‘You’re provoking me, so off you go to jail’

‘The Bills (Bharatiya Saksha, Bharatiya Nagarik Sanhita and Bharatiya Nyaya Sanhita) are arbitrary, opaque and ambiguous and structurally quite violent.’

Home Minister Amit Anilchandra Shah will speak on the Bharatiya Saksha(a bill to consolidate and to provide for general rules and principles of evidence for fair trial), Bharatiya Nagarik Suraksha Sanhita (a bill to consolidate and amend laws related to criminal procedure) and Bharatiya Nyaya Sanhita (a bill to consolidate and amend the provisions relating to offences and for matters connected therewith or incidental thereto) in the Lok Sabha on Wednesday December 20, afternoon.

“These bills reinforce power: Whoever us in power might benefit. These bills disproportionately favour the law enforcement agencies, and the prosecuting State,” Senior Supreme Court Advocate Shahrukh Alam tells Prasanna D Zore/Rediff.com.

  • Part 1 of the Interview: ‘The police will be significantly more militarised’

For killing somebody, the punishment could be only seven years, but for concealing your identity, it’s ten years.

I’m saying that it’s very arbitrary.

The Bills (Bharatiya Saksha, Bharatiya Nagarik Sanhita and Bharatiya Nyaya Sanhita) also are arbitrary, opaque and ambiguous and structurally quite violent; they are also, linguistically hegemonic.

Plus they do cause a rupture in that it affects the existing jurisprudence in unpredictable ways. All these points are actually very colonial in their exercise of power.

The opaqueness, the ambiguity, the arbitrariness, the rupture, the structural violence, the centralisation of power, all of these are elements of colonialism and authoritarianism.

Could you list some of the most draconian clauses that are part of this new criminal jurisprudence that India will come under?

I would prefer the word arbitrary because a lot of discretion is given to the police.

If you say draconian, the response would be that it may or may not happen. It will depend on the context. But depending on the context is such an arbitrary thing, and it’s always the Executive that would be depending on the context. That makes it more arbitrary, ambiguous than overtly draconian.

In terms of substantive law again, these definitions that we were discussing of subversive acts or the definition of terrorist acts which centre only on property damage or provocation and intimidation of the government (are also very vague).

And then moving on to procedural laws, there is this detention without charge being reinforced.

Secondly, the transplanting of these bail provisions from the UAPA (Unlawful Activities (Prevention) Act) into the IPC (Indian Penal Code), into the Nyaya Sanhita is also, to my mind, making very exceptional laws mainstream.

Thirdly, these discretionary powers being given to arresting officers are also arbitrary.

The arbitrariness of sentencing in instances of mob lynching when compared to instances of concealment of identity in marriage.

So what happens next? Now, of course, the bills will be enacted, and they will become laws.
What happens once these laws are enacted? What happens to the cases that are still in the courts under the previous criminal jurisprudence?

First of all, I don’t know if they’d be enacted. I’m hoping that they’re not enacted in the current form.

I’m hoping that even before the Parliamentary Committee, there’s scope for more debate. This actually reads like a first draft. There are incomplete sentences. There are many, many, errors. This is not even a final draft.

This draft needs a lot more work before it’s actually enacted. But when it is enacted, again, there is no clarity as to what would be the relationship with the already developed jurisprudence.

In terms of substantive law, the rule is that criminal law does not act retrospectively. So a new offence, if created in the new code, will not apply retrospectively.

Although, it is also true that there are not that many new offences being created. It’s more a jumbling up of the old offences — giving them new sections and rearranging them, apparently to ‘decolonise our minds’.

As opposed to non-retrospectivity of substantive laws, change in procedure might apply immediately to ongoing trials. That will cause immense confusion.

Whatever new introductions there are — both to substantive law and to procedural law — are very fundamental in the sense that they formalise practices that were not considered very progressive, or very good practices. They used to take places in the shadows.

Will these laws favour the ruling party, the government in power? How would these laws, politically speaking, impact what the Opposition can do or say against the government of the day?

These bills reinforce power: Whoever us in power might benefit. These bills disproportionately favour the law enforcement agencies, and the prosecuting State.

Are there any checks and balances? Or, are they not very evident?

No, because the whole framework formalises and legitimises the exercise of discretionary power against the accused persons by the law enforcement agencies. So that’s quite one sided.

A prime example is when other countries are talking about detention (without charges) in terms of hours, why is our investigation process being turned on its head and being kept open-ended?

All you have to say is that there’s a conspiracy and there might have been some crime. I’m investigating, and you can keep a person in jail for 90 days.

This is immense unilateral power given to the investigating agencies without any safeguards (for protection of the liberty of citizens).

There’s a very interesting report. It’s called the Lord Carloway report about Scotland and their criminal law reforms. And it records that the mean period of time for which people are kept in detention without charge is 4 hours.

83 per cent of the people are kept in detention without charge for 4 hours. About 0.5 per cent exceed 12 hour periods.

(And in India) we are talking (of detaining somebody) in terms of 90 to 180 days. That to me is extraordinary. It’s exceptional.

People’s civil/human liberty is not even part of the discussion. It’s not even part of the framework of the procedural part of the Nagrik Suraksha Sanhita, an act of apparent ‘decolonisation’. That to me is ironical.

Then these very broad expanded definitions of subversive activities — our conversation (this interview) could be very subversive. And we could be arrested because it’s a cognisable offense, so it does give immense power (to the investigating agencies).

The democratic government has actually criminalised any critique of itself or its laws and its policies.

It can say that you’re provoking me, intimidating me, so off you go to jail.

Could these laws be challenged in a court of law? Can the government make such a law?

This argument that nobody was consulted and nobody participated in decision making has been raised in different contexts before.

For instance, in the context of the abrogation of Article 370.

Similarly, it was argued in the Central Vista case very comprehensively by Senior Advocate Shyam Devan and Justice Sanjeev Khanna’s dissent (as opposed to the majority judgment) recognised it.

The majority (of the judges comprising the bench that heard this case) said that you don’t have such a right, but the dissenting judgment (by Justice Sanjeev Khanna) said that there should be a right to consultation.

I don’t know if that particular argument will hold the field because that’s not the majority view.

There are many sections in the proposed bills that can be challenged in terms of their Constitutionality like the definition of subversive activities, the very broad definition of the terrorist act, the power to handcuff as it goes against the fundamental right to dignity, and also the D K Basu judgment of the Supreme Court.

Hopefully, this extended period of detention without charges would also be challenged, but lack of participation (in Parliament) may not be a legal ground because as of this moment it doesn’t hold the field.

Can one say that these laws are being brought in to ring fence the Executive as well as the government? That with these laws in place nobody will be able to seek accountability from the government in power?

It certainly does give a lot more power to the executive and the government, particularly the law enforcement agencies.

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