With the hasty introduction and drafting of the new criminal laws, Kapil Sibal, along with Congress leader P. Chidambaram, Justice Madan Lokur, and Justice Mukta Gupta, engage in a discussion about the so-called modernisation and actual expansion of colonial-era laws. They delve into issues such as peculiar nomenclature, potential threats to civil liberties, unchecked powers granted to the police, and inconsistent precedents, highlighting the regressive nature of these laws.
The following is the full text of the discussion, edited lightly for syntax and clarity.
Kapil Sibal: Namaskar, as you know, as of July 1, 2024, three new criminal laws have come into force. Instead of the old Indian Penal Code (IPC), we have the Bharatiya Nyaya Sanhita, called BNS; instead of the Criminal Procedure Code (CrPC) of 1973, we have the Bharatiya Nagarik Suraksha Sanhita (BNSS); and instead of the Evidence Act, we have the Bharatiya Sakshya Sanhita. Now these laws will be scrutinised in time to come by courts, but there’s a lot of controversy about the nature of these laws and the manner in which they have been drafted. Now what’s important is that the home minister, when introducing these laws in 2023 — and they are now in force from July 1, 2024 — made a statement that he wants to get rid of the yoke of the colonial era, that these laws were all laws of the colonial era, and that now we have drafted more modern laws getting rid of the colonial era.
Ninety to ninety-five percent of the provisions of the IPC, the Evidence Act, or the code of criminal procedure have been retained. Only 5–7% have been changed, and those changes are also the subject matter of a lot of controversy. Now, just before we introduce the panellists who are here to discuss, and we have really very eminent people, I just want to mention one fact. There is a provision in our Constitution, which is Article 21, which says that no person shall be deprived of his life or liberty save in accordance with procedures established by law. So, the three criminal laws fall within this fold because the penal code, as it was, took away your liberty and your life if you committed an offence under the penal code. The procedure on the basis of which you were to be tried is the criminal procedure code, which is also prescribed by law under Article 21, and the manner in which the facts have to be proved for you to be convicted is the Evidence Act.
So, the three laws are part of Article 21, so we’re going to examine whether these laws are at all consistent with Article 21 of the Constitution or not. But before we do that, let me introduce the panellists that we have. Mr. Chidambaram, as you all know, a famous and most eminent lawyer for years, has been, I think, six-seven times a Member of Parliament from Sivaganga (now he’s given it up and Karti is now a Member of Parliament there). He presented the dream budget of 1997; before that, he’s been Minister of Commerce; before that, in Rajiv Gandhi’s time, Deputy Minister of Commerce, Minister of the Department of Personnel, presented nine budgets; he has been the finance minister and the home minister. So, you know, he is the best person to really talk about the government side as to how laws are framed and how these laws are inconsistent. We have Justice Madan Lokur, who, of course, as you all know, has been Chief Justice of Andhra, Chief Justice of Guwahati, was a senior advocate, then became an Additional Solicitor General (ASG) for a while, and then he’s been a judge in the Supreme Court for several years with several landmark judgements, especially in the context of the environment. We have Mukta Gupta, who, I didn’t know, did your B.A. in Zoology. [Mukta Gupta: I’m a science student]. You’re a science student. I never knew that, but I discovered it. She’s been a judge of the Delhi High Court from 2009 to 2022. She has rendered some remarkable judgments. She was standing on the criminal side of the National Territory of Delhi. She was with the CBI for several years, and she’s done the trial as a prosecutor in the parliament attack cases, the Nitish Katara case, and many other important cases. She is now lecturing on these laws all over the country, also in the IAS Academy.
So, we have three really eminent participants in this, say, dialogue. Let me start with you, Chidambaram Ji. Is this getting rid of the British era?
P. Chidambaram: I’ve said it’s a posthumous tribute to Lord Macaulay, whose 90 to 95% of the Indian Penal Code has been retained. There are 511 sections—23 plus two chapters. 18 chapters have been cut and pasted. Not a word has been changed, and not a comma has been changed. So, in fact, you have conceded and admitted your inability to improve upon the language of Lord Macaulay. So, what colonial law have you overhauled?
