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Shortcomings in the BNSS (Bharatiya Nagarik Suraksha Sanhita, 2023)

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), has been introduced as a replacement for the Criminal Procedure Code (CrPC) of 1973, signifying a major reform in India’s criminal justice system. Academics and legal theorists have critically analysed this legislative change from various angles, emphasizing its potential for modernizing the judicial process and highlighting the concerns related to its implementation and interpretation.

Section 40 of the BNSS makes changes to private arrest provisions by setting a deadline of 6 hours from the arrest within which the private person effecting arrest shall hand over the person subjected to private arrest to the Police. Section 40 however does not say what the private person is to do if he is unable to hand over the person subjected to private arrest to the Police within the 6 hours deadline due to some unavoidable reasons.

This legal gap could lead to confusion, particularly in rural or isolated areas where timely police support may not be available. Legal scholars caution that leaving these issues unaddressed may result in inconsistent enforcement and possible misuse of arrest powers by private citizens.
The wording in Section 40 (2) of the BNSS has been modified from "shall re-arrest him" to "shall take him into custody." This indicates that when the police assume custody of an individual who has been privately arrested, it should not be viewed as a "re-arrest" but rather as "taking him into custody." This raises the question of why the phrase "taking him into custody" was used instead of the term "rearrest."

This modification presents interpretative challenges for both courts and law enforcement agencies, which must navigate the distinctions between arrest and custody, raising concerns about the balance between private rights and state obligations.
Section 173(1) of the BNSS mandates that any FIR submitted through electronic means must be documented by the officer after being signed by the submitting individual within a three-day period. However, this section does not outline the steps a police officer should take if the informant fails to sign the report within this stipulated timeframe. Additionally, there is no clarification in this Section or any other part of the BNSS regarding the language in which the complainant is permitted to file the FIR. Legal experts argue that although digitizing FIRs is a positive development, the ambiguity surrounding procedural issues could compromise the system's overall efficiency.
As outlined in Section 4(f) of the BNSS, the Court has the authority to order community service as a form of punishment for offenders. The Explanation to Section 23 of the BNSS defines community service as the work mandated by the court for a convict to undertake as a punitive measure, with the stipulation that they will not receive any compensation for their efforts. However, there are no established guidelines or criteria for determining the nature, duration, and administration of community service.

In the absence of explicit criteria, there could be inconsistencies in sentencing across various jurisdictions. Experts warn that if these gaps are not addressed, this well-meaning provision may result in arbitrary or unfair sentencing practices, undermining the principle of uniformity in punishment.
According to Subsection 179 (1) of the BNSS, any police officer conducting an investigation may issue a written order to require the presence of any individual located within their own station or an adjoining one. This applies to anyone who, based on provided information or other evidence, seems to have knowledge of the facts and circumstances related to the case; that individual must comply with the request to attend. This raises the question of whether a police officer can insist on the presence of anyone who does not reside in the station or a nearby location. If that is the case, how will they conduct witness examinations?
Under Section 180 of the BNSS or in any other provision of the BNSS, it is not clear whether the investigating police officer can examine the statement of a witness living in a foreign country or in a far-off place through audio-video means.
As stated in Subsection 179 (2) of the BNSS, the State Government is authorized to create rules that allow for the reimbursement of reasonable expenses incurred by any individual who attends a location other than their home for their examination and subsequent recording of statement, as specified in Subsection 179 (1) of the BNSS, by the police officer. Which expenses will be called reasonable and how police will pay for the reasonable expenses of the witnesses is shrouded in mystery; hence no State Government has taken any initiative to make rules towards this direction.
In Proviso 3 of Subsection 483 (1) of the BNSS, there is provision for the cancellation of bail of an accused person released on bail; however, the grounds on which bail granted to an accused person may be canceled by the High Court or Court of Session have not been mentioned anywhere in the BNSS. Similarly, under Subsection 480 (5) of the BNSS, any Court which has released a person on bail under Subsection (1) or Subsection (2), may, if it considers it necessary, cancel the bail. Here too, the grounds on which the bail may be canceled are not noted either in these Subsection or anywhere else in the BNSS.
The timeline and procedures for implementing the "Witnesses' Protection Scheme" under Section 398 of the BNSS have not been specified, leading to a lack of diligence by the States in drafting the scheme. Consequently, there is no evidence that any State has established a "Witness Protection Scheme."

