BALANCING STATE SECURITY AND INDIVIDUAL LIBERTY: A Constitutional Critique of BNS Provisions

Authored By: Diya Gupta

Manipal University Jaipur

INTRODUCTION

Criminal law is essentially a claim of sovereignty by the state. This is used as a protector as well as a sword that punishes any divergence from the status quo. Prior to 164 years of its enactment, the IPC was the cornerstone upon which substantive criminal jurisprudence in India stood. However, the passing of the BNS brings about a huge change in an attempt to decolonize the criminal law as per contemporary realities of society.

While the upgrading of the penal law is a noble legislative intent, the criminal law cannot exist in isolation. There has to be a constant balancing of the same with the Constitutional principles laid out in Part III of the Constitution of India. The balance of power between the state and the individual in terms of security is one such eternal balancing act in a constitutional context.

The present article examines the particular provisions of the BNS in light of constitutional standards, with regard to their impact on sovereignty crimes, crimes related to organized crime, and acts of terrorism. Though a modern penal code is required in today’s scenario, there have been some instances where the expansion of state powers within the scope of BNS is done to such an extent that it affects the basic human rights guaranteed under Articles 14, 19, and 21 of the Indian Constitution.

. THE EVOLUTION OF STATESECURITY PROVISIONS: FROM SEDITION

TO‘SANTHAN’

The new penal transition is the purported abolition of Section 124A of IPC that penalized “Sedition”. This section was widely seen as a colonial legacy whose aim was to stifle dissenters. Instead, the legislature came up with Section 152 of BNS that makes acts of endangering the “sovereignty, unity, and integrity of India” punishable offenses.

An analysis of Section 152 shows that although the word “sedition” has been deleted from the new section, the nature of the crime itself has drastically widened. Under Section 152, whoever intentionally or knowledgeably by words, signs, visible representations, electronic communications, or financial transactions, attempts to “excite or attempt to excite secession, armed rebellion, or subversive activities” against the government or “endangers the sovereignty, unity, and integrity of India,” will be liable.

This change needs to be analyzed with Article 19(1)(a) of the Indian Constitution that guarantees Freedom of Speech and Expression and the permissible limits of such right under Article 19(2). The Supreme Court of India in Kedar Nath Singh v. State of Bihar held that sedition could only apply where there is “incitement to violence” and/or “public disorder.” The use of terms such as “subversive activities” or “feelings of separatist activities” in Section 152, however, does not have any statutory definition.

The mention of “electronic communications” and “financial means” also gives a much broader reach to the powers of the executive to monitor and enforce Section 152. In today’s era, where it is easy to conflate democratic dissent with “subversive activities,” there is a risk that the threshold laid down in Kedar Singh case may not be fulfilled. Although the protection of national integrity is indeed a valid concern under Article 19(2), the dual meaning of Section 152 has a very strong negative effect on freedom of speech.

BROADENINGORGANIZED CRIMEAND TERRORISM FRAMEWORKS

WITHIN THEORDINARY PENAL CODE

A fundamental change in the BNS is the introduction of extraordinary criminal laws. In earlier times offences like terrorism or organized crime had been defined by self- contained statutes like the Unlawful Activities (Prevention) Act, 1967 (henceforth referred to as “UAPA”) or the state legislation like Maharashtra Control of Organised Crime Act, 1999 (henceforth referred to as “MCOCA”). In the BNS, such exceptional criminal laws are now part of the ordinary law of the land through Section 113 (“Terrorist Act”) and Section 111 (“Organised Crime”).

The implication of this development is the violation of fundamental rights especially Article 21 (Right to Life and Personal Liberty) and the principle of due process of law. The special statutes like the UAPA have very strict rules of procedure, special trial court and greater sanctions for executive permission to ensure the protection of these rights from abuse. With codification of another definition of “terrorist act” in Section 113 of BNS, the lawmakers have endowed the ordinary local police authorities the ability to prosecute the act under terror laws through ordinary procedures of law.

Moreover, Section 113 includes a immense area of economic acts, criminalizing actions leading to “widespread destruction of the economic security” of the State or destabilization of the monetary system through counterfeiting of currency. Though there cannot be any argument about the importance of the economic security, equating actions like counterfeiting or destabilization of currency as serious terrorist offences is dangerous.

Such overlapping jurisdiction gives rise to a perfect scenario for arbitrary action. As an act can be prosecuted either under a special law (like UAPA) or an ordinary law which is also prosecuted in BNS, there arises a scope for choosing the route of less procedural burden on the authorities, thereby violating the right to fair trial and fair procedure enshrined in Article 21. It was established in Maneka Gandhi v. Union of India earlier.

