1 00:00:01,040 --> 00:00:04,680 From India's largest newsroom, I'm Arun George and this is the 2 00:00:04,680 --> 00:00:15,520 Times of India podcast. Hi. 3 00:00:15,800 --> 00:00:18,760 Before we start today's episode, this is just to let you know 4 00:00:18,920 --> 00:00:21,920 that this will be this year's last episode of The Times of 5 00:00:21,920 --> 00:00:23,520 India. Podcast we'll be. 6 00:00:23,520 --> 00:00:27,200 Taking a short break and we'll be back in 2024 with more 7 00:00:27,200 --> 00:00:30,480 stories and ideas. We wish you and your family and 8 00:00:30,480 --> 00:00:34,160 loved ones a very Merry Christmas and a Happy New Year. 9 00:00:34,560 --> 00:00:36,160 Thank you for listening to us this year. 10 00:00:36,480 --> 00:00:39,880 Now here's today's episode. So. 11 00:00:39,880 --> 00:00:44,920 These three bills. That create history have been 12 00:00:44,960 --> 00:00:50,200 passed unanimously. In spite of over 140 lawmakers, 13 00:00:50,200 --> 00:00:53,400 all of whom are from opposition parties, being suspended from 14 00:00:53,400 --> 00:00:56,680 Parliament, the government moved and passed what it says are the 15 00:00:56,680 --> 00:01:00,320 three biggest changes to India's criminal law since Independence. 16 00:01:00,840 --> 00:01:04,080 There was little debate on the legislation in the Lok Sabha and 17 00:01:04,080 --> 00:01:07,880 Rajya Sabha with most MPs only talking about the laws virtues 18 00:01:08,600 --> 00:01:11,080 in around 72 hours. The new laws were passed by 19 00:01:11,080 --> 00:01:13,800 Parliament and will now go to the President for approval. 20 00:01:14,640 --> 00:01:18,000 The Bharati and Nyaya Sahita, the Bharati and Nagrik Suraksha 21 00:01:18,000 --> 00:01:21,680 Sahita and the Bharatiya Saksha Bill replaced the Indian Penal 22 00:01:21,680 --> 00:01:25,040 Code, the Code of Criminal Procedure and the Indian 23 00:01:25,040 --> 00:01:28,360 Evidence Act respectively. The three laws being replaced 24 00:01:28,360 --> 00:01:31,440 from the Foundation of Indias creaky criminal justice system 25 00:01:31,720 --> 00:01:34,880 that suffers from overburdening, delays and insufficient 26 00:01:34,880 --> 00:01:37,400 resources. To understand the concerns with 27 00:01:37,400 --> 00:01:40,840 these three new laws, we spoke with Zeba Sikora, who's a senior 28 00:01:40,840 --> 00:01:44,560 associate at Project 39 A at the National Law University in 29 00:01:44,560 --> 00:01:47,440 Delhi. Project 39 A studies various 30 00:01:47,440 --> 00:01:51,160 aspects of the criminal justice system like legal aid, torture, 31 00:01:51,240 --> 00:01:54,520 forensics, mental health in prisons and the death penalty. 32 00:01:55,240 --> 00:01:58,160 Given these three laws are as big as they are, we couldn't 33 00:01:58,160 --> 00:02:00,720 possibly cover all aspects of them in this episode. 34 00:02:01,240 --> 00:02:04,120 If you're interested and you want a more detailed analysis of 35 00:02:04,120 --> 00:02:07,120 these three laws, you could head on over to the Project 39, A 36 00:02:07,120 --> 00:02:10,960 blog, and other websites. Now the thing with laws is most 37 00:02:10,960 --> 00:02:13,160 people don't really care about them unless there's a very 38 00:02:13,160 --> 00:02:16,120 direct impact on them. Many might argue that given 39 00:02:16,120 --> 00:02:18,960 we're not all criminals, why should we even worry if criminal 40 00:02:18,960 --> 00:02:21,280 laws are getting harsher or are getting changed? 41 00:02:21,640 --> 00:02:26,880 We started by asking Zeba that. Most people would argue that 42 00:02:26,880 --> 00:02:29,440 they should be as harsh as possible because it's meant to 43 00:02:29,440 --> 00:02:33,560 deal with criminals. So why should we care about how 44 00:02:33,560 --> 00:02:37,720 harsh criminal laws are, even if we don't plan on sort of picking 45 00:02:37,720 --> 00:02:40,640 up a life of crime? I mean that's a very good 46 00:02:40,640 --> 00:02:43,760 question and I think that it's a question that many people do 47 00:02:43,760 --> 00:02:48,600 have. I think even though the criminal 48 00:02:48,600 --> 00:02:53,720 law framework plays a really important role in regulating 49 00:02:53,720 --> 00:02:56,280 society, right and maintaining law and order. 50 00:02:56,560 --> 00:03:01,120 I think in some ways what this imagination of harsh laws, 51 00:03:01,120 --> 00:03:05,640 strict procedure, high punishments, what it does is 52 00:03:05,640 --> 00:03:11,400 that it sort of exaggerates the role of criminal law to sort of 53 00:03:11,520 --> 00:03:14,000 deal with problems in our society. 54 00:03:14,400 --> 00:03:18,840 So the then the sort of approach, the vision of a 55 00:03:18,840 --> 00:03:23,200 framework like this becomes that, you know, blaming being a 56 00:03:23,200 --> 00:03:26,760 person, so their conviction, their punishment. 57 00:03:27,080 --> 00:03:30,840 It becomes the sole sort of purpose of what the law is 58 00:03:30,840 --> 00:03:34,440 trying to do in order to get rid of crime. 59 00:03:34,680 --> 00:03:38,720 And what this ignores really is that there are a lot of 60 00:03:38,720 --> 00:03:42,200 complicated realities that lead to crime, right? 61 00:03:42,200 --> 00:03:44,840 There are lots of things that are socially rooted. 