‘India, Police State or Welfare?’ Plea in SC Challenges Constitutionality of New Criminal Laws

A petition has been filed in the Supreme Court challenging the constitutionality of key provisions in the newly passed Bhartiya Nagrik Surakhsha Sanhita 2023 (BNSS), part of India’s revamped criminal laws. Filed by advocate Vishal Tiwari, the plea seeks to declare sections of the BNSS as unconstitutional, alleging violations of fundamental rights under Article 21 of the Constitution.

Provisions Under Challenge
The petition specifically targets Sections 187(2), 187(3), 43(3), 173(3), and 85 of the BNSS, highlighting their alleged draconian nature:

• Section 187(2) and 187(3): Enable prolonged detention of the accused during investigations.
• Section 43(3): Permits handcuffing habitual or repeat offenders during arrest or court production.
• Section 173(3): Mandates a 14-day preliminary inquiry before filing a First Information Report (FIR).
• Section 85 and 86: Replicate the controversial Section 498A of IPC, raising questions about its necessity.

“Towards a Police State?”
Tiwari’s petition argues that the provisions grant excessive powers to law enforcement, fostering arbitrary arrests, police brutality, and custodial torture. It states, “India is slowly approaching a police state rather than being a welfare state… If British laws were considered colonial and draconian, then the Indian laws stand now far more draconian.”

One of the most contentious changes is the extension of permissible police custody from 15 days under British-era laws to 90 days under the BNSS, which the petitioner claims paves the way for increased police abuse.

Fundamental Rights and Judicial Precedents
The plea contends that the new laws violate the basic structure doctrine and fundamental rights guaranteed under Part III of the Constitution. It highlights the nullification of the Supreme Court’s earlier judgments, such as:

• Lalita Kumari vs. State of Uttar Pradesh: Established mandatory FIR registration in cognizable offenses.
• Arnesh Kumar vs. State of Bihar: Restricted arrests in non-serious offenses through Section 41-A of the CrPC, now abolished.

Opposition to the Bills
The petition also points out that the three criminal law Bills—Bhartiya Nyaya Sanhita, Bharatiya Sakshya Bill, and Bharatiya Nagrik Surakhsha Sanhita—were passed in Parliament with minimal debate and the absence of Opposition members from INDIA bloc parties.

Supreme Court’s Earlier Concerns
The petition references a Supreme Court observation in the Achin Gupta vs. State of Haryana case, where the legislature was advised to reconsider provisions in the BNSS, specifically Sections 85 and 86.

Calls for Reform
The petitioner underscores the absence of provisions addressing custodial deaths and police brutality, claiming the new laws intensify police powers rather than curbing them. He urges the Supreme Court to declare the contentious provisions unconstitutional to safeguard democratic values and citizens’ rights.

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Broader Implications
The outcome of this petition will have far-reaching implications on India’s criminal justice system, balancing between modernizing colonial-era laws and ensuring the protection of fundamental rights.