Bharatiya Nagarik Suraksha Sanhita and its implication on Citizens Right and Security
J A Dhrishith
Bharath Institute of law
This blog is written by J A Dhrishith, a Third-year law student of Bharath Institute of law
It has a tremendous implication for the rights and security of the citizens. But in 2023, when almost everything relating to the criminal justice framework of India had changed, the harbinger was Bharatiya Nagarik Suraksha Sanhita. Replacing the Indian Penal Code, BNSS was a sea change in the way law views crime and order, and with it, the rights of citizens. The other two parts of this trinity were the Bharatiya Nyaya Sanhita and the Bharatiya Sakshya Adhiniyam.
Besides, as much as many came to praise BNSS on issues of security and law enforcement, it tended, on the other hand, to have immense implications on the rights of citizens. This blog, therefore, shall try to look at BNSS from the constitutional guarantee perspective, underlining the balance amidst security and liberties of a civilian nature.
KEY FEATURES OF THE BNSS
While the structure maintained that one of the previous Acts, there are too many new provisions focused on national security and public order in the BNSS. The major changes are:
1. Expanded Concept of Terrorism: BNSS extends the meaning of terrorism from an act that involves physical violence even to those acts bordering on economic and cybercrimes that threaten national security, which extends the meaning to question the breadth of powers given to law enforcement.
2. Provisions about Preventive Detention: BNSS, as its earlier avatar similarly contains provisions about preventive detention. However, the threshold to invoke such provisions is lowered, especially in cases relating to terrorism and organized crime.
3. Surveillance Technology Enhancement: There have been improved surveillance technologies under BNSS for LEAs to enable digital communication monitoring from the right perspective. Although cybercrime and terrorism are effectively being dealt with by such steps, nevertheless they are aimed at raising basic concerns about privacy under Article 21 of the Constitution.
4. Informer and Witness Protection: BNSS introduces full witness protection schemes for dealing with the problem of intimidation during a criminal trial. The changes are indeed for the better as they will see to it that persons involved in prosecuting serious crimes may do so in safety and security.
5. Summary Trial Procedure: BNSS seeks to avoid delays in the administration of criminal justice through time-bound trials for some crimes, most specifically those related to national security, to avoid manipulations of court procedures that delay the dispensation of justice.
IMPLICATIONS FOR CITIZENSHIP RIGHTS
While many provisions of BNSS have to do with strengthening national security, they cannot help but assail the constitutional rights of Indian citizens. Wide powers handed over to the agencies concerned have to be tested against the fundamental freedoms that accrue to the citizens under the Constitution.
1. Article 21: Protection of Life and Personal Liberty
Art. 21 of the Constitution grants a right to life and personal liberty. The Supreme Court, while interpreting this right in a wide sense, read the right to privacy as part of it in its celebrated decision in K.S. Puttaswamy v. Union of India. Even more important is the violation of enhanced surveillance powers under BNSS since this allows the monitoring of private communications without any checks and balances.
Even teamed with the avowed purpose of dealing with terrorism, there is an erosion of personal liberty in the preventive detention provisions under BNSS. Whereas safeguards against arbitrary detention are there under the law, the fact that the threshold for invocation of such powers is lower makes for a genuine apprehension of misuse.
2. Article 19: Right to Speech and Expression
BNSS expanded the definition to bring within its ambit a few acts that can be termed as 'economic terrorism' or 'cyber terrorism'. While this is arguably to address new crimes, such an expanded scope may have the potential to chill free speech and expression, which is guaranteed under Article 19 of the Constitution. For instance, BNSS defines it widely, such that even a simple voice of dissent or protest is branded as a threat to national security.
This is particularly worrisome in this digital era when a great deal of political expression is through online discourse and activism. It creates a possible chilling effect on the free speech rights of citizens, particularly on contentious issues that may implicate policies or actions by the government itself.
3. Article 14: Equality Before Law
Article 14 of the Constitution embodies equality before the law. However, BNSS would have some provisions that could give rise to different treatments in that, whereas BNSS seeks to remove cumbersome trials, it establishes special procedures in offenses relating to terrorism and national security. Special procedures could give rise to a dual system of justice in which ordinary crimes are treated differently from those identified as threats to security.
While there would necessarily be a concern about national security, any legal system that drew distinctions between anyone would have to be very careful that it did not contravene the principle of equality before the law. Measures of protection should be applicable irrespective of the crime's nature.
BALANCING SECURITY AND RIGHTS: A LEGAL MESS
BNSS presents a classic modern version of tussles between the need for national security and the protection of individual rights. Although the Act has been legislated to respond to modern security threats, its wide provisions endow law enforcement agencies with immense powers and make incidents of abuse quite possible.
Sound checks and balances must be in place to prevent arbitrary exercise of powers. For example, judicial review on the manner preventive detention may be resorted to, as provided in the Constitution, must be exercised rigorously. In the same manner, surveillance measures should not also suffer from a process that may be denominated as capricious and whimsical, and against unwarranted incursion into the privacy of a citizen.
Further, the terrorism and cyber-crime definitions be construed narrowly, so it does not impinge on freedom of speech and any right to dissent. Even as the Supreme Court itself said in so many cases, one of which is Shreya Singhal versus Union of India, "Laws casting corresponding effects on free speech have to be reasonable and proportionate to the aims pursued therein.".
CONCLUSION
BNSS has been one watershed change in the dispensation of criminal justice in India, particularly in the way it views security and public order. Its provisions, though meant to deal with current challenges like terrorism and cybercrime, cannot afford to overlook implications on citizens' rights. Equally importantly, BNSS as a legal community should be applied in such a way as to respect constitutional safeguards of an individual's liberty, freedom of speech, and equality before the law.
So, the legal framework in India has to walk a razor's edge between security threats to its citizens and the protection of fundamental rights that stand as a bedrock of Indian democracy. While BNSS is a step toward modernization, it should be continuously scrutinized for serving both ends.
REFERENCES:
1. Constitution of India: Article 21 - Right to Life and Personal Liberty.
2. K.S. Puttaswamy v. Union of India (2017) 10 SCC 1.
3. Shreya Singhal v. Union of India (2015) 5 SCC 1.