Written by Vinayak Manglik

Abstract

The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, replaces the Code of Criminal Procedure, 1973 (CrPC), with far-reaching amendments to Indian criminal procedure law. The most controversial clause is perhaps Section 187(2), which permits police custody at any stage during the 60- or 90-day judicial custody period, with a cumulative limit of 15 days. This paper offers a critical analysis of the legal, constitutional, and practical implications of the said provision. This paper examines the extent to which the provision facilitates the efficient administration of justice alongside the undermining of the constitutional rights of the accused with judicial precedents, international best practices, and available safeguards as benchmarks.

Introduction

The article will make a critical examination of the constitutional, functional, and legal implications arising while considering the provision. It will examine to what extent the provision works towards ensuring the administration of justice at the expense of compromising the constitutional rights of the accused, referring to judicial precedents, international practices, and potential measures of safeguarding. The BNSS, 2023, is a milestone in the reform of India’s colonial criminal process.

Aims to modernise the legal system, it introduces new tools and work techniques to law enforcement. However, of all its many amendments, the provision legalizing prolonged police custody has raised far-reaching controversy. Section 187(2) is a deviation from the settled judicial interpretation of Section 167 of the CrPC, which earlier limited police custody to the first 15 days of arrest. This manuscript seeks to analyse whether this deviation enhances or undermines India’s criminal justice system.

The Legal Framework: CrPC vs BNSS

In accordance with Section 167(2) of the Criminal Procedure Code (CrPC), police custody is permitted to be given for only 15 days from the day of arrest. After that, the accused can be handed over to judicial custody; however, the same can be up to 60 days in crimes punishable for less than 10 years and up to a limit of 90 days in case of serious offenses. This limit was strictly applied by the Supreme Court in the case of CBI v. Anupam J. Kulkarni (1992), where the Court held that police custody must be applied for within the initial 15 days.

Conversely, Section 187(2) of the BNSS demonstrates that requests for police custody may be submitted at any time within the said 60- or 90-day period as long as the total period does not exceed 15 days. Based on this, it implies that an investigating officer is entitled to request additional police custody on the 30th or even the 45th day.

Legislative Intent and Justifications

The reasons of the government are as follows:
•The complexity of modern-day crimes requires that investigations include financial scams, cybercrimes, and organized criminal syndicates, often requiring revised interrogations as new evidence emerges over time.
• Tactical Non-Cooperation by Accused: Certain accused fail to cooperate within the first 15 days, knowing that the police cannot request custody again subsequently under CrPC.
• Efficient Investigation: Periodic police custody facilitates more efficient sequencing of investigation and interrogation.
The state argues that such flexibility is useful in policing and addresses practical issues that arise during investigations.

Constitutional and Human Rights Concerns

While professing its utility, Section 187(2) does cause valid concerns of constitutional protection, essentially Article 21 of the Indian Constitution, guaranteeing the right to liberty and life

• Risk of Arbitrary Detention: Allowing police detention beyond the initial 15 days is likely to encourage coercive methods and psychological pressure.

• Custodial Torture: There have been a sequence of custodial deaths and human rights abuses in India. Greater police availability raises the prospects of such abuse, especially when effective oversight institutions are lacking.

• Contravention of Due Process: This clause is contrary to the doctrine of natural justice, especially in the case of the lack of fresh evidence for extended detention.

Additionally, India has ratified and signed the International Covenant on Civil and Political Rights (ICCPR), under which the immediate production before a court and protection against arbitrary detention is mandated. The requirement in this case, however, is not strictly within these bounds.

Judicial Interpretations and the Challenge to Precedents

As was previously mentioned, Anupam J. Kulkarni stated that beyond the first 15 days of police detention is not valid. The BNSS would apparently have the legal effect of trumping this established principle. This is a very important jurisprudential issue—can Parliament, by statute, trump judicial interpretation which has been the foundation of procedural fairness?

The courts will be faced with determining the constitutionality of Section 187(2) when challenged in court. If it is found that this protects individual liberties unduly at the expense of effective procedural safeguards, it can be struck down or amended.

Comparative Jurisprudence

Internationally, nations have more robust provisions to minimize the use of police custody:
• United Kingdom: Police custody, for the Police and Criminal Evidence Act (PACE), is normally restricted to 24-96 hours and an extension would need to obtain judicial approval.
• United States: Holding for over 48 hours without formal charging is unconstitutional (County of Riverside v. McLaughlin, 500 U.S. 44).
• European Union: The European Court of Human Rights underlines that extended police detention requires justification in terms of “reasonable suspicion” and “necessity.”

India’s move under the BNSS deviates from the prevailing international norms that emphasize freedom, judicial oversight, and detention limits.

Impact on Criminal Justice System

7.1.Investigative Efficiency

Practically speaking, the requirement can enable questions in cases related to:

• Several indicted with staggered arrests;

• Crimes necessitating financial audits or digital forensics;

•Evolving conspiracies and new evidence surfacing mid-investigation.

7.2. Rights of the Accused

But from the accused’s point of view,

• Uncertainty: Despite spending weeks in judicial custody, the threat of being re-jailed in police custody still looms.

• Legal Strategy: Threat of further detention can be utilized to oppose applications for bail.

• Defence Preparation: Apprehension of regular police interrogation might weaken the accused’s capacity to consult counsel or prepare case free from coercion.

Safeguards and Recommendations

If Section 187(2) is to be preserved, it is to be accompanied with robust safeguards:

• Judicial Oversight: Magistrates ought to require strong, written reasons for granting custody at later stages.

• Transparency: Custody applications should be clear in their intent and what new information necessitates further inquiry.

• Medical and Legal Access: It is essential that defendants have regular medical checkups and unfettered access to their legal advisers.

• Prohibition of Repetition: Any future applications, after police custody has been authorized and imposed, must be treated with suspicion.

•Custody Logs and Reviews: The courts will take into account custody logs and investigation progress reports in deciding to transfer more custody.

Conclusion

Section 187(2) of the BNSS introduces a paradigm shift in Indian criminal procedure, seeking a balance between investigation demands and procedural protection. Although the motive appears to be to assist justice, its application causes gravest threats to individual liberties.

As it is, the law can be easily misused, especially in a court system already riddled with issues such as custodial violence, long court proceedings, and a poorly funded judiciary. Therefore, although the amendment may be perceived as a step ahead in detective methods, it is a step backward for civil liberties, unless accompanied by appropriate safeguards and checks.

The real test of this provision will be what the courts do with it, what the police make of it, and what the legislators modify it under the threat of constitutional challenges and public pressure. Until then, caution must be exercised so that this procedural change will not destroy the very principles on which justice and liberty are based.

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Reviewed by Astha Priya and Jeet Sinha