From India's largest newsroom, I'm Arun George and this is the
Times of India podcast. Hi.
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Thank you for listening to us this year.
Now here's today's episode. So.
These three bills. That create history have been
passed unanimously. In spite of over 140 lawmakers,
all of whom are from opposition parties, being suspended from
Parliament, the government moved and passed what it says are the
three biggest changes to India's criminal law since Independence.
There was little debate on the legislation in the Lok Sabha and
Rajya Sabha with most MPs only talking about the laws virtues
in around 72 hours. The new laws were passed by
Parliament and will now go to the President for approval.
The Bharati and Nyaya Sahita, the Bharati and Nagrik Suraksha
Sahita and the Bharatiya Saksha Bill replaced the Indian Penal
Code, the Code of Criminal Procedure and the Indian
Evidence Act respectively. The three laws being replaced
from the Foundation of Indias creaky criminal justice system
that suffers from overburdening, delays and insufficient
resources. To understand the concerns with
these three new laws, we spoke with Zeba Sikora, who's a senior
associate at Project 39 A at the National Law University in
Delhi. Project 39 A studies various
aspects of the criminal justice system like legal aid, torture,
forensics, mental health in prisons and the death penalty.
Given these three laws are as big as they are, we couldn't
possibly cover all aspects of them in this episode.
If you're interested and you want a more detailed analysis of
these three laws, you could head on over to the Project 39, A
blog, and other websites. Now the thing with laws is most
people don't really care about them unless there's a very
direct impact on them. Many might argue that given
we're not all criminals, why should we even worry if criminal
laws are getting harsher or are getting changed?
We started by asking Zeba that. Most people would argue that
they should be as harsh as possible because it's meant to
deal with criminals. So why should we care about how
harsh criminal laws are, even if we don't plan on sort of picking
up a life of crime? I mean that's a very good
question and I think that it's a question that many people do
have. I think even though the criminal
law framework plays a really important role in regulating
society, right and maintaining law and order.
I think in some ways what this imagination of harsh laws,
strict procedure, high punishments, what it does is
that it sort of exaggerates the role of criminal law to sort of
deal with problems in our society.
So the then the sort of approach, the vision of a
framework like this becomes that, you know, blaming being a
person, so their conviction, their punishment.
It becomes the sole sort of purpose of what the law is
trying to do in order to get rid of crime.
And what this ignores really is that there are a lot of
complicated realities that lead to crime, right?
There are lots of things that are socially rooted.
It has to do with someone's economic situation, family
upbringing. There's so many aspects that
play a role. So this is not to say that
having offences and having prosecution and trial and
punishment is not important, but that can be our only sort of
emphasis. Secondly, the other sort of
aspect that's important to keep in mind as we think about these
laws is that there are lots of things that are wrong with even
the functioning of the criminal justice system, right.
There are problems of like low rates of conviction, there is
high pendency, laid justice. All of these are very valid
problems and are concerning for everyone.
But in some ways, what this law and this framework is imagining
is that any sort of reform or any sort of change will really
happen through legislative mandate.
And that's actually a misconception that we need to
acknowledge because there are broader sort of institutional
infrastructure and other challenges that the system is
grappling with constantly, right?
What is our vacancy rate at every level?
Whether we're thinking about the police, whether we're thinking
about the judiciary, what is their capacity?
What is the infrastructure that's available to them to do
their job? Those are concerns that are
equally relevant when we're thinking about reforms.
A lot has been made of the criminal law reform that is
being undertaken through these bills.
We've had multiple parliamentarians talk about how
this is the biggest reform post independence really.
Could you explain just how much is being rewritten with these
three laws? It's a huge exercise, right?
To repeal an existing sort of code of laws in itself is huge,
but I think the sort of reality of it is that in terms of the
content right, there has been very little change.
So largely it's remained the same, but broadly in terms of
what it's trying to do, it is reimagining certain aspects of
how things function. But again, the thing to
highlight here is that this is only a part of the system and a
part of even the reform that may be needed.