62 00:03:45,080 --> 00:03:48,920 It has to do with someone's economic situation, family 63 00:03:48,920 --> 00:03:50,960 upbringing. There's so many aspects that 64 00:03:50,960 --> 00:03:54,240 play a role. So this is not to say that 65 00:03:54,440 --> 00:03:58,320 having offences and having prosecution and trial and 66 00:03:58,320 --> 00:04:03,040 punishment is not important, but that can be our only sort of 67 00:04:03,040 --> 00:04:06,640 emphasis. Secondly, the other sort of 68 00:04:06,640 --> 00:04:10,080 aspect that's important to keep in mind as we think about these 69 00:04:10,080 --> 00:04:13,640 laws is that there are lots of things that are wrong with even 70 00:04:13,640 --> 00:04:16,240 the functioning of the criminal justice system, right. 71 00:04:16,240 --> 00:04:21,360 There are problems of like low rates of conviction, there is 72 00:04:21,360 --> 00:04:26,400 high pendency, laid justice. All of these are very valid 73 00:04:26,400 --> 00:04:29,720 problems and are concerning for everyone. 74 00:04:30,000 --> 00:04:34,720 But in some ways, what this law and this framework is imagining 75 00:04:35,000 --> 00:04:41,280 is that any sort of reform or any sort of change will really 76 00:04:41,280 --> 00:04:43,480 happen through legislative mandate. 77 00:04:43,640 --> 00:04:46,600 And that's actually a misconception that we need to 78 00:04:46,600 --> 00:04:51,400 acknowledge because there are broader sort of institutional 79 00:04:51,400 --> 00:04:55,320 infrastructure and other challenges that the system is 80 00:04:55,320 --> 00:04:57,600 grappling with constantly, right? 81 00:04:57,600 --> 00:05:00,400 What is our vacancy rate at every level? 82 00:05:00,400 --> 00:05:02,840 Whether we're thinking about the police, whether we're thinking 83 00:05:02,840 --> 00:05:06,080 about the judiciary, what is their capacity? 84 00:05:06,320 --> 00:05:09,840 What is the infrastructure that's available to them to do 85 00:05:09,840 --> 00:05:12,960 their job? Those are concerns that are 86 00:05:12,960 --> 00:05:16,080 equally relevant when we're thinking about reforms. 87 00:05:17,040 --> 00:05:20,760 A lot has been made of the criminal law reform that is 88 00:05:20,760 --> 00:05:22,040 being undertaken through these bills. 89 00:05:22,040 --> 00:05:24,480 We've had multiple parliamentarians talk about how 90 00:05:24,480 --> 00:05:27,040 this is the biggest reform post independence really. 91 00:05:27,480 --> 00:05:31,960 Could you explain just how much is being rewritten with these 92 00:05:31,960 --> 00:05:35,320 three laws? It's a huge exercise, right? 93 00:05:35,320 --> 00:05:42,040 To repeal an existing sort of code of laws in itself is huge, 94 00:05:42,440 --> 00:05:47,120 but I think the sort of reality of it is that in terms of the 95 00:05:47,120 --> 00:05:50,640 content right, there has been very little change. 96 00:05:50,640 --> 00:05:55,240 So largely it's remained the same, but broadly in terms of 97 00:05:55,240 --> 00:05:59,040 what it's trying to do, it is reimagining certain aspects of 98 00:05:59,040 --> 00:06:01,720 how things function. But again, the thing to 99 00:06:01,720 --> 00:06:06,160 highlight here is that this is only a part of the system and a 100 00:06:06,160 --> 00:06:10,160 part of even the reform that may be needed. 101 00:06:10,600 --> 00:06:13,760 So when we think about the sort of broader administrative 102 00:06:13,760 --> 00:06:17,360 implications of a change like this, because we are working 103 00:06:17,360 --> 00:06:22,760 towards a situation where there will be two distinct frameworks 104 00:06:22,760 --> 00:06:25,200 that are functioning at the same time. 105 00:06:25,400 --> 00:06:29,680 Because even the repeal provision, right, it clarifies 106 00:06:29,680 --> 00:06:36,280 that you know any ongoing appeal proceeding, even investigation 107 00:06:36,440 --> 00:06:39,600 that is ongoing prior to the commencement of the law, it will 108 00:06:39,600 --> 00:06:41,760 continue under the old framework. 109 00:06:42,000 --> 00:06:48,040 So now we are really imagining our overburdened and under 110 00:06:48,040 --> 00:06:52,720 resourced system really grappling with so much and what 111 00:06:52,720 --> 00:06:56,480 is the impact of something like this on efficiency, right, which 112 00:06:56,480 --> 00:06:59,440 has been our goal. How are we then going to ensure 113 00:06:59,440 --> 00:07:02,480 that at every level people are trained that they're able to 114 00:07:03,400 --> 00:07:06,880 take on the challenge of a new system sort of come in place? 115 00:07:07,840 --> 00:07:12,920 So one major aspect that has been cited in the parliamentary 116 00:07:12,920 --> 00:07:16,920 debate about the Nyaya Sanita bill is the section on sedition 117 00:07:16,920 --> 00:07:19,240 being gone. And instead, you know, we will 118 00:07:19,240 --> 00:07:23,480 now punish people for creating disaffection against the country 119 00:07:23,480 --> 00:07:27,560 and not the government. But really, how much of A change 120 00:07:27,600 --> 00:07:30,640 is this? That's true and part of the 121 00:07:30,720 --> 00:07:34,520 initial conversations, one highlight was that, you know in 122 00:07:34,520 --> 00:07:39,600 this effort to decolonize, we are getting rid of a colonial 123 00:07:39,600 --> 00:07:42,560 relic, which is the sedition clause. 