I am objecting to the manner in which these new laws were drafted. If you are revising the Indian Penal Code, which is of the year 1860, the Indian Evidence Act, which is of the year 1872, and the CRPC, which is of the year of the year 1973, you should have sent it to the Law Commission. What is the Law Commission for? The Law Commission is only for the purpose of advising the government on how to revise laws. If you are contemplating a complete overhaul of the law, you should have sent it to the Law Commission. The law commission was bypassed. You handpicked a few professors at universities who held full-time jobs, and they were able to devote part-time to this drafting exercise, and they have done their best, which is not good enough. That is why you have these complete copy-and-paste laws. I object to the procedure, and it’s certainly not a complete overall review of the criminal laws.
Kapil Sibal: Well, Madan Ji, what is your view on this?
Madan Lokur: Yes, I agree with him that, you know, there are a few things like he has said about the colonial aspect. Now there are some expressions that have been used in the Indian Penal Code. “A woman quick with a child” is an expression I don’t think anybody has heard of for the last 100 years, right? But it’s there in the BNS. Then you have an instrument for some kind of surgery called a trepan. I don’t think anybody has heard of that instrument. And that is used in the illustration in the IPC and also in the BNS in case a person falls off his horse and injures his skull, and the surgeon uses a trepan on him. Now, how many people do you know of who fall off a horse, injure their skull, and there’s a surgeon hanging around with a trepan?
I mean, it’s just an exercise undertaken for the heck of it. That is one. The other thing is that I’m a little upset at the use of the word ‘Bharatiya’. The Indian Penal Code, Indian Contract Act, and Indian Succession Act were all drafted by the British parliament and applicable to India. Now why do you need to use the word ‘Bharatiya’ or ‘Indian’ for a new law? I mean, the Indian Parliament is doing it. Just call it the Nyay Samhita.
Kapil Sibal: India won the Cricket World Cup this time in T20.
Madan Lokur: Yeah, so why do you want to use the word ‘Bharatiya’? I mean, I don’t have anything against the word ‘Bharatiya’ for Indians, but it’s not necessary for a law drafted by the parliament of India for Indians. Are you going to call all our, say, the Biodiversity Act, which is being enacted, the Bharatiya Biodiversity Act? Are you going to call the Finance Act the Bharatiya Finance Act? Why are you doing this?
Kapil Sibal: Let me take this, since it’s very interesting. You mention this, but it’s ‘Bharatiya Nyay Sanhita’. What I don’t understand in this title is that under the penal code of the Nyay Sanhita, who prosecutes you? The state. An individual doesn’t prosecute you, right? What’s the purpose of this prosecution? That somebody has committed an offence not against one person but against society. All these offences are offences against society, so the purpose of the law is not justice. The purpose of the law is to punish him. So how do you use the word ‘nyay’? ‘Nyay’ is when one person is making out a case against another person and the court decides as to who is right. That’s when it’s justice. Here, you’re punishing. The intent of the law is to punish the individual. Therefore, ‘Bharatiya’ and ‘Nyay’, according to me, are words that are inconsistent with the intent of Article 21.
Also read: Full Text: Why Indira Jaising Thinks the New Criminal Laws Should Be Deferred
Mukta Gupta: My take on the BNS is that its preamble says it’s an act to consolidate the penal provisions. They have introduced some penal provisions from special statutes, like MCOCA, GCOCA, and APCOCA (Maharashtra/Gujarat/Andhra Pradesh Control of Organised Crime Act), where organised crime is bunched. They have been brought in in BNS as sections 111 and 112. The definition is verbatim. Now the effect of this is that the police are at liberty to use either the BNS Provisions or the special enactment. Similarly, Section 113 BNS has an offence of terrorist act. The definition is again the same as in the in the UAPA (Unlawful Activities Prevention Act).
It is the discretion of the police to either take the BNS route or the UAPA route. The procedures are different for both. If there are certain presumptions available to the prosecution, there are certain checks that are in those special statutes. If they wanted to amend and consolidate the acts, they would have brought these provisions into BNS at the same time but not repealed those special statutes. They could have consolidated all the penal provisions into one statute, as it would have made it much simpler than going to different statutes, and the interpretation of one provision would have been applicable to all.
P. Chidambaram: Electoral offences of the RP Act (Representation of People Act) have been brought into the new law.
Kapil Sibal: But coming to the issue of the hangover of the colonial era, there are two provisions on which I want your comments. One is to arrest a person on suspicion and keep him in police custody for 15 days. There is no penal code in the world that allows the police to keep you in custody for 15 days. There is no such parallel provision in the world. So that’s the hangover of the colonial era. What is the reason for police custody? Do you have the right to investigate? You investigate. You find material? You punish me, or you prosecute me. Why do you need police custody? This was done when the British were ruling us. This is the hangover of the colonial era.
