TCN - Demystifying the New Criminal Laws: BNS, BNSS, BSA - Dr. Vageshwari Deswal

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[00:00:22] Hello and welcome to another episode of the Chicken-Neck Podcast. Our guest today

[00:00:27] is Professor Dr. Vageshwari Deswal, who is a professor at the Faculty of Law at the University

[00:00:32] of Delhi, where she teaches law with the focus on criminal law and gender justice. Beyond

[00:00:37] the classroom, Professor Deswal is an accomplished author and activist known for her sharp insights

[00:00:42] and dedication to making the world a more just and equal place. Whether it's through

[00:00:47] an academic work, newspaper columns or activism, Dr. Deswal's passion for justice shines

[00:00:52] through in everything she does. She's an established author and her recent publications

[00:00:57] include the in-depth analysis of three major new criminal laws, the Bharatiya Nagarik

[00:01:02] Suraksha Sanhita, the Bharatiya Sakshya Adhanyam as well as the Bharatiya Nyaya Sanhita.

[00:01:07] So as we sought to discuss in an episode the new criminal laws and what they entail

[00:01:12] for the Indian criminal justice system, we thought that it would be really a great

[00:01:16] episode to have ma'am on our podcast and we were really hoping to have this episode and

[00:01:23] welcome to the podcast ma'am. Thank you. So, you know, we have seen your work and we've seen

[00:01:31] that you regularly written on the new criminal laws. So with the advent of the new criminal

[00:01:36] laws, there's been a lot of discussion since even before they came into effect and even

[00:01:40] after they've come into effect, there's a lot of discussion that has been going on

[00:01:44] with regards to the laws. With respect to the new laws, do you think that it'll essentially bring

[00:01:51] about a new comprehensive change in the criminal justice system? And what do you think was the

[00:01:57] idea behind bringing in the new laws and replacing the major criminal laws of the Indian

[00:02:02] criminal justice system? See, the laws that we had gave our own. The IBC was enacted way back

[00:02:10] in the year 1860. Then we got the Indian Evidence Act in the year 1872. The CRPC, which we had

[00:02:19] filed to the Sathya Nandretsu Laksha Centre was a revised version which we had enacted in the

[00:02:26] year 1973 before that the Britishers had given us three versions of CRPC. One was in 1861, then

[00:02:34] 1862 and then there was a uniform, a regular procedure code that they gave us in 1898.

[00:02:41] So you see these three laws, they had outlived their utility. We needed laws that were more

[00:02:48] contentured, more in tune with the times which could deal with the contemporary changing needs

[00:02:55] of the society. And yes, the changes are comprehensive in nature and culture. In Bharatiya Naya Sahita,

[00:03:05] 20 new offenses have been introduced. J-term or fine it has been increased in 168 cases.

[00:03:14] Mandatory minimum punishment has been prescribed in 23 cases and community service has been

[00:03:21] introduced as a new kind of punishment in six kinds of crimes. Coming to Bharatiya Nandretsu

[00:03:27] Laksha Centre, the new section, sub sections or clauses that have been added are 92 enough.

[00:03:35] 17 provisions have been modified, 14 sections have been denoted, audio, video, electronic

[00:03:42] needs are now required and 35 provisions and time lines have been specified at 35 places.

[00:03:50] Coming to Bharatiya Sahitya Abhinayan, there have been 15 insertions in the four sections,

[00:03:57] sub sections, explanations and provisors. They are having 24 body provisions and 10 deletions of

[00:04:04] sections and explanations. So you see the changes were long overdue. See in life,

[00:04:12] as in society in laws, the only constant is change. Laws, they also need to change

[00:04:19] to meet the changing requirements of society. We gained independence in the year 1947 but it

[00:04:27] is took us so long to hire our own bone-grown criminal law to our students. On the basis of

[00:04:34] 41st report of 50th law commission, CRPC was passed in 1973. The 42nd report of law commission