124 00:07:42,800 --> 00:07:46,720 And instead, as you rightly pointed out, a new provision has 125 00:07:46,720 --> 00:07:51,320 been introduced. It's called Acts endangering the 126 00:07:51,320 --> 00:07:56,640 Sovereignty, Integrity, Unity of India, and earlier the language 127 00:07:56,640 --> 00:08:00,280 of sedition. It was more limited, so it did 128 00:08:00,840 --> 00:08:04,320 seek to criminalize acts related to disaffection against the 129 00:08:04,320 --> 00:08:07,840 government. But in many ways, what this 130 00:08:07,840 --> 00:08:12,840 Clause 152 does is that the spirit of what the old provision 131 00:08:12,840 --> 00:08:17,120 was, it continues in this. Over the years, jurisprudence 132 00:08:17,160 --> 00:08:20,160 has tried to clarify the scope of this because they've also 133 00:08:20,160 --> 00:08:25,400 found it to be extremely vague. Now, what the new clause does is 134 00:08:25,400 --> 00:08:29,880 that in spirit, it is also criminalizing. 135 00:08:29,880 --> 00:08:33,559 I mean, it remains the same as addition and criminalizes acts 136 00:08:33,559 --> 00:08:37,000 that, you know, excite or attempt to excite. 137 00:08:37,520 --> 00:08:41,919 And it lists a bunch of things, including successionist 138 00:08:41,919 --> 00:08:45,640 activities and things like that, but also subversive activities, 139 00:08:45,640 --> 00:08:47,240 right? And again, that's a really broad 140 00:08:47,240 --> 00:08:52,560 definition because any sort of dissent or criticism or protest 141 00:08:53,080 --> 00:08:56,760 subversion, so anything could be a part of it, including 142 00:08:56,760 --> 00:09:01,200 something like encouraging feelings of separatist activity. 143 00:09:01,200 --> 00:09:04,960 So it doesn't need someone to actually do something, but just 144 00:09:04,960 --> 00:09:09,760 generate a feeling which is so hard to really quantify or even 145 00:09:09,760 --> 00:09:13,800 recognize and identify. So the problems that existed 146 00:09:13,800 --> 00:09:16,320 with sedition in that respect continue. 147 00:09:16,720 --> 00:09:22,640 While the sentiment may be very attractive, what it does is that 148 00:09:22,640 --> 00:09:27,160 the government was a more defined concept and the idea of 149 00:09:27,160 --> 00:09:31,600 India itself, it's much broader, it's more abstract, so it can 150 00:09:31,600 --> 00:09:35,600 include public figures who represent the country, it can 151 00:09:35,600 --> 00:09:39,880 include even individuals, it can include communities, society 152 00:09:39,880 --> 00:09:43,320 more generally. And therefore the entire scope 153 00:09:43,560 --> 00:09:47,440 of this provision becomes very broad, which is also a huge 154 00:09:47,440 --> 00:09:49,680 problem when it comes to criminal offences. 155 00:09:49,840 --> 00:09:53,880 The moment they're broad, people can't predict what amounts to an 156 00:09:53,880 --> 00:09:57,840 offence and it becomes open to interpretation and subjectivity 157 00:09:57,840 --> 00:10:00,640 of the police, judges and everyone. 158 00:10:00,840 --> 00:10:02,400 And that's the cause for concern. 159 00:10:03,400 --> 00:10:08,680 The aspect of jail for spreading false information is also 160 00:10:08,680 --> 00:10:10,960 something that's right for misinterpretation, right? 161 00:10:11,800 --> 00:10:15,120 Could you explain why this aspect of spreading false 162 00:10:15,120 --> 00:10:17,360 information is such a concern with this law? 163 00:10:18,400 --> 00:10:22,320 It's again one of the new offences that has been included 164 00:10:22,320 --> 00:10:26,760 in the law and to acknowledge the fact that the problem of 165 00:10:26,760 --> 00:10:32,120 misinformation is there. It's something that at every 166 00:10:32,520 --> 00:10:37,640 level we are sort of grappling with right with AI and the 167 00:10:37,640 --> 00:10:41,080 possibility of fabricated videos and things like that. 168 00:10:41,160 --> 00:10:48,000 But what the new offense does is by using very expansive language 169 00:10:48,680 --> 00:10:53,200 and removing or sort of not including this requirement of 170 00:10:53,240 --> 00:10:56,920 intention, it really opens the net. 171 00:10:57,440 --> 00:11:01,080 I mean, it's a wide net really to try and get people sort of 172 00:11:01,080 --> 00:11:04,960 within the scope of the law because false or misleading is 173 00:11:04,960 --> 00:11:08,160 something that is only subsequently going to be proved. 174 00:11:08,160 --> 00:11:12,840 At this point it is just a matter of, you know, the 175 00:11:12,840 --> 00:11:16,600 executive, the police officer, their sort of sense about the 176 00:11:16,600 --> 00:11:19,840 information being circulated. So the language that this 177 00:11:19,840 --> 00:11:22,960 provision again uses, and some of the concerns are similar to 178 00:11:22,960 --> 00:11:26,560 the concerns I already discussed with sedition or the new version 179 00:11:26,560 --> 00:11:32,000 of sedition, is that the language it uses is making or 180 00:11:32,000 --> 00:11:38,360 publishing false or misleading, you know, information that 181 00:11:38,720 --> 00:11:42,480 jeopardizes the sovereignty integrity of India. 