New criminal laws took effect in India on July 1, 2024, triggering widespread debate and concern about their potential to expand state power at the expense of civil liberties. The Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and the Bharatiya Sakshya Adhiniyam (BSA) replace the Indian Penal Code, Code of Criminal Procedure, and Indian Evidence Act respectively. Critics argue these laws could push India towards becoming a police state, but what do they really entail? To unpack the complexities and implications of these sweeping legal changes, senior journalist Saba Naqvi interviews Rebecca John, one of India’s foremost criminal defence lawyers and a senior advocate specialising in criminal law. Rebecca John offers insights into the new provisions, their potential impacts, and the broader context of India’s criminal justice system. Excerpts:
Will these new criminal laws make India a police state?
That is a complicated question but there are three important changes in what is now called the Bharatiya Nagarik Suraksha Sanhita, which is earlier the CrPC and what was earlier the IPC. One, the inclusion of certain provisions of the UAPA within the Penal code, two, the inclusion of certain provisions of MCOCA, the Maharashtra crime control order, which was applicable even to states like Delhi within the penal statute. And three, this is what perhaps is disturbing a lot of people, the entire procedure governing arrest and remand. As you are aware, a person who is arrested in India has to be produced before a magistrate within 24 hours.
That has not changed. The magistrate will then remand the accused person, if not released on bail, to a period of 15 days, and that period will go up to a maximum period of 60 or 90 days, depending upon the gravity of the offence. So this was a pretty stable kind of system that we had over the years. What was clear from the reading of the earlier remand provisions was that during the first 15 days it was interchangeable custody, where the magistrate, on the asking of the police, could remand and pass an order for police custody. It could be for a period of three days, ten days, or the entire period of 15 days.
But that was limited to the first 15 days. After the first 15 days were over, the magistrate compulsorily had to remand the accused to police custody, to judicial custody, which means any jail which was under the control of the court. The idea, of course, was to discourage excessive custody with the police, given the fact that the police have a slightly shady track record in the country. Now, what has happened is that there has been a change in that formulation. Once arrested, you are still produced before a magistrate. You still cannot be remanded beyond 15 days at a time. So the tranches remain the same. But what has changed under the new law is that a person can be remanded to police custody, not just in the first 15 days. If the charge sheet has to be filed within 60 days, then during the first 40 days there can be staggered remands of two, three, four, five, six days each of police custody but not more than 15 days in total.
If the charge sheet has to be filed within 90 days, then the staggered police custody can be for a period of 60 days. Now, this itself, to my mind, is excessive because you are now keeping people in custody in a state of high anxiety for a period of 40 days or 60 days because the police can come back and seek your custody over a period of 40 or 60 days which they usually complete in 15 days. It will have ramifications when it comes to bail applications that we advise clients to move. So ordinarily, we used to tell clients that if the police say we no longer need you in custody and you can be sent to judicial custody, that became a ground to seek bail. But where there is staggered custody for 40 or 60 days, obviously courts will be somewhat circumspect before entertaining applications for bail. Getting bail is a big challenge in India, anyway. Now, what has made this a little complex is the wording of section 187 of the Bharatiya Nagarik Suraksha Sanhita, particularly subsection three.
The corresponding law to this was section 167. The third proviso to 167 very clearly said that the magistrate may authorise the detention of an accused person, and the crucial words were “otherwise than in the detention of the police”, which meant outside of the police for a maximum period of 90 or 60 days. These crucial words have been deleted from subsection three, leading some analysts to say that perhaps police custody can extend up to 90 days or up to 60 days, depending upon the gravity of the offence. It is, of course, in complete contradiction to what has been said in subsection two. I understand that there has been a clarification from the Home Minister on the floor of parliament on the very first day of parliament where he said that the police cannot have extended custody beyond 15 days and those 15 days would be in terms of subsection two.
Nonetheless, the ambiguity with which subsection three has been worded will need to be corrected soon, if that is the intent of parliament, to at least limit the period of police custody for a total of 15 days albeit in a tranched manner between the first day of remand to 40 days or the first day of remand to 60 days. So the regime to that extent has changed because it is no longer the first 15 days. It can be any time between the first remand and 40 days or 60 days. My assumption is that what the Home Minister said on the floor of the house would apply to subsection three. And the deletion of the words, otherwise than in police custody, in subsection three will not lead to the interpretation that the police can get custody beyond 15 days in total.
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The laws have to be clear but there is so much confusion here. How would there be clarification? Does it have to come through legislation, amendments or would it come from the higher judiciary?
