Many Imaginary Apprehensions When New Law Comes: Supreme Court On Challenge To Provisions Of BNS And BNSS

The Supreme Court today, while hearing a petition challenging certain provisions of the new criminal laws, remarked that whenever a new legislation is enacted, there are a lot of "imaginary apprehensions" and that the new enactments should be given a chance to be tested.

A two-Judge Bench comprising Justice Surya Kant and Justice Ujjal Bhuyan was hearing a Writ Petition filed by a retired Border Security Force officer under Article 32 of the Constitution challenging various provisions of the Bharatiya Nyaya Sanhita, 2023 and the Bharatiya Nagarik Suraksha Sanhita, 2023.

“Initially when something new comes, we have a lot of apprehensions, fears, suspicions in mind. And many times we have imaginary apprehensions. At the ground level, it may not happen," Justice Surya Kant observed.

On the submission of the Petitioner, who was represented by Senior Advocate Menaka Guruswamy, that some provisions of the BNS and BNSS lack procedural safeguards, Justice Kant said, "Even under the old law, there were numerous instances of misuse every day. And most, if not some of the times, they were caught. Under this law also, there will be misuse, even if the safeguards are there, misuse will still be there. Judicial monitoring will continue. That is a constant exercise the judiciary will have to undertake at every level to ensure that no provision is misused by those to whom power is given.”

The petition, drafted by Advocate Tushar Jain, challenges, among other things, the provisions regulating organised crime and terrorist activities, arguing that adopted the language of Maharashtra Control Of Organised Crime Act, 1999 and the Unlawful Activities (Prevention) Act, 1967 without incorporating procedural safeguards.

Referring to the new criminal laws, Justice Surya Kant said, "Should it not be given a chance to see if it is a good instrument, an active tool to prevent, control, minimise (crime) or (on the other hand) see if the apprehensions that we had in mind are proving to be true that this provision is being misused, or that it is not effective or it had these legal implications or is leading to violation of rights."

Guruswamy argued that with special legislations like Maharashtra Control Of Organised Crime Act, 1999 and the Unlawful Activities (Prevention) Act, 1967, even where they transferred the burden of proof to the accused, Courts have upheld their constitutionality because they had procedural safeguards.

Justice Kant asked, “Suppose MCOCA had some safeguards, is it a legislative obligation that if the state (legislature) provided some safeguard, the Parliament should also? The legality of this provision is independent of that. Does BNS say that (the Parliament) is adopting these provisions from MCOCA?” To which, Guruswamy said, “The definition is cut-pasted in.”

Justice Surya Kant replied by saying, “No, (on) Parliament you cannot say they cut-paste. There are very heavy presumptions in their favour, that they deliberated, they applied their mind and they were aware of the consequences and implications."

The petition additionally challenges Section 152 (Act endangering sovereignty, unity and integrity of India) of the BNS which replaced the provision on sedition i.e. Section 124A in the Indian Penal Code, contending that the new provision is broader and more vague. It also challenges Section 173(3) of the BNSS which gives discretionary powers to the officer in charge of a police station to conduct preliminary enquiry in cases involving punishment from three years up to seven years and Section 187(3) of the BNSS which enables the police to seek custody of an arrestee for a period of 60 or 90 days, depending upon the nature of the offence.

The Bench asked the Petitioner to formulate a table with the exact additions and deletions made in the provisions of the BNS and BNSS which are equivalent to the provisions of the IPC and Code of Criminal Procedure. The Bench posted the matter for further hearing on December 2.

Azad Singh Kataria v Union of India [W.P.(Crl.) No. 461/2024]