July 18, 2024

Context of the Criminal Law Committee and issues with it:

Manavi: The foundational understandings we have of laws is that they should be of the people themselves. If you read the preamble, it starts with we the people. And so ‘we’ should be at the centre of any kind of legislation that governs us and decides it dictates everyday lives of ours. And what is extremely alarming about these criminal laws is the very way in which they were brought in. A lot of you may not remember this. But the first notification that came out to look at an amendment and to look at revision to the criminal laws, all three of them came during the peak of the COVID pandemic. This was during 2020. And they basically entrust the National Law University, Delhi, to set up something called the criminal laws committee. This committee had no representation from any geographical locations, no representation from marginalized caste, class. It didn’t have any kind of understanding of what it is like to operationalize these criminal laws in district courts in India. These are not laws that only govern or are applied when it comes to the Supreme Court. They are what trickle down through the district courts and that’s where a lot of the criminal matters are decided. And the way in which this committee was formed, the way in which, so something very fundamental to looking at any kind of revision to laws is the terms of reference, right? Is the basis in which you have to look at what kind of changes and amendments need to be brought in. And these terms of reference were again only in English and we all know India is a country where many languages are spoken and people don’t unnecessarily follow English to that extent. The comments were only requisitioned in English again and over the period of two years we have no idea what the committee essentially did behind closed doors to decide how they want to revise these criminal laws.

Lack of Transparency and Public Participation:

Manavi: Many individuals and leading lawyers who have the understanding of civil liberties, academicians gave their comments. But at the end of it when we filed RTIs to ask them, you know, what kind of comments did you get? What were all the people who were looking for the change in the criminal laws? What were they asking for? The committee never came forward and gave us responses of all the responses that were submitted to them. That’s the representation in the committee, the timing in which it was formed, the responses itself, all of it points to a very opaque way in which these laws were even deliberated upon. And despite multiple attempts that were made from people in the standing committee or otherwise, these laws did not necessarily see any kind of public participation and engagement as they should have, as any law should have because they should be of us, we the people right. It is in this backdrop that these laws, we only saw the end product that these three new laws are today.

No Parliamentary Discussion:

Manavi: We all know at that point in time was also critical to remember at this was a time that historically 197 members of the Lok Sabha were unceremoniously suspended at that point of time for raising critical issues against this government and so this did not just receive any kind of participation and critical discussion in the parliament it saw an absence from the substantial opposition at that point in time. Both in the Lok Sabha and in the Rajya Sabha so it is in this backdrop we have to understand the product of these three criminal laws before us.

State Response to the Criminal Laws:

Manavi: States like Tamil Nadu and West Bengal have openly said and submitted their critique to these criminal laws. The Tamil Nadu Bar Association has also condemned the way in which they have been named right? It’s quite ironic that the names are in Hindi, but the Hindi translation of these laws don’t exist So this kind of symbolism around Hindi and Hindi imposition is very revealing of the of the way that the government wanted to play its cards of manipulating its people saying that you know we are pro-Hindi today and you want to look at the laws also from there and decolonize them in that sense.

1. What has been the key arguments that the state has given to bring in these three laws, and how do you debunk those arguments?

MS: I first want to go back to the names. The Indian Penal Code has been replaced by the Bharatiya Nyaya Sanhita. The Government has said that that are moving away from the dand, which is what penal was about, to nyaya. So, you’re moving away from Dand to Nyay which means we’re moving from punishment to justice. That gives you an idea that what they’ve essentially done is bringing down punishments because if you say I am moving away from a penal framework to a justice framework, that is the intuitive thing that you get. But then it goes back to whose idea of justice, what you mean by Nyay in this context and justice for whom. And it is ironic because what the BNS ends up doing is actually increases sentences for around 40 offences. It increases minimum punishments for around another 40. Fines of course which were 10 rupees, 20 rupees bring that all up to 1000, 2000, 5000, etcetera. So, it is not really a law which actually reduced punishment, it increased it. So for you to argue, for the state to argue that this law is not about punishing, but it’s more about justice, there starts the problem in terms of the BNS. On the other hand, the criminal procedure code, however boring that name sounds, is essentially an application of constitutional law.

And how that plays out in the criminal justice process. So criminal procedure code seems an ideal name for it. Now you’ve changed that to Bharatiya Nagarik Suraksha Sanhitha, which means protection of people. So where is the protection of people in the law? And they don’t say why it’s called protection of the people at the end of the day.

Was there a need for change in the laws? Yes. All of us would agree that there was a need for change in parts of the law. In 2013, we saw some effort in the context of laws on sexual violence.

We were talking about sedition, of course, in the Supreme Court. The central government had said that we were to relook at this issue of whether we should have a section on sedition in the penal code. We had offences which were colonial in nature. For instance, take obscenity. So, you have a section, then 292 of the Indian penal code, which doesn’t define obscenity but makes distribution of obscene material, et cetera, and offence. Marital rape in the context of rape laws. So, you had a range of these provisions which reflected a colonial understanding of society at that point of time and they did require change. We also probably needed changes here and there of things that were not relevant anymore in the application of certain. But what I think they ended up achieving is changing section numbers.

And this goes back to, again, the home minister’s speech in parliament, where he says, we have changed. Why have we changed section numbers? Because we moved around chapters. We have moved around chapters because we want to show that we give priority to the citizens and not to the state. And we give priority to women, which is why all the sexual offences which were in the 300s are now in the 60s. So that’s how we show our priority towards women. And so, we move everything else to the back in terms of the chart. The other thing that they end up doing is the Indian Penal Code had 511 sections. If I remember correctly, this now has around 370. And how they achieved that is by bunching sections together. So, what were seven sections are now seven subsections. An example that comes to my mind if there was an offense of receiving stolen property with the section 411 of the Indian Penal Code. So, offence for someone to receive stolen property. Now, that had multiple sections that followed. So, all of that, so there was a definition of stolen property then there was receiving stolen property at that time. To reduce the number of sections they now have now have a section called Stolen Property, which defines Stolen Property then can set the offences under it. So, in just terms of procedural issues as well this sort of non-conceptual putting together of laws and changing sections. Again, going back to their entire question of prioritising women, we had section 354 of the Indian Penal Code, the so-called outraging modesty of women, which is colonial. The Verma 2013 said we shouldn’t use this terminology, get rid of it. They didn’t in 2013. They still retain it now.

But conceptually the offence is talking about a man using as the law says criminal force which intends to outrage the modesty of women. The term criminal force was defined earlier in the Code, section wise. Now because you’re prioritising women, it is defined later in the Sanhita. So again, conceptually, if you are looking at whatever section 70, the definition is 100 sections away. So, it just doesn’t make sense. So, in terms of the decolonization project, one is, I think, these things could have actually been changed.

And the other is moving offences like organised crime from special legislations like the MCOCA which divide them into the into the penal code and at the same time bringing in terrorism again from outside. Then also we say we are moving away from sedition to something else but the language of that provision is not identical to 124A. Which to me is a problem because of the fact that at least with the sedition provision there were Supreme Court judgments which told you how to interpret them. Now you are throwing in the new language, it means when going back to the question of the police state that it then depends on how it gets interpreted and then we have to wait for another Supreme Court judgement maybe 10 years down the line in which time you will have arrested so many people for this offence and however you interpret it.

Decolonization has not happened. I think as this indicates, many problematic things, which shouldn’t be there in the penal code have been brought in, which shouldn’t be in a constitutional democracy.