It can be a combination of both. These were some of the defects which even at the time when the draft was out, many of us had sent representations to the standing committee which was looking into these gaps. Some of the gaps were filled up but this has been left ambiguous. Either a superior court or a constitutional court will have to interpret the slight contradiction between subsection two and subsection three, or by virtue of an amendment, the words that have been deleted will have to be brought back.
But regardless of that, the increase of the period itself is worrying because most democratic countries which are governed by constitutional law, do not have this concept of police custody. We kept the accused in remand for 15 days but that was felt to be excessive sometimes. Now you are allowing the police to take custody of a person who is accused of an offence in tranches over 40 days or 60 days. That, to my mind, is problematic.
Delhi Police officials during a training session of Bhartiya Nyaya Sanhita at Police Headquarters New Delhi on January 17, 2024. | Photo Credit: SUSHIL KUMAR VERMA/THE HINDU
Do you see any improvement in the new criminal laws? Has anything improved for a criminal defence lawyer? Is there anything that is clarified, that is better?
Other than the title and some of the issues that I flagged, much of the old Indian Penal Code, the old Code of Criminal Procedure and the Indian Evidence Act remain the same. What has happened is an amalgamation of sections. Where there were separate sections for separate definitions or offences, many of these have been amalgamated into one section to give an appearance of change.
But if you look at it word by word, section by section, the placement of sections may have changed, but the content is largely the same. To say that there has been an overhaul of the old Penal Code, or the old CrPC or the evidence act would be stretching credibility a bit. That has not happened. I had once used the phrase “old wine in new bottles” in connection with these laws. That is all that has happened because the placement of sections have changed. What used to be murder, section 302, is now 101 and 420 no longer remains.
So, all of that has happened which will cause a world of pain to those who practice criminal law, those who have to give judgments and even to ordinary people because if that was the only reason why this was brought in, then it was completely unnecessary. But yes, there has been some change with respect to police custody, remand, etc. I think the invocation of provisions of UAPA, MCOCA and even PMLA into the penal statute is more serious. I have not understood the rationale behind that because either the special statutes have to go and this can remain within the penal code, or these have to be taken away because the special statutes remain.
On the one hand, you are saying it is old wine in new bottles. But are these laws intended to actually crush dissent a little more easily because there is this whole language about sovereignty of the country. Could you elaborate on that? And does that tie up with the point you have about UAPA and MCOCA?
As far as penal provisions are concerned, there is a lot of emphasis on speech, on what is considered to be speaking against the sovereignty and integrity of India. All of which used to be materials that were prosecutable under the UAPA. I think bringing it into the penal statute and allowing a superintendent of police to decide which of the two statutes would apply in a particular case, is an arbitrary exercise of power. There was no need for that. We were arguing that UAPA and PMLA itself is draconian, its bail provisions are draconian, and why should you put people in jail for years just because they have a particular thought process? Now, you brought that into the new penal code, and that makes it a little problematic.
Sedition, which used to be 124A, has been repackaged and brought back into the teeth of a Supreme Court order which had actually said that sedition should go lock, stock and barrel. The Law Commission had recommended it and yet parliament, in its wisdom, decided to repackage it and reintroduce it in the same form in the penal code. There are many provisions which have been tinkered with which go against the letter and spirit of Supreme Court orders.
So yes, I think what one can assess on a reading of the penal provisions is the fact that a lot of premium has been given to speech related offences and to this whole business about sovereignty and integrity of India. While it can be argued that anything said, done, or any terrorist act, which is intended to break up the sovereignty and integrity of India, is culpable, you already have a special law taken care of, which you have expanded to include speech related offences. I do not know the rationale of bringing those provisions within.
“Even with respect to the so-called love jehad “laws”, it is my view that adult consensual relationships must never come within the purview of state control.”
Does this mean that anyone operating within Kashmir, northeast or anywhere in India, is now in even more danger of being prosecuted by the state for expressing a view or even a protest? Let us say you could not have arrested protesters under UAPA, though that has happened in India in recent times. But even in the sort of protests that we witnessed, the farmers or Shaheen Bagh, there are sections of the law which could have been applied. What are the years of punishment? What do they confront? How much evidence does the state have to have? It is all going to be new, right?