Two is sedition. That’s the hangover of the colonial era in a much wider form. The moment you threaten the security or integrity of the state, you can be put away. These are the two real provisions that were part of the colonial era, and they have retained them. What is the basis on which you say that you are getting rid of the colonial era? In fact, you are perpetuating the provisions of the colonial leaders. You [Mukta Gupta] would know better in which country of the world you have police custody.
Mukta Gupta: All over the world, the basis for arrest by the police is reasonable grounds to suspect, and that is not the subjective satisfaction of the police officer. Here, the word used is ‘reasonable suspicion.’ What was used in Section 41 of the CrPC has been retained here. When the word used is ‘reasonable ground’ it shows that there should be some material with the police officer to affect the arrest. So, there is that dichotomy that continues in these provisions, plus there is no congruence. They have brought the provisions of registration of FIR ‘irrespective of the area where the offence is committed’. We had Section 154 of the of the CrPC, and now it’s Section 173 of the BNSS. Now the only addition in 154-1 CrPC is ‘irrespective of the area where the offence is committed’. So, if an offence is committed in one state, the FIR can be registered in another state, including the investigation carried out and all incidental procedures, including the arrest carried out, which is further fortified by Section 185 of the of the BNSS, which says that the confession will be recorded by the magistrate where the FIR is registered.
Kapil Sibal: Therefore, Gujarat police can come to Delhi and arrest anybody and then investigate. You can get a confession, but the CH sheet will have to be filed correspondingly.
Mukta Gupta: Correspondingly, the provisions where the trial has to take place are verbum, the same as CrPC, where 177 to 184 CrPC is verbatim in 197 of the BNSS.
P. Chidambaram: How can the police of one state investigate a crime committed in another state? Even the CBI cannot investigate without consent. Part of the cause of action or part of the crime must have been committed within that state.
Mukta Gupta: No, the word uses ‘irrespective of the area.’
P. Chidambaram: Contrary to federalism?
Kapil Sibal: This is what they will do. They will arrest anyone at any place. This is much worse than the colonial leader law.
P. Chidambaram: I think that they have given a greater latitude to the police and have restricted the discretion of magistrates. As far as I understand, 15 days of police custody, irrespective of the area, is 15 days in the first 15 days. That is the present position in the way the present law is being applied. Today, the 15 days can be divided into parts and spread over 40 to 60 days, for a total of 60 to 90 days of custody. Which means that effectively for 40 to 60 days, nobody will get bail in this country. Because the police arrest you and ask for your custody for three days, then they tell the magistrate they will come back in a week and ask. Now what will the poor magistrate do? He will grant police custody for three days, send you home, and then, after police custody, send you to judicial custody. So, in 40 to 60 days, nobody can get bail.
Kapil Sibal: And if you ask for bail, the police will say that the investigation is yet to be completed. Since they’ve got another, you know they have 12 days to investigate and keep you in police custody. Nobody will get bail.
Mukta Gupta: There is a provision in Section 480 BNSS that provides that ‘the accused being required for police custody beyond the first 15 days will not be the sole ground for refusing the grant of bail to the accused’ but we all know if one of these claims is taken that the accused is still required for custodial investigation, then the grant of bail becomes much more difficult for you.
Madan Lokur: Also look at it from the point of view of the accused person. He’s been in police custody for three days. Assuming the judge gives him bail after that, he is on bail for seven days, but the police come and say they want you in custody. So, he will be going home for three days or one week before coming back into police custody, and you know, like a shuttlecock, he’ll be going between home and custody.
Mukta Gupta: If he is not on bail, once he is released on ban, they cannot take him into police custody.
P. Chidambaram: That is why the magistrate will not grant him bail.
Mukta Gupta: That is why the provision to 480 BNSS will always be a ground to deny bail.
Kapil Sibal: The magistrate will say, but they have not yet taken you into police custody. anytime they will say we need to confront him with this witness or as they do now, and nobody will get bail for 40 days in a 60-day charge sheet case and 60 days in a 90-day charge sheet case. So, what are you going to do? And then you say that you want to get rid of the colonial era. I mean, I just don’t understand.