So when we think about the sort of broader administrative
implications of a change like this, because we are working
towards a situation where there will be two distinct frameworks
that are functioning at the same time.
Because even the repeal provision, right, it clarifies
that you know any ongoing appeal proceeding, even investigation
that is ongoing prior to the commencement of the law, it will
continue under the old framework.
So now we are really imagining our overburdened and under
resourced system really grappling with so much and what
is the impact of something like this on efficiency, right, which
has been our goal. How are we then going to ensure
that at every level people are trained that they're able to
take on the challenge of a new system sort of come in place?
So one major aspect that has been cited in the parliamentary
debate about the Nyaya Sanita bill is the section on sedition
being gone. And instead, you know, we will
now punish people for creating disaffection against the country
and not the government. But really, how much of A change
is this? That's true and part of the
initial conversations, one highlight was that, you know in
this effort to decolonize, we are getting rid of a colonial
relic, which is the sedition clause.
And instead, as you rightly pointed out, a new provision has
been introduced. It's called Acts endangering the
Sovereignty, Integrity, Unity of India, and earlier the language
of sedition. It was more limited, so it did
seek to criminalize acts related to disaffection against the
government. But in many ways, what this
Clause 152 does is that the spirit of what the old provision
was, it continues in this. Over the years, jurisprudence
has tried to clarify the scope of this because they've also
found it to be extremely vague. Now, what the new clause does is
that in spirit, it is also criminalizing.
I mean, it remains the same as addition and criminalizes acts
that, you know, excite or attempt to excite.
And it lists a bunch of things, including successionist
activities and things like that, but also subversive activities,
right? And again, that's a really broad
definition because any sort of dissent or criticism or protest
subversion, so anything could be a part of it, including
something like encouraging feelings of separatist activity.
So it doesn't need someone to actually do something, but just
generate a feeling which is so hard to really quantify or even
recognize and identify. So the problems that existed
with sedition in that respect continue.
While the sentiment may be very attractive, what it does is that
the government was a more defined concept and the idea of
India itself, it's much broader, it's more abstract, so it can
include public figures who represent the country, it can
include even individuals, it can include communities, society
more generally. And therefore the entire scope
of this provision becomes very broad, which is also a huge
problem when it comes to criminal offences.
The moment they're broad, people can't predict what amounts to an
offence and it becomes open to interpretation and subjectivity
of the police, judges and everyone.
And that's the cause for concern.
The aspect of jail for spreading false information is also
something that's right for misinterpretation, right?
Could you explain why this aspect of spreading false
information is such a concern with this law?
It's again one of the new offences that has been included
in the law and to acknowledge the fact that the problem of
misinformation is there. It's something that at every
level we are sort of grappling with right with AI and the
possibility of fabricated videos and things like that.
But what the new offense does is by using very expansive language
and removing or sort of not including this requirement of
intention, it really opens the net.
I mean, it's a wide net really to try and get people sort of
within the scope of the law because false or misleading is
something that is only subsequently going to be proved.
At this point it is just a matter of, you know, the
executive, the police officer, their sort of sense about the
information being circulated. So the language that this
provision again uses, and some of the concerns are similar to
the concerns I already discussed with sedition or the new version
of sedition, is that the language it uses is making or
publishing false or misleading, you know, information that
jeopardizes the sovereignty integrity of India.
So again, these words, right, Like false, misleading, or even
jeopardizing, there's been no clarity about what it would
include within its scope. And therefore, anything that one
may say that you know the person who is in a position of
authority doesn't like the person can fall within the scope
of this offense. I just want to at this point ask
so does this mean that you sharing on a WhatsApp group
becomes a lot more dangerous if it turns out to be false later?
Absolutely it does. Or even like, you know, putting
something online or a tweet or whatever, repost even, right?