It is all going to be new. They have lifted the provisions from MCOCA as well as UAPA into the new penal law, verbatim. So whatever applied there would apply here. The only thing is that in UAPA, MCOCA and PMLA, there are special stringent conditions for bail. Unless you pass what is known as a twin test, you are not entitled to bail. There are no parallel provisions that prohibit bail in the IPC, although these provisions are being lifted from UAPA, MCOCA and PMLA. That, to my mind, is a good thing, because the embargoes that you found prohibiting or limiting the exercise of bail, the right to bail, both under 43D(5) of UAPA and section 45 of PMLA, are missing from the penal code. In that sense, those limitations not being there is perhaps, a good thing.
Apparently, there is a stringent punishment for mob lynching, ‘punishable by death’. Can you explain?
What if mob lynching results in death, it is murder. Murder is punishable by life or death. What the statute has done is to recognise a type of murder, for instance, dowry death. But there are no parallel presumptions like there is for dowry death. So if they wanted to make mob lynching into a robust offence, there could have been some sections in the new CrPC or the Evidence Act where presumptions could have acted against an accused person.
For example, in dowry death, there are a lot of presumptions. Marriage, if it happened within seven years of marriage, if it is in connection with dowry it will be assumed that there was a dowry demand, etc. There are no parallel presumptions when it comes to mob lynching. So you have created an offence which is part of the larger offence, that is murder, but you have not made it any simpler for prosecution. So, whether you are stabbed, shot dead, mob-lynched or beaten, in the end, if death occurs, it is murder and that is how it will be prosecuted. There is, of course, a separate section even with respect to mob lynching, which does not result in death but grievous hurt. But again, the punishment remains the same as with respect to general grievous hurt, and there are no parallel procedures.
So there is actually nothing new which has been created for the phenomena of mob lynching?
No. Not to emphasise that it is a different type of crime which requires a different type of prosecution. That has not been done.
Clause 69 of the BNS penalises sexual intercourse through deceitful means. This includes false promises of employment or marriage after suppressing identity. So I presume the suppressing identity means a Muslim male seducing a woman pretending to be a Hindu. But does this not imply that any breakdown of any relationship can lead to prosecution of the male? Can you just elaborate on that?
There were cases that we were getting, even under the old penal law, on the grounds of a woman entering into sexual relations with a person on the promise to marry, which later on proved to be false. Jurisprudentially, there was a lot of discomfort with this subset of offences because what you saw generally was a long relationship, which was presumably with consent, and then something happened and it resulted in the breakdown of that relationship. Now, simply because a relationship breaks down, you cannot post facto call it rape. And somehow, it kind of denied agency to a woman by putting marriage at a premium. It also did not give the right to a man after being in a relationship for a while to say that this is not working. Having to be prosecuted for rape after that, would be a little harsh.
Have those laws become harsher now?
Well, they have introduced a new section. They have codified it for the first time. It was not there earlier and now they do not even call it rape. What they say is that you have sexual intercourse by employing deceitful means.
So the section, in fact, very clearly says that such sexual intercourse not amounting to the offence of rape. So what they seek to punish is not sexual intercourse which amounts to rape, but sexual intercourse which is based on some deceit that has been carried out. Obviously, if you were to look deeper into this provision, the typical promise-to-marry cases would come into it. But I fear that a lot of interfaith marriages may also be subjected to prosecution if they do not work out on the ground that this man told me he belonged to this caste or this community, it turns out that he was lying. And it is sometimes very difficult to prove that none of that happened. So I think there can be a fair amount of misuse as far as this provision is concerned.
A child holds a placard during a protest against the order to prosecute author Arundhati Roy and former professor of International Law in Central University of Kashmir, Sheikh Showkat Hussain, under the UAPA, on June 20, 2024. | Photo Credit: IDREES MOHAMMED/AFP
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Is not there a lot of confusion because states seem to have their own versions of the so-called love jehad “laws”?
Even with respect to those laws, it is my view that adult consensual relationships must never come within the purview of state control. For the state to be monitoring these kinds of relationships is not right. And now, to have this codified provision, I think you will have a lot of prosecutions under section 69.
There has been commentary about the First Information Report, that it is now more anti-people and against the poor. Can you just explain what has actually changed? When a poor man, Dalit, Adivasi or a Muslim goes to the police station and tries to register an FIR, how does their life become harder? Or does it not? Or is it exactly the same which was not easy to begin with?
