A Provision fraught with Practical Problems

The introduction of Section 107 in the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, has drawn attention due to its provisions regarding the attachment and forfeiture of properties deemed "proceeds of crime." This marks a significant shift from previous regulations under the Prevention of Money Laundering Act (PMLA) and the Criminal Procedure Code (CrPC).

Powers of Attachment and Forfeiture

• Unrestricted Police Authority: Section 107 allows police officers, upon approval from higher officials, to request the attachment of property suspected to be derived from criminal activity. This differs from the PMLA, which requires documented justification for such actions.
• Timing of Attachment: The BNSS permits property attachment during an ongoing investigation, whereas the PMLA stipulates that attachment should occur post-investigation. This expedites the process but raises concerns about due process.
• Disposal of Attached Property: If a court identifies attached property as proceeds of crime, it orders distribution to affected parties without awaiting the trial’s conclusion. This could lead to rapid disposal, bypassing essential legal safeguards.

Legal and Procedural Concerns

• Lack of Definitions and Guidelines: Section 107 does not define "proceeds of crime," creating ambiguity. Furthermore, there are no clear guidelines for District Magistrates on identifying claimants for the property, potentially leading to arbitrary disposals.
• Constitutional Implications: Article 300A of the Constitution asserts that no one can be deprived of property without lawful authority. The BNSS may contravene this principle by enabling property disposal without comprehensive trials.
• Potential for Abuse: The expedited process for property attachment and disposal raises the risk of wrongful deprivation of property rights. Critics argue that this undermines justice and fairness, essential tenets of the legal system.

Legislative Intent and Challenges

• Empowerment of State Authorities: The legislative intent behind Section 107 seems to empower state agencies for quicker resolution of property linked to crime, contrasting with the centralized PMLA. However, this raises practical issues regarding its implementation.
• Identification Challenges: Determining rightful claimants to the proceeds of crime is complex for investigators, particularly in cases involving organized crime or terrorism. The lack of a defined process could lead to misallocation of assets.
• Need for Comprehensive Revisions: For the BNSS to serve its intended purpose effectively, it requires significant revisions. Establishing clearer definitions, guidelines, and procedural safeguards will help ensure that the law is just, fair, and reasonable.

Practice Question

Q. Critically analyze the implications of Section 107 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, on property rights and the due process of law in India. What reforms would you recommend to address the identified legal and procedural challenges?