P. Chidambaram: See, the Supreme Court has said in a couple of judgements that when you arrest a person, a magistrate must examine the legality of the arrest. Chief Justice Chandrachud has said that the power to arrest does not mean the necessity to arrest. The magistrate must ask about the legality of the arrest and the necessity for the arrest, but this law does not even reflect that development of the law.
Kapil Sibal: But this has been happening in the past. Even under 41A, when the sentence is seven years old, you can call him, and at that point in time, you can arrest him. You don’t have to give reasons.
P. Chidambaram: But if they were modernising criminal juris prudence, they should have added legality and necessity.
Mukta Gupta: They should have, in fact, added the Arnesh Kumar judgement as well.
But apart from that, supposing how are you going to decide on the legality of the arrest unless the accused knows what is against him at that point in time? If you really want a reasonable law that is fair, then if you say these are the reasons why we want to arrest him, then that reason should be given to the accused so that he can ask for bail. Otherwise, it’s between the trial judge, the special court, and the prosecutor. How does the accused know on what grounds he’s being arrested and whether his arrest is legal or not? If you want to modernise the law, this is where you must improve.
P. Chidambaram: None of the landmark Supreme Court judgements of the last ten years are reflected in the new law. We’ll have to go back to the court and say that notwithstanding the new law, the principles will have to be applied.
Mukta Gupta: Ninety to ninety-five percent is verbatim, they say. There is tweaking done in most of the provisions where there are changes, but they have not maintained continuity. If one provision is there, then that should be put in continuously towards the end, but halfway there are amendments, but later there are no amendments. So, there is so much dichotomy when you read the provisions because others have been directly retained as they are. As I said, the trial is like a charge sheet investigation by another state police, and the charge sheet goes back to the same place where the offence has been committed. Now, who will grant bail? What will happen to the remands already granted? When will the papers be transmitted, and during the transmission of papers to the court of competent jurisdiction, what will the stage of that period of remand be called? Because cognizance will be given by the magistrate who is competent to do the trial. One day, they cannot just transfer it to the competent court. Supposing they do it on the 90th day and matters are then transferred to the competent court on the charge sheet, what will this interim custody be called? Will it be illegal custody?
Kapil Sibal: These are all very serious issues. If I may read the new provision of the BNS on sedition, this is what it says. It doesn’t call it sedition, but this is what it is. It says, “It penalises the following: exciting or attempting to excite secession, armed rebellion, or subversive activities; encouraging feelings of separatist activities; or endangering the sovereignty, unity, and integrity of India. These offences involve the exchange of words or signs, electronic communication, or the use of financial means.” So now you know you have a protest march, you have a bandh, you have some form of violence, it would be subversive, it will affect the unity of India, there are some speeches made that are incendiary, and you will be put in jail for life. For Life. This is the definition of sedition. This is wider than 124a.
Now let me give you another definition of terrorism. This is even more serious. “Includes an act that intends to threaten the unity, integrity, security, or economic security of the country.” It becomes terrorism.
Mukta Gupta: This economic security had already been added.
Madan Lokur: Membership in an organisation makes the person a terrorist too.
Mukta Gupta: Yes, that’s under the UAPA as well.
Kapil Sibal: ‘Strike terror in the people or any section of the people’. So, what do you mean by striking terror? You can do it by any means.
Madan Lokur: You see, one of the problems that I find, not only with these laws but generally, is the question of application or the implementation of the law. The police will implement the law the way they think. Whether it’s right or wrong, it doesn’t matter. So, a tweet, for example, can amount to sedition; they have arrested people for tweets. So now, even today, under the new BNS, if somebody gives a tweet that the police think is subversive and all, they’ll put that person in. So, implementation is also, I think, a very crucial aspect.
Kapil Sibal: Laws of this nature have to be defined carefully.
Madan Lokur: You have to be very precise.
Kapil Sibal: This is the problem. There is so much vagueness in the definitions that the police officer would do what he wanted.
P. Chidambaram: Kapil, I think economic security was eventually dropped. What are you reading in which section?
Kapil Sibal: I’m in the section on terrorism.
P. Chidambaram: Terrorism? 152, which is equivalent to 124a?
Kapil Sibal: No. 124a is sedition. I’m talking about terrorism. That’s the serious part, which means a big financial scam is terrorism.
P. Chidambaram: 152 is also used. “Whoever, by use of financial means, excites a session,” etc. So, if, through financial means, you endanger the unity and integrity of India, you can be punished and will come under 152. This punishment includes imprisonment.
