Proposed criminal code gives more immunity to defence personnel

According a report published by the Standing Committee on Home Affairs, the Home Secretary briefed the panel about 46 significant changes in the proposed law

Updated - November 16, 2023 10:38 am IST

Published - November 15, 2023 07:58 pm IST - NEW DELHI

The proposed Bharatiya Nagarik Suraksha Sanhita (BNSS) Bill, 2023 that would replace the Code of Criminal Procedure (CrPC), provides further immunity to armed forces personnel as no case can be registered against them for acts performed in the line of duty without the sanction of the Central or the State government.

According a report published by the Parliamentary Standing Committee on Home Affairs last week, Union Home Secretary Ajay Kumar Bhalla briefed the panel about 46 significant changes in the proposed law. Mr. Bhalla had told the committee that the new law provides protection to armed forces personnel.

“The Sanhita introduces safeguards to prevent the registration of cases against armed forces personnel for acts performed in the line of duty without prior consent from the Central or State Government,” the report said quoting the Home Secretary’s presentation.

The CrPC first introduced in 1898 and later amended in 1973 provides protection to members of the armed forces only from arrest and there are no conditions regarding registration of a criminal case.

The CrPC currently in existence says that “no member of the armed forces of the Union shall be arrested for anything done or purported to be done by him in the discharge of his official duties except after obtaining the consent of the Central Government”.

Armed forces means the Army, Navy and Air Force of the country.

The proposed provision will be in addition to the Armed Forces Special Powers Act (AFSPA) that gives unbridled power to the armed forces deployed in “disturbed areas” to arrest or kill anyone acting in contravention of law, and search any premises without a warrant, and protection from prosecution and legal suits without Central government’s sanction. Presently AFSPA is applicable in parts of Assam, Arunachal Pradesh, Nagaland, Manipur, and whole of Jammu and Kashmir.

Earlier this year, the Ministry of Defence denied sanction to prosecute 30 Army personnel including a Major who were accused of killing six coal miners in Nagaland’s Mon district in December 2021 due to “mistaken identity.” Nagaland Police had registered a case and filed a chargesheet against the accused but the prosecution sanction was denied.

The Home Secretary informed that special laws will supersede the general criminal procedures. Special laws include the anti-terror Unlawful Activities Prevention Act (UAPA) and Maharashtra Control of Organised Crime Act (MCOCA), among others.

The Sanhita modernises the court structure as it simplifies the court system by eliminating British-era designations such as “Metropolitan Magistrate” and “Metropolitan Area,” the report said.

It also empowers the Central government to appoint Public Prosecutors for trial, appeal, and other proceedings in the National Capital Territory of Delhi in consultation with the High Court, the report said.

To promote gender parity, the BNSS allows service of summons on any adult family member, including women, in the absence of the person to be summoned, the report said.

The BNSS also stipulates that the statements of rape victims should be recorded by female Judicial Magistrates or, in their absence, by male Judicial Magistrates in the presence of women.

The three new criminal codes - Bharatiya Nyaya Sanhita (BNS) Bill, 2023, BNSS Bill, 2023 and Bharatiya Sakshya (BS) Bill, 2023 will replace the Indian Penal Code, 1860, Code of Criminal Procedure, 1898, and the Indian Evidence Act, 1872 respectively. The Bills were introduced on August 11 in Parliament and were referred to the Parliamentary Standing Committee on Home Affairs for examination.

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