THEVAGUE PHRASED CONUNDRUM AND THE TOUCHSTONE OF

ARTICLE 14

One of the basic principles of criminal jurisprudence is the nullum crimen, nulla poena sine lege, which states that ‘ any penal laws should be clear and precise to avoid arbitrariness’. A citizen should be able to know about his or her prohibited acts in advance, otherwise, there is no point in having such laws. As per Indian constitutional law, the Doctrine of Vagueness has been recognized as an integral part of Article 14 of the Constitution of India (Right to equality and prohibition of arbitrariness). According to Shreya Singhal v. Union of India a statute defining a crime is said to be unconstitutional if it does not give proper meaning and clarity of the crime.

The BNS are unconstitutional due to the above-discussed doctrine of vagueness. First, Section 111 talks about “organized crime” wherein it says, “Any continuing unlawful activity by use or association with others through other unlawful means for the direct or indirect material benefit”. The phrase, “other unlawful means,” is vague because it is open to any sort of subjective interpretation.

The problem gets further exacerbated when the section uses the word, “subversive activities” in the second place. The phrase “subversive activities” has not been mapped in the Act at all. Without an exhaustive definition, this gives the discretion to the State Executive to change the crime depending upon the person being charged. This leads to violation of the Right to Equality (Article 14) of the Constitution of India as well.

THEDOCTRINE OF PROPORTIONALITY AS A BALANCINGTOOL

In order to settle the conflict between state maintenance and individual liberties, the courts in India have been increasingly turning to the “Doctrine of Proportionality” – which has become especially apparent in the seminal ruling regarding the privacy of individuals in K.S. Puttaswamy v. Union of India. The proportionality test demands that the state measures aimed at restricting any fundamental right have to pass four separate tests: state action must further a legitimate aim , There should be a rational nexus between the aim and means, state must employ the least restrictive means available, There needs to be a proportionate balance between the restriction of the right and the weightiness of the aim.

If analyzed through this four-part proportionality test, Sections 111, 113, and 152 in the BNS fail the test because they cannot pass through two last stages – necessity and balancing. Although protecting national security and fighting organized syndicates can undoubtedly be considered legitimate aims for the state, employing vague, overlapping, and excessively harsh measures in the ordinary legal system cannot be regarded as the “least restrictive means.” It simply means it doesn’t have restrictions.

There are already special mechanisms that are tailored to meet such extraordinary situations (such as UAPA and financial legislation). Integrating those extraordinary powers into the normal governance system will cause a disproportional infringement upon individual rights and freedoms. This means that the damage done is more significant than whatever benefits the state obtains from those new measures.

CONCLUSION

The transformation from the IPC to the BNS is an important point in Indian history when there is an attempt to move away from a colonially imposed law and create one that would meet the demands of the new India. However, a decolonial legislative intent does not provide complete protection from the analysis according to the provisions of the constitution.

The evaluation of the new security and organized crime legislation shows the tendency to strengthen executive power and disregard the individual freedoms. With the use of ambiguous language, incorporation of exceptional anti-terrorist measures in ordinary cases, as well as expansion of speech offenses in the BNS, the new code can upset the balance necessary for Part III of the Constitution.

Personal freedom and national security do not stand in opposition in a country based on constitutional democracy. A nation that deprives its people of personal liberties undermines its own internal stability. As the BNS starts to be used by trial courts, an enormous burden will be put on the shoulders of higher courts. It is necessary that the Supreme Court and the High Courts work as constitutional guardians of the constitution. They need to apply doctrines of vagueness and narrow construction in their decisions about particular issues and read down provisions. Otherwise, the law will not meet the demands of constitutional morality and uphold the liberties.

REFERENCE(S):

ARTICLES & SECTIONS –

The Bharatiya Nyaya Sanhita, 2023, No. 45, Acts of Parliament, 2023 (India).
The Indian Penal Code, 1860, Act No. 45 of 1860 (India).
India Const. art. 14, 19, 21.
The Bharatiya Nyaya Sanhita, 2023, § 152.
The Bharatiya Nyaya Sanhita, 2023, § 113.
The Bharatiya Nyaya Sanhita, 2023, § 111.

ACTS –

The Unlawful Activities (Prevention) Act, 1967, Act No. 37 of 1967 (India).
The Maharashtra Control of Organised Crime Act, 1999, Mah. Act No. 30 of 1999 (India).

CASES-