Understanding remand: CrPC section 167

Section 167 of CrPC empowers a Magistrate to remand an accused person to different forms of custody during the investigation process. It is invoked when the investigation cannot be completed within 24 hours of arrest. The provision aims to strike a balance between two competing interests:

• Protecting Individual Liberty: The provision ensures that an individual’s liberty is not unduly curtailed, and that detention is subject to judicial oversight.
• Facilitating Effective Investigation: This empowers the investigating agencies to gather evidence and interrogate the accused, ensuring a thorough investigation.

Sub-section (2) of Section 167 is particularly significant as it lays down the procedure for remand and sets a maximum limit of 15 days for police custody. The proviso to Section 167(2) further elaborates on this limit, allowing for judicial custody beyond 15 days and setting overall time limits for investigation (60 or 90 days, depending on the severity of the offense) after which the accused would or could be released on bail.

Evolution of judicial interpretation

The interpretation of Section 167(2) and its proviso has seen a shift over the years, shaped by significant judicial pronouncements:

• CBI vs. Kulkarni (1992): In this landmark case, the Supreme Court interpreted the proviso to Section 167(2) to mean that police custody was strictly limited to the first 15 days following the arrest.[1] This interpretation was aimed at safeguarding the accused from prolonged police detention, considered detrimental to individual liberty. This view was subsequently followed in Budh Singh v. State of Punjab (2000) — a three-judge bench order, solidifying the understanding that the 15 days of police custody had to be availed within the first 15 days of remand.[2]
• CBI vs Vikas Mishra (2023): The Supreme Court, acknowledging the practical challenges faced by investigating agencies, particularly in complex financial crimes, revisited the interpretation of Section 167(2) in this case. While the case dealt with the calculation of the 15-day period, the Court expressed the view that the earlier interpretation disallowing police custody beyond 15 days required reconsideration.[3]
• V. Senthil Balaji v. The State (2023): This case became pivotal in redefining the understanding of police custody under Section 167(2). The Supreme Court, while upholding the arrest and custody of the accused, interpreted the provision to allow for an aggregate of shorter custody periods spread across the entire investigation period (60 or 90 days). The Court reasoned that this interpretation was consistent with the provision’s language and its objective of balancing individual liberty with the need for effective investigation.[4] Justice Sundresh, authoring the judgment, emphasised:

“The period of 15 days being the maximum period would span from time to time with the total period of 60 or 90 days as the case may be. Any other interpretation would seriously impair the power of investigation. We may also hasten to add that the proviso merely reiterates the maximum period of 15 days, qua a custody in favour of the police while there is absolutely no mention of the first 15 days alone for the police custody.”

The Senthil Balaji judgment clarified that the 15 days of police custody need not be a continuous period and can be sought in shorter durations throughout the investigation, as long as the total does not exceed 15 days.

BNSS Section 187: The New Landscape

The Senthil Balaji judgement was delivered on August 7, 2023, and soon after, Union Home Minister Amit Shah introduced the three criminal law bills— Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagrik Suraksha Sanhita (BNSS), Bharatiya Sakhshya Adhiniyam (BSA) as new Penal, Criminal Procedure and Evidence Laws respectively.

The introduction of BNSS to replace the CrPC brought a shift in the legislative approach towards police custody. Section 187 of BNSS, the corresponding provision to Section 167 of CrPC, retains the 15-day limit on police custody. However, it introduces a crucial change in its wording, allowing investigating agencies to seek this period “in the whole or in part over 60 or 40 days”. This phrasing does not explicitly restrict police custody to the initial 15 days, unlike the proviso (as was interpreted in Kulkarni) in Section 167(2) of CrPC. This change in the BNSS aligns with the two-judge bench’s reasoning in the Senthil Balaji Case.

This change has sparked a debate and serious concerns about potential misuse and its impact on individual liberties. The lack of clear guidelines in BNSS regarding the circumstances under which police custody can be sought beyond the initial 15 days has amplified these concerns. The bills were subsequently referred to the Department-related Parliamentary Standing Committee on Home Affairs for its examination and report.

Ignoring the suggestions of the Standing Committee

The Parliamentary Standing Committee on Home Affairs, while reviewing the BNSS Bill, recommended incorporating specific safeguards to address this ambiguity. In the report it had adopted on November 6, 2023, it recommended that a suitable amendment may be brought to provide greater clarity in the interpretation of Section 187.  This recommendation was based on the suggestions from stakeholders arguing that as a general rule, custody should be taken in first 15 days of remand and the further window should only be utilised as an exception, when the accused is trying to avoid police custody or due to extraneous circumstances which are not within the control of the investigating officer.

Essentially, the committee sought to strike a balance between the rights-based approach and the approach of giving investigating agencies the necessary time. However, these suggestions did not materialise in the bills that were re-introduced and later passed in the Lok Sabha in December 2023. The BNSS came into force in July 2024.

How does it matter if 15 days of police custody is in part or whole?