182 00:11:42,760 --> 00:11:48,480 So again, these words, right, Like false, misleading, or even 183 00:11:48,480 --> 00:11:53,200 jeopardizing, there's been no clarity about what it would 184 00:11:53,200 --> 00:11:58,760 include within its scope. And therefore, anything that one 185 00:11:58,760 --> 00:12:02,320 may say that you know the person who is in a position of 186 00:12:02,320 --> 00:12:05,720 authority doesn't like the person can fall within the scope 187 00:12:05,720 --> 00:12:09,640 of this offense. I just want to at this point ask 188 00:12:09,840 --> 00:12:12,840 so does this mean that you sharing on a WhatsApp group 189 00:12:12,960 --> 00:12:17,120 becomes a lot more dangerous if it turns out to be false later? 190 00:12:17,840 --> 00:12:21,080 Absolutely it does. Or even like, you know, putting 191 00:12:21,080 --> 00:12:25,160 something online or a tweet or whatever, repost even, right? 192 00:12:25,400 --> 00:12:29,600 So the ramifications of this are vast, considering that so many 193 00:12:29,600 --> 00:12:33,920 of us are on social media and that's the predominant way of 194 00:12:33,920 --> 00:12:38,120 sharing information right now, given the concern that, yes, a 195 00:12:38,120 --> 00:12:40,240 lot of information is also not true. 196 00:12:41,760 --> 00:12:46,720 So yeah, this provision sort of attracts situations that you 197 00:12:46,720 --> 00:12:57,180 just mentioned. We're back in conversation with 198 00:12:57,180 --> 00:13:01,060 Zeba Sikora from Project 39 A about the three new criminal 199 00:13:01,060 --> 00:13:04,420 bills cleared by Parliament. While sedition and passing false 200 00:13:04,420 --> 00:13:07,780 information can affect the wider population, other aspects like 201 00:13:07,780 --> 00:13:11,820 extended police custody are also concerned if you're detained in 202 00:13:11,820 --> 00:13:15,360 connection with any case. We are zeba about aspects 203 00:13:15,360 --> 00:13:18,440 related to police custody that is being detained in a police 204 00:13:18,440 --> 00:13:20,640 station lock up as well as terrorism. 205 00:13:21,200 --> 00:13:24,200 We also asked her about the positives in the three new laws. 206 00:13:26,080 --> 00:13:29,320 One aspect that at least the few parliamentarians who were in 207 00:13:29,320 --> 00:13:33,240 parliament pointed out during the debate on the bill was that 208 00:13:33,280 --> 00:13:36,840 the bill also allows for excessive police custody when 209 00:13:36,840 --> 00:13:40,000 you're in under trial. The government has argued that 210 00:13:40,040 --> 00:13:43,920 it's better because it allows investigations to go faster. 211 00:13:44,200 --> 00:13:49,120 But why is it a problem if people are allowed longer police 212 00:13:49,120 --> 00:13:51,000 custody? Why is it a problem? 213 00:13:52,040 --> 00:13:55,600 The thing is that this has been widely acknowledged by the 214 00:13:55,600 --> 00:14:00,560 courts and generally other sort of writing that, you know, when 215 00:14:00,560 --> 00:14:03,760 someone is in police custody, there's of course a power 216 00:14:03,760 --> 00:14:08,280 dynamic that's at plane. And there is that scope of abuse 217 00:14:08,280 --> 00:14:11,720 and misuse of power by the police that's trying to sort of 218 00:14:12,400 --> 00:14:16,520 extract information and uncover what happened from the body of 219 00:14:16,720 --> 00:14:18,960 normally the accused or the suspect. 220 00:14:19,120 --> 00:14:21,440 So there are two sort of competing interests that are 221 00:14:21,440 --> 00:14:24,200 playing out, right? That is the interest of the 222 00:14:24,200 --> 00:14:26,720 police to get information from this person. 223 00:14:26,960 --> 00:14:30,880 And there's also their safety and liberty and their 224 00:14:30,880 --> 00:14:33,800 constitutional right to life that's really at stake. 225 00:14:34,080 --> 00:14:37,840 A lot of deaths happen in police custody during this stage. 226 00:14:37,840 --> 00:14:43,120 So the problem of torture is widely acknowledged. 227 00:14:43,360 --> 00:14:47,320 The other sort of concern with something like this is how it 228 00:14:47,320 --> 00:14:51,000 attacks in some ways the integrity of the investigation 229 00:14:51,000 --> 00:14:53,040 itself or the criminal justice system itself. 230 00:14:53,240 --> 00:14:57,600 Because the more sort of leeway one gives to the police, there's 231 00:14:57,600 --> 00:15:01,960 also the fear of having fabricated evidence, coerced 232 00:15:01,960 --> 00:15:06,080 evidence, and it has an implication finally on whether 233 00:15:06,280 --> 00:15:08,200 there's even evidence to convict. 234 00:15:08,400 --> 00:15:13,080 So the way the law currently under the CRPC is sort of worded 235 00:15:13,080 --> 00:15:16,800 and how it's been interpreted by the Supreme Court and 236 00:15:16,800 --> 00:15:20,880 jurisprudence generally is that they've tried to the law itself, 237 00:15:20,880 --> 00:15:24,800 it's really limited the time that is permitted in police 238 00:15:24,800 --> 00:15:28,360 custody. So 15 days are permitted and 239 00:15:28,400 --> 00:15:31,320 this has also been, you know through a reading of this 240 00:15:31,320 --> 00:15:34,840 provision been interpreted to mean the 1st 15 days after 241 00:15:34,840 --> 00:15:37,840 arrest. The problem that has arisen in 242 00:15:37,840 --> 00:15:41,960 multiple cases is that when the accused is unavailable for 243 00:15:41,960 --> 00:15:45,880 investigation or unavailable to the police, the problem was for 244 00:15:45,960 --> 00:15:51,480 that once the 1st 15 days were completed, the police was unable 245 00:15:51,480 --> 00:15:55,000 to get them in custody. And that was a concern that was 246 00:15:55,000 --> 00:15:58,480 highlighted especially because you know there were cases when 247 00:15:58,480 --> 00:16:02,640 the accused was in hospital and this really the police felt 248 00:16:02,640 --> 00:16:05,880 compromised their ability to investigate the change. 