Supreme Court Hears Challenge to BNSS Provisions: Concerns Over Handcuffing of Serious Offenders

In a pivotal case concerning the Bharatiya Nagarik Suraksha Sanhita (BNSS), the Mannargudi Bar Association has petitioned the Supreme Court to scrutinize the constitutionality of four specific provisions. These include Section 43(3) regarding handcuffing, Section 107 concerning property attachment and forfeiture, Section 223 related to non-cognizance of complaints without a hearing, and Section 356 addressing trials in the absence of an accused.

During the proceedings, a bench comprising Justices Surya Kant and Ujjal Bhuyan focused primarily on Section 43(3), which permits handcuffing under certain circumstances, particularly involving serious offenders. The court acknowledged the potential for misuse but emphasized that the provision is intended for particularly egregious offenses, thereby not rendering the entire statute unconstitutional.

The Supreme Court has yet to issue a formal notice regarding the petition, with the next hearing scheduled for November 25.

Legal Framework of Section 43

Section 43 of the BNSS, which supersedes the Code of Criminal Procedure (CrPC), delineates the protocol for arrests. Specifically, subsection (3) states:

"A police officer may, keeping in view the nature and gravity of the offense, use handcuffs while effecting the arrest of a person who is a habitual, repeat offender, has escaped from custody, or has committed serious crimes including organized crime, terrorist acts, drug-related offenses, murder, rape, acid attacks, counterfeiting, human trafficking, and other crimes endangering national security."

Senior Advocate S. Nagamuthu, representing the petitioners, argued that this provision lacks adequate guidelines for its application, rendering it punitive rather than protective. He contended that it contravenes legal principles established by the judiciary.

However, Justice Kant countered this assertion, describing such offenders as "parasites" in society and emphasizing the necessity of preventive measures in their apprehension. He provocatively questioned Nagamuthu, "You don't want sexual offenders and terrorists to be handcuffed? Which part of this provision do you find objectionable?"

Justice Kant referenced a recent violent incident in Chhattisgarh involving a history-sheeter, underscoring the need for such provisions to protect society from habitual offenders.

Nagamuthu clarified that the challenge is not against the use of handcuffs per se, but rather the absence of standards governing their application. In response, Justice Kant invited Nagamuthu to specify offenses where he believes handcuffing would be justified to serve a societal deterrent purpose. When Nagamuthu cited case law, Justice Kant suggested that he examine international legal standards for comparative analysis.

Petitioner's Arguments Against Other Provisions

The petition critiques the following additional provisions:

(A) Section 43(3):

• Grants excessive and undefined authority to police officers for handcuffing.
• The classification of offenses is argued to be unreasonable, infringing upon Article 14 of the Constitution.
• It is characterized as punitive, contradicting the preventive rationale outlined in subsection (2).
• Ambiguities in defining "repeat offender" create uncertainty regarding its application.

(B) Section 107:

• Allows magistrates to allocate property to victims prior to determining actual victimhood, risking unjust deprivation of property.
• Lacks enforcement mechanisms for distributing undivided property.

(C) Section 223:

• Mandates cognizance based on the offense, not the offender, complicating cases lacking an identifiable accused.
• Section 223(1) is deemed redundant as existing provisions already address unidentified accused scenarios.

(D) Section 356:

• Implies a waiver of the accused's right to be heard under certain circumstances, conflicting with the fundamental right to a fair trial as established in Article 21.
• May lead to unjust convictions based on the confessions of absent co-accused.

Conclusion

The Supreme Court's forthcoming deliberations will address the constitutional validity of the challenged provisions of the BNSS, focusing on the balance between societal safety and individual rights. The outcome could have significant implications for law enforcement practices and the rights of accused individuals within the legal framework of India.