[00:04:44] had recommended overhaul of our criminal laws in 1971 itself but despite that,

[00:04:52] IPC continuance was gone. So although we attempted to constitutionalise our criminal

[00:04:59] procedural law, the substantive law IPC continuance won't form. De-organising our criminal laws

[00:05:08] should have been prioritised immediately after gaining independence but see it took us 76 years

[00:05:16] to do so. It's no time we get amending the laws. IPC was amended 75 times yet there was the need

[00:05:25] to make our laws indigenous, contemporary, progressive and futuristic. So now when we have

[00:05:34] overhauled our criminal justice system and enacted three new criminal laws, it's a welcome.

[00:05:42] Better late than never. So in this regard you've pointed out how the thought process of bringing

[00:05:51] these laws and why the need for these laws were felt and how they've tried to make sure that

[00:05:56] the contemporary issues and contemporary issues that a criminal justice system faces are

[00:06:01] incorporated into the text of the law itself. So can you take us through the process of how

[00:06:06] the government machinery or how the legislative machineries went into finding how to make these

[00:06:13] changes to figure out what needs to be essentially incorporated, what are the things that need to

[00:06:19] be reformed or the entire process behind making these laws because it's interesting that these

[00:06:24] laws have tried to reform the entire system but there has been a long drawn process because

[00:06:30] it's quite a significant change and even for lawyers I think they've been trying to grasp how the

[00:06:36] sections have changed and most books thankfully have a comparative feel of how the new sections are.

[00:06:42] So you know and obviously definitely they'll get more and more refined as they come into

[00:06:47] practice because that's how the law always takes its course. So can you take us through

[00:06:51] the process that went in behind bringing in these reforms?

[00:06:55] Yeah, as I said the reforms were long overdue. So what we did, Criminal Reforms Committee was set up

[00:07:04] that was handed by Professor Ranbir Singh who was the then Vice Chancellor of NLUK.

[00:07:11] It was important to involve legal precarmonitions also although the Department of Legal Affairs

[00:07:17] Ministry of Law and Justice was working full-time in this but there was a committee

[00:07:22] and they were inviting responses from various stakeholders and it took them almost

[00:07:29] four years to finalize the draft of these three legislations and the meantime Vice

[00:07:35] Chancellor has also changed its way and the Ministry also had a couple of changes

[00:07:40] but eventually it was after long deliberations and discussions that a bill was finally introduced

[00:07:48] in August 2023 but then it was seen that there was still a myth that needed to be changed

[00:07:56] so the bill was reintroduced in its revised form in December 2023 and finally passed in December

[00:08:04] itself. So now what we have is the revised and amended version of those bills also in the

[00:08:11] form of Bharati Anya and Surakshya Saintha and Bharati Asad.

[00:08:19] Essentially since it's taken for almost you know on paper it's taken four years but the thought

[00:08:25] process had started quite a few years back and there were several steps that had to be taken

[00:08:29] before bringing in these new laws in terms of implementation because it deals with a system

[00:08:34] or these laws deal with something that is being implemented to realize situations with

[00:08:39] societal developments essentially because the way the criminal justice system functions is

[00:08:45] in connect with society and how the crimes come up or how it deals with them. So you know in terms

[00:08:51] of implementation what are the challenges that might come up with regards to these laws and

[00:08:57] how do you think the new laws are equipped to navigate these challenges and how do you

[00:09:02] think the people the stakeholders who are involved in implementing these laws be it the

[00:09:09] clear idea of how these laws function and as well as the implementing authorities like the

[00:09:14] judicial officers how do you think they'll face challenges and what does the law have to

[00:09:20] encounter these challenges? See Neel we all know that crimes they keep changing

[00:09:26] and we needed these amendments in order to deal with the changing contours of crime.