Although this provision seems to address witness safety, critiques in the literature highlight the absence of a clear timeline or procedural guidelines for the scheme's implementation. Critics have pointed out that the lack of concrete measures and protocols has resulted in insufficient diligence on the part of state governments regarding the drafting and enactment of the scheme. They observe that without a robust witness protection system, crucial witnesses in sensitive cases may find themselves vulnerable to intimidation, thus jeopardizing the integrity of the justice system.
Section 482 of the BNSS removes the guiding factors previously considered by Courts under Subsection 438 (1) CrPC when determining applications for anticipatory bail. These factors included the nature and severity of the alleged crime, the accused's criminal history, and the likelihood of their absconding, etc. This removal expands the discretion available to Courts when handling such applications since Section 482 BNSS is silent on these aspects.

Section 482, which pertains to anticipatory bail, has incited debate. Unlike the prior CrPC, the BNSS eliminates guiding factors for Courts when evaluating anticipatory bail applications, such as the severity of the offense and the accused’s criminal history. Experts argue that this expansion of judicial discretion could lead to inconsistent outcomes in bail applications, as courts gain more freedom in their decisions. While some scholars assert that this flexibility is necessary to tackle the complexities of contemporary criminal cases, others, including Khosla, argue that the absence of clear guidelines may result in inequitable applications of justice.
Clause (ii) of Subsection 174 (1) of the BNSS specifies that the daily diary report for non-cognizable cases must be submitted to the Magistrate fortnightly. However, it does not specify whether this report should incorporate the details from the General Diary Entry, the entries from the Non-Cognizable Register, or whether it should be a distinct report containing relevant entries from either the General Diary or the Non-Cognizable Register.
During raids and the subsequent confiscation of Alamat (exhibits), witnesses frequently either cannot be found or are hesitant to sign the seizure list, especially when the operation is recorded on video in accordance with Section 105 BNSS. There are no guidelines outlining the actions a police officer should take when witnesses are unwilling to act as witnesses for searches and seizures conducted with audio-video documentation.
In cases of spontaneous recovery without video evidence captured during standard police operations - like vehicle inspections, Naka checks, hotel checking, and raids on illegal liquor establishments - this lack of video documentation during the search could give the defiance a basis to dispute the legitimacy of the recovery for violation of the Section 105 of the BNSS. Additionally, it is virtually unfeasible to record over audio-video every action and duty performed by police officers.
According to Subsection 176(3) of the BNSS, when the police receive information regarding an offense that carries a punishment of seven years or more, the officer in charge at the police station is required to send a forensic expert to the crime scene to collect forensic evidence. This must be done within a timeline established by the State Government, specifically within five years, and the entire procedure should be documented using videography on a mobile phone or other electronic devices. In situations where forensic resources are lacking in the State, the State Government will allocate resources from another state until appropriate facilities are available.

The forensic science laboratories across states are currently stretched thin, raising questions about how forensic evidence from one state will be analysed in another. Moreover, there has been a lack of funding for forensic-based investigations. Given that these laboratories are already dealing with a significant workload, it remains uncertain how they will manage the additional burden of numerous cases involving forensic and digital evidence without the necessary financial support for upgrading existing forensic science-based investigation facilities and constructing new forensic science laboratories.
The BNSS did not take advantage of the opportunity to implement non-trial resolutions, which can conserve resources typically allocated for trials and frequently result in substantial financial settlements. This approach is commonly practiced in several Western nations, including the United States and the United Kingdom. BNSS could have made some offences eligible for non-trial resolutions through negotiation, mediation, arbitration, settlement conference, collaborative law, restorative justice and mini-trial (negotiation - in business dispute over a breach of contract, mediation - in family dispute, arbitration – in labour disputes, settlement conference - in personal injury cases of car accidents, collaborative law - in collaborative divorce, restorative justice - in cases of juvenile offences and mini-trials - in a commercial dispute between two large corporations over a contract).
Due to the unavailability of dedicated cameras provided by the government or the police department for search and seizure operations by the police officers under Sections 105 BNSS, most investigating officers are compelled to rely on their personal mobile phones for audio-video recording during these procedures. This reliance presents several challenges, including limited battery life and insufficient storage capacity, which hinder the ability to record continuously over extended periods. Additionally, interruptions occur when an officer receives a call over his personal mobile phone while video recording a search and seizure operation, leading to break in the video and the creation of multiple files rather than a seamless recording. Therefore, priority should have been assigned to using audio-video recording for the search and seizure operation via professional videography, rather than capturing it on a mobile phone.