I think I’ll just connect from what you said in the last – In terms of what were the other arguments that the state was making in terms of changes.

2. Could you shed some light on the other arguments that the state was making to bring in these changes and how far they have succeeded or not succeeded in doing that. And the second aspect is of course that the title of the AILAJ’s booklet[1] says the draconian new criminal law. So, if you could talk about the few draconian aspects according to you that the new criminal law has brought.

MK: See, if you actually look at why they brought this in, or why they say they brought this in. The one thing that Manavi said when she was speaking about how these laws came in, she spoke about how they came in, the idea, the original notification came in at the time when the court was happening. Subsequently, there was a committee that was formed. And then finally, when it was passed, several members of parliament had been suspended, so there was absolutely no kind of discussion on this.

So, the other thing about these laws is that there was no pre-legislative consultative process that was done, which would have actually told us why they were bringing this in. What was the need for these new codes that were coming in? And what were they trying to achieve by this? That entire process was not followed. And if you really look at it, like Mrinal was saying, large portions of it are more or less the same thing. And they have changed section numbers, they may say you want to prioritise women, but really you are not prioritising women by putting them at an earlier section number. Obviously, that is not how you are going to prioritise women. So, if we really try to understand why did they not just bring about amendments into the existing law, if you have about 90% of it being more or less the same and you are only, you are making changes, the one thing that you see is that you do not have anything which is brought by the government which actually says this is what the law said this previously. And these are the changes that we are actually bringing in now. And these are the reasons why we are bringing in these changes. They’ve not said that they may have made some grandiose statements on colonial legacy, whatever. But there is nothing to say why they’re doing this. And that’s the reason many of us have actually brought out these booklets and we were just speaking. And you said that some of us have noted some parts, some others have realised something. So, it has become an exercise where you have to actually sit and find what are the changes that have been brought in.

So, this entire process of not even saying what the changes you are bringing in because it is not a new law that you are bringing in. You had an existing law, you are making some changes to it, if you want to call changing section numbers that is one part of it, but the actual change that you have made you have not revealed to it, you have not revealed what they are. So, people are still searching for it. So, for example if you look at one of the provisions that has been spoken of most that is in terms of police custody where they say that you know it is 15 days but the provision of the law now is vague enough. So, earlier it was that 15 days the first 15 days is when you can take by police custody so the law allows you now to take police custody pass those 15 days for a larger period. What is vague about it and what people say are you know there are conflicting opinions about what this new law says that whether it is more than 50 days up to 60 days or 90 days or whether it is less and one of the reasons for that is one word in that proviso has been removed. So, it requires you to actually go into each of these things to see why.  When we are saying why did they bring in these laws apart from the fact that they brought in a lot of draconian provisions, there is really no stated objective in that sense to say this is why we are bringing in this law. In fact, it has been brought about in such an untransparent manner that it takes you to find out what are these changes that they have even made.

So that’s I think one thing that we really need to recognize. The other thing is that in terms of the draconian provisions, that is the actual changes that they have brought about, there are a range of things. So even if you actually, like what they say, right, that this is a colonial, we are fighting, we are coming out of this colonial, whatever it is, way of being whatever. So, how do we understand what could be, what are those colonial things that we were supposed to have been holding onto? So, we have to understand that. One is how do you understand the relationship between the individual and the state? Because obviously under colonial powers, you are not a citizen, you are a subject, your rights are restricted. And if you look at that, one is how does, so what does it do in so far as that relationship is concerned? So how do we understand that? One is how much more power has it given to the police?

How much more has it allowed the, how much more arbitrariness does it allow for? And the second is what are the kind of new offences that it has created, which actually would violate your rights as citizens. So, if we look at it in these two lights, on trying to understand whether it really addresses this colonial hangover that we had, if you really look at it, what it does is makes it far, far more. So, if you look at the powers that are given to the police. The presumption of innocence, which is like the bedrock of our criminal justice system, is totally taken out. One of the things that it provides for is that every police station put up, display prominently, a list of the accused with all the details of the person. If you put up something like that, it’s basically you’re allowing people to just come, allowing people to take things into their own hands.

And of course, lists of people who are just accused, who are not convicted of anything, put up saying that these are the offences that they have been accused of, this is their details. So, this is a new provision that for example has been put. The second thing it does is that it allows for example handcuffing. Handcuffing is something that the courts have time and again said that it should not be used unless absolutely necessary.

It allows for something like solitary confinement in case of all offences. Solitary confinement is something that, again the Supreme Court has said, it’s extremely inhuman and it has very serious impacts on a person’s mind. It has very serious impacts on a person’s health. It’s something that brings it and it allows for that. It allows much more for that to take place. So, it allows for solitary confinement, for example. Then it gives the level of arbitrary powers to the police to actually say, if you go with a complaint to register an FIR, then you don’t need to register an FIR in certain cases. They can conduct a preliminary inquiry. So, who is this going to affect most? Obviously, it is going to affect people from the marginalised communities. It’s going to affect people from the Dalit communities, Adivasi communities, working class, and women. It is going to affect women.

Where the police are going to say we have not registered an FIR. So, these are the kind of ways in which arbitrary powers have been given. Then when you come to the new offences that have been brought in, you have the terrorist act which has been brought into this, which is very similar to the provision under the UAPA. And of course, we are very critical of the UAPA and we see that it should be withdrawn, you know, it should be repealed, but it has some minimal safeguards. Those safeguards are not here.

There is a committee that is supposed to look into it. None of the safeguards under UAPA are here in the new criminal provisions. Then it brings in what is sedition but it does not call it sedition, effectively criminalising any form of kind of speech that you have. And it is a, so you have all of these provisions and sedition we all know is something the Supreme Court said you cannot go ahead with it, all cases on sedition will be stopped, do not register new cases on sedition. So, they bring in this new provision without actually calling it sedition. So, I think just broadly speaking if you have to look at it there are whole range of things both procedurally which have very serious impacts on your constitutional rights. And on the new offences that have come, which really have no place in a democracy.

3. That connects to my next question, which is that you already talked about the value of procedure. Procedure, why the substance of an offence or of the crime, so to say, is detailed in the Indian penal code. But the procedure is what safeguards and makes sure that you are able to access your fundamental rights in some ways. It is a very critical ancillary part to substantial laws. So, to quickly just jump in, Mrinal, how has the CRPC, which is the Criminal Procedure Code, changed and what is the procedure now in terms of the safeguards and in terms of ensuring that these fundamental rights with respect to when it comes to FIRs, when it comes to custody, when it comes to bail, when it comes to all of these aspects of the law. How will it now operationalize after the new laws come in?

MS: I think my Maitreyi already just spoke on some of these issues. So let me take up, say because you said FIR, you spoke about how this preliminary inquiry thing has come in. If you look at the entire question of preliminary inquiries and police not registering FIRs, there is a huge history behind this which ends with the Supreme Court famous judgement Lalita Kumari ten years back. Where the Supreme Court says is that section 154 of the CRPC which talks about FIR is mandatory that the police have to register FIRs movement of organisable offence is made out.

Of course, they give a little bit of leeway saying matrimonial offences, medical negligence, etc. Five situations where preliminary inquiries can be done with. To my opinion, the Supreme Court should not have done that, but yeah, they give those five.

Now if you look at the new section, section 173 of the BNSS, it introduces a subsection like she mentioned which says in all offences punishable with imprisonment between 3 and 7 years, the police can do a preliminary inquiry.