Kapil Sibal: With what mindsets have these people drafted these laws? I don’t understand.
P. Chidambaram: See, none of them was a practicing lawyer except Mahesh Jethmalani. All the rest are professors. I’ve seen the names.
Kapil Sibal: I must share this with you (ML). You, of course, gave a faint note to the recommendations in the standing committee. But I know for a fact that I gave the names of several prominent lawyers in the Supreme Court to come as witnesses before the committee, and they were not called.
P. Chidambaram: We gave a list of judges witnesses. No one was called. The chairman summarily rejected our list. We wanted judges, lawyers, and jurors to be called, but none were called.
Kapil Sibal: This is shocking. Now take the definition of organised crime, which is even more interesting. “Organised crime includes offences such as kidnapping, extortion, control killing, land grabbing, and financial scams,” becomes organised crime, “and cyber-crime carried out on behalf of a cyber-syndicate.”. Attempting or committing organised crime will be punishable with death or life imprisonment.
Mukta Gupta: The dichotomy in this is that a criminal breach of trust is not an offence under PMLA (Prevention of Money Laundering Act), so it’s not thought to be serious. Whereas under this, this economic offence is an organised crime. Whereas 420 IPC, which is for cheating, which was an offence under the PMLA scheduled offence, is a petty organised crime under 120.
P. Chidambaram: Cheating is a petty organised crime. That was very petty of them to say that.
Mukta Gupta: See, 112 includes cheating, theft, snatching, and unauthorised selling of tickets. Cheating is a petty organised crime offence. The punishment for this is imprisonment for a term that shall not be less than one year, but which may extend to seven years. Now, under Section 46, a subsection has been included that provides for handcuffing. The Supreme Court in Prem Shankar Shukla clearly said that the nature and gravity of the offence cannot be the criteria. The same is violative of Article 21 of the Constitution. Now the nature and gravity of the offence are the criteria, and that will be decided by the police officer.
P. Chidambaram: There are several retrograde provisions. For example, adultery has been brought back. Solitary confinement has been introduced as a punishment, and then they have now said all witnesses can be deposed by electronic means. I mean, one should be cross-examined, and you have to have eye contact. Furthermore, documents can be proved by a successor. Not only when the officer is dead, but even when he’s transferred, the successor can prove the document. If a man prepares and registers a document, he must come and give evidence, as it is from his predecessor, if you oppose the document. These are retrograde provisions, and the sooner they are challenged, I think, the better.
Kapil Sibal: Let me give you another definition of mob lynching. It says, “Murder or grievous hurt by five or more people on specified grounds is an offense.” These grounds include race, caste, sex, language, or personal belief. Punishment for such murder is life imprisonment or death. So, you put somebody, add five more people, use 149 here, and you can call it mob lynching. Now they will not do anything about the previous 153a (promoting enmity). On that, they have not done anything. That’s the law that needs to be reformed. Here, their very important dignitaries are actually misusing those provisions, and nobody takes action against them. That’s the law that should have been changed to make it more modern. But they’ve not done any of that. I want to point out that this electronic means is a good step. One has had to use electronic means nowadays since we’re going into the electronic age. But where’s the infrastructure?
Mukta Gupta: They’ve given a five-year period for it, but in the meantime, you will help with the help of the adjoining states.
Madan Lokur: But also, you know what Mr. Chidambaram says: if you want to cross-examine a witness, you should be there in front of you. I mean, you have things like demeanour and body language.
Mukta Gupta: You don’t know what he is assessing—if it’s electronic. Even guidelines were laid out in Praful Bidwai’s case by the Supreme Court, saying that he has to be present as a place, there should be somebody to monitor the evidence, and he will be at the high commission. There’ll be a competent officer, and then only deposition can be there. Now, electronically, you never know that the witness has opened his statement in front of you and that he’s reading it out.
P. Chidambaram: What about approving his evidence? Unless you have eye contact with him, you have to look him in the eye; he must look you in the eye. If he casts his eyes down and his fidgets are factors that must be noticed by the judge, this guy is obviously lying, and he is not willing to look the defence counsel in the eye or the accused in the eye.
Kapil Sibal: You at one stage raised this point about community service?
P. Chidambaram: This is another issue. I said you had to define it first. For example, the guy in Pune or somebody he was asked to write a 300-page. 300 words—is that community service?
