Karan Thapar 
One of India’s most highly regarded senior advocates and former Additional Solicitor General Indira Jaising has said that if the three new criminal laws come into force on July 1, which is what the Union government intends, we will have “a legal and judicial mess” on our hands, adding specifically that “life and liberty could be in danger”. This is why Jaising has loudly and publicly appealed to the law minister as well as to all the leading opposition politicians in the country to hold the three criminal laws in abeyance until they are further discussed and looked at closely once again.
Read the full transcript below.
§
Karan Thapar: Hello and welcome to a special interview for The Wire. As things stand, the three new criminal laws should come into force on the 1st of July, but one of the country’s foremost and most highly regarded lawyers, former Additional Solicitor General Indira Jaising, has called upon the law minister to hold them in abeyance. She has serious concerns about what could happen if her advice is disregarded. Joining me now to explain her concerns more fully is Indira Jaising herself.
Ms Jaising, in an article you wrote for The Indian Express on Monday, you asked for the new criminal laws to be held in abeyance and not brought into force on the 1st of July. I’d like to discuss your reasons for making this demand to the law minister.
First is the danger we could end up with two different justice systems running concurrently and in parallel. Can you explain why should this happen?
Indira Jaising: It’s a fundamental principle of law that no one can be convicted of an offence unless what they do was criminal at the time when it was done. Now, this means that you cannot create a new offence after I have already done what I want to do. These are known as substantive laws.
A substantive law is a law which creates a crime; something that was not a crime before now becomes a crime, and therefore these laws can only operate if you do what you’re prohibited from doing after the law comes into force. This is not true of our procedural laws. Our procedural laws, that is the Criminal Procedure Code as it’s known today, can operate retrospectively if it does not cause prejudice to the accused. And this is the reason why for every single First Information Report which has been filed prior to 1st July 2024, it is the old substantive law that will apply. For the FIRs filed after 1st July, it is the new substantive law which will apply.
But the procedure – there will be a dispute in every case whether I should be tried by the procedure of the old procedural law or the new procedural law. Representing an accused, I can say the new law is prejudicial to me, so the courts have to deal with both the old law and the new law.
KT: Let’s take up these two cases one by one so that it’s easier for the audience to follow. First, you’re saying that people who already have been charged with FIRs will continue to be judged under the old law, the old penal code, whereas people who are charged with offences after the new law comes into force will be charged under the new laws, which means both laws will run concurrently. Doesn’t that also mean that as long as there are appeals under the old law, those appeals will continue under the old law? And this can continue for 20 years or more, so for 20 years we will have cases being heard under the old law, going through various stages of appeals towards some sort of finality, and cases that are being heard under the new law and similarly going through various stages of appeal. This could continue for 20 years, perhaps?
IJ: Yes, which is the reason why we say that the Indian Penal Code is more than a century and a half old and so is the Criminal Procedure Code, though it was amended in ’73. It has received judicial interpretation at the hands of the Supreme Court of India, and therefore there is a certainty about the law in relation to the Indian Penal Code and the Criminal Procedure Code to the extent that is possible. To achieve that level of certainty for the new law, it’s going to take another 50 years. So, in the meantime, the magistrate won’t know what to do till the Supreme Court takes a call on a particular provision of law and of the hundreds and thousands of magistrates in the country, every magistrate can interpret the law differently.
KT: Absolutely.
IJ: What is it going to do for the rights of the accused, that’s my question.
KT: Absolutely, and you’re now talking about the fact that procedural law, the Criminal Procedure Code, can apply retrospectively. The government or the state will try and ensure in each case that it does apply retrospectively. The accused will perhaps try and ensure that it doesn’t. There will therefore be a dispute between the accused and the government over whether the procedural law applies or not. Once again, that will have to be adjudicated upon. Once again, the legal system will have to go back into that, and there could be appeals as well. So not only will you have two legal systems running concurrently and in parallel for almost 20 years, but you’ll also have ceaseless growing disputes about whether the procedural law applies or not. And that also will go through various stages of appeal.
IJ: Yes, indeed. But the basic concern is, during this entire period, what is happening to the accused? The accused will be in custody. Okay, where is the guarantee that while all this is being clarified, the accused will be on bail? There is no such guarantee under the law.
Okay, so what you said is absolutely correct. And now the question that I also raised is, have you taken the backlog issue into consideration at all?
KT: I’ll come to that in a moment’s time. Let’s just finish the first point, we’ll come to the second later. Because the accused will be in custody as legal wrangles and disputes are going over the fact whether the old procedural law or the new procedural law applies, that means that the length of custody for the accused will also increase, perhaps substantially.