Under the old CrPC regime, police could only request custody during the first 15 days of an investigation. After that, the accused was either placed in judicial custody or granted bail.

Under the new BNSS regime, the police can request custody in parts. For instance, they may request a 4-day custody period, after which the accused could be granted bail. However, since the police still have 11 days of custody left, they can later request another 4-day custody, potentially a week after the accused is granted bail. This means the 15-day custody limit could be stretched across the first 40 or 60 days, depending on the severity of the offense.

This matters for three key reasons:

1. The accused may face harassment through repeated police custody requests, disrupting their ability to function in daily life while on bail.
2. Not merely harassment –police custody is often an axiom for custodial torture– and prolonged availability of remand to an already powerful (and often brutalised police force) is likely to make accused victims to this in greater intensity in future.
3. Judicial officers may hesitate to grant bail until the police have exhausted their full 15-day custody allowance. Why? Granting bail early could require a cumbersome process of cancelling bail and approving further custody requests from the police.
4. When the CrPC was enacted in 1973, technological resources were far less advanced than they are today. Even then, the custody limit was capped at 15 days during the initial investigation period, as interpreted in the Kulkarni Case. With modern advancements like CCTV, facial recognition, and advanced forensics, allowing police to use the same 15-day period in parts grants them disproportionately higher power.

Implications

Potential for misuse:

The lack of explicit safeguards in BNSS regarding police custody beyond 15 days raises concerns about potential misuse and prolonged detention without adequate justification. For instance, the police could request custody on the 15th day of investigation while the accused is in judicial custody for a few days. Under the old regime, the police were required to seek custody within the first 15 days, after which the accused could apply for bail. However, now the accused is more likely to remain in prolonged detention until the police exhaust their 15 days of custody, effectively delaying the opportunity for bail.

Additionally, the right to claim custody in parts grants the police more power than before. For example, consider a situation where person X is arrested on Day 1 and sent to police custody by the court for 5 days on Day 2. On Day 7, X is released on bail. Until Day 16, X cooperates with the police by attending investigation sessions daily while on bail. However, on Day 17, X, frustrated with the line of questioning, decides to stop going to the questioning sessions. Since the police still have 10 days of custody remaining, they could use it as leverage to harass X. This skewed power dynamic makes it challenging for the accused to exercise their liberty, even when cooperating with the investigation.

In D.K. Basu vs. State of West Bengal (1996), the Supreme Court emphasised that in custodial crimes, the real concern is not only the infliction of physical pain but also the mental agony endured within the four walls of a police station or lock-up.[5] The new provision in the BNSS, by enabling the police to claim custody repeatedly within the 40/60-day period—depending on the severity of the offence—contradicts the judicial philosophy outlined in D.K. Basu.

Judicial Oversight:

The role of the judiciary becomes even more critical in ensuring that this power is exercised judiciously and that the rights of the accused are protected. Magistrates must rigorously scrutinise the grounds for seeking police custody at each stage, ensuring it is genuinely necessary for the investigation and not used as a tool for harassment or coercion. However, whether judicial officers will exercise such prudence or remain reluctant due to the challenges mentioned above remains to be seen.

Higher judiciary’s role – past and future

Both CBI v. Vikas Mishra and Senthil Balaji v. State demonstrate a judicial inclination towards prioritising the needs of investigation over a strict interpretation of the 15-day custody limit enshrined in Section 167(2) CrPC. However, these judgments fall short of providing a nuanced approach that balances both perspectives. The intent behind the Kulkarni case’s limitation of police custody to the first 15 days was to ensure there was no room for police excess. Since then, police powers have grown stronger, yet rather than achieving a balance between police authority and individual liberty, the Supreme Court judgments in Vishal Misra and Senthil Balaji have adopted a unidimensional approach.

The judgments could have explored the possibility of resetting the 15-day clock in situations beyond the investigating officer’s control rather than calling for a re-examination of the general rule established in the Kulkarni case.

For instance, if an accused falls seriously ill during custody, necessitating hospitalization and thereby preventing effective interrogation, the court could have considered pausing the 15-day countdown and resuming it upon the accused’s recovery. This approach would balance the need for a thorough investigation with the accused’s right to health and a fair opportunity to respond to allegations.

Similarly, in situations like CBI v. Vikas Mishra, where the accused obtained interim bail, other legal challenges or procedural delays could hinder the investigating agency’s access to the accused within the initial 15-day period. The judgments could have acknowledged such scenarios and allowed for a recalibration of the 15-day limit to ensure the investigation is not unfairly prejudiced.

To address this lack of balance, the higher judiciary could develop jurisprudence that empowers and enables lower courts to scrutinize police custody petitions seeking custody in parts, while carefully considering the rights of the accused. Although this will take time, it will provide the necessary balance that the BNSS currently lacks in Section 187.

