiple offences under the IPC or under multiple enactments, such as theft under the IPC and breach of environmental regulations under the Mines and Minerals Development and Regulation Act, 1957. Judicial principle under threat: The Supreme Court held many times that bail is the general rule and that detention under trial is an exception, and that pre-conviction detention is justified only to ensure attendance at trial and to protect against the tampering of evidence, not as punishment.[16] The BRSS grounds for denying entitlement to bail, given the impact of a denial on an economically deprived accused, is vulnerable to infringement of Article 21 (Right to life and liberty) and aggravates the prison overcrowding.
C. Medical Examination and Custodial Interrogation

The BNSS allows any police officer (not only officers of at least the sub-inspector rank under the CrPC) to seek an accused person medical examination. While it appears to provide a mechanism for a better record of injuries, the lower threshold carries the risk of medical examination requests becoming routine, particularly in contested custody cases. The Supreme Court’s guidelines in D.K. Basu v. State of West Bengal (1996), which presents safeguards for custodial interrogation, are applicable here as well. However, the BNSS gives rise to yet another instance that might rationalize increased medical examinations without adequate judicial deliberation.

IV. Use of Handcuffs: Constitutional Inconsistency

The BNSS allows for handcuffing during an arrest in specific categories, including “economic offences.” This is in direct conflict with the Supreme Court’s jurisprudence. In Prem Shankar Shukla v. Delhi Administration (1980), the Supreme Court found that handcuffing viewed as cruel, inhuman treatment that is abhorrent to Article 21. Furthermore, the Supreme Court determined that the only instance handcuffing could be justified was in extreme necessity and that handcuffing at the trial stage would likely necessitate consent going before the Judge.
The BNSS problematically includes economic offences as an automatic category for handcuffing, which means handcuffing could constitute custodial torture masked as an administrative procedure. The Standing Committee recommended removing economic offences from this category, especially because it was not to recommendation.

A. Judgment Delivery Timelines

The BNSS prescribes that judgements shall be delivered within 30 days of argument completion, extendable to 60 days. This represents ambition towards expeditious justice. However, implementation challenges remain acute: insufficient judicial infrastructure, administrative backlogs, and case complexity (particularly in organized crime or large-scale fraud) render these timelines aspirational rather than reliably achievable.

B. Victim Information and Investigation Oversight

The BNSS requires investigating officers to inform victims of investigation progress within 90 days. Whilst promoting transparency, this provision assumes victim accessibility and may create administrative burdens disproportionate to the transparency benefit, particularly in rural jurisdictions with limited literacy.

VI. Successors Deposing for Transferred/Retired Officers: An Evidentiary Anomaly

Clause 217 of the BNSS allows evidence collected by investigating officers to be deposed by successor officers or retired/transferred officers. This represents a departure from fundamental common law principles requiring cross examination of the authors of evidence.
The rationale is operationally sound, predecessor investigating officers may have transferred, retired, or died. However, the evidentiary costs are significant because a successor officer who was not involved in the investigation does not have the same first-hand knowledge of the circumstances, the forensic procedures, or the context requiring clarification in cross-examination. The accused’s ability to test the evidence’s veracity has been severely undermined.
The Standing Committee noted this issue, commenting on how investigating officers have important knowledge of the investigation and their cross-examination is particularly useful with respect to documentary evidence.
The retention of this provision despite this commentary illustrates a legislative reluctance to adopt any measure to protect evidence.

VII. Property Seizure and Proceeds of Crime: Inadequate Safeguards

A. Expansion to Immovable Property
The BNSS broadens police authority to seize immovable property thought to be proceeds of crime, where the CrPC allows for only the seizure of movable property.[25] Seizing proceeds of organized crime is a legitimate policy aim, but there are very limited statutory protections.
Comparison with the Prevention of Money Laundering Act (PMLA): The PMLA permits attachment to a maximum of 180 days subject to service of a notice at least 30 days before attachment and preserves rights to use the property while the attachment is in effect.[26] The BNSS allows for only 14 days before seizure with no time limit or use-right protections.
Risk: Socio-economically vulnerable accused persons may have their homesteads or productive assets seized, with no due process protections that could otherwise protect their rights given their socio-economic vulnerability – thereby violating their livelihood rights otherwise guaranteed by Article 19(1)(g) and Article 21.