249 00:16:06,120 --> 00:16:09,400 It clarifies this. So it says that the 15 days of 250 00:16:09,400 --> 00:16:14,440 police custody need not be the 1st 15 days, but they can't sort 251 00:16:14,440 --> 00:16:18,880 of be granted in whole or in parts over a longer period of 252 00:16:18,880 --> 00:16:22,000 time. But the other concern that 253 00:16:22,000 --> 00:16:26,120 remains is actually in the language of sub clause two of 254 00:16:26,120 --> 00:16:30,280 this provision. Now the earlier provision said 255 00:16:30,280 --> 00:16:35,840 that the magistrate when they're authorizing custody after the 15 256 00:16:35,840 --> 00:16:40,040 days, that custody can be any custody other than police 257 00:16:40,040 --> 00:16:43,000 custody. Now this phrase, other than 258 00:16:43,000 --> 00:16:46,280 police custody, has been omitted from the current law. 259 00:16:46,800 --> 00:16:51,400 So the interpretation of such a clause really means that it can 260 00:16:51,400 --> 00:16:54,280 be any custody, including police custody. 261 00:16:54,480 --> 00:16:57,480 And that's been the concern that, you know, several 262 00:16:57,480 --> 00:17:02,080 parliamentarians and others have been raising about this because 263 00:17:02,080 --> 00:17:07,079 what it allows is really expansive powers to the police. 264 00:17:07,280 --> 00:17:10,680 And all the concerns that I highlighted about torture but 265 00:17:10,680 --> 00:17:15,359 also fabrication of evidence, those become much more 266 00:17:15,400 --> 00:17:19,520 heightened with the current framework, if this is how it 267 00:17:19,520 --> 00:17:23,119 were to be read. But there were one argument and 268 00:17:23,200 --> 00:17:26,960 and and I asked because one of the MPs brought this up, which 269 00:17:26,960 --> 00:17:29,400 was that. Why can't we just trust our 270 00:17:29,400 --> 00:17:32,240 police? What would you say is the 271 00:17:32,240 --> 00:17:35,600 counter to something like that? Where we should essentially 272 00:17:35,600 --> 00:17:40,640 trust the police sort of thing. See, the assumption is that all 273 00:17:40,640 --> 00:17:45,520 state authorities really function on the basis of the 274 00:17:45,520 --> 00:17:49,640 Constitution. But at the same time, the law 275 00:17:50,080 --> 00:17:56,120 and other sort of arms of the state, they really need to 276 00:17:56,120 --> 00:18:00,200 ensure that checks and balances are in place, any sort of 277 00:18:00,200 --> 00:18:04,920 authority and functionary without any checks and balances, 278 00:18:04,920 --> 00:18:06,920 they are then free to do whatever. 279 00:18:06,920 --> 00:18:12,160 And this thing about trust also plays out when you're sure of 280 00:18:12,160 --> 00:18:15,720 what is the scope of that power and the fact that it's happening 281 00:18:15,720 --> 00:18:19,440 as per, you know, safeguards that the constitution has sort 282 00:18:19,440 --> 00:18:22,760 of imagined and envisioned. So I think that becomes really 283 00:18:22,760 --> 00:18:26,800 necessary. I wonder if this question of 284 00:18:27,920 --> 00:18:31,240 trust more generally is something that is 285 00:18:31,240 --> 00:18:34,240 counterproductive in a conversation like this when 286 00:18:34,240 --> 00:18:37,200 we're thinking about the way our laws need to be drafted. 287 00:18:37,400 --> 00:18:42,600 Because in some ways we need to also be aware that there are 288 00:18:42,600 --> 00:18:45,000 individuals that are performing that role. 289 00:18:45,200 --> 00:18:50,240 And those individuals are sort of answerable to, in some ways 290 00:18:50,240 --> 00:18:53,640 the sanctity of the role that they are performing. 291 00:18:53,640 --> 00:18:57,800 And that role, again, is in some ways defined by the Constitution 292 00:18:57,960 --> 00:19:01,720 constitutionally in some ways. There has been such a skepticism 293 00:19:01,880 --> 00:19:07,720 around how powers of arrest and how an accused who is taken into 294 00:19:07,720 --> 00:19:11,400 the police custody, what are the safeguards that come into effect 295 00:19:11,400 --> 00:19:14,440 immediately after arrest. So even constitutionally, we're 296 00:19:14,440 --> 00:19:19,840 recognizing that when it comes to the right to life, Article 21 297 00:19:19,840 --> 00:19:24,240 rights often accused, their liberty and safety is heavily 298 00:19:24,240 --> 00:19:27,440 compromised the moment they are in custody. 299 00:19:27,440 --> 00:19:29,680 Where they are, they are not in a position of power. 300 00:19:30,040 --> 00:19:34,480 Therefore, the law needs to account for the fact that, you 301 00:19:34,480 --> 00:19:38,000 know, procedures are there that allow us to trust. 