Two things. One is there is an assumption probably that 0 to 3 are all non-cognizable which is not true. So you have what happens in those cognizable cases between whatever, up to 3.

Sorry, if I could just interrupt you – For those of us who are non-lawyers, the cognizable and non-cognizable, what’s the meaning?

So cognizable offences are offences where the police can investigate a case without the permission of the magistrate and can arrest without having police warrant from a magistrate. That is the difference between cognizable and non-cognizable cases. The general understanding is less than 3 years is non-cognizable, but there are exceptions to that rule, many exceptions to that rule. 3 to 7 will be generally cognizable. So therefore, earlier the CRPC said that for every cognizable offence when the police get information about a cognizable offence, they have to register. They did not call it an FIR, but you have to register the offence. So, for instance, if I call the police from somewhere and say, you know, somebody is firing at someone else on MG Road and the person has been hurt, that straightaway a cognizable offence. So, I have to, as the police officer, register the cognizable offence. Now, the issue was in matrimonial cases where they didn’t want to register.

So, it became whether domestic violence is actually that, not that, right?  So that’s where we are using this preliminary enquiry issue and in medical negligence because the Indian Medical Association constantly pushed back at doctors being arrested. The problem probably lies with unnecessary arrest which is another human rights issue. But instead of solving that, the entire focus was on let’s not register the FIR at all.

Like I was saying the 2nd subsection were not there in the CRPC gets introduced in this one, saying between 3 and 7 years you can do a preliminary inquiry. The Supreme Court had 5 categories. Here now it is everything between 3 and 7 years. The safeguard that it provides is that the office, the police officer with the charge of the police station, the SHO or the IO as the case may be, has to take the permission of the deputy superintendent of police before starting the preliminary inquiry and in giving that permission the deputy superintendent of police has to consider the nature and gravity of the offence. Nature and gravity not being defined, right. So, one thing could be is nature and gravity serious or is nature and gravity not serious and what are you talking about. If you were to look at it logically, if I am doing a preliminary inquiry as a police officer, as per Lalitha Kumari, I was not registering the FIR. So, you come to me, I say I have to find out whether cognizable, and then the Supreme Court acted only to find out whether it is a cognizable offence or not, I can do a preliminary inquiry. So, you come in and tell me something, I do a preliminary inquiry, figure out it is not a cognizable offence, so then I do not register the FIR. So that would be the system then. If you look at how it is worded now. It says you do a preliminary enquiry and then one of two things.

It says figure out whether prima facie case is made out. Now the standard of prima facie case which means or the face of it a case is made out is actually comes at a later part of the trial process, it does not come at a point of FIR. It says the preliminary enquiry can be done to figure out there is no prima facie case. The second thing is the police shall then investigate. Now the basic question here is have they registered the FIR or have they not registered the FIR. Because if they have registered the FIR you procedurally you can’t close one. You have to go through the process.

So, in its drafting itself, it’s so vague, including words such as nature and gravity, this entire thing of what happens next. So, it can create chaos in the system because of the fact that one police station may register an FIR and then not know how to, like there’s nothing to close it, another one may not, in which case when people go to register an FIR, now it’s a free for all, you can decide whatever you want to do. Until again, we get one more, the Lalita Kumari, maybe 10 years down the line, which gives you the procedure. So, till then, it’s chaos.

I think that that’s what I see. Again, I think there are different interpretations of the provision on police custody. Some people have been saying that the Home Minister clarified it on the first day. Now, we have to go back to what was discussed in Parliament with the nothing. So, can we just rely on the Home Minister’s word, saying this is how it should be interpreted? I would say legally no, practically maybe yes. But legally no, we can’t say that home minister gave a statement at a press conference and that is what we should take in interpreting this section handcuffing is the other provision. You have what was section 436A of the criminal procedure code which provided that if you served out more than half the sentence, you could be released as a change in that. So, if you look at all of these provisions together, again the more important thing that my three of them are mentioning is it is like a surprise every day

You open the thing and say, oh, there’s one word missing. You need your AI tools to scrape through things and say, this word is not there. You need to compare documents to figure out what is the word that’s changed. And I think it’s not. I think in this way, I’m pity the police because from day one, I have to discover new things in that provision which had been trained for these many years. So that deletion of one word or addition of one word has just thrown the entire thing out of sync because of the fact that the interpretation of these words, which now create like I mentioned earlier also create problems in how do you look at these new formulations and then for instance I think the two high courts which have already commented on the last section 531 of the court. Now the question is if the offence was registered on June 25th 2024.

What do you follow after July 1st? And the provision says it gives you different stages. Now, one set of people have interpreted that to mean, if I’m today at the investigation stage and I get to the trial stage obviously I have to follow the BNSS. The other way of interpreting it is no until we completely finish the process, we will I think one high court said the former and the high court has said the latter in ten days. So, it just then brings you back to how you keep interpreting provisions of this nature.

4. Thanks, Mrinal. Could you, Maitreyi, start talking about maybe the substance of IPC in the sense that you did speak about the terror laws aspect. You spoke about the sedition aspect. And Mrinal also did shed a little bit of light about that. But what is your, say, for example, the feminist analysis of the provisions specifically relating to gender and violence? Because the argument, like they’re saying, is by putting these sections a little earlier in the criminal, in the IPC, they have somehow prioritised gender. So, if you look at these provisions from a feminist perspective, what are these provisions able to and not able to do when it comes to the question of addressing the violence against women?

MK: I think there has always been a demand that these laws must be changed in order to make them gender just.  So that is a demand that has always been there. And in fact, even during these so-called consultations that they held, there were many groups that, in fact, put this out. The main of them are, one is of course marital rape. The fact that till even now, the rape of a man on his wife is not considered rape. It is an exception to rape. So that is something that people have been asking, should we do? Then there is a provision which says that if a man commits rape on his wife when they are separated, then it is a lesser offence with a lesser punishment. That remains. So, these provisions, there was a demand that they should be. Of course, you should criminalize marital rape, this kind of distinction should be removed. None of that has been looked at. So as of today, you still have marital rape on the, not as an offence, you still have this distinction in so far as a rape by a man on his wife when they are separated, so that still remains. So, the core of the demands to make these laws gender just and not been touched upon at all

One of the new provisions that has been brought in is this criminalising of marriage by deceitful means. This is in fact a provision that they say that is going to be used against the so-called love jihad. That’s what the right-wing groups are openly saying. So, this says that if a person convinces another to marry with deceitful means. How does that place a woman? So, the recognition of a woman as a person who is able to make decisions, those kinds of things are not there. So, you are actually bringing in a provision such as this, which in many ways reduces a woman. So that is in so far as the offences itself are concerned. The other thing I would say is that if you look at all of these laws, even the criminal procedure code that has been adopted.

If you look at this from understanding rom, if a woman wants to go and file a police complaint, it’s that much more difficult now. Because the chances of an FIR not being registered and the chances of the courts actually, I mean, of the police saying, I can actually not register an FIR is a power that has been given to them. So, the way, even though this may not be specific in respect of, of, of women, but the way in which it plays itself out, we, we, we will be obvious. Because you’re going to have it much more difficult now to actually register FIRs with the kind of arbitrary powers that have been given to the police. So, I think the idea, I mean the statement that this has made things favourable for women in any way, I don’t see that in any way coming and it really makes no difference whether you are section 100 or section 500, it doesn’t matter in terms of the seriousness, in terms of how you, in terms of the…gravity in terms of how the courts are going to view it, that has no consequence. That’s actually to even make that statement to say that we have shifted the provisions in so far as women are concerned to an earlier position in the court, it shows a superficial way in which they are engaging with the idea of gender justice. So, I think the primary demands to make this agenda is to make it a more inclusive gender just law. There’s absolutely nothing that has been done on that front. And instead, you have actually made it more difficult for women to access justice in this way.

