THE CONSTITUTIONAL AUDIT OF THE BHARTIYA NAGARIK SURAKSHA SANHITA (BNSS) ON THE TOUCHSTONE OF ARTICLE 21: ANALYSING ENHANCED STATE POWER AND THE RIGHT TO DUE PROCESS

Abstract

The adoption and enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023 signifies a complete restructuring of the criminal procedural law of India to substitute the Code of Criminal Procedure, 1973 in the aim to modernize the investigation, speed up the trials and to introduce the technology to the system of justice delivery. Although the reform is termed as a move towards decolonization and efficiency, it is also increasing the powers of the State in important operations like: arrest, detention, remand, search and seizure, attachment of property and digital surveillance. With this extended powers, since criminal procedure has direct implications on personal liberty, these extended powers attract the constitutionality review in relation to articles 21 of the constitution of india which provides that No one shall be deprived of life or without personal liberty except by a procedure that is defined in law.

This paper is a constitutional audit of the BNSS on Article 21 as interpreted in the judicial system to fulfill substantive due process, fairness, reasonableness and non-arbitrariness. The analysis will use a doctrinal and analytical approach to investigate the validity of the BNSS in terms of the statutory provisions, constitutional values, and precedents of essential measures to ensure that the state undertakes no arbitrary measures against individuals. It specifically focuses on the safeguards of custody, gradual police custody, wager jurisprudence, expeditious-trial ordinances, and barriers to forcedness and clean up surveillance. The paper in the end evaluates whether the BNSS can provide a constitutionally viable balance between an extended state power and preservation of individual liberty in the changing criminal- justice framework in India.