Should it not be given a chance? Supreme Court on new criminal laws

The Supreme Court on Friday asked whether the new criminal laws should not be given a chance to see whether will curb crime [Azad Singh Kataria v. Union of India].

A Bench of Justices Surya Kant and Ujjal Bhuyan made the comment particularly in the context of a challenge to Section 111 of the Bharatiya Nyaya Sanhita (BNS), which added the offence of organised crime in the general criminal law.

“This is an all-India law, should it not be given one chance to see if it is a good tool to contain crime and curb the same?” Justice Kant asked.

The Court was hearing a plea filed by a retired BSF Commandant Azad Singh Kataria challenging the constitutionality of various provisions of the (BNS) and the Bharatiya Nagarik Suraksha Sanhita (BNSS).

Senior Advocate Menaka Guruswamy, appearing for the petitioner, contended that Section 111 does not contain the safeguards that exist in special enactments like the Maharashtra Control of Organised Crime Act (MCOCA) and the Unlawful Activities (Prevention) Act (UAPA).

However, the Court asked whether the Central law should necessarily provide safeguards. 

“Is it the legislative obligation when state law provides a safeguard, the central law must also do the same?” Justice Kant asked. 

The Court then gave the example of cyber crimes and asked whether the legislature can even think of providing any safeguards in these times.

Guruswamy argued it was not right to treat the offences of pick-pockets as organised crimes.

Justice Kant remarked that judicial monitoring in implementation of the criminal laws will continue to check any misuse. 

“When the laws BNS and BNSS came into force we had a lot of apprehensions and we had a lot of imaginary apprehensions...even for old law there is numerous instance of misuse...courts have found actions wrong and remedial action was taken. Even if safeguards were there, misuse will be there…so judicial monitoring will go on to see provisions of old or new law are not misused,” the Court observed.

Guruswamy insisted that general criminal law provisions without safeguards will negate the constitutional safeguards.

At this stage, Justice Kant remarked that even snatchers have become organised now.

“It is because of the definition of organised crime which is so over broad in nature,” the Senior Advocate responded.  

When the Court suggested that one must "think in the larger interest of society" to curb organised crime, Guruswamy said,

“Stringent criminal law will not act as a deterrent to curb crime."

The Court replied that when the accused knows that the onus to prove innocence is on them, the same can act as a deterrent.

“Unless there is an effective law it will not impact…toothless tiger will not help. See in USA, people dare not violate traffic signal or cross the signal when not allowed because they know they will be immediately handcuffed and [have] extraordinary penalty,” it added.

Guruswamy responded that in the US, the conviction rate in white collar crimes is 82 per cent, but in India, it is under 3 per cent.

Ultimately, the Court asked the counsel to prepare a chart showing what has been added and deleted in the criminal laws.

The matter will be heard next on December 2.

Advocates Lavkesh Bhambhani, Utkarsh Pratap, Arunima Das, Aditi Tripathi and Tushar Jain assisted Guruswamy in representing Kataria.

Kataria has challenged the constitutionality of the following provisions:

- Sections 111 and 113 of BNS, which introduce the offences of 'organised crime' and 'terrorist act' allegedly without any procedural safeguards that special laws should have.

- Section 152 BNS for reintroducing the offence of Sedition that has been kept in abeyance, with vague and overbroad language that can be misused to curb dissent against the ruling dispensation.

- Section 173(3) BNSS for allegedly giving unfettered discretion to the police to pick and choose when a criminal complaint can be registered.

- Section 187(3) BNSS for doing away with the maximum time limit of 15 days of police custody.

- Section 223 of the BNSS for creating a 'discriminatory distinction' between complaint-based cases and those initiated by a first information report (FIR).