MS: Can I add? So, a couple of things to add on that is. One is the question of gender neutrality. Of course, there are various debates on gender neutrality underway. One was a model that the Verma committee had proposed of gender specific offender gender neutral. And here you see what they do with very strange. The office of voyeurism has been made gender neutral. One, why?

There is no clear thing of why just one and of course again I think it goes back to statements in parliament where laws were made laws gender neutral, right. It comes out and you are like where, right, which provision has been done and of course the more concerning one is complete removal of section 377 equivalent of saying that the Supreme Court said 377 should be removed, not essentially making that distinction of what the Supreme Court ruled and what you removed. So suddenly you have a void with respect to non-consensual sexual acts against men, gender minorities, etc. So that void norm exists in our laws. The other thing I think was in terms of procedure was there were problems in the 2009 amendments that were made to the CRPC. The 2009 amendments which were made to the CRPC assumed that women cannot…women will be not patriarchal at all.

So therefore, you say that all medical examinations by women, prosecutors will be women, judges will be women, etc. And that continues. So, if you were to look at this saying, I want to look at this from a feminist angle, there you are removing the women’s agency to decide who she wants to get medically examined by or whether she wants the woman judge sort of curing her cases at all. So, some of those things which could have also, I do not think anybody has even paid attention to any of these, but those are the places where one could make amendments and also places where there was no need for amendments where you have to be introduced, including the section 69 of the BNS which is on deceitful, deceitful sexual acts. There has been a very problematic jurisprudence in the UK on conditional consent and deceit.

And so, would Indian courts bring that into interpretation of this section? We don’t know. So, everyone can interpret this section in various other ways. And one thing that that section also does, it says that if sexual intercourse is with deceit, not amounting to the offence of rape, reduces the word not amounting to the offence of rape. So, your meaning is to say that when consent is taken by deceit, it is conceptually wrong.

You are doing that and then the punishment for that is the maximum of 10 years, which means your minimum punishment remember for the others is 10 years. So, here you are saying 0 to 10, which means this is something leaving out the ways it can be misused by the state. Even in cases where someone says I was deceived into sexual intercourse, fine 6 months, right, even if it is the offensive thing.

And the other thing that had happened in 2019 in 18 and 19 when amendments were made to the IPC was that the minimum punishment for non-aggravated rape because 7 years was made 10 years which then equated non-aggravated rape punishment to the aggravated rape punishment meaning there is no difference between aggravated rape and non-aggravated rape. So, I think even if started this project didn’t start in 2020, it started in 2018 when you are making changes which were unnecessary which were just showing that over increasing punishments. I think that just continued through this new enactment of laws.

You’ve spoken at great length as is required to understand from a feminist lens is what it does in terms of imagining gender-just laws and as you rightly said that it’s not just now this banal exercise of increasing punishments so as to be make the issue, to basically deal with the question of violence started in 2018 and 2019 and has not really made the laws gender-dressed whatsoever. Another critical aspect of looking at these laws in a lens to look at them is the anti-caste perspective and to look at it from the perspective of other marginalised communities such as Muslims and the sexual minorities which you spoke a little bit about. So Maitreyi could you tell us a little bit about what kind of impact these laws will have on them and specifically to do with the question of arrest and so on.

MK: The first case that was registered was actually registered against a street vendor for vending. So, for actually vending, there was an FIR registered. So, I think that is something that is actually protected under the Street Vendors Act. They have the right to vend. They have the right against police action. And police are actually prohibited from taking action against them. But the very fact that that was the first FIR that was registered, I think in some way shows the way in which these laws would be used. If you remember, one of the first larger protests that took place against this, other than civil society organisation were the protest by truck drivers. And one of the reasons that they were saying is that the law the IPC previously the punishment for death by now in the ration negligent act was I think if I’m not wrong three years or a little lesser two years and subsequent and by this law it has been increased so I think up to ten years if I’m not wrong. So, the hit and run provision.

And they have penalised the act of going away from, after hitting the running part of it, basically the person going away. And they say that the reason that many of them go away is because if they are there, they get beaten up by people that come together, you know, crowds that come together. So, one of the first protests against it was actually by the truck drivers. So, the full extent of how dangerous these laws are on marginalised communities is something still to be seen. The fact of the matter is, even as we stand today, the law is obviously disproportionately used or it’s used in a manner that will affect people from modernised community, whether it’s Dalits or Adivasis, all the working class or religious minorities, Muslims, in a much graver fashion. So, if you look at the present data, I think one of three, one of three or two of three of under-trial prisoners belong to the Dalit, Adivasi and OBC communities. So, you have the way in which it anyway takes place. Like Kannabiran famously said, the law defines the offence, the state defines the offender. So, who is going to be the criminal? Whether it’s going to be Ambani for not doing something that he had wanted to have done or not in case of cheating or something, or whether it’s going to be someone like the street vendor. That is going to be determined by the state.

So, you don’t have a level playing field in this. So, when you are on that, you are given arbitrary powers to the police to take this form of action, who is it going to affect the most? Then the people that are going to be affected the most are people from the, from marginalized communities. For example, now if you think about registering an FIR, if you have a, if you have say, the decision to register or not to register an FIR for the police, there is going to be so much to be said about who the accused is and who the person who is giving the complaint is.

So, if you have, for example, a worker giving a complaint against management for some kind of assault, the chances are they’re not going to register an FIR. And they’re going to say, this is there against you. And on the contrary, if you have, say for example, an FIR that is being given by a dominant caste person against a person belonging to the Dalit community, the chances are that that FIR will actually get registered. Because all this is going to become a consideration. So, I think the fact that you have given this kind of arbitrary powers to the police itself is something that is going to disproportionately affect people from marginalised communities. The other thing is of course that some of the offences that have actually been brought in, I mean maybe there will be another, I mean we will speak about dissent, but the fact is that dissent is actually, who are the people who are going to be dissenting, who are the people who are going to be protesting, it is people from marginalised communities. So, they have criminalised hunger strikes.

I mean, it’s really ironic that in our country they should be criminalising hunger strikes, but they have criminalised hunger strikes. The offence in which this new sedition, which is not called sedition, the way in which it is actually worded, it’s so vague, in fact it says it excites or attempts to excite subversive activities. What do subversive activities mean? The Offense of Terrorist Act includes any action by any… Ok, bombs, whatever, by or by any other means, likely to cause loss or damage to destruction of property. So, that’s affecting people who are most vulnerable through these means. I mean, I’m sure if you look more, there’s a lot more to… that we have not maybe uncovered. It encourages feelings of separate deactivation. So, somebody feels…

I think we just continue answering in terms of what is some of your understanding of whether there is a criminalization of dissent, whether there is a criminalization of freedom of speech and expression that is not favourable to the government today by these new laws and if so, how is it exactly doing that?

