'When Organised Crimes Are On Rise, Should Legislature Think Of Safeguards For Accused?' : Supreme Court In Plea Challenging BNS, BNSS Provisions

While hearing a petition challenging the constitutional validity of provisions of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) and the Bharatiya Nyaya Sanhita, 2023 (BNS), the Supreme Court today questioned as to whether there should in fact be protective safeguards in place insofar as persons accused of organized crimes are concerned.A bench of Justices Surya Kant and Ujjal Bhuyan heard the matter. It may be recalled that the BNSS and BNS replaced the Code of Criminal Procedure and the Indian Penal Code with effect from July 1.Senior Advocate Dr Menaka Guruswamy appeared for the petitioner and argued that by virtue of the new laws, organized crimes (such as those under MCOCA) have been brought under the purview of general penal law (BNS), without the requisite safeguards and protections contained in the specialized statute(s).Hearing the senior counsel, Justice Kant questioned whether it is incumbent upon the Parliament to introduce safeguards in central legislation (BNS) merely because a state legislature did so (MCOCA). Although, the judge expressed that the legality of the provisions under the new laws can be examined independently.In response to Justice Kant's observation, Guruswamy said,"As a polity, when we have adopted specialist legislation (MCOCA, UAPA, etc.), those laws have been found to be constitutional because those specialist regimes had procedural safeguards, which then upheld the principal of fair trial, protections against self-incrimination, etc...with specialist legislation, you have always found for their constitutionality because there were procedural safeguards that then rendered the Articles of the Constitution as being upheld...that is why general criminal law, which is devoid of the protections of the specialist legislations, then in fact negates the constitutional values of fair trial, protection against self-incrimination, rights to legal representation...we have allowed for that in specialist legislation." Subsequently, Justice Kant queried if it is stated anywhere in the BNS that the impugned provision (Section 111) was incorporated from MCOCA. To this, Guruswamy responded by saying that the relevant definitions have been copy-pasted. Taking objection, Justice Kant remarked that the Parliament has its own wisdom and can't be said to have copy-pasted a provision from a state legislation."There are very heavy presumptions in their favor, not only they deliberated, but applied mind...they were aware of the consequences, of the implications if they add/delete something."Justice Kant further conveyed that when something new (like BNS and BNSS) is brought in, there are many "imaginary" apprehensions, but the same may not actualize. Referring to a recent incident of crime and society's expectations to be safe, the judge probed Guruswamy on whether there should in fact be any safeguards in place for persons accused of organized crime."Just look how society is suffering nowadays with organized crime. Let us talk of the rights of the people, rights of the society. They have a right to live free from crime, from threats, fear in mind...are your buses safe? are your railways safe? are you safe on roads? you will find gangs emerging, whether it's drug supply, whether it's other kind of illicit trades...even children's abduction. Look at cyber crime. Can't even imagine...Do you think that legislature in such a regime and time should think of providing safeguards?" In reply, Guruswamy asserted that when specialist legislations are diluted and brought under general law, it infact works against fighting organized crime. "To treat 2 pick-pockets, 2 juveniles as akin to MCOCA level organized crime defeats the purpose. We do not have that array of investigative foundations to treat every small offense as organized crime", she said.On her expression of an apprehension regarding misuse of BNS and BNSS provisions, Justice Kant remarked that as under the old laws, there will likely be misuse. But, there will be judicial monitoring to ensure no provision is misused by those to whom power is granted, as has been the case in the past.As against the submission that making laws more stringent is not known to have a deterrent effect, the judge said that the same may be true in cases where term of punishment is enhanced; but, if a person feels that his chance of getting apprehended, or being covered by the definition of "organized crime", has increased, there may be an effect on controlling organized crime.At one point, Justice Kant also gave the example of United States' laws, where even for a traffic violation, people are handcuffed on the spot. In response to this, Guruswamy highlighted that the conviction rate of white-collar crimes in US is 82%, unlike India, where it is under 3%. She submitted that organized crime needs to be controlled, but the appropriate way to do that would be to increase police force, etc.When Guruswamy pointed out that the offense of sedition, substantive provision...

'When Organised Crimes Are On Rise, Should Legislature Think Of Safeguards For Accused?' : Supreme Court In Plea Challenging BNS, BNSS Provisions

Debby Jain

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