[00:09:34] I'll give you a small example earlier we did not have instances of data theft so

[00:09:41] that under the Indian Indian code it dealt with only corporeal movable property but over the years

[00:09:49] we had to enact special laws to deal with cases of incorporeal or intangible movable property

[00:09:56] such as electricity intellectual property now Harathya Niyal Saheela it defines movable property

[00:10:05] as property of every description. So you see a simple change in the definitions

[00:10:11] brings about a sea change in the way it is implemented now with a simple change in the

[00:10:16] definition of movable property now what happens all kinds of tangible intangible

[00:10:21] corporeal and incorporeal property that are movable in nature so instances of data theft

[00:10:28] identity theft all these things now they can be covered under a main law we did not necessarily

[00:10:33] refer to the information technology at. Similarly when they talk about definition of the term

[00:10:41] child now the law defines a child as any person below 18 years of age so whether it is a boy

[00:10:48] whether it is a girl whether it is a trans child now everybody is protected earlier IPC did not define

[00:10:55] child we had used the term minor and that was different for boys the age of majority was 18

[00:11:02] for girls it was 16 in life fines then coming to ill-adfine rights in digital age why should the

[00:11:10] waiter or informant have to physically visit the police station to register in alfaya so what

[00:11:17] i'm happy and i'll get surajshasenita which has replaced the CRPC does is it introduces the

[00:11:23] concepts of zero FI on that is ineffective about jurisdiction we can register the FI on at the

[00:11:28] nearest police station similarly registration of the FI are so when there are no physical barriers

[00:11:35] to crime we needed concepts such as the FI are zero FI are so it's not only this there were

[00:11:42] many more reasons to update annuals come on to the implementation it is going to be tough

[00:11:49] no doubt training our police personnel training our prosecutors judges all this is being done

[00:11:57] on a board for the more large field this has been this is already under process we need updated

[00:12:03] technology we have to use for instance all this is an uphill task there are challenges

[00:12:12] galore but let us proceed with a positive mindset and deal with challenges as and when the situation

[00:12:21] demands one important concern is regarding adhering to specified timelines which is extremely tough

[00:12:30] see now we have prescribed timelines for investigations there are prescribed timelines

[00:12:35] for trials as well as pronouncement of judgments and we all know it's just easier said than done

[00:12:42] this is all going to be extremely challenging but at least when we have specified goals let us

[00:12:50] try our best but definitely ma'am as you pointed out there will be challenges but as and when as

[00:12:55] the law evolves and as and when we get more jurisprudence and the higher courts and but they also

[00:13:00] elaborate on these aspects then I think the judiciary will be better equipped to deal with

[00:13:07] these issues and at the same time the other stakeholders the people who are actually

[00:13:11] involved in implementing these laws will also have to be trained and then it will help us

[00:13:17] resolve those challenges coming to the next point of our discussion with regards to

[00:13:23] offenses such as you know terrorism lynching and as you already pointed out the aspect of

[00:13:27] cyber crime how when the previous laws were implemented or when they were brought about

[00:13:32] the entire concept of the entire possibility of a cyber crime never existed it's a modern

[00:13:37] phenomenon that we've had to deal with extensively in recent years so you've already

[00:13:42] pointed out about the cyber crime aspect with but with regards to other major aspects such

[00:13:47] as you know terrorism lynching which has also been a social problem in our country sadly in the last

[00:13:53] few years how does the new criminal law navigate these aspects and how does the new satshi adhanyam

[00:13:59] as well as the nia sanjita and the suraksha sanjita deal with these things procedurally

[00:14:04] as well as in terms of how they approach these crimes or deal with these crimes

[00:14:10] see now we have specific provisions relating to terrorist acts earlier terrorism was no

[00:14:16] defined under the IPC we had a UAPA which is the unlawful activities prevention

[00:14:23] prevention act which dealt with activities of terrorism similarly coming to organized crime

[00:14:29] it was nowhere defined under the IPC we had special state laws so while UAP is a central