MS: I think this provision is worth reading. It says whoever purposely, right, so the term purposely is not used in criminals, right, we say voluntarily, intentionally, but not purposely which is like a general day-to-day use term, so there is no interpretation of that. So were purposely or knowingly, by words that are spoken or written, or by signs of a visible representation, or by electronic communication, or by use of financial means, or otherwise, excites or attempts to excite, secession or armed reprisal, or subversive activities, or encourages feelings of separatist activities, or endangers sovereignty or unity and integrity of India, or indulges in or commits any such act shall be punishable for the imprisonment for life. For life. Right or which makes it a second life. So, what does this even mean? So, what we are talking today might encourage one person here to have feelings of self-criticism and if you have done it purposely then it becomes this offence. So, like I was saying under section 124A you had a particular understanding right with the Supreme Court judgments. So, what is the meaning of this? Now with this, it becomes open again. Going back to this organised crime progression, that the other. So also, there’s in theft, there’s now an offence of snatching.

Snatching is literally snatching somebody’s purse. I think that’s again one of those things that could help women because it’s chain snatching, bag snatching, et cetera. But there was a state amendment, if I’m not wrong, in Punjab. So, one state had it. Haryana. I think Haryana or Punjab had it. So, the reason why what one state had done has come across the country is that. But the organised crime thing is the definition “any continuing unlawful activity including kidnapping, robbery, then it becomes interesting, vehicle theft, extortion, land grabbing, contract killing, economic offence, cybercrime, trafficking of persons, drugs, weapons, illicit goods or services, human trafficking for prostitution or ransom is the set of offences. So, who are the people that you have been arresting for offences, you do not have, not that they should add more offences to this but you do not have other sets of offences which you could consider people who are not poor committing. So, you’ve listed some of those and then says that acting in concert singly or jointly either as a member of an organised crime syndicate or on behalf of such syndicate by using violence, threat of violence, intimidation, coercion or any other unlawful means to obtain direct or indirect material benefit including a financial benefit to constitute organised crime” Which would be wide definition and then when you go to another offence called petty organised crime, the next one it says whoever being a member of a group or a gang either singly or jointly commits an act of theft, snatching, cheating unauthorised selling of tickets. It’s so wrong.

So black market. Unauthorised betting or gambling, selling of public examination question papers or other similar criminal act is committing petty organised crime. So again, in that your imprisonment here is minimum of one year maximum of seven years.

So again, have been protesting this section 106. It says that this offence of causing death by negligence is punishable with imprisonment for 5 years. But if that act is done by a registered medical practitioner while performing a medical procedure then the maximum punishment is 2 years. And if it is a truck driver who will run away from the scene that is 10 years. It is of course they have not notified 106(2) which is a truck driver provision because they protested against it. That is on hold. But the IMA has been arguing that because the Supreme Court had said that negligence has to be interpreted as loss negligence.

Doctor but really practically not covered under the previous provision. Now you have brought them back in and covered them with two years’ imprisonment. Again, what they have been telling doctors is see, we have reduced punishment, but no, they have criminalised it back again. So, you see all of these ways in which, again, how do you define an economic offence? Economic offence? No, we may think of Mallya or Nirav Modi, et cetera. But economic offenses from theft to cheating to things that may involve 10 rupees, right. So, it can be used in both sort of ways. So, I think just again going back to what we said earlier, it is also how the police would interpret some of these provisions that will actually sort of define the ways in which this law will head in the next few years.

What I’m hearing also a lot is that the police now have arbitrary powers. It is also almost at a very instance of an offence, deciding whether prima facie that’s an offence itself and the offence is made out, which is essentially a judge’s job. It is a judge’s responsibility to be able to assess whether a prima facie crime has been done or not done. It is not the application of mind of the police, which we know are biased entities in that sense. So, in your understanding, are you seeing this almost as a transition to some form of a police state that we are reaching to? And one is that question, maybe one of you can take in. The other question that’s really coming to me is that the offence of terror acts, right, the offence of terror acts essentially now has been included under the heading of offences against human body, right? And why have they done that? So those of you who are non-lawyers here, so the offences that are like terror acts, sedition and even for that matter hate speech offences right? All of them are offences against the state as per the CRPC and otherwise understood as against the state because they are against the public at large they are against society at large. So, what is really the intention of looking at these terrorist acts provisions as an offence against human body? vis-a-vis how we have understood it under UAPA or previously under TADA and so on.

MS: The one other thing that you see is not only about the police, I am trying to find the provision, it is about also the prosecutors. Because you have now a district level, so a direct rate of prosecution, not only a state level direct rate of prosecution. And if I remember correctly, it says somewhere that all chargesheets will go to prosecutors. So therefore, which is not something which was in the CrPC, rightly or wrongly there was a separation saying the police will handle anything and prosecutor supposed to be independent the officers of the court. So, they are not going to advise on what the charge should have etc. So, I would not say it is only the police, I think the state is giving itself a lot of powers. There is one very interesting provision, this also shows how what the mindset was in making this law. So, under the CRPC the public prosecutors were appointed by the central government or the state government as the case message. I suppose most cases, always the state government or the central government did not come in to appoint prosecutors. In section 18 of the BNSS, it says, for every High Court, central government or the state government shall, after consultation with the High Court, appoint a public prosecutor and may also appoint one or more additional public prosecutors for conducting in any court, trial, proceeding, etc. To that there is a proviso saying, provided that for the national capital territory of Delhi, the central government shall appoint prosecutors or additional prosecutors.

Now, for those of you who follow Delhi, you will know that this Delhi state government was appointing prosecutors to deal with it. So, they did not have Delhi police, but the Delhi government had prosecutors. Now, this means that in for Delhi, the central government was appointing prosecutors when of course, the Delhi government has been fighting cases in the supreme court on the separation of powers between central government and state government.

I think you have one more case now this being taken away. So, why I am saying this is in terms of is it just a police state or is it now are you saying prosecutors are no longer officers of the court. They are also representing the state which was not the understanding in the CRPC in 1973 when the CRPC came in. I think that is the point of concern on this.

There is a provision under section 172 of the new CRPC which make it mandatory. Let me just see that provision. So, this is persons bound to conform to lawful directions of police. then it says that all persons shall be bound to conform to the lawful direction of the police officer given in fulfilment of any of his duty under this chapter. And it says that the police officer may detain or remove any persons resisting, refusing, ignoring or disregarding to conform to any direction given by him under this section. So, I think many of us here are people who have regularly disobeyed, so to speak, the police directions to, you know, protest, whatever it may be. So, it actually gives them this additional power to remove a person and it makes it mandatory for you to do this and gives them the power to actually to remove a person and if they disregard or any of these directions are given. So, one, I think see, there is excess power that has been given to the police. There has been a level of arbitrariness that has been allowed for, both in the way in which offenses have been defined, making it so vague that it allows you to interpret in various ways. And apart from that, it also gives these powers to the police to register or not register, whatever it may be. So that’s one part of it. The other thing that it actually does is that it does more than just being a police state. So actually, there are several provisions that have been brought in which insulates public servants from any form of accountability. So, if you look at 175 of the law that replaces the CRPC, it makes it the mandate of the magistrate ordering investigation, the complaint against the public servant subject to receiving a report containing facts and circumstances of the incident from the officer superior to him and after and it says after consideration of the assertions made by the public servant as to the situation that led to the incident so alleged. So, it gives this additional layer of protection to public servants in terms of actually bringing them to the accountability to them. So, if we really look at it, there is, in many ways it changes the relationship between the individual and the state.