This is a problematic provision because it is in the teeth of a judgement of the Supreme Court called Lalita Kumari v. Govt. of U.P. Now, in Lalita Kumari, the Supreme Court said that the police have no business sitting on complaints. If a cognizable offence is made out, the police must register an FIR. What the new law says is that the police have the right to conduct a preliminary inquiry before coming to the determination that a cognizable offence is made or not. The preliminary inquiry must be conducted within 15 days.
But the point is, you are giving leverage to the police to come out and say that, we have done an inquiry and we found your complaint to be false. So how does that merge with the earlier judgement of the Supreme Court, which said, if a cognizable offence is made out you are nobody at that stage to test the veracity or otherwise of the complaint. That will be done during the investigation. If you find that the elements of the offence are not made out, you will not file a charge sheet, you will file a closure report, but you have to allow the complainant the right to get her FIR registered. And once it is registered, you follow the investigative process. Now, you have introduced and you have statutorily allowed the police to conduct a preliminary inquiry prior to the registration of the FIR.
Does it not create a problem for all the vulnerable sections of society? How will they ever register an FIR?
It will create a problem for all vulnerable sections of society. It will give a handle to all privileged sections of society to ensure that the police conduct a preliminary inquiry and somehow reach the conclusion that no offence is made. I think this kind of power should not be vested with the police and the old law should come back where the police must register an FIR in the first place. As I said, there is a whole investigative process. If the police, after registration of the FIR, find material that is contrary to the contents of the FIR, they can always file a closure report and say that the investigation has not substantiated the allegations or has not corroborated the allegations meant in the FIR. I think this is also a provision which can lead to misuse.
To my mind, this is staggering because when you look at vulnerable people, they are so loath to even file an FIR.
Yes. What is the protocol that the police will follow in those 15 days when it is conducted?
Is there any clarity on that?
No clarity. Will the complainant have to go back and forth to justify the ingredients of their complaint? Now, if the person is vulnerable, if the person is a woman, there is a real danger that the FIR is not immediately registered. As you know, timing is very important in criminal law. The more time you waste, the weaker the case becomes. And I think this was not required. By giving the police this power to conduct a preliminary inquiry, which is now statute, you have opened a hornet’s nest and it will lead to more confusion than betterment of lives of people.
It is not just vulnerable sections, it is also gender. Imagine any woman trying to lodge a complaint against her husband with a male police officer. Is he going to tell the husband that your wife has come to the police station to launch a complaint? It sounds terrifying. Can that woman never even file a complaint that he is beating her up at home?
Obviously, if there is a murder or something like that, the police are not going to conduct a preliminary inquiry where the offence is apparent and it is writ large. So it would depend from offence to offence. And just because the police decide to register an FIR without an inquiry, it would not make the FIR any less credible.
So the police has the option not to conduct that inquiry, but should it choose to conduct it? The point is that you are giving the police the option to delay the registration of the FIR and that in a country like India, is problematic. They can choose not to use that period for preliminary inquiry because they can see for themselves that an offence has clearly been committed and they can straightaway register the FIR. But giving them that option, I think, was unnecessary.
Founder and Editor-in-Chief of NewsClick Prabir Purkayastha is brought to the Delhi Police Special Cell in New Delhi on October 3, 2023. | Photo Credit: DINESH JOSHI/AP
You fought many cases and you have a spectacular career as a criminal defence lawyer. But does the confusion here also make it possible for you to use the confusion to help get some clients off with these laws? We have talked about people’s rights, and dissent. But let us just say there is a crime. You are defending that person. Explain how that works.
Of course, it does. These are not necessarily offences against the human body but a lot of cases like cheating or breach of trust. Sometimes the facts are quite different from what is stated in the FIR. Had a preliminary inquiry been conducted, those true facts would have compelled the police not to register an FIR. So there have been times when we have stated that exercise. Even Lalitha Kumari says that in appropriate cases, you have the right to conduct a preliminary inquiry. So this provision must be used judiciously, it must be used in appropriate cases and not across the board. I would say that where you are alleging financial misdemeanour or some kind of allegations of cheating between two business partners or something like that, it makes sense for the police to do a preliminary inquiry to check the veracity of the complaint. But particularly with respect to offences against the human body, I do not think that should be allowed to be used.