IJ: Until some judge decides to grant bail. You take a very simple example: they’ve permitted trials to take place through videography. Okay, now already the lawyers have said, how do you expect us to meet with our client if we are sitting in a court of law cross-examining the witness, the police witness, and my client, the accused, is sitting in a jail somewhere appearing on the video? How will I have the opportunity to talk to him or her in order to defend them adequately? To defend my accused person, the person I’m representing, I need to talk to them. I won’t be able to do it if the videography system is introduced. And there will be disputes whether this videography system will apply to the old pending cases or only to the new cases. And there will be objections by the lawyers. Who’s going to decide all these issues?
KT: Absolutely. And there’s a corollary to the fact that the procedural laws will be under dispute and being questioned from both sides. And that corollary is that the predictability and certainty of criminal laws, which is a fundamental principle of our legal system, will suddenly come into doubt. Now citizens won’t be absolutely clear about the nature and character of the procedures that apply to the alleged criminal act. They will be waiting to find out from some level of judicial authority whether the old procedural law or the new procedural law applies. And until they find out, there will be uncertainty. And that uncertainty will make for infirmity in the law.
IJ: See Karan, all this goes back to the Constitution of India. Article 21 is very specific: no person shall be deprived of life and liberty except by procedure established by law. Now how can you call this procedure established by law when there are disputes already in the public domain about what the law says?
Which is why for criminal law, the first consideration is you cannot have vagueness and you cannot have uncertainty, because you’re depriving someone of life and liberty. Now you have introduced both these elements in the law, uncertainty and vagueness both.
KT: Absolutely. Let’s come now to the point that you raised, which I didn’t take up then but I’ll take up now. What will be the impact on the pendency of cases? In your Indian Express article, you say the National Judicial Data Grid shows that there are over 83,000 criminal cases pending. You say, the backlog could now increase by 30%, and you add that would amount to a virtual denial of access to justice. Is it really as serious as that, an increase in the backlog of 30, maybe even possibly 40%?
IJ: Yes. The first and primary issue is, has the system, whether it’s the executive, the legislature or judiciary, done an analysis of what will be the increase of backlog? In the letter, I made a demand saying if there is any such audit, give it to us. No reply has been received to this letter. A copy was marked to the Chief Justice of India, no response. So, we do not have any data-based analysis of the extent to which this is going to increase the backlog in the country. The figure of 83,000 cannot be disputed because I’ve taken it from the National Judicial Data Grid.
If you look at that grid a little more carefully, you’ll find there are cases which are pending today under the existing law for over 30 years. What does this mean? Now, the Supreme Court, you see, I find it amazing that the Supreme Court can give us these homilies, these fantastic rights, which says the right to speedy justice is a fundamental right. And yet, when it comes to the reality, this is the situation. People are facing trial litigation in this country. You know, Karan, it is inherited. You know, Stan Swamy died during the course of litigation, and that was the end. So, he didn’t even have the right to know, to be pronounced not guilty.
KT: Okay, I understand what you’re saying. So, the backlog, you’re saying, will increase by up to 40% possibly.
IJ: This is my unofficial estimate. I don’t claim that this is the official estimate. My point is, why did the system not make its own estimate and correspondingly increase the infrastructure in the country?
KT: Let me, at this point, ask you a simple but I would say critical question. What we’ve been discussing up to now are fundamental concerns. We’ve talked about how two parallel legal systems can be operating and may be operating side by side for up to 20-25 years. It all depends upon how long appeals carry on. We’ve talked about how there will be disputes over which procedural law applies and how the government will try and insist it’s the new procedural law, the accused will try and insist it’s the old one, and again this issue will go into litigation and end up in appeals. That also could continue for years if not decades. These are fundamental concerns, as I said.
Was there sufficient consultation with relevant stakeholders before it was decided to bring these new laws into force? You’ve already pointed out that no audit has been done whatsoever to estimate how pendency will increase, whether it increases by 30% or 40%. But was any consultation done about the other issues we’ve discussed – the fact that there will be two consecutive, current, parallel legal systems operating, the fact that there will be endless disputes about which procedural law applies? Was any consultation done about that? The government insists it was. What’s your answer?
IJ: Right, the point is, who are the relevant stakeholders? Was the Supreme Court Bar Association consulted? No. Was the Delhi High Court Bar Association consulted? No. Certain bar councils have gone on record to say that we were not consulted and pointed out their concerns. Karan, I’m aware through the media, of a meeting hosted by the law minister. Now listen carefully, a meeting hosted by the law minister at which certain handpicked individuals were invited. To my surprise, I found that the Chief Justice of India attended that consultation. I could be corrected if I’m wrong, but this is what the media had announced.