In so far as it really takes away your constitutional understanding of whether it is equality, whether it is your fundamental freedoms. So, I think that gets very strongly affected. Then of course why it is under that like Manavi said nobody knows. Nobody knows why any of these provisions really are there because they have not felt the need to actually explain why they have done what they have done. But I think it is the bringing in of the terrorists. The provision of the terrorist act into the law that replaces the Indian penal code is something that we have to recognize the extreme draconian nature of. Till now it was something that was under the UAPA. It was something that required the provisions whatever minimum safeguards you have under the UAPA for you to actually bring it. If you allow for a provision like this to be actually put on somebody, it is something that’s really very dangerous. We, I think it was, you know, we have not read out the provision in respect of what replaces sedition. But if we look at the provision that, where they have looked at terrorist act, I spoke about some part of it. So, it says, whoever does any act with the intent to threaten are likely to threaten the unity, integrity, sovereignty, security, or economic security of India.

So economic security of India can be anything, right? Or with the intent to strike terror, likely to strike terror in any foreign country, by using bombs, dynamites or other explosive substances or inflammable substance, lethal weapons etc. or by any other means of whatever nature to cause. So, it does not actually involve you to use weapons, to use to cause death or injury to any person. Like I had previously said, loss of or damage to or destruction of property.

So, any act which is the intent of let’s say causing damage to economic security, what they believe, which causes damage to property, so loss of damage to destruction of any property, that amounts to a terrorist act and you don’t have those minimal safeguards that you otherwise have. So, this is something that has very serious repercussions in terms of how it will be used. Why it is put in a particular chapter notwithstanding. The fact that they have actually introduced this as something that’s very dangerous. Just to add one point to what Mrinal was saying in terms of organised crime, he was mentioning that those are offences that generally look at people from the vulnerable sections. And that’s how it’s really different, someone who’s poor. For example, Karnataka has a land grabbing, anti-land grabbing act. And if you go to that court, and the intent of that law was stated intent was to look at large land grabbers, right, where people were actually grabbing. If you go to that quote, you will see that the people who are all there, people who are on government land, who are cultivating government land of small measurements, small farmers, people who are cultivating land. That’s who are the people who are attacked. So, in fact, this also mentions as part of organized crime, one of the things is land grabbing, if I’m not wrong. So, it mentions that. How does the law work itself in the way in which it uses these provisions also allows for something like this.

I think I’ll just take the last one question, two questions, one each to both of you. And then we can open up for questions and answers from the audience. This is, in the last 10 years, we’ve also seen an increase of polarisation and hatred around us. And in just 24, in just 30 days after the NDA government came to power this time, we saw 24 instances of mob lynching that were happening across different states, right? One, there’s a provision that’s been added to the new IPC, which talks about the question of the grievous hurt. So, in your understanding, do you think it will be able to adequately deal with this kind of mob lynching, these kinds of hate crimes that are being perpetrated, especially against the Muslim and the Dalit community? And what is your understanding of that? One. And the second question is that there are many state governments as of now, and second, Karnataka had to contribute an expert committee, which was to look at these laws and how much of these laws would be basically applied here in the state context. We have seen Tamil Nadu and West Bengal have also constituted similar state committees to expert committees to see how much of these laws will be applicable in their state context. And keeping all of this in mind and the ways that the states are also trying to exercise their federal powers when it comes to these criminal laws, what are some of the ways forward that you’re both thinking that needs to be done. You talked about some protests that have been happening by the truck drivers and by the other civil society and lawyers’ groups. What is the other base forwarding which we can imagine to retain some of our fundamental rights and the rights that the jurisprudence of, say, for example, cases like D.K. Basu, Lalita kumari have given to people like us?

MS: Because you said rights given to us, let me just add one more thing. So, we had a section 156(3) in the CRPC, which essentially was going back to what we started discussing, that if the police did not file a FIR, you could go to a magistrate and get the magistrate to issue an order to the police in the state. That essentially was 156(3) was interpreted by the Supreme Court 2008 or 2009, the case for Sakiri Vasu, which then gave a lot of powers to citizens to do this.

What has been done now in the FIR provision is to say that when doing that you have to have an affidavit, right, which then adds one more layer of some procedure into that. And it says that the magistrate will then call the police officer, hear the police officer and then decide as to whether you want to go ahead and order for the investigation. Again, going back to that police state question, you are bringing in police into everything where earlier you were not being heard because I do not see a necessity to hear the police officer as to whether they needed to file the FIR or not. It is you are not taking action against the police officer. You’re instructing them to register the FIR.

So, to come to this section 103, which is punishment for murder, it says in a group of, this is subsection two, says that a group of five or more persons acting in concert commits murder on the ground of race, caste, or community, sex, place of birth, language, personal belief, or any other similar ground. Each member of such group shall be punished with death or with imprisonment for that. It does not obviously say religion. It says community or any other which then you can obviously interpret religion into that as a stable group but very clearly because mob lynching also been happening in the context of religion that thing left out but again, we have to see how this ends up getting interpreted. On the various loop holes or the various problems that we have in the laws. Again, I do not know how quickly courts can come back in to reassert, hopefully reassert all the jurisprudence that built over the years to ensure that that interpretation stays in terms of the changes that have been made. So, I think some of this will be in courts quickly enough to see how, including something like this FIR, Lalitha Kumari, Basu, so all of these cases which was a sort of a bundle of rights together, all of them being disintegrated in one way or the other. I think, I think

We’ll see how that goes.

MK: So, I think what was read out. The provision that they say is for mob lynching. I don’t think we can have a doubt that the religion has been intentionally left out. Of course, one can argue that it should come into that. It would come into the broader category that it has been. But it’s a fact that they have intentionally left it out. And it is in a time where we are seeing lynching, especially against the members of the Muslim community, at such a horrible and in such an increasing way. It has been specifically left out. That’s something that we have to recognize when we understand this. But of course, one can argue for that it should come in. Whether the courts will accept it, whether the courts will say that there was a specifically it was left out and therefore we cannot bring it into this. Those are things that we have to really wait and see.

But I think in terms of where do we go from here? One, you mentioned the Karnataka government has set up this committee and they have said that they want to bring in some kind of some changes into the law. and remove some of these provisions. In fact, we had a meeting with the law minister from the All-India Lawyers Association of Justice and the All-India Lawyers Union and the Indian Association of Lawyers, the three lawyer organisations. We had a joint meeting with the minister where we had submitted a memorandum and we have appraised them of some of these changes that we are also looking at. And we hope that those will be considered because we seem to say that some of these things are things that they are moving in that line of.

That’s of course at the state government level. I think the important thing for us to recognize is that it’s really going to affect all of us. It’s not…very often we believe that we have the criminal law at one and we are not going to get affected by it. Somebody else is going to get affected by it. But I think this is…it’s important for us to acknowledge that sitting in this meeting can be considered an offence. Making these statements can be considered an offence. It is going to really hit home for many of us. So, it’s important for all of us to really come out against it. In terms of immediate things, we push the state government to bring in these amendments. And I hope we will fight for all of our fundamental rights, not only some of them. So, to really push to ensure that whatever the provisions that are unconstitutional that should not be there, at least at the state government level, they should really consider that.