So the ramifications of this are vast, considering that so many
of us are on social media and that's the predominant way of
sharing information right now, given the concern that, yes, a
lot of information is also not true.
So yeah, this provision sort of attracts situations that you
just mentioned. We're back in conversation with
Zeba Sikora from Project 39 A about the three new criminal
bills cleared by Parliament. While sedition and passing false
information can affect the wider population, other aspects like
extended police custody are also concerned if you're detained in
connection with any case. We are zeba about aspects
related to police custody that is being detained in a police
station lock up as well as terrorism.
We also asked her about the positives in the three new laws.
One aspect that at least the few parliamentarians who were in
parliament pointed out during the debate on the bill was that
the bill also allows for excessive police custody when
you're in under trial. The government has argued that
it's better because it allows investigations to go faster.
But why is it a problem if people are allowed longer police
custody? Why is it a problem?
The thing is that this has been widely acknowledged by the
courts and generally other sort of writing that, you know, when
someone is in police custody, there's of course a power
dynamic that's at plane. And there is that scope of abuse
and misuse of power by the police that's trying to sort of
extract information and uncover what happened from the body of
normally the accused or the suspect.
So there are two sort of competing interests that are
playing out, right? That is the interest of the
police to get information from this person.
And there's also their safety and liberty and their
constitutional right to life that's really at stake.
A lot of deaths happen in police custody during this stage.
So the problem of torture is widely acknowledged.
The other sort of concern with something like this is how it
attacks in some ways the integrity of the investigation
itself or the criminal justice system itself.
Because the more sort of leeway one gives to the police, there's
also the fear of having fabricated evidence, coerced
evidence, and it has an implication finally on whether
there's even evidence to convict.
So the way the law currently under the CRPC is sort of worded
and how it's been interpreted by the Supreme Court and
jurisprudence generally is that they've tried to the law itself,
it's really limited the time that is permitted in police
custody. So 15 days are permitted and
this has also been, you know through a reading of this
provision been interpreted to mean the 1st 15 days after
arrest. The problem that has arisen in
multiple cases is that when the accused is unavailable for
investigation or unavailable to the police, the problem was for
that once the 1st 15 days were completed, the police was unable
to get them in custody. And that was a concern that was
highlighted especially because you know there were cases when
the accused was in hospital and this really the police felt
compromised their ability to investigate the change.
It clarifies this. So it says that the 15 days of
police custody need not be the 1st 15 days, but they can't sort
of be granted in whole or in parts over a longer period of
time. But the other concern that
remains is actually in the language of sub clause two of
this provision. Now the earlier provision said
that the magistrate when they're authorizing custody after the 15
days, that custody can be any custody other than police
custody. Now this phrase, other than
police custody, has been omitted from the current law.
So the interpretation of such a clause really means that it can
be any custody, including police custody.
And that's been the concern that, you know, several
parliamentarians and others have been raising about this because
what it allows is really expansive powers to the police.
And all the concerns that I highlighted about torture but
also fabrication of evidence, those become much more
heightened with the current framework, if this is how it
were to be read. But there were one argument and
and and I asked because one of the MPs brought this up, which
was that. Why can't we just trust our
police? What would you say is the
counter to something like that? Where we should essentially
trust the police sort of thing. See, the assumption is that all
state authorities really function on the basis of the
Constitution. But at the same time, the law
and other sort of arms of the state, they really need to
ensure that checks and balances are in place, any sort of
authority and functionary without any checks and balances,
they are then free to do whatever.
And this thing about trust also plays out when you're sure of
what is the scope of that power and the fact that it's happening
as per, you know, safeguards that the constitution has sort
of imagined and envisioned. So I think that becomes really
necessary. I wonder if this question of
trust more generally is something that is
counterproductive in a conversation like this when
we're thinking about the way our laws need to be drafted.
Because in some ways we need to also be aware that there are
individuals that are performing that role.
And those individuals are sort of answerable to, in some ways
the sanctity of the role that they are performing.