Let me tell you another provision which I find quite spectacular. So in criminal law, you can either take the police route by going to the police station and getting your FIR registered. If the police is not registering the FIR or for reasons that you have like you do not trust the police, you want to go to the court, then that second option is available to a complainant. Instead of going to the police station, they can straight away go to a magistrate with a complaint. That is known as a complaint case procedure. The magistrate will then summon the person concerned for his or her evidence and based on the allegations made in the complaint and the evidence recorded, will decide to summon the accused or not. What the new law has done is that, at the time when a litigant goes to a magistrates court with a complaint, the magistrate is now obliged to issue notice to the proposed accused to hear his or her version before it decides to proceed with the case. Now, that is absurd because the accused comes much later in a complaint. When a complaint case procedure is followed, a complaint is filed, and the magistrate takes cognizance of the offence. The magistrate immediately asks the complainant to testify before and bring his or her witnesses in support of the allegations.
This is called the pre-summoning evidence. Once that is done, based on what is there on the file, the magistrate proceeds to summon the accused or dismiss the complaint. If you have to hear the accused at the stage of taking cognizance, then you have defeated that process completely. You have muddied the water to such an extent that I do not know how you can move beyond the initial stage to the stage where the complainant is allowed to prove his or her case, at least for purposes of summoning. So that is again a very peculiar provision. I do not know why that provision has come about.
But now you will have to struggle through all of this. And you were telling me that the Evidence Act has not been modified. The Home Minister said in the parliament that there will be a lot more use of forensic evidence. Do we use a lot of forensics in India?
I do not know about the quality of the forensic evidence. That is another story altogether. But in every case, particularly if it is a forgery, your handwriting is taken, it is part of the investigative protocol. It is sent to the forensic science laboratory for comparison with your admitted handwriting. Voice samples are taken with respect to the whole regime relating to post-mortems and other such things. It is all based on forensics. So this is nothing new. It is already there. That regime is already there.
Again, it is not enough to simply say that this is going to be more forensic-based because we have been crying hoarse that there are very few central forensic science or state forensic science laboratories, and therefore it takes sometimes, six months to a year, for reports to come from these laboratories. Despite court orders, no reports come because they are so terribly overworked. So it is one thing to say that we are forensic-based. But where are the labs? In the absence of labs or very few labs and the quantum of cases, it does not make a good assertion because if it is going to take years for reports to come, the case anyway loses its steam. Likewise, there are a lot of timelines which are given at the end of it, for example, charges must be framed within a particular period of time. Where are the judges? Where is the infrastructure? So given timelines in the absence of infrastructure and additional judges, we always had some timelines even in the past, it would be followed in breach.
Are we sort of making it like The Trial by Franz Kafka.The guy never knows what he is accused of. I have always felt that the criminal justice system is like Kafkaesque for many Indians. Especially when I think of a case like Umar Khalid. He is just one example and there are so many unknown people who are stuck there for years. Why is this person being kept in jail for so many years? So many Indians face that. Does it just complicate their life more?
I think we specialise in tokenism, and we want to give something to our people to say that we have changed the laws. It is going to make a lot of difference. Remember, after Nirbhaya, there was a huge amendment which was brought in in 2013. Did anything change? We still had as many rape cases happening on a daily basis. The Vishaka guidelines were brought in, then an act was brought in. Has sexual harassment reduced? So it is not enough to say that we have tinkered with a law here or there. If you have introduced provisions which are beneficial to the people, that is very good. But what you haven not done parallely is to improve infrastructure.
Go to any trial court in a city like Delhi, which is much better than large tracts of this country. In any magistrate court, on average, the magistrate deals with 100 cases a day. Unless you have more courts and more judges, the justice delivery system will not be able to follow these timelines. It is just humanly impossible. Put yourself in that magistrate’s position. It is not possible to give the same kind of attention to every case which demands your undivided attention. Go to a sessions court that deals with murder cases, dacoity cases, and the more serious cases, most of them struggle with their list every day.
Do not go very far. Go to the Delhi High Court and look at the daily cause list. It is almost impossible for any court to finish their daily causes. So unless vacancies are filled up, unless you have more judges of the ground level, unless you have more courtrooms with the necessary infrastructure, all of this will become meaningless after a point and you will still have the same old Tarikh pe tarikh (date after date) criticism which is levelled against our criminal justice system. The problem is not that our judges do not work or they do not want to work. The problem is that they are overwhelmed with cases. There are many days when, as councils, we wait till 4:30 and our case has not been called out even though we are listed.
No, the judges have to get up at a particular time because they have orders to sign. They have to read the files of the next day. So, somewhere all the stakeholders have to come together and see what has to be done about this pendency. Because so long as you have this pendency and then in the teeth of that pendency, you say within three months or within 60 days, the order on charge must be pronounced. That looks very nice on paper, but it is completely unenforceable.
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