VIII. Deviations from Established Committee Recommendations

In the 2003 report prepared by the Malimath Committee, then followed with Law Commission Reports, the BNSS included multiple reforms, including (but not limited to) procedures around sentencing guidance, and codifying the rights of those that were accused of a crime. It is important to note that the following key recommendations remain unimplemented:
1. Compensation for wrongful prosecution: There are no provisions for compensation when someone is falsely accused and then acquitted.
2. Medical examination procedures: The CrPC recommendations (from the committees) to conduct a medical exam every 48 hours in custody is only partially implemented.
 3. Notice of procedures: While the Supreme Court proposition to notice an individual in writing when they are arrested, there is still a limitation in the CrPC for the use of this practice.

IX. Concern: Prison Overcrowding and Undertrial Congestion

The BNSS’s limiting criteria for bail are relevant to the crisis state that exists. In 2021, Indian jails operated at 130% of intended capacity, with undertrials making up 77% of the population in prisons. Inauguration of the criteria under the BNSS for restricting mandatory bail creates a situation that may exacerbate over crowding, thereby infringing the constitutional rights of detainees to humane prison conditions, as well as to speedy justice (Article 21). These bail provisions create a perverse incentive structure where those who are economically disadvantaged and unable to pay required bail, shall be compelled to remain incarcerated while waiting for extended trial periods, while perhaps feeling pressured to provide false guilty pleas to secure their release. This is fundamentally contrary to substantive justice.

X. Safeguarding Electronic Procedure: BNSS’s Technology Framework

The BNSS permits trials, inquiries, and proceedings to be conducted electronically.  Post-COVID-19 pandemic normalization has demonstrated that technological proceedings risk compromising accused access to counsel, particularly for unrepresented poor accused. Best practice would require: guaranteed legal aid during electronic proceedings, bandwidth provision for accused facilities, and procedures ensuring accused comprehension of proceedings conducted remotely. The BNSS itself contains no such guarantees.

XI. Positive Developments: Victim-Centric Provisions

Notably, the BNSS incorporates victim-protective measures absent from the 1973 CrPC:

1. Victim notification of investigation progress (discussed above);
2. Victim participation opportunities in certain proceedings;
3. Witness protection provisions for vulnerable witnesses.

These provisions represent meaningful evolution, recognizing victims’ interests beyond mere prosecution vehicles.

Conclusion

The Bharatiya Nagarik Suraksha Sanhita, 2023 is an ambitious process reform addressing the genuine inadequacies of India’s 1973 Code. Technology infusion, forensics update, and victim protection measures can be viewed as unmistakably welcome improvements. However, BNSS equalizes protections against custodial expenditures with limitations on access to bail, and broadens executive police powers in a way that contradicts decades of Supreme Court jurisprudence, and fundamental precepts of constitutional law.
In essence, the legislation represented a significant shift in a prosecutorial-oriented paradigm, foregoing substantive due process protections in favor of investigatory efficiency and expeditious conviction. Some of the concerning provisions of the act include:
(i) police custody with fragmentation allows for continued custody;
(ii) mandatory limits to bail, if multiple charges;
(iii) permission to handcuff, in contrast to constitutional law;
(iv) limited seizure of property, without procedural safeguards.
The most productive outcome in connection to the rehabilitative potentials of the BNSS will have to await judicial interpretation.
In order to be ameliorative, the progressive jurisprudence of the Supreme Court can restrict legislative overreach by providing restricting construction of police custody provisions, stepping into denials of bail, and preserving principles of fundamental fairness. Permissive judicial interpretation would deepen procedural fairness.
Moving forward, and more generally amendments to specifically provide:
(i) structured police custody that limits fragmentation;
(ii) explicit preservation of mandatory bail for multiply charged accused unable to inadvertently obtain bail; removal of economic offences from handcuffing; and
(iii) incorporation of property seizure protections akin to the PMLA framework would greatly change the BNSS’s fairness profile.

Moving into the future would amending the BNSS provision to:
 (i) structure police custody to limit piecemeal processes of apparent justice;
(ii) establish a clear and guaranteed bail opportunity for all individuals charged with multiple offences even if they cannot provide a bail bond;
(iii) remove economic crimes from the handcuffing provisions; and
(iv) provide properties seized equivalent protections as found in the PMLA, would significantly improve the fairness of the BNSS.
While India attempts to modernize the response to criminal justice, it will always be a balancing act between effective investigation and basic fairness. The BNSS will be defined by more than its guarantees in writing-it will be defined by the judicial philosophy that will be used to interpret and apply the BNSS judicially, or whether the courts will uphold rule of law and dignity of the constitution, or acquiesce to the expansion of prosecutorial authority. We are at a critical time in history, and academic study, judicial scrutiny and possibly legislative correction will be required to ensure that changes to criminal procedure improve justice over administrative expediency.