Now, I do not understand how the Chief Justice of India can be called for a consultation conducted by the Ministry of Law. He is the person before whom these challenges are going to come, and he then goes on record to make a statement that we welcome these new laws. We welcome them? No, we do not welcome them, and these disputes will end up in the Supreme Court of India. So no, there’s an attempt to pre-empt the challenge…
KT: You know, you’re saying two important things. First of all, very selective consultation, if you can call it consultation, happened with people who were specifically chosen and invited. Secondly, if the Chief Justice – there’s an if there – if the Chief Justice was part of that consultation, it was wrong to have consulted him in the first place because he’ll be presiding over any disputes that arise out of the new laws being brought into force.
Therefore, I want to ask you another question. It seems from everything you’ve said that a critical stakeholder are people who are today accused by the law under the old law. They may now find that the government insists that the procedure by which they’re tried has to be the new procedure, and therefore it will affect their trial. It will affect their ability to defend themselves. Were the accused in any way consulted, or is that impossible to say, that the accused should be consulted.
IJ: Well, I mean, there is a huge group of lawyers who are known very effectively to represent the accused. So, the profession, the legal profession, is divided into prosecutors in the criminal justice system and those who represent the accused, and we both have our respective points of view. Those of us who appear for the accused are concerned about life and liberty. Now certainly, they were not consulted as a separate group of people. Even if you can’t get to the accused in prison—which I think actually you should do that—but if you can’t do that, you can at least consult their representatives. So, I’m not aware that any such consultation was conducted. You can consult bar associations. I’m not aware that any such consultation was done. So, what is the point? Even the origin, the drafting of the law was initiated by the Ministry of Home Affairs, not by the Law Commission. This is simply not done.
KT: Okay, you absolutely sure of that point that the drafting of the law was initiated by the Home Ministry and not by the Law Commission?
IJ: Yes, yes, yes.
KT: Let’s, Ms Jaisingh, at this point, move a step further. I can’t obviously discuss all the new offences that are being introduced by the three new criminal laws, but there are two or three that you’ve written about that I want to discuss with you. First is Section 124A of the Indian Penal Code, which defines ‘Sedition’. This allegedly has been done away with, but the truth is it reappears as Section 152 of the Bharatiya Nyay Sanhita, and it reappears with additional references to the sovereignty and integrity of India, which were not there in the original Section 124A. Do these new additional references to the sovereignty and integrity of India make the new law more draconian and therefore more worrisome?
IJ: There are two issues. One, it’s like the government telling the Supreme Court, we don’t care if you have stayed this sedition law; we have the right to re-enact it. That’s the first point that I wish to make, that there is scant regard and respect for the judgments of the Supreme Court.
The second point is more important. You know, Karan, in my previous public statements, I have said, you people keep accusing us of being anti-national, but there is no offence in the Indian Penal Code of being anti-national. Where is that offence that you’re accusing me of? You know, all this common language creeps into judgments, it creeps into the law. For example, people today, intellectuals, are called Urban Naxals. Where is this offence called Urban Naxal that you keep bad-mouthing? Now, what they’ve done is by using the words sovereignty and integrity of India, they have actually introduced this offence of being anti-national into the law. What they have been saying in the public domain, everyone is anti-national now. Of course, if you say anything that is against the official line, that is against the sovereignty and integrity of India. So, it’s a very, very serious matter which directly impacts the freedom of speech and expression. It directly impacts your right to dissent.
KT: In other words, what you’re saying is Section 152 of the Bharatiya Nyay Sanhita is actually more draconian than old Section 124A of the IPC. This new Section 152 is both more draconian and therefore more worrisome?
IJ: It is. By removing the word, they’ve removed the word disaffection towards the government by law established and replaced it with sovereignty and integrity of India. So that is more draconian than the previous law.
KT: In fact, the example you cite, and I’m quoting from your Indian Express article, you say an ordinary riot can now be elevated to the level of an attack on the sovereignty and integrity of India. That is the sort of thing this additional reference can end up doing.
IJ: Okay, I would like to explain this. See, in life, there are degrees of violence that people indulge in, right? So, for example, if I push you, it’s considered an assault. It’s a crime of assault because there is an element of violence there. Then you have something known as a riot, you have something known as an unlawful assembly, and ultimately you have something known as terrorism. Now, what this enables them, this escalation, what would otherwise be called a riot, can now be called something that affects the sovereignty and integrity of India. Already, they’ve been doing it under the UAPA; now they will also be able to do it under the equivalent of the Indian Penal Code, the Nyay Sanhita.