[00:14:36] legislation for organized crime we had different state administrations so what about those states

[00:14:42] such as west wind wall which did not have a law to deal with organized crime and then we

[00:14:48] know so many cycles frauds and all these things that are back in a from many such states where

[00:14:54] they did not have a specific law to deal with organized crime so now with a central law in

[00:15:00] place definitely all that with the curve coming to terrorist acts despite having a UAPA

[00:15:06] what was the need to introduce terrorist act as a specific crime under the IPC

[00:15:12] the answer is simple UAP does not have provisions for bail bail is not initially to be granted

[00:15:22] and see what happens it is known as a draconian piece of criticism so although terrorist act is

[00:15:29] also something which provides for a very strict punishment under the VAS but then there is a

[00:15:35] discretion with the senior police officer to decide whether the case would be registered under the

[00:15:40] provisions of PNS or whether the case would be registered under the UA depending upon the gravity

[00:15:47] of the crime as well as the conditions of the criminal ultimately after the investigations

[00:15:54] the senior police officer not below the rank of a supreme manager police could map to eventually

[00:15:59] did the call whether they accused us to be booked under PNS if that is done then maybe he would be

[00:16:05] open to the grant of bail also subject to other conditions and also the general exceptions which

[00:16:12] are available under the BAS they are available in cases of what we call as special statutes

[00:16:18] in a very truncated form so that is one of the logics why we have introduced terrorist

[00:16:24] stat as a specific prime under the BNS then there is organized crime and then coming to more

[00:16:29] approaches silly already had guidelines that were issued in Tahseen Punevala's case although those

[00:16:36] guidelines the context was cow vigilantism but now what we've done we've introduced the concept

[00:16:43] of joint the identity earlier what we would have to do we will have to read such offenses

[00:16:49] along with section 34 or 149 which provided for common intention or common object in the

[00:16:56] terms of child liability but now what we've done if there is if it can be proven that there was a

[00:17:03] group of minimum five so now in order to constitute joint liability cases of more

[00:17:09] of lynchings, honour, killings, hate crimes what is required is minimum five people who

[00:17:15] should be acting as a group in favour of the common object they should be acting in concert

[00:17:20] so when they are all acting together so irrespective of the actual part that is paid by either one

[00:17:26] of them the liability would be the same and each one of them would be equally liable so now this

[00:17:33] saves the prosecution the burden of apportioning the exact gain to each one of the parties when

[00:17:41] there are more than one people involved in execution of a crime so that is the objective

[00:17:47] of introducing always new kinds of crime. Yeah ma'am so as we know that these clarifications

[00:17:52] were really important I would like to proceed by asking you that as we know there are a large

[00:17:58] number of pending cases in India so how do you think the new laws are going to address

[00:18:03] this issue and ensure the speedy delivery of justice do you think there is going to be

[00:18:07] any effect on this issue when it comes to the pendency that is already there the procedural

[00:18:14] laws will definitely be very very useful in trying to ensure that there is no pendency henceforth

[00:18:23] because we have specified timelines for everything all going to be difficult initially but I'm

[00:18:29] sure that slowly we are going to streamline all the processes but come into the pendency which

[00:18:34] is already there the backlog which is already pending so as it is substantive law does not apply

[00:18:40] retrospectively but procedurally law can be applied even to those cases which were already pending

[00:18:47] so it all now depends see that is something again which only the laws cannot correct

[00:18:54] what is required is we need to update our infrastructure we need to bring in more judges

[00:19:00] there is so much of vacancy huge number of vacancies in judicial appointments even our

[00:19:06] full list that is under staff that is under so all this would have to be done in order to

[00:19:12] tackle this large issue or this huge issue of pendency so I think it's more of a

[00:19:19] comprehensive effort of everything not just the not just the legislature or the laws but

[00:19:25] all the three all pins of the society so now my next question is very specific to bnss so since in