Conclusion

While the current BNSS makes the questions posed by the court in Senthil Balaji and Vishal Misra almost infructuous, it is a constant expectation from the Supreme Court to exercise caution in calling established judgments and rules into question, which, unfortunately, was not met in these orders.

In a recent case, Prem Prakash vs. Union of India (2024), a two-judge bench of the Supreme Court stated as follows[6]:

“The principle that ‘bail is the rule, and jail is the exception’ is only a paraphrasing of Article 21 of the Constitution of India, which states that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Liberty of the individual is always a rule, and deprivation is the exception. Deprivation can only be by the procedure established by law, which has to be a valid and reasonable procedure.”

While this judgment relates to a different factual matrix, its emphasis on deprivation being an exception underscores the need to balance the rights of investigating agencies and the liberty of the individual under Article 21.

On the other hand, the Criminal Procedure Code should not serve as a machinery for the state’s exercise of unbridled power. The government, too, could issue Standard Operating Procedures (SOPs) or even undertake an amendment to the BNSS to provide the necessary clarification and balance the power of the police. The amendments could range from specifying offences for which police custody in parts could be sought to defining situations in which police custody could be justified.

(The author is part of the organisations legal research team)

[1] (1992) 3 SCC 141 CBI vs. Kulkarni (1992)

[2] (2000) 9 SCC 266 Budh Singh v. State of Punjab (2000)

[3] 2023 SCC OnLine SC 377

[4] 2023 INSC 677

[5] (1997) 1 SCC 416, D.K. Basu vs. State of West Bengal (1996)

[6] 2024 INSC 637, Prem Prakash vs. Union of India (2024)

Related:

Under trial Prisoners: MHA directs States/UTs to implement section 479 of BNSS

Amend Sec 187(3) BNSS in line with Sec 167(2) CrPC: PUCL to HM and Law Minister

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However, recent legislative developments within the hallowed chambers of the Indian Parliament have cast a shadow of concern over the robustness of these cherished principles. The ongoing monsoon session, which has witnessed the passage of contentious bills, serves as an illuminating case in point. Among these, the Forest Conservation Amendment Bill 2023 stands out as a stark reminder of the delicate balance between development aspirations and environmental safeguards. Despite fervent objections raised by civil societies and environmental advocates, the bill sailed through the Lok Sabha unaltered, underscoring the need for a closer examination of the prevailing legislative trends.

There have been a number of bills that have been passed or tabled by the parliament, regardless of the criticism and worries from the general public. A number of bills that directly impact the rights enshrined in each of us by the Constitution of India.

1. The Digital Data Protection Bill.

India’s lower house of parliament has recently passed the Digital Personal Data Protection Bill, despite facing criticism and concerns regarding the discretionary authority it grants to the union government. This legislation aims to establish a “comprehensive framework for the protection of digital personal data in the rapidly evolving digital landscape of the country.”

Key Provisions of the Data Protection Bill

The Digital Personal Data Protection Bill introduces several important provisions to regulate the collection, processing, and sharing of personal user data:

• Explicit User Consent: The bill mandates that companies collecting user data must obtain explicit user consent before processing it. This is a significant step towards ensuring that individuals have control over their personal information.
• Legitimate Uses Exemption: While explicit user consent is a general rule, the bill includes “certain legitimate uses” as exemptions for data collection without consent. This allows platforms to process personal user data when provided voluntarily in specific situations, such as sharing payment receipts or providing public services.
• Government Authority: The bill grants the Indian government the power to waive compliance requirements for certain data fiduciaries, particularly startups. Additionally, the government is empowered to establish a data protection board and appoint its members, including the chairperson.
• International Scope: The bill extends its reach beyond Indian borders, covering digital personal information handling even if it occurs outside India but relates to providing goods or services to Indian individuals.

Challenges and Concerns Surrounding India’s Data Protection Bill

While India’s Digital Personal Data Protection Bill introduces several positive measures to enhance data privacy and protection, it also faces a range of challenges and concerns that have sparked debates and discussions among various stakeholders. These challenges are significant and must be addressed to ensure that the bill achieves its intended objectives without compromising citizens’ rights and privacy.

A. Amendments to RTI Act:

One of the most prominent concerns raised by critics is the proposed amendments to the Right to Information (RTI) Act. The bill seeks to amend Section 8(1)(j) of the RTI Act, which governs the disclosure of personal information. While the original RTI Act allows for the sharing of personal information if it is in the larger public interest, the proposed amendment seeks to exempt all personal information from disclosure. This blanket exemption raises concerns about limiting transparency and accountability, as citizens might be denied access to important information that could be essential for monitoring public activities, exposing corruption, and holding public authorities accountable.

B. Lack of Independence of the Data Protection Board:

The establishment of an effective and independent oversight mechanism is crucial for the successful implementation of any data protection framework. The bill’s provisions regarding the Data Protection Board do not provide adequate autonomy from the government. The bill grants the government significant powers, including the ability to appoint the chairperson and members of the board. This lack of independence raises concerns about potential government influence on the board’s decisions and actions, which could compromise its ability to fairly enforce data protection regulations and ensure citizens’ rights are upheld.

