BHARATIYA NYAYA (SECOND) SANHITA BILL, 2023

• The revised Bill aligns the definition of terrorism in Section 113 with Section 15 of the Unlawful Activities (Prevention) Act, 1967 (UAPA). This modification narrows the scope, removing vague acts and potential categorization of non-violent speech as terrorism.
• Elimination of vague acts from the definition, focusing on specific elements of threat to national integrity and public safety.
• Widening the definition to cover the production, smuggling, or circulation of any counterfeit Indian currency or material, departing from the UAPA's limitation to high-quality counterfeit material.

Community Service as Punishment (Section 23)

The revised Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 introduces a defined concept of 'community service' as a form of punishment for minor offences. This aims to benefit the community and promote a reparative approach to justice for offences such as attempted suicide, public servants unlawfully engaged in trade, theft of property less than ₹5,000, public intoxication, and defamation.

• Definition of Community Service: 'Work which the court may order a convict to perform as a form of punishment that benefits the community, for which he shall not be entitled to any remuneration.'
• Empowered Magistrates: Magistrates of the First or Second Class are specifically empowered to impose community service, emphasizing a localized and more community-oriented approach to justice.

Expansion of Police Power (Section 43(3))

The revised Bill expands the power of the police to use handcuffs, extending it beyond the time of arrest to the stage of production before the court.

• Initially permitted to prevent the escape of individuals accused of serious offences, this power has been expanded to include the stage of production before the court.
• The panel recommended restricting handcuff usage to heinous crimes like rape and murder, excluding individuals accused of 'economic offences.'

Court Proceedings and Audio-Visual Means

The revised Bill introduces changes related to the conduct of court proceedings through audio-visual means.

Additions

• Section 251 now allows the reading out of charge to the accused through audio-visual means.
• Section 262 permits hearings on discharge through audio-visual means.
• Section 266 allows the examination of witnesses through audio-visual means.
• Section 308 introduces the recording of evidence through audio-visual means.

Police Custody Concerns (Section 187(3))

The revised Bill overlooks concerns raised by the panel regarding police custody beyond the initial 15 days of arrest.

• Section 187(3) no longer contains the phrase 'otherwise than in the custody of the police,' potentially allowing an aggregate of shorter periods of custody throughout the investigation.
• Concerns are raised about the vulnerability to misuse, particularly for individuals from marginalized backgrounds, emphasizing the need for clarity in interpretation.

Detained Person's Rights (Petty Cases)

Under the revised Bill, detained individuals in petty cases must be produced before the Magistrate or released within 24 hours. Ensures that individuals in petty cases are either produced before the Magistrate or released within 24 hours, safeguarding their rights and minimizing unnecessary detention.

The Bharatiya Sakshya (Second) Bill, 2023 addresses the admissibility of electronic evidence, introducing changes to ensure compliance with section 63. An electronic record's admissibility is now expressly subject to section 63, aligning it with the requirement of a certificate under section 65B of the Indian Evidence Act.

Concerns and Missed Opportunities

Experts have raised concerns regarding missed opportunities to address over-criminalization and expanded police powers in the three revised Bills.

• Police Custody Duration (BNSS) allowing police custody beyond the initial 15 days is criticized for endangering civil liberties.
• The BNSS expands the maximum limit of police custody from 15 days to either 60 or 90 days, depending on the nature of the offence.
• The risk of police excesses, coerced evidence, and fabricated charges due to prolonged detention.
• The expanded police powers in the BNSS are seen as a significant threat to civil liberties, raising alarm about potential abuses during extended custody. 

The revised Bharatiya Sakshya (Second) Bill, 2023 addresses the specific issue of admissibility of electronic evidence. However, concerns persist among experts regarding missed opportunities to rectify broader issues of over-criminalization and expanded police powers, particularly the provision allowing extended police custody. This criticism emphasizes the need for a balanced approach to legislation that upholds civil liberties while addressing legal complexities related to electronic evidence and law enforcement powers.