What’s even worse, they’ve retained the UAPA provisions in…
KT: Let’s take that separately. That’s the second point. Let’s not conflate the two because the audience will get confused.
The point you’re making is that these additional references to sovereignty and integrity of India in Section 152 of the Bharatiya Nyay Sanhita mean that offences that are not terrorism can be escalated up to terrorism, and therefore the interpretation and the punishment that would apply would become more Draconian. That’s the great fear, isn’t it?
IJ: Even more than that is a fear that speech is criminalised. Advocacy of a certain point of view – we will be told that you have impacted the sovereignty and integrity of India.
KT: Absolutely, everything can be escalated to a point that makes it a more worrisome offense than it was originally intended to be.
Let’s now come to that second point you were making. Several offences under the Unlawful Activities (Prevention) Act have been repeated as offences under the new criminal law. Does this mean that an accused could end up facing two charge sheets and perhaps, equally worrying, two investigating authorities – the NIA under the UAPA and the local police under the new criminal law? In other words, every person guilty of a particular type of offence which features both in the new criminal law and the UAPA can face two charge sheets and also two investigating authorities?
IJ: Yes, it’s almost like you can, of course, be charged under both sections, although your conviction under the Constitution, conviction for the same offence, cannot be twice. It can be – it’s double jeopardy – it can be only one, but the process is the punishment, right? So, through the process, you can have – you’ll face different agencies, and you won’t know which is the correct agency, which is authorised.
But more importantly, the safeguards that you did have under the UAPA have been done away with. How and why? Because under the UAPA, the level of officer investigating is higher than the local investigating officer in a police station. Any ordinary police station in the country now can investigate terrorism. Anybody.
Secondly, under the UAPA, the government had to give sanction to prosecute. You know, recently, the Lieutenant Governor has given sanction to prosecute Arundhati Roy under the UAPA Act, surprisingly. But now, you don’t need that sanction any more. Any ordinary police officer under the new Nyay Sanhita can prosecute you for terrorism. It’s completely doing away with the safeguards that existed under the old law – that a senior officer would be looking into the matter, that somebody above the senior officer will be looking to see whether any case has been made out or not.
KT: Absolutely, Now, there is the third concern which you write about in your Indian Express article, you say the Bhairab Nagar Suraksha Sanita mandates a preliminary inquiry in every cognisable offence which is punishable for 3 years or more but less than 7 years. This means that FIR will not be automatically lodged until the inquiry is complete. What are the implications of that?
IJ: Very, very serious. Firstly, of course, again, they have shown scant regard for the judgment of the Supreme Court. They have overruled it through legislation, where the Supreme Court has said, “No, an FIR must be mandatorily registered unless you want to verify not the veracity of what is being said, but if you want to see somebody like two business houses fighting against each other, if they launch a complaint against each other just to get the benefit of a commercial advantage, then you might have a preliminary inquiry.” Now, every case between 3 years to 7 years punishable – what does it mean?
See, why is it called “First Information Report”? The word “first” is important, right? Because the law recognises that what you say spontaneously is the truth. What you say after a period of 15 days or 20 days can be doctored. You can be doctored by the police, you can be doctored by your friends, your relatives to add mirchi masala to the information. This is the importance of the word “First Information Report.” The moment something happens to me, I go right to the police station and make a complaint, and they have to record it. Now what will happen is no need to record it, and during this interim, either you can – you kno, the police will be taking bribes to say, “Alright, you give me this much money, and I will register the FIR.” That was the reason for going to court in the first place. The police were not recording First Information Reports. They were becoming like mediators, and this is what will happen during this period that they are not recording this information. They’ll try and mediate between the accused and the person who made the complaint and say, “Why don’t we just settle all this?”
KT: Absolutely. I take your point. Let me put this to you because we’re coming towards the end of this interview. We’ve discussed a whole range of concerns.
In the second half of the interview, we’ve discussed specific new laws and how they are worrisome and more draconian. In the first half of the interview, we discussed how there would be two concurrent but parallel systems operating together, maybe for as long as the next 20-25 years until all the appeals are exhausted. We discussed how there would be endless disputes over which procedural law applies – the new or the old – and that too can carry on for decades because it’ll all depend upon when the appeal process ends.
