Construction of References – Section 3 of the BNSS, 2023

Section 3 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 is a structural provision that ensures harmony between the new Sanhita and other existing laws. It acts as an “interpretative bridge,” clarifying how generic mentions of “Magistrates” in various Indian statutes should be understood in the modern judicial hierarchy.

This section is vital for maintaining the best visible separation of powers between the judiciary and the executive, a principle enshrined in Article 50 of the Constitution.

The General Rule of Interpretation (Sub-section 1)

Whenever any law (other than the BNSS) mentions a “Magistrate” without specifying their type, or mentions “Magistrate of the first class” or “second class,” the law provides a high-clarity rule:

• Standard Reference: These shall be construed as a reference to a Judicial Magistrate of the first class or Judicial Magistrate of the second class, respectively.
• Territorial Jurisdiction: The reference must be understood in relation to the area where that Magistrate exercises their jurisdiction.
• Uniformity: This sub-section ensures that even if an older law uses archaic terminology, the current best-fit judicial officer (Judicial Magistrate) handles the matter.

Separation of Judicial and Executive Functions (Sub-section 2)

The BNSS explicitly divides the functions of a Magistrate into two distinct categories based on the nature of the task. This ensures top-tier judicial independence by preventing administrative officers from performing purely judicial duties.

1. Judicial Functions [Clause (a)]

If a function involves “judicial application of mind,” it must be performed by a Judicial Magistrate. These functions include:

• Appreciation of Evidence: Weighing the credibility of witnesses and documents.
• Shifting of Evidence: Analyzing the burden of proof.
• Formulating Decisions: Any decision that leads to punishment, a penalty, or detention in custody.
• Trial Commitment: Any act that sends a person for trial before a court.

2. Executive and Administrative Functions [Clause (b)]

If a function is administrative or concerns the maintenance of public order, it is exercisable by an Executive Magistrate. These functions include:

• Licensing: Granting, suspending, or cancelling licenses (e.g., arms or liquor licenses).
• Prosecution Decisions: Sanctioning a prosecution or withdrawing from one.
• Law and Order: Preventive measures to keep the peace.

Rationale: The “Judicial Sentinel” Role

The primary goal of Section 3 is to ensure that no citizen is deprived of their liberty except through a process overseen by a Judicial Magistrate.

• Protection of Liberty: By reserving the power of “detention in custody” exclusively for Judicial Magistrates, the BNSS ensures that the best visible safeguards against arbitrary arrest are maintained.
• Efficiency: Administrative tasks are left to the Executive (District Magistrates, SDMs), allowing the Judiciary to focus on the high-priority task of adjudication and trial.

Notable Case Law Context

While Section 3 of the BNSS is relatively new, its principles are rooted in landmark judgments that interpreted the identical provision in the CrPC (Section 3).

1. A.S. Ahluwalia v. State of Punjab: The court emphasized that when an officer is tasked with a “judicial function,” they must act independently of executive influence. Section 3(2)(a) codifies this requirement for judicial oversight in criminal matters.
2. State of Maharashtra v. Senat (Post-2024 Context): Early discussions on BNSS suggest that any administrative order passed by an Executive Magistrate that inadvertently affects a person’s liberty (like an illegal detention) will be subject to strict judicial review under the new hierarchy.

Summary Comparison: Judicial vs. Executive Functions