New Criminal Procedure Bill Ignores Parliamentary Panel's Concerns About Allowing Police Custody Beyond First 15 Days Of Remand

Clause 187(2) of the BNSS attracted scrutiny as it permits police custody at any time during the initial 60 days (for severe offences) or 40 days (for other offences), marking a departure from the corresponding provision (Sub-section (2) of Section 167) in the Code of Criminal Procedure as per which police custody has to be sought within the first fifteen days. The BNSS provision says that 15-day police custody can be sought in the whole or in part over 60 or 40 days, as the case may be. While Section 167(2)(a) of the CrPC specifies that the custody beyond the period of fifteen days must be "otherwise than in police custody", the corresponding BNSS provision (187(3)) does not have the words "otherwise than in police custody".

This was met with criticism from experts who argued that this provision lacked explicit safeguards, which could potentially lead to abuse by authorities. The Parliamentary Standing Committee on Home Affairs, in its report submitted last month, expressed apprehensions about the potential misuse of allowing police custody beyond the first fifteen 15 days. Accordingly, it recommended introducing amendments to ensure greater clarity in interpreting the clause. In its report, the committee stated -

“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 fifteen 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.”

However, the revised BNSS bill retains the same provision as in the first draft.

Notably, the classical view promulgated in the Supreme Court's 1992 judgment in Central Bureau of Investigation v. Anupam J. Kulkarni limiting police custody to the first 15 days has been referred to a larger bench for reconsideration recently by the court, while dismissing Tamil Nadu minister and V Senthil Balaji's plea against custody by the Directorate of Enforcement (ED). In this case, the court interpreted Section 167(2) of the Code of Criminal Procedure to allow an aggregate of shorter periods of custody over the entire investigation period, contrary to the Anupam J Kulkarni interpretation. The precedent was also doubted by a coordinate bench in Central Bureau of Investigation v. Vikas Mishra, where police custody beyond 15 days was permitted in April this year.

The duration of police custody is not the only issue the parliamentary panel flagged. Its recommendations also touched on other aspects of the BNSS, proposing empowering magistrates to impose community service as punishment, excluding handcuffing in 'economic offences', introducing safeguards in the form of affidavit submission and additional inquiry before an investigation is ordered by a magistrate, and establishing a strict timeline for the submission of reports in cases involving public servants.

While certain recommendations have been incorporated, such as the suggestion to delete 'economic offences' from this provision allowing the use of handcuffs, the contentious police custody provision remains unchanged.

Committee recommendation to criminalise adultery in gender-neutral form ignored in new penal code bill

The committee also recommended that the offence of adultery - struck down in 2018 by a constitution bench in the landmark Joseph Shine judgment on the ground that it was discriminatory towards women and perpetuated gender stereotypes, diminishing the dignity of women - be retained in the Bharatiya Nyaya Sanhita (the substitute of the Indian Penal Code) after modifying it to make it gender neutral. The now-struck down provision, i.e., Section 497 of the Indian Penal Code, penalised men for having consensual sex with a married woman, while exempting the woman from prosecution. Emphasising the need to protect the institution of marriage, the parliamentary panel had called for a gender-neutral version of Section 497 to be retained in the Bharatiya Nyaya Sanhita, which seeks to replace the Indian Penal Code. Not only this, the committee's suggestion to retain Section 377 of the Indian Penal Code - which was read down in 2018 by the Supreme Court in its Navtej Johar judgment to the extent that it criminalised homosexual sex between consenting adults - to allow for non-consensual sexual offences against men, women, non-binary persons, and animals to be punished has also not been incorporated. In the revised bill, the gendered language of the colonial-era rape laws have been preserved and no additional provisions have been made to punish non-consensual sexual acts against men, non-binary persons, and animals. 

On December 12, the Centre reintroduced the three revised criminal reform bills, including the BNSS, in the Indian parliament's lower house, withdrawing the previous versions introduced in August. The proposed criminal law reforms have been under scrutiny, with concerns raised by opposition leaders such as Adhir Ranjan Choudhary and Senior Advocate Kapil Sibal, who have highlighted potential violations of human rights and the inadequacy of safeguards against excesses by law enforcement agencies.