[00:19:32] the new bnss the police custody period from the time of arrest which was initially the first 15 days

[00:19:39] has been changed to any 15 days of the detention period so do you think this is going to affect

[00:19:44] the rights of the persons who are detained and also will it give like excessive powers to the

[00:19:50] police what you are talking about is section 187 of the Bharati and Averit Surakshya Senita which was

[00:19:57] the old 167 in the see the provision which relates to Raman so when investigation cannot be

[00:20:05] completed within 24 hours of arrest then the magistrate may authorize detention in such custody

[00:20:12] as magistrate think straight for maximum period of 15 days now this could be done in parts or

[00:20:18] it would be continuous at any time during the initial period of detention now what the law says is

[00:20:27] if the total detention is for a period of 60 days then that 15 days it could be within the

[00:20:33] initial four pages and where the detention could be up to 90 days then that 15 days has to be

[00:20:41] within the initial 60 days so the magistrate may authorize detention beyond 15 days if there are

[00:20:50] adequate grounds for doing so but under section 187 subsection 4 the magistrate shall not authorize

[00:20:59] detention in police custody unless the accused is physically produced before him see not merely

[00:21:06] by video conferencing when it comes to grant in judicial custody the accused may be produced even via

[00:21:13] video conferencing but when it comes to seeking police custody the accused has to be produced

[00:21:20] every time before the magistrate physically so he has to be produced physically every time the

[00:21:27] police seeks extension of detention in custody after 60 days accused is eligible for default

[00:21:33] bail provided he is ready to furnish that bail out in cases where offense is punishable with 10

[00:21:40] years or with life on the deck and default bail eligibility arises only after 90 days as I told

[00:21:49] you in police custody there is this trip of physically production judicial custody even

[00:21:53] where accused is produced through video conferencing that is okay see there were a couple

[00:21:58] of judicial pronouncements regarding this in 1992 there was this case of cdi versus Anupam Kulgarni

[00:22:06] in which it was her head fullest reminders to be planted only in the first 15 days there after in

[00:22:12] 2023 we had a decision cbi versus Vikas Mishra in which supreme court observed that Anupam Kulgarni

[00:22:20] needs to be revisited and in august 2023 in central Balaji's case the supreme court agreed

[00:22:27] with the gas Mishra and referred the question to a large wage but however after an act of

[00:22:33] bns the reference has now been rendered very fractious so you see it is not that the person

[00:22:41] with the apt in custody indefinitely the time is only 15 days I suppose the police is not able to

[00:22:48] complete its investigation for which they use might be required in custody within the initial 15

[00:22:54] days within the initial 40 days or 60 days depending on case to be depending on the gravity of the

[00:23:00] crime with which is an accused is uh uh which an accused is likely to be charged so they

[00:23:08] will seek extension of the detention but then when we are ensuring that he is physically

[00:23:13] reduced before the match is played you see we can rule out the possibility of any kind of

[00:23:18] abuse or torturing us today well mom it's very insightful that you have laid down the

[00:23:24] entire jurisprudence of this with case laws and have addressed the issue but I would still like

[00:23:30] to ask you do you think there is still a chance of the accused being treated unfairly because

[00:23:36] it is not the first 15 days and it could be any of the 15 days see I mean when they talk about

[00:23:44] fairness that is something which is very very subjective the person is accused he is charged

[00:23:51] of a serious offense and he has to be investigated thoroughly see what we can do is we can just

[00:23:58] ensure certain checks are there in place so that the accused is not abused but see accused people

[00:24:05] we don't they've not given any pass to the police the police is not authorized even to

[00:24:10] touch the accused person they can just resort to interrogation and sometimes heart and criminals

[00:24:16] they don't break down they don't reveal the truth and sometimes there are newer facts coming before

[00:24:22] the police went in the force of their investigations so if we were to put such a strict tongue

[00:24:28] line they'll see this is the accused he has been arrested and within the first 15 years you

