Proposed criminal code gives more immunity to defence personnel

The Standing Committee on Home Affairs which is examining the proposed the three new criminal codes - Bharatiya Nyaya Sanhita (BNS) Bill, 2023, BNSS Bill, 2023 and Bharatiya Sakshya (BS) Bill, 2023 has observed this.

Three new Codes for criminal Law and Justice System

The three new criminal codes - Bharatiya Nyaya Sanhita (BNS) Bill, 2023, Bharatiya Nagarik Suraksha Sanhita (BNSS Bill), 2023 and Bharatiya Sakshya (BS) Bill, 2023 will replace the Indian Penal Code, 1860, Code of Criminal Procedure, 1898, and the Indian Evidence Act, 1872 respectively. 

How armed forces are given more immunity?

• Immunity to armed forces personnel as no case can be registered against them for acts performed in the line of duty without the prior sanction of the Central or the State government.
• The CrPC first introduced in 1898 and later amended in 1973 provides protection to members of the armed forces only from arrest and there are no conditions regarding registration of a criminal case.
• The CrPC currently in existence says that “no member of the armed forces of the Union shall be arrested for anything done or purported to be done by him in the discharge of his official duties except after obtaining the consent of the Central Government”.
• Armed forces mean the Army, Navy and Air Force of the country.

Complimentary to Armed Forces Special Powers Act (AFSPA)

• The proposed provision will be in addition to the Armed Forces Special Powers Act (AFSPA) that gives unbridled power to the armed forces deployed in “disturbed areas” to arrest or kill anyone acting in contravention of law, and search any premises without a warrant, and protection from prosecution and legal suits without Central government’s sanction.
• Presently AFSPA is applicable in parts of Assam, Arunachal Pradesh, Nagaland, Manipur, and whole of Jammu and Kashmir.

Superseding powers under Special laws

• This provision under BNSS and AFSPA comes under the special laws and power. Special laws supersede the general criminal procedures.
• Special laws include the anti-terror Unlawful Activities Prevention Act (UAPA) and Maharashtra Control of Organised Crime Act (MCOCA), among others.

Why this special immunity is being questioned?

• Recent example of Nagaland where the Ministry of Defence denied sanction to prosecute 30 Army personnel including a Major who were accused of killing six coal miners in Nagaland’s Mon district in December 2021 due to “mistaken identity.”
• Nagaland Police had registered a case and filed a charge sheet against the accused but the prosecution sanction was denied.
• Further the sweeping immunity even in regard to registration of cases might violate the basic fundamental rights and equal access to justice.
• There are numerous examples from disturbed areas where innocent people were killed or imprisoned or their rights been violated in the name of security and counter insurgency?
• Thus the deliberation and examining process is apt in its observations and it shall result into balance between special immunity and protection of rights and freedom.