302 00:19:39,000 --> 00:19:44,200 Another major focus for at least this law is that it includes 303 00:19:44,200 --> 00:19:47,520 terrorism and organized crime into it, which was not there 304 00:19:47,520 --> 00:19:49,880 with the IPC. We always had separate laws for 305 00:19:49,880 --> 00:19:53,600 it. Why does it matter if we do have 306 00:19:53,600 --> 00:19:56,360 it in this law? Many would argue that it just 307 00:19:56,360 --> 00:19:58,960 makes sense that you have one law that kind of covers it all. 308 00:19:59,800 --> 00:20:03,200 I think the problem that something like this creates is 309 00:20:03,200 --> 00:20:06,880 that it creates a bit of confusion, and that's not 310 00:20:06,880 --> 00:20:10,200 something that a criminal law needs to ideally do. 311 00:20:10,200 --> 00:20:14,120 It needs to be very specific about a What are the offenses? 312 00:20:14,320 --> 00:20:17,360 And what is everyone's power in regard to that? 313 00:20:17,760 --> 00:20:23,000 The decision to include terrorism and organized crime. 314 00:20:23,440 --> 00:20:27,320 In some ways, there isn't much clarity about what it's hoping 315 00:20:27,320 --> 00:20:30,680 to achieve with something like organized crime. 316 00:20:30,920 --> 00:20:35,840 I suppose the sort of argument could be that not all state LED 317 00:20:36,640 --> 00:20:41,160 legislations have a separate law to sort of prevent organized 318 00:20:41,160 --> 00:20:43,880 crime. What it will then create is a 319 00:20:43,880 --> 00:20:47,800 sort of confusion about what applies in a state where a 320 00:20:47,800 --> 00:20:49,760 special law is already applicable. 321 00:20:50,160 --> 00:20:53,480 But with terrorism I think the problem is a bit more acute, 322 00:20:53,480 --> 00:20:56,360 right? When you do have UAPA that 323 00:20:56,360 --> 00:21:00,560 exists, that's recognized as an offence broadly in some ways. 324 00:21:00,560 --> 00:21:06,560 What's what remains to be like? Unclear is really what was 325 00:21:06,560 --> 00:21:10,640 really the purpose and intention behind including it here. 326 00:21:10,840 --> 00:21:15,080 Because the imagination with which these exceptional laws 327 00:21:15,080 --> 00:21:18,280 have also been created and exceptional statutes have been 328 00:21:18,280 --> 00:21:22,800 created is because these are perceived to be extraordinary 329 00:21:22,800 --> 00:21:25,560 crimes, right? They are very serious crimes and 330 00:21:25,560 --> 00:21:28,840 therefore senior officers must be involved in investigation. 331 00:21:28,840 --> 00:21:33,640 There are certain safeguards, I suppose, even though powers of 332 00:21:33,640 --> 00:21:38,560 the police here are extremely wide and even liberties are also 333 00:21:38,560 --> 00:21:43,080 heavily curtailed there. But for instance, to prosecute 334 00:21:43,080 --> 00:21:46,360 under UAPA you need to obtain sanction. 335 00:21:46,840 --> 00:21:51,440 I think the concern that this creates, besides confusion, is 336 00:21:51,440 --> 00:21:57,320 that what it means to have exceptional laws in a general 337 00:21:57,400 --> 00:22:01,520 law, where even you know the officer who can investigate, 338 00:22:01,720 --> 00:22:05,080 includes officers at a lower level in the hierarchy as well. 339 00:22:05,080 --> 00:22:09,560 So it's something that can then be employed more broadly. 340 00:22:09,560 --> 00:22:13,240 And you know, the problem with UAPA and these offences is also 341 00:22:13,240 --> 00:22:17,920 that a lot of acts fall within its scope and then it's down to 342 00:22:17,920 --> 00:22:20,440 the judiciary to finally decide on it. 343 00:22:20,600 --> 00:22:25,200 But until we reach that point, there is the process itself is 344 00:22:25,200 --> 00:22:30,000 the punishment very often. And how do you view aspects like 345 00:22:30,600 --> 00:22:35,120 this trial in absentia and other new changes that are being 346 00:22:35,120 --> 00:22:39,040 brought about which have been said that will accelerate the 347 00:22:39,040 --> 00:22:42,280 speed at which justice is delivered in criminal cases? 348 00:22:43,120 --> 00:22:48,520 Yeah, trial in absentia I think is a really controversial sort 349 00:22:48,520 --> 00:22:52,280 of issue, right, because a lot of people have very sort of 350 00:22:52,280 --> 00:22:54,600 strong opinions about the need for it. 351 00:22:54,760 --> 00:22:58,560 And in some ways, when we think about this, it's justified 352 00:22:58,560 --> 00:23:04,280 because you do have, of course, concerns of, you know, trials 353 00:23:04,800 --> 00:23:08,680 taking more time, prolonged and delayed justice happening 354 00:23:08,680 --> 00:23:11,160 because the accused is evading arrest. 355 00:23:11,480 --> 00:23:14,680 But in some ways, again, I think in subways, it's going back to 356 00:23:14,680 --> 00:23:20,360 my earlier point about how do we really imagine our criminal 357 00:23:20,360 --> 00:23:23,560 justice system and what are the values that it's based on. 358 00:23:23,800 --> 00:23:27,360 And those values I think need to be universal and can't be 359 00:23:27,360 --> 00:23:31,240 determined on who the accused is in a particular case. 360 00:23:31,440 --> 00:23:37,880 So the idea of a fair trial right, which is what the way our 361 00:23:38,040 --> 00:23:40,840 laws and as a democracy, how we're functioning, that's that's 362 00:23:40,840 --> 00:23:43,960 key because the right to be meaningful, only heard, the 363 00:23:43,960 --> 00:23:48,600 right for a person to have a fair trial is an