[00:24:33] have to just somehow complete your investigation this would be extremely difficult the police

[00:24:39] is not dealing with only one case within a jurisdiction there might be multiple cases

[00:24:44] so at the most what we can do is we can ensure that rights of our arrested persons which are

[00:24:49] already there in place which were earlier there in the form of traditional pronouncements

[00:24:54] later on they were introduced piece me in a piece more manner in the CRPC now we have an entire

[00:25:01] jurisprudence dedicated towards crimes of arrested persons we have sufficient checks

[00:25:06] and cases so I don't think that we can violate the constitutional rights of an accused person

[00:25:12] but somehow a balance has to be struck the police also has to be given certain powers

[00:25:18] certain liberties so that they can crack the case ma'am do you also think that the police

[00:25:24] needs to be trained as well and also are there any programs as such which are conducted on

[00:25:30] a regular basis for the police? yes, fortunately the police is undergoing a lot of training now

[00:25:35] I know every day every state every union territory isn't the process of training its

[00:25:41] police people then there are a scope these which have been laid down by the vprd how to train

[00:25:47] them and what is to be followed how are the risks are to be conducted how preliminary inquiries to

[00:25:52] be conducted how are the files to be registered so there are so many checks in places now

[00:25:58] which can have to be adhered to we see the living then information age you can easily

[00:26:03] reward if anything wrong is happening against a person see now that is see we are progressing a lot

[00:26:10] we have made provisions for recording the site of crimes all the investigating procedures they have

[00:26:17] to be recorded they have to be uploaded directly from the scene of the crime so now we are trying

[00:26:24] to usher in a lot of transparency although it will take some time but we are proceeding we

[00:26:29] are taking daily steps at a time but definitely in the third direction thank you so much mom for

[00:26:35] clarifying this and I hope a balance can be maintained further coming to my next question

[00:26:41] as we know that the new laws lack a provision similar to the old section 377 of the IPC

[00:26:47] and how there are changes with regard to adultery laws and the and the age of marital rape

[00:26:53] has been raised to 18 and also the fact that attempting suicide is not a crime for common

[00:27:00] people do you think these changes have a large impact on the society in general especially to

[00:27:06] the vulnerable groups maybe the person is suffering from some sort of a mental distress and such a

[00:27:11] person needs treatment instead of permission now what we've done so this prevention which was

[00:27:17] there earlier in the IPC which was impliedly reviewed by the mental health care act 2017

[00:27:22] it has been reintroduced in a revised form and now attempt to commit suicide is a crime if only

[00:27:30] it is done to obstruct a public servant in the performance office duties so as it is you cannot

[00:27:37] allow people to hold the stage to ransom by threatening suicide in case the state does not

[00:27:43] proceed to their demands now you've raised one very important matter and that is regarding section

[00:27:50] 377 in updates in johar what the supreme court had done it had nearly worked out down the

[00:27:56] provisions relating to homosexuality in the sense that it was only consensual homosexuality

[00:28:01] that was not a crime non-consensual homosexuality continued to be a crime

[00:28:07] now let us talk about the related laws we have poxel which protects our minor children whether

[00:28:15] they are boys girls trans children from any kind of an assault whether that is rape whether that

[00:28:20] is so don't any any kind of a sexual assault coming to girls they are all protected now even again

[00:28:26] so don't me because the definition of rape is so expanded as to include all sorts of

[00:28:31] violations offered in a now the only segment that has been left outside the ambit of protection is

[00:28:39] adult men boys you know the age of 18 years are protected girls irrespective of their age are

[00:28:45] protected but what about men non-consensual homosexuality with 377 totally it's based

[00:28:53] from the statute now what we have to do is we have to look at other related provision

[00:28:57] such as we can refer to provision regarding sexual harassment sexual harassment of men is also

[00:29:03] a crime see under our kharati a nice adita the perpetrator of sexual harassment can only be