And that role, again, is in some ways defined by the Constitution
constitutionally in some ways. There has been such a skepticism
around how powers of arrest and how an accused who is taken into
the police custody, what are the safeguards that come into effect
immediately after arrest. So even constitutionally, we're
recognizing that when it comes to the right to life, Article 21
rights often accused, their liberty and safety is heavily
compromised the moment they are in custody.
Where they are, they are not in a position of power.
Therefore, the law needs to account for the fact that, you
know, procedures are there that allow us to trust.
Another major focus for at least this law is that it includes
terrorism and organized crime into it, which was not there
with the IPC. We always had separate laws for
it. Why does it matter if we do have
it in this law? Many would argue that it just
makes sense that you have one law that kind of covers it all.
I think the problem that something like this creates is
that it creates a bit of confusion, and that's not
something that a criminal law needs to ideally do.
It needs to be very specific about a What are the offenses?
And what is everyone's power in regard to that?
The decision to include terrorism and organized crime.
In some ways, there isn't much clarity about what it's hoping
to achieve with something like organized crime.
I suppose the sort of argument could be that not all state LED
legislations have a separate law to sort of prevent organized
crime. What it will then create is a
sort of confusion about what applies in a state where a
special law is already applicable.
But with terrorism I think the problem is a bit more acute,
right? When you do have UAPA that
exists, that's recognized as an offence broadly in some ways.
What's what remains to be like? Unclear is really what was
really the purpose and intention behind including it here.
Because the imagination with which these exceptional laws
have also been created and exceptional statutes have been
created is because these are perceived to be extraordinary
crimes, right? They are very serious crimes and
therefore senior officers must be involved in investigation.
There are certain safeguards, I suppose, even though powers of
the police here are extremely wide and even liberties are also
heavily curtailed there. But for instance, to prosecute
under UAPA you need to obtain sanction.
I think the concern that this creates, besides confusion, is
that what it means to have exceptional laws in a general
law, where even you know the officer who can investigate,
includes officers at a lower level in the hierarchy as well.
So it's something that can then be employed more broadly.
And you know, the problem with UAPA and these offences is also
that a lot of acts fall within its scope and then it's down to
the judiciary to finally decide on it.
But until we reach that point, there is the process itself is
the punishment very often. And how do you view aspects like
this trial in absentia and other new changes that are being
brought about which have been said that will accelerate the
speed at which justice is delivered in criminal cases?
Yeah, trial in absentia I think is a really controversial sort
of issue, right, because a lot of people have very sort of
strong opinions about the need for it.
And in some ways, when we think about this, it's justified
because you do have, of course, concerns of, you know, trials
taking more time, prolonged and delayed justice happening
because the accused is evading arrest.
But in some ways, again, I think in subways, it's going back to
my earlier point about how do we really imagine our criminal
justice system and what are the values that it's based on.
And those values I think need to be universal and can't be
determined on who the accused is in a particular case.
So the idea of a fair trial right, which is what the way our
laws and as a democracy, how we're functioning, that's that's
key because the right to be meaningful, only heard, the
right for a person to have a fair trial is an intrinsic
right. It's part of how we think about
our fundamental right. So all of this has been
recognized as extremely crucial and it's something that exists
regardless of who the accused is, regardless of how sort of
heinous or serious their offences actually are.
So having trial in absentia, which actually when we think
about the current legal framework, attachment of
property is permitted, right? So someone is absconding,
evading, arrest. Their property can be attached
in some ways to compel them to come back and really face up to
the legal process. What is permitted is that, you
know, evidence against them can be recorded, but at the same
time their trial where they are given an opportunity to defend
themselves, when they are given an opportunity to sort of, you
know, cross examine but also carry out different procedures
where they need to respond to every incriminating circumstance
against them. All of these are integral
aspects, so merely having a provision a legal aid lawyer is
present there is not meaningfully fulfilling this
right to fair trial. The ideal would be to have
speedy justice, but really here it's about thinking about the
efficiency of the system. But at what cost?
