While this has served its purpose of clearing the path for motorists and pedestrians, it paints hawkers with the same broad organised crime brush as, say, heinous offenders. The offence is cognizable, non-bailable and imprisonment for not less than one year but which may extend to seven years and fine. Consider this: As per the National Judicial Data Grid (NJDG), as of August 2, 2024, more than 4.45 crore cases (over 3.6 crore criminal cases and 1.09 crores civil cases) are pending in various courts across the country. 

These could take anywhere between few years to decades to be cleared. And, after that, new BNS cases will also be dealt along with the pending cases, this will put an additional burden on the existing courts, especially in the rural areas, due to  insufficient manpower and infrastructure. Senior Advocate Rohini Salian is concerned about the possible misinterpretation of the specialised laws, the probability of them impinging on the common man’s fundamental right and of misuse by the police.

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Senior Advocate Rohini Salian

In an exclusive conversation with mid-day, the former chief public prosecutor for the state of Maharashtra and National Investigation Agency (NIA) shared concerns that without immediate corrective judicial intervention, some of the new sections could be misused. Specifically, she’s concerned about the three Sections 111 (Organised Crime), 112 (Petty Organised Crime) and 113 (Terrorist Act). Salian’s opinion is that they are poorly drafted and club multiple criminal acts under Organised crime.

She’s not alone: A PIL has been filed before the Supreme Court seeking directions to immediately constitute an Expert Committee to assess the viability of the BNS, Bharatiya Nagrik Suraksha Sanhita, 2023 (BNSS), and Bharatiya Sakshya Adhiniyam, 2023 (BSA). In the last weeks of July, while admitting a writ petition seeking that the new laws be declared unconstitutional, the Madras High Court Division Bench comprising Justices SS Sundar and N Senthilkumar remarked that, ”The Centre should have consulted at least the Law Commission before rolling out the three new sets of laws. The Law Commission exists for such matters [to advise the government].” 

Salian finds it troubling that BNS Section 112 (Petty organised crime) includes theft, snatching, cheating, unauthorised selling of tickets, unauthorised betting, or gambling, selling of public examination question papers (newly added offence), or anyother similar criminal act is said to commit petty organised crime. Most of these offences were dealt separately under the old penal laws, but the quantum of punishment for them under BNS varies from imprisonment for a minimum one year but may be extended to seven years, and shall also be liable to fine, thereby making the offence heinous. 

Case in point, the hawkers from Mahatma Phule Market who feel they have been booked unfairly under ‘organised crime’. Advocate Sunil Pandey, in the earlier mid-day report, had said, “Hawking cannot be considered petty organised crime. This will have a negative impact…as the courts will become overloaded with petty offence cases. Previously, the police would book hawkers under Section 102 (causing any obstruction in a street) of the Bombay Police Act. It didn’t include provisions for prosecution. BNS Section 112, however, includes provisions to prosecute the offenders…”

However, Advocate Dinesh Tiwari, who has been practising criminal law for over two decades, says the inclusion of these sections under BNS is apt “as it is the need of the hour to have a deterrent and stricter law. Even petty offences [such as hawking] or beggary can be run by an organised syndicate that is well-connected to the police and the municipal corporation. The existing laws were not a deterrent, hence news sections become crucial.”

Salian also finds problematic the use of synonymic offences under Section 111 such as kidnapping, trafficking of persons and human trafficking for prostitution for ransom, and is of the opinion that they will confuse advocates and courts as they can be interpreted and argued differently. For instance, abduction / kidnapping of a minor girl could be booked for trafficking for prostitution or labour.  

Salian observes that Section 111 can be applied to cybercrime, drugs, robbery, extortion, land grabbing, weapons or sale of illicit goods and services, human trafficking, and economic offences etc. All of these come under sub clause (1) even when specialised Acts such MCOCA (for organised crime), Information Technology Act (cybercrime), Narcotic and Psychotropic Substance Act (drugs and drug traffickers), Indian Arms Act (illegal use or sale of fire arm weapons) exist for each independently. 

“When specific crimes are dealt under specific laws, even under CrPC (Code of Criminal Procedure) and now BNSS, the advantage of clubbing all acts of crime into a single section 111 is unclear,” she says. “Moreover, there is a probability of misuse as it makes the above offences more heinous,” she says. “The malicious intent of the police to frame anyone cannot be ruled out if such blanket power is given to them with no supervision.” 

