Arvind
The debate over citizen vs person surfaced in the recently passed three acts (by Indian Parliament), namely, The Bhartiya Nyaya Sanhita, 2023, The Bharatiya Sakshya Adhiniyam 2023, and The Bharatiya Nagrik Suraksha Sanhita 2023 to provide for a novel criminal manual repealing the previous criminal manual which embodied the Indian Penal Code 1860, Criminal Procedure Code 1973, Indian Evidence Act 1872.
The Bharatiya Nyaya Sanhita, 2023 is set to replace the Indian Penal Code and The Bharatiya Nagrik Suraksha Sanhita is set to replace The Code of Criminal Procedure Code,1973, and the Bhartiya Sakshya Adhiniyam, 2023 is set to replace the Indian Evidence Act, 1872.
While a great deal of criticism surrounds the assignment of Hindi nomenclature to the new laws as an attempt to assert linguistic domination a great deal of appreciation surrounds the same for the attempt made at erasure of the colonial origins of the previous criminal manual. The nomenclature of one of the three acts namely, The Bhartiya Nagarik Suraksha Sanhita, 2023 is flawed in its very nomenclature and carries within itself its possible unconstitutionality.
To, enable a contextual understanding of the same, it is crucial to delve into the jurisprudence running through the Procedural codes and the constitutional grounding of these procedural codes.
Constitutional Grounding of the Procedural Codes
Every law passed must stand the test of constitutionality to qualify as a valid law for which every law must trace back its origins to the constitution. Id est, it is the constitution that gives birth to the origin of any law, only because the constitution provides that such a law must exist, the law indeed exists’.
To state it in the words of Hans Kelson, ‘it is the grundnorm (constitution) which grants validity to all other norms (other laws)’. Having established that, the natural question that should crop up is the question Which provision in the constitution grants provides for criminal procedure codes and validates them?
The answer to the question is Article 21 which runs as follows, ‘No person shall be deprived of his life or personal liberty except according to procedure established by law’.
A criminal procedure deprives a person of his or her life ( in cases of imposition of the death penalty) and in an abundant of cases, it robs a person of his personal liberty (for example – to arrest someone is a procedure provided for in the code of criminal procedure, chapter VI, is essentially an act depriving a person of his/her liberty).
Thus, most criminal procedure is essentially an antithesis to Article 21 (as it deprives a person of his or her personal liberty). But they still stand the test of constitutionality by virtue of the following employed in Article 21 – ‘except according to procedure established by law’.
The procedure that is (Criminal procedure) depriving the personal liberty of a person itself has been provided for by the very Article 21. A reproduction of the draft article of Article 21 at the time of framing of the Constitution is essential to comprehend its true intent. The draft Article of Article 21 read as follows
Article 15, Draft Constitution of India 1948 (Draft article of Article 21)
‘No person shall be deprived of his life or personal liberty except according to procedure established by law, nor shall any person be denied equality before the law or the equal protection of the laws within the territory of India.’
A perusal of the reproduced article makes it amply clear that the intent of Article 21 is the protection of a person from being deprived of his/her personal liberty by any other procedure not provided for by the law’.
Thus, the law providing such deprivation prescribes the manner or procedure in which it seeks to deprive the person of his/her personal liberty and the deprivation of same in any other manner or procedure is unconstitutional.
For instance, To arrest a person is a procedure – depriving a person of his personal liberty , now the same may be done in numerous ways, any person may forcibly lock a person- (way-1) or may chain a person (way-2) and may arrest by production proper id proof of the fact of his being police officer, the production of arrest warrant and carrying other procedure as laid down under Chapter VI of CRPC,1973 ( way-3).
Of the three aforementioned ways to deprive a person of his/her personal liberty, the first two are unconstitutional as they have not been provided for by law and the 3rd way is validated and constitutional as the same has been provided for by a law which is CRPC,1973.
Thus, Article 21 while providing for a procedure to deprive the personal liberty of a person (CRPC,1973, WAY-3) simultaneously protects a person against the deprivation of his/her personal liberty by any other ways (way-1 and way-2 from the illustration).
Now the next question is To, whom does the protection against deprivation extend to? Does it extend to just the citizens or does it extend to all persons? It is at this juncture, that there is an apparent contradiction between the Bharatiya Nagarik Suraksha Sanhita and Article 21.
Article 21 Vs. Bharatiya Nagarik Suraksha Sanhita, 2023
To, whom does the protection against deprivation extend to? does it extend to just the citizens or does it extend to all persons?
Article 21 answers the question unequivocally as ‘The protection is extended to all persons’ as the word employed in Article 21 is ‘Person’.
It is here, that the Bharatiya Nagrik Suraksha Sanhita, which literally translates as – ‘Indian Citizen Protection Code’ stands in an apparent contradiction to Article 21. The attention here is to be drawn to the word – ‘Citizen / Nagarik’ as against the word ‘Person’ employed in Article 21.
Stricto sensu, ‘Every human being is a person, but every human being is not a citizen’. This much of it is pretty much clear at least from the citizenship protests witnessed by our country in recent years. The distinction between the two classes of human beings runs in the Part-III of the Indian Constitution which confers ‘Fundamental Rights’.
While, Article 14, Article 18(3)(4), Article 20, Article 21, Article 22, Article 25, 27, 28(3) employs the word ‘Person’. Articles 15, 16, 18(2), 19, employs the word ‘Citizen’.
The implication of the existence of a clear distinction between ‘Persons and Citizens’ is made even more conspicuous in Article 18(3) which runs as under:
Article 18(3) states ‘No person who is not a citizen of India shall, while he holds any office of profit or trust under the State, accept without the consent of the President any title from any foreign State’.
A bare perusal of the article implies that all persons are not citizens and it goes without saying that certain rights wherein the word ‘citizen’ is employed pertain exclusively to them but, certain rights wherein the word ‘person’ is employed pertain to all human beings and other legally recognized persons’ which is precisely, the word employed by Article 21.
While the intent of Article 21 is to extend Protection against unprescribed and unlawful deprivation of personal liberty to all the ‘Persons’. The Bharatiya Nagarik Suraksha Sanhita, 2023, which literally translates as – ‘Indian Citizen Protection Code’ (strives to protect against unprescribed and unlawful deprivation of personal liberty by prescribing a procedural path to that effect and mandating the observance of that only prescribed path), the code by employing the word ‘Citizen’ has done great injustice to Article 21 which to the contrary mandates the extension of such protection to all ‘Persons’.
The mandate of such Extension of the protection by Article 21 to all ‘ Persons’ is perfectly in consonance with certain Articles of the Universal Declaration of Human Rights (UDHR) which strives for the grant of equal protection to all persons from any deprivation of the personal liberty by procedures or manner not being the one provided for by law itself.
Thus, the nomenclature of the ‘Bharatiya Nagarik Suraksha Sanhita’ is flawed, restrictive, and apparently unconstitutional and the same needs to be re-named to be in tune with the nomenclature of the grundnorm, which is Article 21 of the Indian Constitution.
The views and opinions expressed by the author in this article are his personal opinions and do not represent the views of PureSociology. You can contact the author/s at [email protected]. The details of the author:
Mr. Arvind is a Law student at Chandigarh University (CU), Punjab (India).
