Author’s Note
When the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) was tabled in Parliament as a replacement for the Code of Criminal Procedure, 1973 (Cr.P.C.), it was heralded as a transformative law — one that would eliminate “colonial legacies” and usher in an Indianized, citizen-friendly criminal justice system. However, a careful reading of the statute reveals a reality far removed from these claims.
Rather than modernizing criminal procedure, the BNSS dilutes fundamental safeguards, erodes judicial oversight, and enhances executive and police power — posing a serious threat to personal liberty and human rights.
1. A Regressive Departure from Judicially Evolved Safeguards
Even during British rule, certain elements of the Cr.P.C. – though colonial in origin were structured to protect the rights of the accused. Post-independence, India largely retained those protections. Ironically, in the name of decolonization, the BNSS rolls back several of these safeguards.
The government’s narrative of reform conceals a clear erosion of rights that were secured through judicial interpretation and decades of criminal jurisprudence.
2. Police Custody Beyond 15 Days — Constitutional Liberty Undermined
Perhaps the most alarming innovation is found in Section 187, which effectively allows police custody even after judicial custody has commenced.
Under the Cr.P.C., once an accused was remanded to judicial custody, police custody was strictly limited to the first 15 days from the date of arrest. The BNSS, however, allows the Magistrate to authorize police custody “at any time during the initial 40 or 60 days of detention”, blurring the line between judicial and police control.
The omission of the phrase “otherwise than in police custody” — present in Section 167(2)(a) of the Cr.P.C. — raises the spectre of extended police interrogation throughout the pre-trial period.
In CBI v. Anupam J. Kulkarni (1992) 3 SCC 141, the Supreme Court held that police custody beyond the initial 15 days violates personal liberty. The BNSS, by disregarding this settled law, effectively overturns this constitutional protection.
3. Dilution of D.K. Basu Safeguards — Arrest without Accountability
The BNSS significantly weakens the D.K. Basu v. State of West Bengal (1997) 1 SCC 416 guidelines, which were landmark directions to prevent custodial torture and abuse.
Deleted provisions include:
- Maintenance of an arrest register recording the identity of interrogating officers;
- Inclusion of time and place of arrest in the memo;
- Mandatory medical examination every 48 hours in a public hospital;
- Requirement that relatives be informed of the detainee’s location;
- Display of arrest guidelines in every police station.
By removing these checks, the BNSS reopens the door to custodial abuse and police opacity, eroding decades of progress in human rights jurisprudence.
4. Legal Aid — Narrowed When Expansion Was Needed
Section 341 of the BNSS reduces access to legal aid only to the stage of trial — ignoring constitutional mandates and judicial directions.
In Khatri (II) v. State of Bihar (1981) 1 SCC 627, the Supreme Court held that the right to free legal aid arises the moment an accused is produced before a Magistrate, not merely at trial. Early legal representation prevents coercive remand, protects against forced confessions, and ensures fair bail hearings.
By excluding pre-trial legal aid, the BNSS abandons the poor and marginalized — those most vulnerable to misuse of police power.
5. Preliminary Inquiry before FIR — Contrary to Lalita Kumari Judgment
Section 173(3) of the BNSS reintroduces the concept of a “preliminary inquiry” before FIR registration in certain cases — a direct contradiction of the Constitution Bench ruling in Lalita Kumari v. Govt. of U.P. (2014) 2 SCC 1), which held that the police must immediately register an FIR where a cognizable offence is disclosed.
This retrograde step will likely revive the culture of police discretion and refusal to register FIRs, a problem the judiciary spent decades trying to eradicate.
6. Statements and Confessions — Video Evidence, Manipulated Truth
The BNSS permits video recording and signing of statements to police (Section 173). While this appears technologically progressive, it carries grave risks in practice.
India’s history of coerced confessions and manipulated video evidence makes such provisions highly problematic. The infamous Afzal Guru case demonstrates how televised confessions can irreversibly prejudice public opinion and the course of justice.
Without strict procedural safeguards, video-graphing confessions may serve as tools of propaganda rather than truth.
7. Compensation for False Arrest — Insulting the Idea of Justice
Section 399 of the BNSS provides a compensation of merely ₹1,000 for unlawful arrest — an amount that mocks the suffering of those wrongfully detained or prosecuted.
In a justice system where individuals are acquitted after years of incarceration, genuine reform would have been to legislate substantial punitive compensation — not a token figure that trivializes constitutional rights.
8. Search, Seizure, and Executive Overreach
Unlike international standards that require judicial authorization for searches, Section 185 of the BNSS allows police searches without prior judicial approval. Furthermore, illegally conducted searches remain admissible as evidence, perpetuating procedural abuse and undermining due process.
The expanded powers of Executive Magistrates under Sections 95, 127, 149, and 166 — including the authority to order arrests, direct the armed forces, or adjudicate land disputes — dangerously blurs the line between executive and judicial authority.
This shift represents an unmistakable drift toward executive consolidation, not judicial independence.
9. Continued Gender Bias in Maintenance Laws
Section 144 of the BNSS reproduces the outdated and discriminatory language of Section 125 of the Cr.P.C., denying maintenance to a woman deemed to be “living in adultery.”
This archaic moral clause, rooted in patriarchal notions of purity and dependency, should have been repealed in keeping with India’s constitutional commitment to gender equality.
10. Video Trials and the Erosion of Presence
Multiple provisions (Sections 187, 303, 306) encourage video conferencing for trial proceedings. While convenience and digitization are important, virtual hearings cannot replace the constitutional right of the accused to be physically present during trial.
For undertrial prisoners, court appearances are often their only opportunity to meet family or communicate with counsel. Justice must be seen to be done — and that requires presence, not pixels.
11. The Illusion of “Indianization”
The BNSS is presented as a move to “Indianize” criminal procedure. Yet, beyond its Hindi nomenclature, it largely preserves colonial power structures while stripping away post-independence human rights advancements.
True Indianization would have meant democratization — community policing, gender sensitivity, victim protection, and transparent accountability. Instead, we have a statute that centralizes authority and weakens constitutional checks.
Conclusion: Reform Without Rights Is Regression
The Bharatiya Nagarik Suraksha Sanhita, 2023 is less an evolution of Indian criminal law and more a repackaging of coercive colonial machinery. It expands police powers, curtails judicial control, and weakens the procedural guarantees that protect citizens from State excesses.
Legislation enacted without expert consultation or empirical grounding risks dismantling the delicate equilibrium between State authority and individual liberty — the cornerstone of any democracy.
Merely renaming a law in Hindi does not constitute Indianization. Reform must embody constitutional morality, human dignity, and access to justice — principles the BNSS, regrettably, fails to uphold.
Disclaimer
The views and opinions expressed in this article are solely those of the author, R.K. Samyal, Advocate, based on his independent legal interpretation of the Bharatiya Nagarik Suraksha Sanhita, 2023. They do not necessarily reflect the views of any institution, forum, or organization with which the author is associated. This article is intended purely for educational and analytical purposes and should not be construed as legal advice.