The shocker, she says, is the definition of Offence under Clause (q)  Section 2 of BNSS which is identical to that under sub clause (n) of Section 2 of the Code of Criminal Procedure (CrPC), 1973: Any act or omission made punishable by any law.…’ Then why the need for a new law? They (Central Government) could have amended the old criminal laws (IPC, CrPC and Evidence Act) by increasing the quantum of punishments and by bringing new offences (selling of public examination question papers) under its ambit, as they had done soon after the Nirbhaya incident on 16th December 2012.

The Union government had  introduced and passed the Criminal Law (Amendment) Bill and then the Act of 2013, wherein major amendments,  of the sections regarding sexual offences in the Indian Penal Code (IPC), making the offences more stringent, said Salian. Did the architects of these Acts intend then to serve as deterrents? Tiwari observes that the quantum of increase in financial losses due to cyber fraud proves that existing laws are not sufficient to deter these crimes. To this Salian responds, “Parliament is empowered to amend existing laws; there was no need to introduce new criminal Acts. Most parts of all three criminal laws—BNS, BNSS and BSA—borrow over 70 per cent of content from IPC, CrPC, and Evidence Act, unchanged.”  

If deterring crime was the intention, Salian says the law framers could have looked to MCOCA (Maharashtra Control of Organised Crime Act, 1999) and it’s numerous judgments by SC/ High court for reference, with its stringent checks and balances. “I was part of the drafting committee that laid down provisions under MCOCA,” says Salian, “to curtail organised crime, especially in Mumbai, where underworld activities had gone from extortion calls to murder in the 1990s.” MCOCA curbed underworld activities, and also secured maximum convictions—over 60 per cent of registered cases. Punishment and conditions for bail under MCOCA are far more stringent, there is no anticipatory bail, and fines can be up to R5 lakh maximum imprisonment could be either life or death..

To prevent misuse, MCOCA charges cannot be registered without the consent of high-ranking police officers including the Joint Commissioner and Commissioner of Police. “The Act mandates that offenders have a minimum of two FIRs and chargesheets against them, within a span of 10 years,” says Salian, “Moreover, permission of the Additional Chief Secretary (Home) has to be sought for telephone interceptions under the Indian Telegraph Act.” 

The present offences under BNS Section 111 can be registered at the police station, and attract a minimum imprisonment of five years up to imprisonment for life or death penalty; Fines range from R1 lakh to R10 lakh, depending on the nature of crime and the offender. Tiwari points out that the advantage of BNS Section 111 is that it can be uniformly applied in all states as many do not have specific laws for organised crime. “The new sections should be looked at with a wider purpose of eradicating evil,” he adds.

Salian cites the exposure of the nexus between the underworld and the film industry as an example of MCOCA’s efficacy. “Probe of the movie Chori Chori Chupke Chupke [starring Salman Khan, Rani Mukerji and Preity Zinta] led to the arrest of a businessman and film financer,” explains Salian. “The accused challenged MCOCA’s constitutional validity before the apex court and it upheld the provisions.” The then union home minister LK Advani directed other states to frame similar Acts, and Gujarat, Uttar Pradesh, and Karnataka followed suite.

Salian also fears that BNS Section 113, which covers Terrorist acts, has scope for blatant misuse.  Terrorist and Disruptive Activities (Prevention) Act of 1987 (TADA) and the Prevention of Terrorism Act of 2002 (POTA) were the primary laws to address terrorist activities before the amendment of the Unlawful Activities (Prevention) Act (UAPA), 1967.  

They (TADA/POTA) were good acts, but had to be repealed due to alleged misuse by law enforcing agencies. They could only be levied after consulting high-ranking police officers attached to specialised anti-terrorism agencies, and not at police stations. “After repealing TADA and POTA, we are again using UAPA, which was amended a few years ago,” she says. “There have been numerous instances in the past UAPA being misused by state and central investigating agencies.” 

Salian ends with quoting British jurist Sir William Blackstone who said in 1769 that ‘The law holds that it is better that 10 guilty persons escape than one innocent suffer’. “A few years ago, a division bench of Allahabad High Court stressed, while setting aside life imprisonment of two murder accused, that ‘99 culprits can escape, but one innocent shouldn’t be punished’.” And that for Salian, is what should steer the application of the new acts.