We’ve also talked about how the pendency of cases could increase by 30%, maybe 40%. The government has done no audit at all. So, there are multiple worrying issues that we’ve discussed. Tell me, how likely is it that all these concerns that we’ve addressed will be challenged at the level of the Supreme Court or at least at the level of the major high courts of the country? How likely is it that it will happen?
IJ: It’s definite. I know people who are already ready with their petitions. If I’m not mistaken, petitions were even filed before the law came into force, and they were withdrawn because the law had not come into force because the government delayed the implementation of these laws. You will have multiple petitions in the Supreme Court, not just one, and you will have multiple petitions in all the high courts challenging provisions of this law.
There is no doubt, which is why I was so upset when I said that the Chief Justice of India should not have attended any conferences in which there was a so-called consultation about these laws, because it’ll be he who will be called upon, if not to decide these cases, but at least to constitute the benches, and he’s already expressed his opinion that these new laws are welcome.
KT: Can I interrupt and ask, have you taken up this specific issue about the Chief Justice attending consultations which you believe was improper and wrong of him? You’ve mentioned it twice in this interview. Have you taken it up directly with him? Have you written to him? Have you raised it with him? Because clearly, this is not just an impropriety on his part if he did it, but it is also a situation where he’s put himself in an invidious position because first, as someone who was consulted, he said the laws are okay and acceptable. Now, as someone who will be adjudicating any trials that arise out of these laws, he has to take a different sort of opinion. So, have you raised this with him?
IJ: Look, I sent a copy of my letter to the Chief Justice of India and to all the Chief Justices of all the high courts. There has been no reply and no response to the letter. But let me tell you about – alright, so he has – there is a solution to the problem about his having made comments. He either could recuse himself, or he could be asked to recuse himself from hearing the case. But why should the Chief Justice of India have to recuse himself from hearing such important matters?
KT: And for a Chief Justice to be asked to recuse himself is embarrassing. It’s not that embarrassing if he chooses to do so himself voluntarily, but to be asked to do so would mean that a lawyer in court has stood up and said, “Given the track record you’ve established in this matter, given your earlier behaviour, I request you to recuse yourself.” That has to be embarrassing for the Chief Justice if it happens.
IJ: He’s the chief. You know, he’s the master of the roster, and he decides whether he will hear a case or other judges will. In any scenario, it is highly improper.
KT: Let me ask you this. If these challenges are taken up, and you’re saying to me you’re absolutely convinced that there will be multiple petitions in the Supreme Court, perhaps multiple petitions in the major high courts, but if the law comes into force before those petitions and challenges are heard and as things stand, it’s coming into force in 11 days’ time, on the 1st of July. What will be the situation?
IJ: This is a very serious question. This is the reason why I have, in the letter, made a request for a deferment of the implementation of these laws until all the issues that I have raised – and others have raised many more additional issues – are sorted out. Now, remember, Karan, this law was passed when more than 175 members of parliament were suspended. There was no debate in Parliament; it was just passed. So, there is a doubt actually about the validity, and when there is a challenge, I’m sure this will be one of the challenges which will be mentioned – that how can you have a law to which Parliament hasn’t applied its mind? No standing committee?
KT: What you’re saying – and I apologise for interrupting – is if these laws come into force on the 1st of July, and I repeat that is what is intended by the government, and challenges to these laws are not resolved until then, we will have a mess on our hands.
IJ: It will be a mess. But you know, the solution, Karan, is very simple. The request to the minister is to issue a simple notification deferring the implementation. Give the newly elected Parliament an opportunity to look at these laws.
KT: What if he chooses not to?
IJ: Then yes, we are in a mess, as you rightly point out.
KT: So that is the situation. If this government stands by what it’s committed to do, which is bringing these three new laws into force on the 1st of July, we will have a legal and judicial mess on our hands. Both legal and judicial.
IJ: Yes, and which is why citizens of India have written letters to the alliance partners saying, please raise this issue, that we need time to look at the validity of these laws, and just issue a simple notification saying let them not come into force on the 1st of July until you know.
KT: Absolutely. You’re appealing to all and sundry for holding these laws in abeyance. You are part of some 3,600 who have written letters to practically every political leader in the opposition asking them to come in on your side and get the government to defer the laws and hold them in abeyance.
But the point that I’m making remains, if these laws come into force on the 1st of July, which is what the government intends and what the government is committed to as of today, we will have, as you said, a legal and judicial mess. Yes, am I right?
IJ: Life and liberty will be in danger. Yes.
KT: Okay, thank you very much for this interview. I’m deeply grateful for the time you’ve made for me. Take care, stay safe.
IJ: Thank you. Thank you for asking me.