Plea in Supreme Court against some provisions in new criminal laws

New Delhi, December 8: A petition challenging the constitutionality of certain provisions in India’s newly passed criminal laws, including the Bhartiya Nagrik Surakhsha Sanhita 2023 (BNSS), has been filed in the Supreme Court. The plea, submitted by advocate Vishal Tiwari, questions sections that allegedly violate fundamental rights under Article 21 of the Constitution.

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The contested provisions include:

Section 187(2) & (3): Relating to detention during investigations.

Section 43(3): Authorizing the use of handcuffs for habitual offenders.

Section 173(3): Requiring a 14-day preliminary inquiry before filing an FIR.

The petitioner argued that these provisions grant excessive powers to the police, potentially leading to abuses like arbitrary arrests and police brutality, thereby steering India towards becoming a "police state" rather than a welfare state. The plea also criticized the repeal of Section 41-A of the CrPC, a safeguard against arbitrary arrest, as undermining the Supreme Court’s directives in Arnesh Kumar vs. State of Bihar.

Tiwari emphasized the importance of upholding the Supreme Court’s 2013 judgment in Lalita Kumari vs. State of Uttar Pradesh, which mandated the registration of FIRs for cognizable offenses, and contended that the new laws contradict this precedent.

The petition also drew attention to concerns over extended police custody periods under the new provisions, arguing that this marks a regression to a more draconian regime than the colonial laws the legislation seeks to replace.

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The plea referenced the May 2023 Supreme Court observations in Achin Gupta vs. State of Haryana, where concerns were raised about provisions analogous to Sections 85 and 86 of BNSS. These provisions are essentially reproductions of Section 498A of the Indian Penal Code (IPC), criticized for not addressing critical issues like custodial deaths and police brutality.

The Lok Sabha had passed the bills replacing colonial-era laws with the BNSS, Bharatiya Nyaya Sanhita, and Bharatiya Sakshya Sanhita. These legislations faced criticism for being enacted without comprehensive opposition debate, as several INDIA bloc MPs were suspended during the session.

The petitioner contended that the new laws infringe on the fundamental rights enshrined in Part III of the Constitution and violate the basic structure doctrine.