Plea In Supreme Court Challenges BSA's Electronic Evidence & Confession Provisions And BNS Sections

Former MP Vinod Kumar Boinapally has moved the Supreme Court challenging certain provisions of the BNS and the BSA, which replaced the erstwhile penal laws viz. the IPC and the Evidence Act.The matter was listed today before a bench of Justices Surya Kant and N Kotiswar Singh, which tagged it with other similar cases coming up on February 5 (Ref: Azad Singh Kataria v. Union of India, Mannagurdi Bar Association v. Union of India).Briefly stated, Boinapally has filed two writ petitions before the Court. One of these challenges the constitutional vires of Sections 113 (Terrorist Act) and 152 (Act endangering sovereignty, unity and integrity of India) of the Bharatiya Nyaya Sanhita. The other challenges Sections 61-63, second proviso to Section 22, explanation (II) to Section 24, and first proviso to Section 168 of the Bharatiya Sakshaya Adhiniyam.With respect to the impugned provisions of BNS, the petitioner states inter-alia:(i) Section 113 of BNS is pari materia with provisions of UAPA, but lacks the procedural safeguards of UAPA. In this regard, it is highlighted that under UAPA, prior sanction from the state/Central government is required and there are stringent conditions dictating grant of bail. However, that is not the case with BNS.(ii) Section 113 of BNS does not begin with a non-obstante clause. Its explanation, read with Section 173 of BNSS, makes recording of information regarding commission of a cognizable offense subject to arbitrary discretion of an officer not below the rank of Superintendent of Police."With a view as to this discretion, and how it is to be exercised, and what principles guide the same, the provision is silent. In the absence of any guideline or any manner in which such a discretionary decision has to be exercised, the Explanation to Section 113 of the BNSS is attended with manifest arbitrariness and is liable to be declared as ultra vires the Constitution of India."(iii) Section 152 of BNS is only a modified, more stringent version of Section 124A IPC (Sedition), proceedings relating to which were stayed by the Supreme Court in SG Vombatkere v. Union of India until the same was revisited by the government with more precise definitions.(iv) The terms 'subversive activities' and 'encouraging feelings of separatism' used in Section 152 of BNS suffer from the same vagueness as found in Section 124A. "This makes Section 152 equally prone to arbitrary and discriminatory application, in violation of Article 14...Section 152 BNS is offending and violative of Article 19(1)(a) and also of Article 21 of the Constitution of India, in that it imposes restrictions far beyond the ambit of Article 19(2) of the Constitution."With regard to the impugned provisions of the BSA, the petitioner states inter-alia:(i) Sections 61-63 of BSA have substituted Sections 64A and 64B of the Evidence Act (relating to 'electronic record'). Though the term 'document' has been defined to include electronic and digital records, the expression 'digital record' has not been defined anywhere.(ii) Section 61 is contradictory to Sections 62-63, since Section 61 covers 'digital record' and makes it subject to Section 63, but Sections 62-63 only deal with electronic records and not digital records. In respect of a computer output, it should be proved that the information was kept in the computer or communication device in the ordinary course of the said activities, whereas it is not required to be proved in the case of an electronic record in the original. This classification is not intelligible.(iii) In the 2nd proviso to Section 22 of BSA, it is stated that if a confession is otherwise relevant, it does not become irrelevant merely because the accused was not warned that he was not bound to make such a confession and that the evidence of it might be given against him. This is in conflict with Section 183 of BNSS (corresponding to Section 164 CrPC). The proviso has not carved out any exception to a judicial confession which can be the sole basis of conviction, even in the absence of any corroboration.(iv) Co-accused confession is not substantive evidence against the other and therefore the same cannot be the foundation of conviction of the other accused. However, according to Explanation (II) to Section 24 of BSA, even though as a matter of fact, a particular accused is not tried jointly, by fiction, it is declared that he is tried jointly with the others because of his failure to comply with the proclamation or because he was absconding. This is violative of the fair procedure guarantee under Article 21 of the Constitution. As an example, it is stated that if confession of an absconding co-accused is used against others facing trial, the latter would not have opportunity to cross-examine. Subsequently, the absconding accused may face trial and the confession end up being thrown out (if found to be involuntary), but the damage to the other accused would be irreversible.(v) Section 168 of BSA deals with a Judge's power ...

Plea In Supreme Court Challenges BSA's Electronic Evidence & Confession Provisions And BNS Sections

Debby Jain

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