intrinsic 364 00:23:48,600 --> 00:23:50,960 right. It's part of how we think about 365 00:23:50,960 --> 00:23:53,400 our fundamental right. So all of this has been 366 00:23:53,400 --> 00:23:58,040 recognized as extremely crucial and it's something that exists 367 00:23:58,080 --> 00:24:03,360 regardless of who the accused is, regardless of how sort of 368 00:24:03,360 --> 00:24:07,280 heinous or serious their offences actually are. 369 00:24:07,480 --> 00:24:11,520 So having trial in absentia, which actually when we think 370 00:24:11,520 --> 00:24:15,240 about the current legal framework, attachment of 371 00:24:15,240 --> 00:24:18,720 property is permitted, right? So someone is absconding, 372 00:24:18,720 --> 00:24:21,960 evading, arrest. Their property can be attached 373 00:24:21,960 --> 00:24:26,560 in some ways to compel them to come back and really face up to 374 00:24:26,560 --> 00:24:30,640 the legal process. What is permitted is that, you 375 00:24:30,640 --> 00:24:35,280 know, evidence against them can be recorded, but at the same 376 00:24:35,280 --> 00:24:40,680 time their trial where they are given an opportunity to defend 377 00:24:40,680 --> 00:24:46,200 themselves, when they are given an opportunity to sort of, you 378 00:24:46,200 --> 00:24:50,000 know, cross examine but also carry out different procedures 379 00:24:50,000 --> 00:24:52,600 where they need to respond to every incriminating circumstance 380 00:24:52,600 --> 00:24:55,120 against them. All of these are integral 381 00:24:55,120 --> 00:24:59,800 aspects, so merely having a provision a legal aid lawyer is 382 00:24:59,800 --> 00:25:04,680 present there is not meaningfully fulfilling this 383 00:25:04,880 --> 00:25:08,120 right to fair trial. The ideal would be to have 384 00:25:08,240 --> 00:25:11,360 speedy justice, but really here it's about thinking about the 385 00:25:11,360 --> 00:25:14,320 efficiency of the system. But at what cost? 386 00:25:15,400 --> 00:25:19,040 For you, what are the positives in these three laws? 387 00:25:19,040 --> 00:25:21,600 Because we've been fairly critical of the three laws so 388 00:25:21,600 --> 00:25:25,200 far, But what for you are the big positives that you see 389 00:25:25,200 --> 00:25:30,640 coming with these three laws? Some of the changes really has 390 00:25:30,640 --> 00:25:35,640 been an effort to sort of push certain boundaries of how we've 391 00:25:35,640 --> 00:25:37,760 been doing things and that's been great. 392 00:25:37,760 --> 00:25:40,800 Like when I think about the BNS for instance, there's been 393 00:25:40,800 --> 00:25:44,040 introduction of community service as a punishment and it's 394 00:25:44,040 --> 00:25:48,160 been done for petty offences including theft, defamation, 395 00:25:48,160 --> 00:25:50,160 things like that. I mean first time offender of 396 00:25:50,160 --> 00:25:52,560 theft and things like that. So that's a positive change. 397 00:25:52,800 --> 00:25:59,200 There has been, you know, a sort of expansion in where sort of 398 00:25:59,240 --> 00:26:02,680 empowering victims. There has been a relative step 399 00:26:02,680 --> 00:26:06,440 forward there because there's been an explicit granting of 400 00:26:07,400 --> 00:26:11,400 information rights, but also participatory rights to them 401 00:26:11,600 --> 00:26:14,280 through the process. And of course something like an 402 00:26:14,280 --> 00:26:19,040 explicit recognition of 0 FIR is along those lines. 403 00:26:19,160 --> 00:26:23,520 So that's a positive change in the BNSS instead of the CRPC. 404 00:26:23,640 --> 00:26:26,680 Something like deemed sanction is very important because 405 00:26:26,680 --> 00:26:32,400 prosecution of police officers or state officials sometimes 406 00:26:32,400 --> 00:26:37,680 would always be hindered because of non grant of sanction and now 407 00:26:37,680 --> 00:26:39,560 there's a provision of deemed sanctions. 408 00:26:39,560 --> 00:26:42,640 So if sanction has not been granted by the concerned 409 00:26:42,640 --> 00:26:46,840 authority within 120 days, then it would be considered to have 410 00:26:46,840 --> 00:26:51,080 been given the new changes that have been introduced in the 411 00:26:51,400 --> 00:26:53,920 replacement for the evidence law. 412 00:26:54,680 --> 00:26:58,920 They also sort of emphasize the importance of chain of custody, 413 00:26:59,160 --> 00:27:02,960 which is very key when we think about evidence, especially 414 00:27:02,960 --> 00:27:06,480 electronic evidence, because in some ways you need to prove that 415 00:27:06,480 --> 00:27:10,960 there has been no tampering along the way and an explicit 416 00:27:10,960 --> 00:27:13,800 acknowledgement of that is an important step forward. 417 00:27:14,240 --> 00:27:18,840 There has been an emphasis of use of audio video technology, 418 00:27:19,320 --> 00:27:21,560 especially during search and seizure. 