C. Excessive Government Discretion:

The bill grants the central government wide discretionary powers, particularly in the form of issuing notifications and rules. This includes the power to exempt both government and private sector entities from compliance with specific provisions of the data protection law. Such broad discretionary authority can potentially lead to arbitrary decisions and undermine the overall effectiveness of the data protection framework. This excessive government discretion could be exploited to favor certain entities or interests, thereby weakening the bill’s objective of safeguarding citizens’ privacy.

D. Exemptions for Government and Lack of Accountability:

The bill’s provisions grant exemptions to the government itself, allowing it to process personal data without user consent in certain situations. This raises concerns about unequal treatment and a potential lack of accountability for government agencies. Additionally, the bill’s provisions protect the Data Protection Board and the government from legal action. This provision could hinder citizens’ ability to challenge potential data privacy violations and limit accountability for any misuse of personal data by government entities.

E. Limited Redress Mechanisms:

While the bill establishes the Data Protection Board to oversee data protection compliance,  the board’s ability to address citizens’ grievances effectively might be limited. The bill’s provisions for fines and penalties for non-compliance are significant, but citizens might face challenges in accessing the board and seeking redress for privacy violations. This could undermine the overall effectiveness of the data protection framework in providing timely remedies for data breaches and privacy infringements.

2. Forest (Conservation) Amendment Bill, 2023

The recent passage of the Forest (Conservation) Amendment Bill, 2023 in the Lok Sabha has raised significant concerns about its potential ramifications for the rights of minorities, marginalized communities, and the environment. Amidst cries of protest from the opposition, the bill was approved within a mere 30 minutes, prompting intense debates about its implications. This piece delves, again, into the provisions of the bill, its impact on various stakeholders, and the controversies surrounding its passage.

The Forest (Conservation) Amendment Bill, 2023 introduces crucial changes to the existing Forest Conservation Act of 1980. Under the new amendment, forest land within a 100 km radius of India’s borders can be exempted from forest conservation laws for the purpose of national security projects, small roadside facilities, and public roads leading to habitation areas. This amendment raises concerns about potential environmental degradation and its repercussions for indigenous communities residing in these areas.

Redefining the Purview and Exemptions:

One of the central changes introduced by the Forest (Conservation) Amendment Bill, 2023 is the redefinition of the Act’s purview. The bill exempts forest land up to 100 km along India’s borders from the Act’s coverage. Additionally, it grants the central government the authority to define and permit activities for ‘non-forest purposes’ on forest land. While proponents argue that such changes are necessary for national development, critics contend that these exemptions could lead to the degradation of forests and adversely affect marginalized communities that depend on these resources for their livelihood.

This has severe impact for the ecologically and politically fragile regions of India’s north eastern states.

Legal Issues and Ecological Concerns:

Critics of the bill point to legal issues stemming from a 1996 Supreme Court judgement, which clarified the applicability of the 1980 Act to all forests, regardless of classification. The new amendment could undermine this judgement by limiting protections to only officially designated forest areas. Environmentalists express ecological concerns, fearing that the bill’s provisions may lead to deforestation, habitat loss, and disruption of vital ecosystems. They argue that the bill’s emphasis on ‘compensatory afforestation’ is insufficient to mitigate the potential environmental damage.

Federal Structure and Indigenous Rights:

Another contentious aspect of the bill pertains to federalism and indigenous peoples’ rights. The bill grants the central government the power to decide whether certain activities can be classified as ‘non-forest purposes,’ which infringes upon the rights of state governments. Indigenous communities, often residing in forested areas, are likely to be disproportionately impacted by the bill’s provisions. The Forest Rights Act of 2006, which recognizes the rights of forest-dwelling tribes, could also be undermined, potentially leading to displacement and loss of livelihood for these communities.

Impact on Minorities and Marginalised:

The Forest (Conservation) Amendment Bill, 2023 could disproportionately affect minorities and marginalised communities that rely on forests for their subsistence. Indigenous tribes, traditional forest dwellers, and other marginalised groups often have deep-rooted connections to these ecosystems, relying on them for food, medicine, and cultural practices. The potential loss of forest land and disruption of ecosystems could further marginalize these communities and exacerbate existing inequalities.

The passage of the Forest (Conservation) Amendment Bill, 2023 has sparked significant debate over its potential impact on the freedom and rights of minorities and marginalized communities. While proponents argue that the bill is necessary for national development and achieving environmental goals, critics raise valid concerns about its legal, ecological, and socio-economic implications. As India continues to strive for sustainable development and the protection of minority and marginalized communities, it is crucial to carefully consider the long-term consequences of such legislative changes and ensure that their rights and well-being are adequately safeguarded

3. Biological Diversity (Amendment) Bill

The recent passage of the Biological Diversity (Amendment) Bill in the Rajya Sabha has sparked widespread debate and discussion due to the numerous concerns and critiques surrounding its provisions. The bill, introduced by Union environment minister Bhupender Yadav, proposes amendments to the existing Biological Diversity Act, 2002, with the aim of facilitating ease of doing business and promoting the commercial use of traditional resources, particularly in the AYUSH industries. Despite the concerns expressed by various stakeholders, the bill was passed by a voice vote in both houses of Parliament, raising questions about its potential impact on the fundamental rights of Indian citizens.