Mukta Gupta: So, they have given in the explanation to BNSS that it is a court-directed work without any remuneration; that’s the definition given. It’s provided as a punishment under the BNS, but the explanation is given under the BNSS that it’s court-directed work without any remuneration that’s so very wide power.
P. Chidambaram: What is community service? For example, somebody can be told you do Kar Seva in a gurudwara. Someone can be told to go to a temple and sing bhajans for two hours. Is that community service?
Kapil Sibal: It all depends on what the judge wants judge.
P. Chidambaram: So, you have to define it.
Kapil Sibal: But let’s see in which cases there’s community service that’s required under the law. It says this punishment for offences such as theft of property of less than $5,000 or attempts to commit suicide will be having to go do community service and tend to restrain a public servant. So, if you tell a policeman, don’t do this; you’ll have to do community service.
P. Chidambaram: For every civil disobedience and protest.
Kapil Sibal: Those people have to do community service. Then, more importantly, appearing in a public place intoxicated and causing annoyance. For example, if young people drink too much and are intoxicated and causing annoyance, they will have to do community service. I mean, how is this going? Nobody has applied his mind.
Mukta Gupta: Then there is no corresponding provision that says whether community service will be treated as a punishment. That it will have the stigma of a punishment, like earlier in the probation if probation is granted, it was very clear that it will not have the stigma of a punishment. So, community service, whether it will carry the stigma of a conviction or a punishment, is also not there.
Madan Lokur: It is a punishment.
Mukta Gupta: It’s a punishment, so whether it will carry that stigma or not is not clear. The provisions of the Offenders Act were very clear, but this is not clear. Once you leave him on probation, it will not carry the stigma of a conviction. But this is not clear. When you leave community service, whether the stigma will be there or not is not clear.
Madan Lokur: It will carry a stigma because it’s a punishment.
P. Chidambaram: I want to raise another point. Subject to correction by the former judges. The rank of assistant session judge has been abolished. There’s no assistant session judge. Now, which means, I’m told by criminal lawyers, that all offences punishable with imprisonment exceeding the 3-year limit of a magistrate and the seven-year limit of a chief judicial magistrate must now be tried by a session judge. If that is correct, all first will go to the high court?
Mukta Gupta: No, the bar was earlier on the chief judicial magistrate giving punishment for more than seven years even if the trial could take place. The trial was as per the schedule of the CrPC, for which the schedule is retained. So even if it is triable by the chief judicial magistrate, there is a limit to the punishment that can be given. Virtually, at least in Delhi and many states, there were hardly any assistant session judges; we had additional session judges who were equivalent to session judges. Additional session judges will be there; that is, session judges would include additional session judges. They have abolished magistrates of the third class, so it will be magistrates of the first class, which will include the chief judicial magistrate, and then magistrates of the second class, so there’ll be only four categories of judicial officers, and the fourth is the executive magistrates.
P. Chidambaram: I just want to avoid the first appeal going to the high court. Anything less than seven years, the appeal must go to the session judge?
Mukta Gupta: Even now, it will go to the session judge.
P. Chidambaram: I accept what you say, but criminal lawyers in Chennai have told me that the appeal will go to the high court.
Kapil Sibal: Let me raise another issue now. Under the old law, if the sentence was ten years and you’ve served five years, you’ll automatically be released. The new law says you won’t be released if you are also charged with another offense. Which means that if you have been charged with some other petty offence, they don’t say which category of offence—for example, any petty offence—you will not be released.
P. Chidambaram: No, even in the same crime, there can be two sections, and both would be counted as two offences.
Kapil Sibal: Yes, but I don’t think that provision will apply to one transaction. This is with reference to another offence altogether, not part of the same transaction.
Mukta Gupta: It is a different offense. Not offences in the same transaction. Otherwise, a person will never be released for one transaction since there can be multiple offences.
Madan Lokur: Do the police agree with you? They have their own interpretation.
P. Chidambaram: But it also uses the expression in multiple cases. What is the difference between two or more offences and a multiple case?
Kapil Sibal: That’s one case with multiple offences in one case because you can be charged under the organised crime act; you can be charged under the regular provision; even today, you can be charged for several offences.
P. Chidambaram: Why use language that creates such ambiguity? It should have been clear.
Kapil Sibal:: That’s another matter, but as I said, this is done in a hurry; it is done to show the world that, see, this government has brought about enormous changes; we have modernised the criminal justice system, though this has nothing to do with justice. This has something to do with enhancing fear in the minds of people (ML) and punishment.
