Appeal to the Supreme Court against some provisions of the new criminal laws

A petition has been filed in the Supreme Court challenging the constitutionality of some provisions of the new criminal laws, including the Bhartiya Nagrik Surakhsha Sanhita 2023.

The plea was filed through advocate Vishal Tiwari, who is opposing and challenging the constitutionality of some provisions of the criminal laws passed in the Lok Sabha on December 20, 2023.

In the petition, advocate Vishal Tiwari requested the Supreme Court to consider his submission 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 a violation of Article 21 of the Constitution of India.

Section 187(2) and 187(3) deal with the detention of the accused pending investigation. Section 43(3) of the BNSS deals with the use of handcuffs during the arrest of a person or during the production of such person before the court who is a habitual or repeat offender. Section 173(3) says that the investigating officer shall conduct a preliminary inquiry before lodging the FIR within 14 days.

“Issue the writ of Mandamus or any other appropriate writs and direct the judicial courts through the registrars of the High Courts to stay the directions given in the case of Lalita Kumari v. State of Uttar Pradesh. 12.2013 for the registration of the First Information Report in Cognizable Crimes”, the petitioner. prompted.

The petitioner said that with the implementation of these new legislations, India is slowly moving towards a police state rather than being a welfare state and absolute powers are being given to the police which will lead to police brutality, arbitrary arrest etc. The petitioner further said that such an element of the law violates the doctrine of basic structure and violates the fundamental rights of the people under Part III of the Constitution of India.” The Lok Sabha has passed three amended bills that seek to repeal and replace criminal laws dating back to the past. in the colonial era, 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; ) Sanhita Bill (BNSSS) will replace the Code of Criminal Procedure, 1898.

All three were discussed and approved by voice vote in the absence of the majority of the opposition members from the INDIA block parties as 97 of them were suspended in this session,” the petition said.

The petitioner submitted that on May 3, the Supreme Court of India in the case of Achin Gupta v. State of Haryana observed and asked the legislature/Government to reconsider the New Sections 85 and 86 NBS before its implementation. Section 85 and 86 of Bhartiya Nyay Sanhita are same as section 498A IPC and section 498A IPC is likewise reproduced in New Bhartiya Nyay Sanhita and there is nothing new in Bhartiya Nyay Sanhita section 85 and 86 only the sections have changed from 498 A IPC at 85 and 86 of the NBS, the petition said.

The petitioner said that the new criminals are much more draconian and are setting up police state in reality and are violating every provision of the fundamental rights of the people of India. If the British laws were considered colonial and draconian, then the Indian laws are now much more draconian because during the British period you could keep a person in police custody for a maximum of 15 days. “The extension from 15 days to 90 days and more, is a shocking provision that allows police torture,” the petition said.

The petitioner further added that there is still no provision for death in police custody and the police brutality depicted, rather it provides for giving more days of stay in police custody thus establishing police state and anarchy in the country.

“The Act repeals Section 41-A of the CrPC, which was the backbone of the country’s criminal procedural law but which is abolished today, rendering the Supreme Court’s judgment in the case of Arnesh Kumar vs State of Bihar & Anr null and void,” the petition said .