New Delhi: A plea has been moved in the Supreme Court challenging constitutionality of some provisions in new criminal laws including the Bhartiya Nagrik Surakhsha Sanhita 2023.
The plea has been filed through advocate Vishal Tiwari, which oppose and challenge the constitutionality of some provisions in criminal laws passed in Lok Sabha on December 20, 2023.
In the petition, advocate Vishal Tiwari has urged the Supreme Court to consider his representation and and declare the Provisions/Section 187(2) (3), 43(3), 173 (3) and 85 of the Bhartiya Nagrik Surakhsha Sanhita 2023 as Ultra vires/ Unconstitutional being Violative of Article 21 of the Constitution of India.
Section 187(2) and 187(3) deals with the detention of the accused in the process of investigation. Section 43(3) of BNSS deals with use of handcuff while making the arrest of a person or while producing such a person before the court who is a habitual or repeat offender. Section 173(3) says that the investigating officer would conduct a preliminary inquiry before lodging the FIR within a period of 14 days.
"Issue writ of Mandamus or any other appropriate writs and direct the Judicial Courts through Registrars of the High Courts to remain Abide by the Directions Given in the case of Lalita Kumari versus State of Uttar Pradesh Writ Petition Criminal No. 68/2008 Judgement dated November 12, 2013 for the registration of First Information Report in Cognizable Offences," the petitioner urged.
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The petitioner said that with these new legislations in place, India is slowly approaching towards police state rather than being a welfare state and absolute powers are provided to police which will lead to police brutality, arbitrary arrest etc.
The petitioner further said that such element of law violates the basic structure doctrine and violates the fundamental rights of the people under Part III of the Indian Constitution.
"The Lok Sabha passed three amended Bills that seek to repeal and replace criminal laws which date back to colonial times. The Bharatiya Nyaya (Second) Sanhita Bill (BNSS) will replace the Indian Penal Code, 1860; the Bharatiya Sakshya (Second) Bill (BSS) will replace the Indian Evidence Act, 1872; and the Bharatiya Nagarik Suraksha (Second) Sanhita Bill (BNSSS) will replace the Code of Criminal Procedure, 1898.
All three were discussed and passed with a voice-vote, in the absence of the majority of Opposition members from INDIA bloc parties, as 97 of them have been suspended during this session," the petition said.
The petitioner claimed that on May 3, the Supreme Court of India in the case of Achin Gupta versus State of Haryana observed and asked the legislature/Government to reconsider the New BNS section 85 and 86 before its implementation. Section 85 and 86 of the Bhartiya Nyay Sanhita are ditto same as section 498A IPC and the Section 498A IPC is ditto reproduced in the New Bhartiya Nyay Sanhita and there is nothing new in the Bhartiya Nyay Sanhita section 85 and 86 only the sections have changed from 498 A IPC to 85 and 86 of the BNS, the petition said.
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The petitioner said that the new criminals are far more draconian and establishes police state in reality and violates every provision of fundamental rights of the people of India. If the British laws were considered colonial and draconian, then the Indian laws stands now far more draconian as in British period you could keep a person in police custody for a maximum of 15 days. "Extending 15 days to 90 days and more, is a shocking provision enabling police torture," the petition said.
The petitioner further added that there is still no provision on death in police custody and police brutality put into picture, rather it provides for the provision of more days of stay in police custody, such establishes police state and anarchy in the country.
"The law abolishes Section 41-A of CrPC which stood as the backbone of criminal procedural law of the country but that stands abolished today making the Supreme Court judgement in the case of Arnesh Kumar vs State of Bihar & Anr null and ineffective," the petition said.