Critiques and Concerns:

One of the primary concerns raised by critics of the bill is its perceived bias towards promoting the interests of the AYUSH industries and facilitating ease of doing business at the expense of conservation and equitable benefit sharing. Critics argue that exempting users of codified traditional knowledge and AYUSH practitioners from sharing benefits with local communities contradicts the original objectives of the Biological Diversity Act, which aimed to ensure sustainable use of biological components and fair distribution of benefits arising from the use of biological resources.

Furthermore, the bill’s decriminalisation of offences related to biodiversity and its replacement with monetary penalties have also drawn criticism. This shift has led to concerns about the balance of power between government officials and the judiciary, as well as potential implications for the deterrence of offenders. Some critics argue that these changes could undermine the progress made in democratising biodiversity governance in the country.

Impact on Fundamental Rights:

The passage of the Biological Diversity (Amendment) Bill has raised significant questions about its impact on the fundamental rights of Indian citizens, particularly with regard to the right to a healthy environment and the rights of indigenous and local communities. The original Biological Diversity Act, 2002, was enacted to safeguard biodiversity and ensure equitable sharing of benefits, aligning with the constitutional obligation to protect and improve the environment for present and future generations.

The concerns regarding the bill’s potential to dilute these protections have implications for the fundamental rights of citizens. By prioritizing commercial interests and ease of doing business, there is a risk that the bill could lead to the exploitation of biological resources without adequate consideration for conservation and the well-being of local communities. This, in turn, could infringe upon the right to a healthy environment and the right of indigenous and local communities to their traditional knowledge and resources.

While the passage of the Biological Diversity (Amendment) Bill may have addressed certain policy goals, it has also given rise to valid concerns about the potential consequences for fundamental rights and conservation efforts in India. The delicate balance between promoting economic interests and safeguarding the environment, traditional knowledge, and the rights of local communities must be carefully managed. As the bill becomes law, it is imperative for policymakers, stakeholders, and civil society to remain vigilant and engage in ongoing dialogue to ensure that the implementation of the amendments does not compromise the essential principles enshrined in the Indian Constitution.

4. Government of National Capital Territory of Delhi (Amendment) Bill, 2023

The passage of the Government of National Capital Territory of Delhi (Amendment) Bill, 2023, commonly referred to as the Delhi Services Bill, has sparked a heated debate and controversy within the Indian political landscape. The bill aims to replace an existing ordinance and grants the central government extensive control over the appointment, transfer, and posting of bureaucrats in the Delhi government. While proponents argue that the bill streamlines administrative functioning, critics view it as an assault on democratic principles, federalism, and the separation of powers. This essay delves into the concerns and criticisms surrounding the Delhi Services Bill, highlighting its potential unconstitutionality and implications for Indian democracy.

Erosion of Democratic Principles:

One of the central concerns raised against the Delhi Services Bill is its potential to undermine democratic principles. The bill empowers the central government to wield significant authority over the administrative machinery of the Delhi government, bypassing the authority of the elected Chief Minister and the state legislature. This move not only erodes the autonomy of the elected government but also raises questions about the balance of power between the executive and legislative branches. Such a shift in power dynamics could lead to a situation where bureaucratic decisions are made without democratic accountability.

Violation of Federalism:

Federalism, a fundamental feature of the Indian Constitution, ensures a distribution of powers and responsibilities between the central and state governments. The Delhi Services Bill appears to encroach upon this principle by granting the central government unilateral control over key bureaucratic appointments and transfers. This not only diminishes the authority of the state government but also undermines the cooperative federalism envisioned by the Constitution. The bill threatens the delicate balance between the center and the states, potentially setting a precedent for similar interventions in other states, thereby weakening the fabric of Indian federalism.

Disruption of Separation of Powers:

A cornerstone of democratic governance is the separation of powers between the executive, legislative, and judicial branches. The Delhi Services Bill raises concerns about the separation of powers by granting the central government extensive control over bureaucratic appointments, which traditionally falls within the purview of the executive branch. This intrusion blurs the lines between the legislative and executive branches, potentially compromising the system of checks and balances that ensures accountability and prevents the concentration of power.

Unconstitutional Nature:

The Delhi Services Bill is unconstitutional as it infringes upon the powers and prerogatives of the state government, as defined by the Indian Constitution. The Supreme Court’s ruling in May, prior to the introduction of the bill, upheld the primacy of the elected Delhi government in matters of services and administration. The bill’s provisions that empower the Lieutenant Governor to unilaterally make decisions on various matters contradict the Court’s ruling and undermine the Constitution’s intent. Such a departure from the Court’s interpretation raises concerns about the bill’s constitutionality.