419 00:27:21,560 --> 00:27:25,080 So a mandatory requirement of that is a really important 420 00:27:25,080 --> 00:27:27,080 development. And in some ways we'll really 421 00:27:27,760 --> 00:27:31,480 sort of make transparency and accountability of police a lot. 422 00:27:31,480 --> 00:27:35,280 I mean it'll increase that. Of course, there are multiple 423 00:27:35,280 --> 00:27:39,680 things and we've also written about it in our research Breeze, 424 00:27:39,680 --> 00:27:44,600 the team at Project 39 a about, you know what are other sort of 425 00:27:44,600 --> 00:27:48,680 parallel changes that need to be thought of at the same time when 426 00:27:48,680 --> 00:27:52,680 we're doing all of this. But I think that broadly these 427 00:27:52,680 --> 00:27:57,960 are changes in the positive direction that is also pushing 428 00:27:57,960 --> 00:28:01,200 the system in some ways to do things differently. 429 00:28:01,360 --> 00:28:05,040 But I think again as with timelines and what the concerns 430 00:28:05,040 --> 00:28:09,640 remain, I think the thing to keep in mind is just technology 431 00:28:09,640 --> 00:28:15,720 and just efficiency at the cost of daily justice and fairness 432 00:28:15,960 --> 00:28:21,240 and fair trial is something that we must always sort of caution 433 00:28:21,240 --> 00:28:24,080 against. I also wanted to ask, and this 434 00:28:24,080 --> 00:28:26,760 is something you mentioned in another answer, but you spoke of 435 00:28:26,880 --> 00:28:31,040 how we imagine the system, and there seems to be a lot of 436 00:28:31,040 --> 00:28:35,360 cynicism with the existing system as it stands, which was 437 00:28:35,400 --> 00:28:37,680 something that came through in the parliamentary debates as 438 00:28:37,680 --> 00:28:40,960 well. Do these laws sort of indicate a 439 00:28:40,960 --> 00:28:42,920 sort of reimagining of that system? 440 00:28:44,080 --> 00:28:49,880 To be honest, I think not Substantially, not enough. 441 00:28:50,360 --> 00:28:55,200 Are we really reimagining how the system even functions? 442 00:28:55,400 --> 00:28:59,680 In my opinion, when we've done all of this analysis and also as 443 00:28:59,680 --> 00:29:03,120 people who are seeing what in some ways are the barriers of 444 00:29:03,120 --> 00:29:08,680 the system, not enough has been taught or reimagined to ensure 445 00:29:08,680 --> 00:29:13,800 that some of the root problems of the system are sort of 446 00:29:13,800 --> 00:29:17,200 solved. One sort of reality that's also 447 00:29:17,200 --> 00:29:20,680 come up in parliament is that who are the people who are at 448 00:29:20,680 --> 00:29:25,680 the receiving end of the system? You realize that they're the 449 00:29:25,680 --> 00:29:28,680 most marginalized and a lot of them don't have economic 450 00:29:28,680 --> 00:29:32,840 capacity, don't have social capital and are extremely 451 00:29:32,840 --> 00:29:37,640 vulnerable, especially when they're in situations that are 452 00:29:37,640 --> 00:29:40,600 alienating, like being in police custody and things like that. 453 00:29:40,800 --> 00:29:43,440 But you know, when we're thinking about the changes in 454 00:29:43,440 --> 00:29:47,560 the law on bail for example, even though there has been a 455 00:29:47,560 --> 00:29:52,760 positive shift of sort of allowing for if someone is under 456 00:29:52,760 --> 00:29:56,120 trial and their trial hasn't started but they've already 457 00:29:56,120 --> 00:29:59,960 completed a significant portion of their sentence which is 1/3 458 00:29:59,960 --> 00:30:03,400 in this, there are conditions against it that the person 459 00:30:03,400 --> 00:30:06,400 should not be a repeat offender and the offences can't be very 460 00:30:06,400 --> 00:30:08,920 serious. But in this situation they may 461 00:30:08,920 --> 00:30:14,000 be released on bail but the reason why 70 more than you know 462 00:30:14,000 --> 00:30:19,280 70% are above 60% of our prison population are under trials. 463 00:30:19,280 --> 00:30:22,360 Many of them who have bail but are still not released is 464 00:30:22,360 --> 00:30:26,360 because they're not able to pay surety and that's something 465 00:30:26,360 --> 00:30:30,760 that's still not resolved and sort of rectified even when it 466 00:30:30,760 --> 00:30:35,560 comes to problems of delay, just having timelines. 467 00:30:35,560 --> 00:30:40,120 While it's a step forward that acknowledges the fact that okay, 468 00:30:40,120 --> 00:30:45,480 we need to do something about it, it's not looking at why does 469 00:30:45,480 --> 00:30:52,600 delay happen in the 1st place. And I think lack of sort of 470 00:30:53,080 --> 00:30:57,160 awareness or I suppose just consciousness of that as we're 471 00:30:57,160 --> 00:31:02,440 thinking about reform in general may lead to really unintended 472 00:31:02,440 --> 00:31:05,960 consequences and ensure that at the heart in some ways the 473 00:31:05,960 --> 00:31:10,240 system remains the same. So it's flaws may just continue 474 00:31:10,280 --> 00:31:14,800 and take new forms because legislative mandate has changed, 475 00:31:14,800 --> 00:31:19,520 but the heart of the institution and you know, their entire 476 00:31:19,520 --> 00:31:27,080 structure, hasn't changed much. Today's episode was produced by 477 00:31:27,080 --> 00:31:31,640 Jayaraj Singh and Sahil Gupta. For a daily spotlight on people, 478 00:31:31,680 --> 00:31:34,440 ideas and stories that matter, subscribe to us. 479 00:31:34,840 --> 00:31:39,280 We are available on TOI, Spotify, Apple, Google Podcast, 480 00:31:39,440 --> 00:31:41,240 and all other platforms of your choice. 481 00:31:41,680 --> 00:31:46,400 For any news tips, e-mail us at TOI Podcast at Timesinternet dot 482 00:31:46,400 --> 00:31:46,720 in.