So, to put pressure on the government to actually do that, that’s something that’s very important. I think it’s really not seen the kind of protest that it should have seen. If we really look at it, why didn’t they bring it in, this was in December, why didn’t they bring it in before the elections? They didn’t bring it in before the elections because the damage might have been that much more serious. You want to keep it ready and then when you come back. So, I think actually the protests against this have been very insufficient. In respect of if you really look at what is the kind of effect that is actually going to happen. And so, it’s important for us I think to recognize that it’s not something that somebody else necessarily needs to be protesting for all of us to come. That’s actually the reason that we also brought out this booklet so that people see that you know what is the real consequence of these laws and how it is actually going to affect people. Even if we are not talking about being on this side of the law, if you go to file, register a complaint, it’s something that anyway nobody likes to do. If you go and file a complaint, now you have that much more powers with the police. So, unless we have some kind of a stronger opposition to it, I think we are allowing something very serious to happen without actually raising our voice against it. If you look at Tamil Nadu for example, I think there have been a series of protests, I think there have been boycotts of the courts also by the lawyers that have taken place.

Bengal – the day this law was brought in, they termed it the black day and they had some protests over there. But I think it’s definitely for lawyers. It affects lawyers in so many other ways because you have to sit and relearn the whole thing. So that’s something that definitely lawyers will look at. But I think it’s important for all of us to also recognize that this is we should not let something like this past just like that. It’s important for us to really put out our voice against it and ensure that. And it’s not that the government was forced to withdraw the farmers, the anti-farmers laws that came in. It’s not something that’s necessarily struck in stone. Some of us just generally believe that it’s done and there’s nothing really, we can do about it. So, I think it’s necessary for us to really all come together, recognize that it will affect all of us and see how we can all be part of protest. Or ways in which we can compel the government to really put this back on.

Thank you so much, Mrinal and Maitreyi, for those critical insights and for really giving us something to think about in the ways forward also. That we really, like Maitreyi said, we’re letting this moment pass in our lifetimes where we’re changing the complete overhaul of our criminal justice system in such a big way. And there is a bigger ask for us to be able to protect our fundamental rights. With that, I’ll open for questions. If people can just, please raise hands and then we can see. Let’s see one hand there.

Questions and Answers

So, my question is in two sections. So was on the land grab thing and the other on the terror sections.  I just wanted to understand how it will affect the informal settlements and the demolition and the whole drive that is also going on. So how the impact will be on that. And form the terror section perspective looking and industrial relation code where free of association is also getting under attack.  So, how does these two laws now play a role within the right to strike or in general freedom of association?

I was wondering how the new laws deal with digital evidence for seizure especially in the context of what has recently happened with many civil society groups with personal device news and video.

MS: Might be more appropriate for you to take land grabbing, but just to answer how it defines it. Like I mentioned, it says any continuing and lawful activity which then defines as doing a cognizable offence, punishes through three years or more, which involves land grabbing is defined as organised crime. So, it’s such a broad way of dealing with this issue. So, the situations you mentioned we brought under the grabbing, yes, but again, because it then further defines, it says organised crimes indicate continuing unlawful activities, there’s too many definitions all woven into this section. Yeah, it can be used in whatever way the police want to, but.

I think it also gives scope for challenging it because there are so many things here. So, I think the other way to look at it, the more positive way to look at it is because it is defined in so many different ways. There is also a possibility to say, look, it does not fall within this.

On the digital evidence thing, I have not paid attention to that, so I might not be able to answer. But I think one thing that I want to mention here is, there are lot of places now wherever it said that you can record, where video recording was required, for instance during search. Now it says it can be done on the mobile device of the police officer. So, it just then takes it to a completely different level, both in terms of it being easily shareable to the media. And so, it can immediately come out within the hours of a search being done, whatever they are. And I think the sanctity of the evidence, which is what was very important in terms of digital evidence, I think some places, they just go by saying, you can just video record it on your personal mobile device to the police officer. And at the same time, in the section with respect to investigation, it also says, and I think this everybody has heard about, because the Home Minister has also spoken so much about it, is the thing of saying that we will have forensic evidence in every case.

Saying that in every crime scene with imprisonment of seven years or more, there shall be a forensic examination of the crime scene, assuming that every crime scene will produce forensic evidence for which we will have enough forensic scientists to go and look at each crime scene, I think, yeah, a lot of assumptions. And I think very problematic also in both ways, because when we are talking about the gendered effect of this, there is the entire question of sexual violence and the fact that you will not find forensic evidence in most cases and now insisting on forensic evidence in cases may also lead to a situation where you get more acquittals because you are saying I could not find any forensic evidence.

MK: The other is that in terms of manipulation of digital evidence, there is actually no real safeguard that is put in. So, you know what happened with what has happened with Bhima Koregaon and the way in which this digital evidence has been manipulated. And so, we have seen the way in which this can be done. And it’s something that I think in many cases, one is seeing this. So, I think that those safeguards are really not there.

If you’re speaking of digital evidence and you are not going to ensure something against manipulation, how do you ensure the sanctity of the evidence? I think that of course is something that one will have to see what happens.

Land grabbing like I said it’s so vague in the way this has been done. And the point is, who does the state finally target? You have all of these offences, but the people who get targeted are not people who are. You have people who have encroached over so many acres of land over here, which you’re not. You see, there will be no case that is filed against them. But you’ll actually have cases filed like I was mentioning what has happened in the Karnataka Land Grabbing Prohibition Act. So, you have cases that are filed against people who are maybe cultivating small pieces of land.

So, it leaves open to anything. Because you allowed the police to, one, you’ve not defined it to actually exclude something like this. And finally, this is who the police see. If you see a criminal only in the poor, you will see a criminal only in the rich. I think the other question that you raised about what happens to the police. The other question about the right to strike is something that definitely needs to be looked at because the industrial relations code that has been brought in actually does not even, I mean that it increases the penalty for strike. It increases the penalty for, sorry there is a…. There is a provision on supporting a strike. The word is not supporting, but there’s another word that is used, where you in any way support a strike. So, a strike of workers, people contribute money to that strike. So, if you contribute money to the strike also, you can be penalised. And it goes to over a lakh, if I’m not wrong, penalty. And of course, at the same time, they have reduced penalties for non-payment of wages, non-payment of minimum wages. So, the penalties that were imposed on employees have been reduced. But this, of course, will be taken together that will definitely have an effect.

In the Bhima Koregaon case that is there, if you look at the initial arrest that took place, one of the arrests that took place was of contract workers who were working in reliance, who were saying that they were part of this. And they were the ones who were actually protesting against their working conditions and all of that over there. So, you look at the way in which the law is also used, it is used very selectively to attack people.

This is something, especially in the way in which it has defined any destruction of property in any means to damage economic security. These are all terms that can be interpreted in any way to attack workers who may be on strike, who may be on protest. These are things that can definitely be, that interpretation certainly allows for it. And it is no secret that it is an attack on the working class, right from where we are looking at these criminal laws and the way in which it is going to come about and the labour codes, all the codes that are there that are the way in which it has been framed. To demolish the right to organise, the right to strike, the right to agitate, that is something that is definitely being, there is an intent to attack.

Under new provision 172, unduly, extraordinary powers have been given to the police department. And also, with 90 days detention by the police. Don’t you think this is overtaken, overpowered by this act and the Advocates Protection Act has been made dummy. What we in relation to Advocates Protection Act under the new provision 172- and 90-days retention advocates has protection under the Advocates Protection Act. I feel Advocates Protection Act has been made irrelevant, has been made dummy.

My question is more basic, in the sense, especially being a lay lame person. I keep hearing about the Lalita Kumari and DK Basus case. Can you briefly tell what the points are in reward to that. And the second thing is the trade unions and labour organisations have not voiced their protest against this much.