Mukta Gupta: Now there is another addition that they have made. If a complaint is filed before the magistrate before directing the registration of an FIR, a provision akin to Section 156-3 CrPC will be called. But if it is a public officer against whom the complaint is made, then that public officer will be heard, and his superior will also be heard to find out if there is any case made out. Secondly, the preliminary investigation permitted, contrary to Lalita Kumari’s judgement under Section 173-4 BNS, says that the scope of the preliminary inquiry will be whether a prima facie case is made out or not. So even at that stage, the police can go into the truth of the allegation, unlike what was said in Lita Kumari, where all the police can look into is whether the complaint discloses the commission of a cognizable offense. Contrary to that, if a complaint case is filed before the magistrate, he cannot direct registration of the FIR unless he cannot summon the accused, but he will have to first issue a notice and ask what he is saying so the accused will be heard at the pre-cognizant stage, and once it is found out, cognizance will be taken. So, what will you call that first stage? Storage of notice, and then someone is summoned as an accused. So, there are restrictions on the powers of the magistrate, but as far as the police powers are concerned or the registration of FIR, going ahead with the arrest, the law has been simplified.
Kapil Sibal: There’s another issue here under the law now. If, under Lalita Kumari, you have committed a cognizable offence, the FIR has to be registered. That’s done away with now. Under this law, the police officer has the discretion not to register, so this is where politics will come in. If you’re a member of a particular party or someone known to you, then that police officer will not register the FIR and will start doing a preliminary inquiry, and there’s no time limit for that. If it is, whether the person is inimical to you politically or otherwise, he’ll immediately register the FIR.
Mukta Gupta: There is a time limit given of two weeks. But the fact is, he will find out if a prima facie case is made out or not.
Kapil Sibal: But he will not. He will say that no case is made out. So, what do you do? And that’s the end. There’s no protest provision at that stage.
Madan Lokur: Under the new law, you can’t file a protest.
Mukta Gupta: In the case where the police say there is no prima facie case, they close it. Then, when you go to the magistrate to get the FIR registered, they will first call the police report, which will say no case is made out. If the magistrate takes the route of treating it as a complaint case and summoning, then he will first call the accused, hear him say whether any case is there, and then he will take cognizance against the accused.
P. Chidambaram: But how will the accuser defend himself or resist it?
Kapil Sibal: Because he won’t have any documents either.
Mukta Gupta: Also imagine a case of a complainant where the accused is unknown. If the accused is unknown, which is the case in many cases,
Kapil Sibal: Obviously, therefore, these particular laws are a lawyer’s paradise.
P. Chidambaram: It’s actually a carte-blanche to the police.
Kapil Sibal: Off course. That’s why it’s a lawyer’s paradise because the more the police do whatever it normally does, the more opportunity there is for the lawyer to say, look what is happening in my country.
P. Chidambaram: Meanwhile, justice will suffer, and people will suffer because of the police excesses. As it is, the complaint is that police have too many powers and too few restrictions.
Madan Lokur: And no accountability.
Kapil Sibal: This is the modernisation of the law. They say they do. The fact that it is going back to the Middle Ages. I mean, this is what Rajas used to do. Put somebody in prison without accountability.
P. Chidambaram: Well, the only hope is that quickly the courts, or certainly the Supreme Court, must list a dozen provisions that are seriously affecting liberty and are prima facie unconstitutional and decide that. You can’t have case-by-case challenges coming from one provision challenged here and one provision challenged there.
Kapil Sibal: The problem is that if somebody says, how does Article 32 lie?
P. Chidambaram: No, you can file it under 226. The fundamental rights 32 and 21 will lie in the Supreme Court, but the lawyer’s body has to get together and list, say, 10–15 provisions that are serious invasions of liberty and bring them to the Supreme Court.
Kapil Sibal: That I understand, but if it goes to particular benches, it all depends on how the bench is going to see these things. Saying let the high courts decide first, then we’ll deal with it. It’s very problematic. This whole situation is very problematic.
Madan Lokur: You know the Civil Advocates Association case with regard to the amendments in the CPC. I mean, it was a composite petition saying that these are the eight or nine problem areas. I think a similar kind of petition should be entertained by the Supreme Court.
Kapil Sibal: This jeopardises freedoms in our country, and we can’t be at the mercy of a state that uses the police to destroy what little is left of our freedoms, but thank you very much for being here for this wonderful talk.