The passage of the Delhi Services Bill has ignited a fierce debate over its potential implications for democratic governance, federalism, and the separation of powers in India. The bill’s provisions pose a threat to the very foundations of the Indian Constitution and could set a concerning precedent for the centralization of power. While supporters of the bill maintain that it aims to streamline administration and ensure efficient governance, the concerns and criticisms raised highlight the need for a nuanced and balanced approach that respects the principles of democracy, federalism, and the separation of powers. It is imperative that the constitutional validity and democratic implications of such legislation are thoroughly examined and deliberated upon before enacting potentially transformative changes to the fabric of India’s governance.

5. Amendment to the Registration of Births & Deaths Act, 1969

The recent passage of the Registration of Births & Deaths (Amendment) Bill, 2023 in the Lok Sabha has ignited a fervent debate regarding its implications on privacy, democratic rights, and marginalized populations. This amendment seeks to establish a National Database of Births & Deaths, granting significant control over vital registration data to the Indian government. While the bill’s passage raises serious concerns, it is imperative to delve deeper into its provisions to comprehend the potential ramifications.

Privacy:

A Fundamental Concern Privacy, an intrinsic right, has been a topic of discussion as the amendment centralizes birth and death data. By sharing this sensitive information with national authorities, individuals’ control over their own data is compromised, opening avenues for potential misuse. The absence of clear guidelines on data access creates an unsettling scenario, wherein the government can decide which databases can tap into this repository. This unchecked delegation of authority raises questions about the government’s intentions and its commitment to safeguarding citizens’ privacy.

Impact on Democratic Rights:

The proposed amendment introduces a series of implications for democratic rights, notably:

1. Right to Education: The bill mandates birth certificates for school admission, inadvertently threatening marginalized populations. For those struggling to obtain birth documentation, this provision could hinder their right to education, thereby perpetuating societal inequalities.
2. Right to Vote: While the constitutional status of the right to vote remains a topic of debate, the emphasis on birth certificates could indirectly affect this crucial democratic right. Linking voting eligibility to birth certificates might exclude individuals who lack proper documentation, casting doubts on the inclusiveness of the electoral process.

Marginalised Populations: Caught in the Crossfire

The amendment inadvertently shines a light on marginalized populations. Its provisions may disproportionately affect these groups, potentially intensifying their struggles to access essential services. The requirement of birth certificates for various purposes could deepen the divide, further marginalizing vulnerable sections of society who face challenges in obtaining proper documentation.

Centralisation of Data: Lessons from the Past

The amendment’s centralization of birth and death data mirrors previous governmental attempts at data consolidation. Yet, history has shown that centralization often fails to address underlying issues and may even exacerbate problems. Rather than focusing solely on data centralization, the government should prioritize enhancing the efficiency and accessibility of birth and death registration systems.

Lack of Provisions:

A Recipe for Uncertainty One glaring concern lies in the lack of provisions to address the issues and gaps raised by the amendment. The absence of safeguards or guidelines for the protection of marginalized populations from exclusion highlights a significant oversight. A proactive approach to addressing these concerns would demonstrate the government’s commitment to an inclusive and equitable society.

Legitimising Exclusion:

A Cause for Alarm Perhaps the most troubling aspect of the amendment is its potential to legitimize exclusion. By failing to adequately address the concerns of marginalized populations, the amendment inadvertently reinforces existing inequalities. To foster a just society, the government must consider the implications of its actions on all citizens and take deliberate steps to ensure that no group is left behind.

The passage of the Registration of Births & Deaths (Amendment) Bill, 2023, has set the stage for a critical dialogue surrounding privacy, democratic rights, and the well-being of marginalized populations. As the amendment seeks to establish a National Database of Births & Deaths, it is paramount that its potential consequences are thoroughly examined. While the government’s intent to modernize data management is commendable, it must be accompanied by robust safeguards, inclusivity, and a genuine commitment to upholding the fundamental rights of every citizen. In this era of data-driven governance, the protection of individual rights and the promotion of an equitable society must remain paramount.

6. Press and Registration of Periodicals Bill, 2023

The Press and Registration of Periodicals Bill, 2023, which was introduced in the Rajya Sabha by the Union Minister for Information & Broadcasting, Anurag Thakur, and is meant to replace the existing Press and Registration of Books Act, 1867 (PRB). Though the “Statement of Objects and Reasons” mentions that the “proposed legislation is based on the spirit of upholding media freedom and ease of doing business”, in effect the new bill in fact widens the powers of the State to have more intrusive and arbitrary checks into the functioning of newspapers and magazines than the existing law had. However serious concerns have been expressed by the Editor’s Guild of India that has termed the proposed law “draconian.”

