Supreme Court to Hear Challenges Against BNSS Provisions on December 18

The Supreme Court has scheduled a comprehensive hearing for December 18, 2024, to examine the constitutional challenges to several provisions of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The petitions, filed by the Mannargudi Bar Association and retired BSF Commandant Azad Singh Kataria, question the validity of provisions dealing with issues such as sedition, organized crime, police custody limits, and preliminary inquiries under BNSS.

Key Provisions Under Challenge

1. Mannargudi Bar Association Petition:

• Section 43(3): Relating to handcuffing of accused persons.
• Section 107: Concerning attachment and forfeiture of property.
• Section 223: Mandating a hearing for the accused in complaint-based cases before cognizance is taken.
• Section 356: Allowing trials in the absence of the accused.

2. Azad Singh Kataria Petition:

• Sections 111 and 113: Introducing offences under the Organized Crime and Terrorist Act.
• Section 152: Reintroducing the sedition law (similar to Section 124A of the IPC).
• Section 173(3): Allowing discretion to the police in registering FIRs after preliminary inquiries for offences punishable with 3-7 years of imprisonment.
• Section 187(3): Removing the 15-day maximum custody limit prescribed under Section 167 of the CrPC, raising concerns about police excesses.

Petitioners’ Arguments

Senior Advocate Menaka Guruswamy, representing the petitioners, argued that some provisions violate established safeguards under previous laws, such as Section 167 of the CrPC, which capped police custody at 15 days. Guruswamy highlighted that the new provisions omit safeguard language, leaving scope for indefinite custody and unfettered police discretion.

Further, the petitioners contend that Section 152 effectively reinstates sedition under a new guise, contravening the Supreme Court’s earlier suspension of the sedition law in SG Vombatkere v. Union of India.

Court’s Observations

Justice Surya Kant emphasized the importance of reviewing how sedition laws (previously under Section 124A of the IPC) have been interpreted by the Supreme Court historically and whether judicial principles are reflected in the new provisions. The bench also requested a revised and detailed compilation of challenged provisions, particularly focusing on their departure from previous legal safeguards.

Justice Kant further noted that terms like “beyond the period” in Section 187 could lead to ambiguous interpretations unless judicially clarified.

Background

The BNSS, along with the Bharatiya Nyaya Sanhita (BNS), aims to replace the existing CrPC and IPC with revised provisions. However, critics argue that several provisions dilute fundamental rights, particularly those under Article 21 (right to life and personal liberty).

The petitioners allege that the BNSS provisions, including those on sedition, police custody, and preliminary inquiries, contradict precedents set in Lalita Kumari v. Government of Uttar Pradesh and other judgments.

Case Details

1. Mannargudi Bar Association v. Union of India and Ors. (W.P. (C) No. 625/2024)
2. Azad Singh Kataria v. Union of India (W.P. (Crl.) No. 461/2024)

The Supreme Court’s decision in these cases is expected to clarify the constitutionality of the BNSS and its impact on personal liberties and procedural safeguards.