“The new criminal codes must be challenged,” says Kapil Sibal


The rollout of the three criminal codes — Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS) and the Bharatiya Sakshya Adhiniyam (BSA) — by the Central government has been met with stiff resistance from Bar Associations across the country. Some States like Tamil Nadu have constituted committees to suggest amendments to the laws. But, the Centre has staunchly defended them. Eminent lawyer and President of the Supreme Court Bar Association (SCBA) Kapil Sibal tells businessline how the new codes do not represent a break from the colonial past and why they are contrary to the Constitutional ethos. Excerpts:

What is your view on the Rajya Sabha Chairman Jagdeep Dhankar’s comment that P Chidambaram insulted the “wisdom of Parliament” when he said the new criminal codes did not go through the Law Commission?

Parliament in its wisdom can pass a law but it is the court which decides whether or not it is valid. So the wisdom of the law is not to be decided by Parliament but by the courts. Several laws passed by Parliament have been quashed or set aside in the past, thereby questioning the wisdom of Parliament. So I think Mr Dhankar is incorrect in his appreciation of the role of Parliament. Mr Chidambaram has raised valid concerns about the three laws; that the law commission and known experts in the field should have been asked to scrutinised them. I think the Chairman of the House should not really be commenting on these issues because he represents both the treasury benches as well as the opposition. He is not the one to give an opinion in favour of the government or against the government. He is not an arbiter on these issues. He is an arbiter in the House and the proceedings of the House, not beyond.

The Home Minister says that these law were debated in the House for 30 hours and that he himself has attended 118 meetings to discuss them. Does that answer questions about the rigour that should have gone into drafting these laws?

I cannot say whether the rigor that should have been adopted is enough for the purposes of validating these laws. Even if Mr. Shah has had 118 meetings it is meaningless until the law is scrutinized by the Supreme Court as well as other courts.

Do you think that these laws should be challenged?

They will be challenged, they should be challenged and they must be challenged. Many of the provisions are unconstitutional and ill-advised.

What is your overall view with regard to the new laws?

I have been through many of the provisions in the new laws and some of them are unacceptable because they are inconsistent with established Constitutional principles.

The government says that the new laws represent a break from the “Colonial” past and represent an “Indianised” criminal justice system. Would you agree?

That’s completely wrong. In fact, they are much worse than the existing laws made by either Macaulay or Stephen. In fact the existing criminal statutes were really not Colonial laws because they have been amended from time to time by Parliament. The Criminal Procedure Code was entirely reconceptualised in 1973. This code is an indigenized code enacted by our parliament. So how is it a throwback of the Colonial laws?

The views reflected in the dissent notes of Mr Chidambaram (in the Parliamentary Standing Committee that scrutinised the three laws) and others represent some of the structural deficiencies. They are left unaddressed by these laws. Ultimately all issues of concern will be decided by the court. Some provisions are indeed welcome because of the use of technology in matters of investigation. That apart, there are some basic issues which are inconsistent with Article 21 of the Constitution.

How would you respond to the tilt of the new laws towards harsher sentences and expanded police powers? An instance of this is Clause 187(2) and 187(3) of the BNSS that staggers the period for which a detainee can be kept in police custody.

One of the big problems I have as a citizen of this country is that a police officer has the right to arrest anybody even on suspicion, without an iota of evidence, allowing for the power to be misused. There is no other country in the world where a police officer can arrest anybody and take him to police custody for 15 days. There is no such provision anywhere in the liberal world. Why do you take a person into police custody and not judicial custody straightaway? What is the difference between the two? In judicial custody you can’t threaten him, you can’t torture the accused being in the custody of the court. But police custody is required for other reasons. You may—threaten him, torture him. Such inhuman conduct is inconsistent with our Constitutional ethos. Therefore, questioning the very concept of police custody was the first thing the government should have looked at if Amit Shah wanted to remove the taint of our colonial past. Instead, this government has perpetuated it. Now instead of police custody for the first 15 days, you can extend it up to 60 days or 90 days. In other words, you can take police custody at any point in time within 60 or 90 days.

That is inconsistent with our Constitutional ethos because what will happen in the process is that police custody will be taken in tranches over a period of 60 or 90 days. The accused will  never get bail during this period. The situation right now is that after 15 days, the accused can, in certain circumstances, get bail. With  these new provisions no accused will ever get bail during  60 or 90 days. This is perpetuating the colonial legacy not getting rid of it.

Would you comment on other reforms like punishment alignment to address the issue of serious crimes coming with lighter punishment and petty offences containing higher sentences? The new law remains skewed wherein the punishment for inciting riots in (Clause 192, BNS) is one year but punishment for making false promise to marry (Clause 69, BNS) is for ten years.

Yes, at what stage do you decide that the man promised? And what about 153A (Under IPC, the provision pertains to promoting enmity between groups)? It’s a very serious issue nowadays where one can create disharmony amongst communities. This provision is abused for the purposes of electoral benefit but it even under the new law, it does not attract any significant sentence. This provision needed to be changed.

Replication of previous laws does not make the change transformational. The fact is that the government wanted to make history; nothing more. These laws do not address the fundamental issues in relation to the previous codes that needed to be addressed. 

And how do you call it “nyay sanhita”! It is a penal code meant for punishing people for wrongs to society. How is this connected to ‘nyay’ or justice? The state is prosecuting, not delivering justice.

These laws are ill advised. They will create a lot of confusion. In fact, we should get rid of the Colonial past but that requires serious thinking not knee jerk legislation. These laws are not enacted with the intent to get rid of the Colonial past, but to perpetuate it, far more viciously and in a far more toxic manner than during the Colonial times.

Published on July 10, 2024



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