The expansion of powers of the Press Registrar, the new restrictions on citizens to bring out periodicals, the continuation of power to enter premises of news publications, the vagueness inherent in many of the provisions, and the ambiguity surrounding power to frame rules that can have adverse implications on press freedom.

 Expansion of power beyond Press Registrar

In the definitions section of the Bill, the term “specified authority” gives power to government agencies beyond the Press Registrar, to conduct the functions of the registrar, which could even include police and other law enforcement agencies.

Given the intrusive, expansive, and vague nature of powers that the bill in any case allows to the Press Registrar, the power to further delegate this power to other government agencies including law enforcement agencies is deeply distressing. Media organisations have strongly urged that only the Press Registrar should be the relevant authority for the purpose of this act and no other government agency should be given any powers with respect to registration of periodicals.

Denial and cancellation of registration to persons convicted for “unlawful activity”

Sections 4(1) and 11(4), allow the Registrar to deny the right to bring out a periodical, and to cancel the certificate of registration of a periodical, to persons convicted of “terrorist act or unlawful activity”, or “for having done anything against the security of the State”. Interestingly, the PRB Act, 1867, had no such provisions.

Given the liberal and arbitrary use of UAPA (which is the basis for defining “terrorist act” and “unlawful activity”), as well as other criminal laws, including Sedition, against journalists and media organisations to suppress freedom of speech, the introduction of these new provisions, and the way they can be misused to deny the right to bring out news publications to persons who are critical of governments is a matter of serious concern.

Power to enter premises of Press organisations

Under section 6(b), the Bill also gives power to the Press Registrar, (as well as any other “specified authority”) to enter the premises of a periodical to “inspect or take copies of the relevant records or documents or ask any questions necessary for obtaining any information required to be furnished”. This authority to enter a press organisation is excessively intrusive and it is deeply concerning that while on one hand, in the “Statement of Objects and Reasons” it is claimed that the intention is to make the process less cumbersome for press organisations, yet such powers are continued from the earlier laew.

Concerns regarding power to frame rules

Section 19 gives the Central Government powers to frame rules and guidelines under which news publishing is to be done in India. It has been seen time again that the power to frame rules under various acts has been used in arbitrary as well as excessively intrusive manner.

The recent IT Rules 2021, and the latest amendments made to it regarding setting up of a ‘fact checking unit’ with sweeping powers to order content take down is an illustrative example. Therefore, for the sake of preserving freedom of press, it is submitted that all such rules be clearly defined within the act, and there be no provisions be left to the discretion of a future government or a government authority.

To ensure that publishing of news in India remains free of encumbrances and intrusive checks on publishers by the registrar, and that the primary emphasis of the registrar and the PRP remains ‘registration’ and not ‘regulation’, as the latter has the potential of restricting freedom of press, this Bill needs to be reconsidered, amended before it is deliberated upon and made into a law.

The law on this issue should be more respectful of freedom of the press and should avoid granting vast powers to regulatory authorities to either interfere or shut down the press at their whims and fancies.

The Bill has already been passed in the Rajya Sabha, the Speaker of the Lok Sabha has been urged to refer it to a Parliamentary Select Committee, to allow a deep discussion on the issues that are crucial for press freedom.

Bills that have been passed in the last 5-10 years in the face of criticism- A pattern?

In the annals of India’s legislative history, the past decade has witnessed the emergence of a series of transformative bills that have ignited profound debates, courted legal challenges, and raised significant questions about their alignment with the nation’s constitutional ethos. These laws have traversed a spectrum of domains, ranging from governance and land rights to social justice and personal liberties. While they have aimed to address pressing issues and propel the nation forward, their impact on the bedrock of freedom and constitutional principles has been both lauded and contested. This part of the essay embarks on an exploration of key legislative acts enacted within the last 5-10 years, delving into their implications and the patterns that underlie their passage despite criticism. As India’s democracy grapples with modern complexities, these legislative developments provide a lens through which to examine the evolving relationship between governance, freedom, and constitutional fidelity.

In a rapidly changing world, where societal needs and aspirations are continually evolving, legislatures bear the weighty responsibility of shaping policies that reflect the nation’s values while addressing contemporary challenges. The bills under scrutiny have been emblematic of these endeavors, encapsulating the aspirations of a diverse and dynamic population. However, as the nation navigates the intricate dance between progress and preservation, the interface between these legislative measures and the sanctity of individual freedoms has emerged as a central concern.

These are some of the bills passed in last 5-10 years in the face of criticism-

1. Lokpal and Lokayuktas Act 2013:

While the Lokpal and Lokayuktas Act aimed to curb corruption, criticisms arose regarding the independence of the Lokpal and the effectiveness of its provisions. Concerns included the appointment process, the inclusion of the Prime Minister within its purview, and the potential for government influence, thereby raising questions about transparency and accountability.

2. Land Acquisition Bill 2013 (amended in 2015):

The Land Acquisition Act amendments faced opposition due to perceived violations of property rights and the rights of indigenous communities. Critics argued that the bill favored corporate interests over farmers’ livelihoods and local communities, leading to protests and legal challenges.

3. Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act Amendment 2018:

Amendments to this Act were criticized for diluting safeguards for marginalized communities. Protests erupted over concerns that the amendments weakened protections against discrimination and atrocities faced by these communities, leading to questions about social justice and equality.

4. Surrogacy (Regulation) Bill 2019:

The Surrogacy Bill faced criticism for being restrictive and not adequately addressing the complex issue of surrogacy. Concerns included the exclusion of single parents and LGBTQ+ individuals from surrogacy arrangements, raising debates on personal autonomy and reproductive rights.

5. Transgender Persons (Protection of Rights) Bill 2019:

The Transgender Persons Bill was criticized for failing to recognize the rights and identities of transgender individuals. Critics argued that the bill did not adequately address discrimination, lacked affirmative action measures, and violated the principles of self-identification and dignity.

6. Citizenship Amendment Act (CAA) 2019:

The CAA sparked nationwide protests and legal challenges due to its selective approach to granting citizenship based on religion. Critics contended that it violated the secular fabric of the Constitution and discriminated against Muslims, raising concerns about religious freedom and equality.

7. Farm Bills 2020:

The Farm Bills led to massive farmer protests over concerns about potential exploitation by corporations and the erosion of the Minimum Support Price (MSP) system. Critics argued that the bills could adversely affect farmers’ livelihoods and bargaining power, impacting their economic freedom.

8. Article 370 and 35A Repeal (Jammu and Kashmir Reorganization Act) 2019:

The repeal of Article 370 and 35A for Jammu and Kashmir led to debates about federalism, autonomy, and the rights of the region’s residents. Critics raised concerns about the manner in which the constitutional provisions were abrogated and the implications for the region’s identity and freedoms.

Democracy?

In the intricate tapestry of democracy, the process of passing legislation stands as a hallmark of governance that is meant to reflect the will of the people, protect their rights, and promote the common good. However, recent trends have unveiled a disconcerting pattern – bills being passed amidst criticism, raising valid questions about the democratic integrity of the legislative process. This essay delves into the complexities of this pattern, examining its implications for transparency, inclusivity, accountability, and the foundational principles of a democratic society.

Lack of Transparency:

Transparency serves as the bedrock of a healthy democracy, ensuring that decisions are made openly and with the public’s knowledge. When bills are passed despite criticism, a shroud of opacity descends over the legislative process. This lack of transparency undermines the public’s ability to understand the rationale behind decisions, eroding their trust in the democratic machinery.

Exclusion of Voices:

At the heart of democracy lies the principle of inclusivity, where every citizen’s voice is heard and represented. Passing bills amidst criticism, however, can lead to the exclusion of dissenting viewpoints. Such an exclusionary approach contradicts the democratic ethos and deprives the legislative process of the diverse perspectives necessary for well-informed decision-making.

Undermining Checks and Balances:

A fundamental tenet of democracy is the establishment of checks and balances to prevent the concentration of power. Passing bills without adequately addressing criticism can circumvent these mechanisms, leading to unchecked authority and a potential erosion of the separation of powers. This poses a significant threat to the delicate equilibrium that sustains democratic governance.

Ignoring Public Opinion:

Public opinion is the lifeblood of democracy, serving as a guiding force for policymakers. However, passing bills in the face of substantial public opposition or concerns undermines the significance of citizen input. The resulting dissonance between the government and the governed threatens to fracture the democratic contract that hinges on responsiveness to public needs.

Diminishing Accountability:

Accountability is the cornerstone of a functional democracy, ensuring that those in power are held responsible for their actions. Passing bills without addressing criticism can diminish accountability by evading rigorous scrutiny and accountability mechanisms. This evasion raises concerns about the potential consequences of such decisions and the erosion of the democratic principle of answerability.

Marginalization of Minorities:

Democracy is a safeguard against the tyranny of the majority, guaranteeing the rights of minorities. When bills are passed without adequately addressing criticism, the concerns of marginalized groups can be easily overshadowed. This marginalization of minority voices compromises the democratic commitment to protecting the rights and interests of all citizens.

Erosion of Trust:

Trust is the glue that holds a democratic society together. Passing bills amidst criticism erodes public trust in the government’s dedication to democratic principles. This erosion of trust can lead to disillusionment with the democratic process itself, weakening the social contract that underpins a functional democracy.

Conclusion:

The pattern of passing bills amidst criticism presents a paradox within democracy – a mechanism meant to uphold the people’s rights can at times appear to disregard their voices. The implications of this pattern are profound, touching upon the essence of democracy itself. As we navigate the intricate terrain of governance, it is imperative to recalibrate the legislative process to ensure that transparency, inclusivity, accountability, and the protection of minority rights remain sacrosanct. Only by addressing this undemocratic conundrum can we fortify the pillars upon which a vibrant and resilient democracy stands.

(The author is an intern with the organization)

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