I, as a common citizen, know I have the right to a lawyer. Don’t you think we need lawyers at every police station. Especially, when we talk about vulnerable sections.  I work in the construction industry so I know they are vulnerable. Shouldn’t the government need to give them a lawyer at the station? I think the black coat is more powerful and can prevent lots of atrocities.

I want to understand the state committee. What they can do and what changes and amendments they can make.

MS: So just to go back to those two judgments, so Lalita Kumari was the judgment of the Supreme Court on this, whether the police can have a preliminary inquiry before registration of the FIR. So, in Lalita Kumari, the Supreme Court had said that in every case which makes out, like I said, a cognizable offence, the police are mandated to register an FIR. But they had given a little bit of leeway, saying for five offences, essentially, if I remember correctly, medical negligence, offence against women and family, economic offences, offences where the FIR has not been filed for 3 months etcetera. In those situations, you can have a preliminary inquiry to find out whether cognizable offences made out or not. So, there is a very important case which basically said that police are mandatory to register FIR. So, what I mentioned earlier was that the, what the law does now is it gives preliminary inquiry in a huge set of cases. So, it then sort of dilutes the Lalitha Kumari standard which said you have to register a FIR in all cases. The D.K. Basu case was essentially on the rights of an arrested person to ensure that there’s no custodial violence. There are guidelines as to what has to be done, which most of the guidelines are now in the law. So those were the D.K. Basu guidelines. On the question. Really, I need an answer. Can you answer?

On the right to legal aid, I think if you go back to Justice Krishna Iyer, sort of the one who interpreted Article 20, what all you said now. The understanding at that point of time is exactly what you mentioned that there should be a right to have a lawyer in a police station. And if you look at the Supreme Court’s rulings from 1980 up to 2013-14, I think more and more and more that right was at least on paper given saying that you can have someone in the police station. All of that was taken away in Kasab, right?

Because in Ajmal Kasab, if you remember, all of us remember this, he was video graphed giving a statement in the hospital, where he was asked, who did this, who did that, etc. Now, in his trial, the argument was he did not have a lawyer, right, so all of these confessions should not be considered because nobody told him he did not have to do all of this. So, unfortunately, in that case, what the Supreme Court said was that lawyers are only in the trial, they are not before the trial, etc. So, we have this thing in law where we say hard cases make bad law. So, Kasab was the case where I think unfortunately because evidence was there on camera you did not have to say that confession was not really required at all. The only thing about that confession was where he was saying the ISI handlers etc. was what was in that confession. So, I think Kasab was a case where the Supreme Court pulled back those rights in a particular way and then

in subsequent cases it is been difficult to get out of what that case said, but in fact for the nearly 30 odd years on that like I said theory on paper it there was a right if you knew that you could take a lawyer like you said with you to a police station there was nothing the police could not say you cannot have a lawyer with you. To the extent that the case law also said that you can have a lawyer with you while you are being interrogated as long as the lawyer is little bit far away from you, but little but far away.  And the person can stop you from answering questions etcetera because that goes to the right against self-incrimination that we have in Article 20 of the Constitution. So, it has been there but how it is been implemented is another thing.

MK: So, this question on what the state government can do. So, these powers fall under List 3 of the Constitution, so both the central and state of the power and…So, the state government has the power to make amendments. And in fact, if you look at the previous poll also, in fact, I think UP had made an amendment in respect of anticipatory bail, where they removed the provision which the anticipatory bail could be granted. So, the government has the power. There are provisions of, there are constitutional principles of repugnancy, which, whether it’s repugnant or not. But those are things that will have to, those are things to be kept in mind. But The state government has the power to bring about amendments to this and it is something that has also been done in the past.

The question is so far as trade unions are concerned, actually trade unions have come out against this law. The problem is that very few people have actually come out against this law. We look at it, it should have brought out many, many more people outside to come out and say that we do not accept these codes. We don’t accept these new laws. The way in which they have come, the way in which they contain, is something that we are going to reject. More people should have come out, generally speaking. But they haven’t. But given that the working class is so directly hit by it, they have actually come out against this and have demanded for this to be taken back. In fact, even, like I mentioned, the first case that was registered was against a street vendor.

So that is something that people have also, the unions have also condemned and said that this is something that is unacceptable. But I think the unions have come out against it, but I think it’s important that I don’t think it has gotten the response that it ought to have gotten.

On the Advocates Protection Act, I think that’s something that we need to look at a bit more. I need to see in what way that will happen. Because the police action that is there is of course against the arbitrary powers that have been given to them are against everybody.

So, this is one last question from somebody who was watching online. Her name is Mansi Hatkar. She’s basically asking that can we expect a caste-based discriminatory division of labour under the introduced category of community service as punishment? This is like it was observed in the Rajasthan prison labour allocation. So, a new provision of community service has been included in the new laws. One of you can please answer this.

MK: So actually, that’s a good thing that the question came because we didn’t speak about this community service. There’s a new form of punishment that has been brought in, which is a completely vague, which is not defined. And there are no real guidelines in respect of what community service means. And if we look at the kind of judgments that have been passed in the past, where they have actually, the judges have actually given some kind of this kind of… so-called community services, which is not a punishment term. Specifically, one of them was to tie a wash case. Yeah, exactly. Where he had to write an imposition. That was the thing, no? And it’s in the community service. And you had cases where they have been directed to tie raki on the rape survivor.

Those are the things that have been said. So certainly, this is something that can actually happen. And I think there was a report also in respect of the way in which caste-based labour happens in prisons. So why that same kind of mindset might not play itself out even looking at community service? I don’t think there is anything that prevents it from happening. What it says in how it looks at community service?

Section 23 says, community service shall mean the work which the court may order a convict to perform as a form of punishment that benefits the community for which he shall not be entitled to any remuneration. That is the way in which it has been defined. So, it is so over broad, it is so vague, it allows for anything. In fact there was something that at one point of time I think there was a direction to donate to the PM fund, PM cares fund. There was a punishment. So, it has been absolutely anything.

And given our feudal and casteist mindset that our society has, there is no reason why something like that may not happen. Of course, it’s wrong. Of course, it’s something that’s impermissible. But this law allows something as vague and overbroad as that.

I just wondered if this came to me. So, in the terrorist act definition, when they look at the economic part of it, economic destabilisation also, they save something, for example, like shorting stocks, like what happened with Adani. Would it also fall under a terrorist act? Yeah, economic security.

Well, anything can be under it.

MS: There was one, again, going back, community service, because of the fact that in many U.S. states, community service was. And the critique was that essentially –[by Hollywood celebrities. You would say okay then you have to sweep the outside of the store for next one week and the critique was exactly this that look what you mean that sweeping is something that is punishment. So why are you so there is an entire angle of sort of looking at labour and saying that there is something wrong with this labour so it is punishment and I think when it says without remuneration there has been this entire thing about do prisoners have rights minimum wage. Like say in Tihar, they are making soups and selling it and saying no we will not pay you wages because of the fact that this is part of punishment. And it also brings that problematic thing that you are taking sort of, so community service could also be that yeah go to the prison factory and make all of these things and we will not pay you wages but then we will, we will be benefiting, the state will profit out of that. So, I think that leaving it undefined obviously just leads to whatever the judge thinks, planting trees. So, anything can be committed. For whatever offence you have committed, from economic offence, you have to go plant 100 trees. So that should be your punishment for this.

[1] AILAJ Booklet: https://ailaj.wordpress.com/2024/01/25/beating-the-colonial-powers-at-their-game-the-draconian-new-criminal-laws/