This article has been written by Nabeel Kolothumthodi, the Parliamentary Associate to a Lok Sabha MP and a Student of the Faculty of Law, University of Delhi

Decoding an Ominus Provision: Perusing the BNSS and Its Bang on Personal Liberties

The Bharatiya Nagarik Suraksha Sanhita (BNSS), supplanted the Code of Criminal Procedure 1973 (CrPC), incorporates clauses addressing the ‘Police Custody Period’ in another hesitant way.

The significant extension of potential police custody duration in the BNSS directly threatens the core safeguards of civil liberties. Rather than decolonizing criminal law, this draft solidifies colonial logic, wherein the primary focus of the state is to exert maximum control over the people.

Both the Constitution and the CrPC strictly forbid detention in police custody beyond 24 hours. The Magistrate holds the authority to extend this period up to 15 days if the investigation cannot be concluded within the initial 24 hours.

Moreover, the Magistrate can further prolong judicial custody beyond 15 days, provided sufficient grounds exist. However, the aggregate detention cannot surpass 60 or 90 days, depending on the nature of the offence.

The BNSS alters this process by introducing the provision that allows the authorization of 15 days of police custody in whole or in parts at any time during the initial 40 or 60 days within the overall 60 or 90 days period.

This alteration raises concerns about potential bail denials if the police argue the necessity to return the person to police custody during this period. This also creates a mysterious murk over human rights and implicitly bestows the police to ask for custody, giving a trump hand to the strained politicos.

In the landmark ruling of D.K. Basu v. State of West Bengal, the Supreme Court highlighted the importance of safeguarding the rights of the accused in custodial detention, emphasizing the necessity for strict adherence to due process.

Hence, endowing extended periods without meticulous checks poses the risk of turning the investigative process into a prolonged instrument of harassment, opening the door to potential abuse and compromising the integrity of justice.

Renowned criminal lawyer, Senior Advocate Rebecca M. John, elucidated that this provision allows the investigating agency to request 15-day police custody in ‘tranches’ throughout the initial 40/60 days of the investigation.

This implies that police custody can be requested in separate intervals beyond the initial 15-day period following the arrest. She also highlighted that the provision explicitly states that police custody cannot surpass 15 days.

However, it doesn’t have to be sought continuously within the initial 15 days after the arrest, as commonly understood, but can be obtained in various segments over 40 or 60 days, depending on the case.

The 15-day police custody within the initial 15 days of remand was the viewpoint that gained majority support, being endorsed by the Supreme Court in 1992 in the case of CBI v. Anupam Kulkarni.

The verdict emphasized that no detention in police custody can be sanctioned after the lapse of the initial fifteen days, after which any detention should exclusively be in judicial custody. Later, the view in the Anupam Kulkarni case was opened to debate by a Supreme Court bench, that too in April last year in the CBI v. Vikas Mishra case.

In this case, the Court granted permission to CBI to have 4 days of police custody on the ground that there was no effective interrogation during the period of first remand because the accused was not well and thus was hospitalized.

Almost identically, In a recent case, V. Senthil Balaji v. State, where a question arose against the Enforcement Director’s power to request custody, a two-judge bench of the Supreme Court provided an interpretation of Section 167 (2), stating that the 15-day period of police custody can be a cumulative total of shorter custody periods sought throughout the entire 60 or 90 days of the investigation, was also contradicting the Anupam Kulkarni Case. Justice AS Bopanna and MM Sundresh observed, “his period of 15 days has to be reckoned, qua either police custody or custody in favour of the investigating officer, spanning over the entire period of investigation…, The period of 15 days being the maximum period would span from time to time with a total period of 60 or 90 days as the case may be.”

Appreciation shall be extended for the courage to replace obsolete colonial remnants by analyzing contemporary needs. By prioritizing timelines and embracing enhanced technology in both investigation and trial processes, the BNSS envisions a criminal justice system dedicated to fairness and efficiency.

The mandatory inclusion of audio-video recording in search and seizure activities marks a crucial stride toward enhancing accountability and transparency in police operations.

However, As the BNSS undergoes scrutiny and debate, striking a balance between the state’s interests and the protection of personal liberties, either the visionary policymakers by law or the constitutional courts shall interpret the provision in the finest feasible way.

Thereby, as a steering emissary of democracy globally, it is inevitable to pinpoint the importance of prioritising human rights and personal liberty above government interests.