For you, what are the positives in these three laws?
Because we've been fairly critical of the three laws so
far, But what for you are the big positives that you see
coming with these three laws? Some of the changes really has
been an effort to sort of push certain boundaries of how we've
been doing things and that's been great.
Like when I think about the BNS for instance, there's been
introduction of community service as a punishment and it's
been done for petty offences including theft, defamation,
things like that. I mean first time offender of
theft and things like that. So that's a positive change.
There has been, you know, a sort of expansion in where sort of
empowering victims. There has been a relative step
forward there because there's been an explicit granting of
information rights, but also participatory rights to them
through the process. And of course something like an
explicit recognition of 0 FIR is along those lines.
So that's a positive change in the BNSS instead of the CRPC.
Something like deemed sanction is very important because
prosecution of police officers or state officials sometimes
would always be hindered because of non grant of sanction and now
there's a provision of deemed sanctions.
So if sanction has not been granted by the concerned
authority within 120 days, then it would be considered to have
been given the new changes that have been introduced in the
replacement for the evidence law.
They also sort of emphasize the importance of chain of custody,
which is very key when we think about evidence, especially
electronic evidence, because in some ways you need to prove that
there has been no tampering along the way and an explicit
acknowledgement of that is an important step forward.
There has been an emphasis of use of audio video technology,
especially during search and seizure.
So a mandatory requirement of that is a really important
development. And in some ways we'll really
sort of make transparency and accountability of police a lot.
I mean it'll increase that. Of course, there are multiple
things and we've also written about it in our research Breeze,
the team at Project 39 a about, you know what are other sort of
parallel changes that need to be thought of at the same time when
we're doing all of this. But I think that broadly these
are changes in the positive direction that is also pushing
the system in some ways to do things differently.
But I think again as with timelines and what the concerns
remain, I think the thing to keep in mind is just technology
and just efficiency at the cost of daily justice and fairness
and fair trial is something that we must always sort of caution
against. I also wanted to ask, and this
is something you mentioned in another answer, but you spoke of
how we imagine the system, and there seems to be a lot of
cynicism with the existing system as it stands, which was
something that came through in the parliamentary debates as
well. Do these laws sort of indicate a
sort of reimagining of that system?
To be honest, I think not Substantially, not enough.
Are we really reimagining how the system even functions?
In my opinion, when we've done all of this analysis and also as
people who are seeing what in some ways are the barriers of
the system, not enough has been taught or reimagined to ensure
that some of the root problems of the system are sort of
solved. One sort of reality that's also
come up in parliament is that who are the people who are at
the receiving end of the system? You realize that they're the
most marginalized and a lot of them don't have economic
capacity, don't have social capital and are extremely
vulnerable, especially when they're in situations that are
alienating, like being in police custody and things like that.
But you know, when we're thinking about the changes in
the law on bail for example, even though there has been a
positive shift of sort of allowing for if someone is under
trial and their trial hasn't started but they've already
completed a significant portion of their sentence which is 1/3
in this, there are conditions against it that the person
should not be a repeat offender and the offences can't be very
serious. But in this situation they may
be released on bail but the reason why 70 more than you know
70% are above 60% of our prison population are under trials.
Many of them who have bail but are still not released is
because they're not able to pay surety and that's something
that's still not resolved and sort of rectified even when it
comes to problems of delay, just having timelines.
While it's a step forward that acknowledges the fact that okay,
we need to do something about it, it's not looking at why does
delay happen in the 1st place. And I think lack of sort of
awareness or I suppose just consciousness of that as we're
thinking about reform in general may lead to really unintended
consequences and ensure that at the heart in some ways the
system remains the same. So it's flaws may just continue
and take new forms because legislative mandate has changed,
but the heart of the institution and you know, their entire
structure, hasn't changed much. Today's episode was produced by
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