[00:29:10] a man the victim could be both a man as well as a woman so where a man harasses another man

[00:29:15] that is a crime compared with that provisions regarding birth simple birth degree or third

[00:29:22] criminal force assault all that could be clubbed in to deal with cases of

[00:29:28] coming to the issue of marital rape now although we have not criminalized marital rape

[00:29:33] but what we've done we've amended the law to align it with the judgment delivered by the supreme

[00:29:39] foreman independent thought forces using of india where in the courts at hill there any

[00:29:44] sort of a distinction between married and unmarried women when it comes to age of

[00:29:48] consent is arbitrary so what we've done we've raised the age of consent to a uniform

[00:29:53] meeting for whether the girl is married or whether she's unmarried but beyond that

[00:29:58] for a girl who's married and who's above 18 years of age then there is no prediction

[00:30:03] against how to and there was another part about the adultery okay now coming to adultery

[00:30:12] adultery was decriminalized and why was it decriminalized because as per section 497

[00:30:20] see the language itself was very problematic because it said when a woman except in with

[00:30:27] the consent or con nivance of her husband so what this means is she conniving itself

[00:30:31] as a very negative term and with the consent of the husband what does that mean see the

[00:30:36] sexuality of the woman has been absolutely monopolized by her husband and if the husband

[00:30:42] agrees she can go around she can have physical intimacy with any other man and it is a problem

[00:30:48] only when she does that without the consent of her husband what about her own consent and her

[00:30:54] own agency when she is above 18 years of age okay the woman does not have the right to

[00:31:00] consent but the husband can do whatever he wants because see what would happen the husband

[00:31:06] would prosecute the other man he could not prosecute his wife not even for not even as a nebeter

[00:31:12] but he would prosecute the adultery well the other man because he had violated his property rights

[00:31:19] in a way because the wife and her sexuality was like the property of the husband now what if

[00:31:25] the adulterer was also method his wife could not prosecute either her husband or the other

[00:31:32] woman with whom her husband was in a consensual relationship okay so now this was something

[00:31:38] which was by native of article 40 more overwhelmingly are talking about adults I mean when there is

[00:31:45] a consent it cannot be a criminal activity and if it is a criminal activity it should be criminal

[00:31:51] for both even adultery is a ground for divorce if you don't want to stay within adulterous

[00:31:56] you can anyway see for divorce there is an exit point provided in such a relationship

[00:32:02] what was the need to criminalize such an so that is why 497 which was already strong now

[00:32:08] where is the thing about it was a shines now what's the term we replaced it from the statute

[00:32:15] so ma'am there's a lot of debate going around the adultery provision people saying that even

[00:32:21] though divorce is an option what about women who are not physically you know independent

[00:32:27] or strong enough to get a divorce see now see what the provision we had was it was about a woman who's

[00:32:35] in an adulterous relationship she chooses to be with another man but she is not economically

[00:32:43] independent and she wants to latch on to her husband to get money from him but she wants to

[00:32:49] be in a relationship with another I mean how do you even defend this kind of a provision

[00:32:54] no what I'm trying to say is the man whose wife does not have a recourse here the women who is in

[00:33:00] a relate suppose a woman is committing adultery with another marriage obviously

[00:33:04] claim maintenance from her husband she needs to divorce him and then claim for maintenance from

[00:33:09] because it is the husband who's at fault in such cases what would be the use of staying in such a

[00:33:15] man but there is also a lot of argument going around that there are a lot of women who do

[00:33:21] not have the agency or do not even or are not even educated enough to go for a divorce I mean

[00:33:27] there are instances where women are so like so uneducated or are unaware of the realities that

[00:33:33] they are in today's age and time you simply cannot justify that just because a woman is not

[00:33:40] independent so she needs to continue in an abusive or an adulterous relationship

[00:33:47] in fact what I would say is we need to provide easier examples in such cases

[00:33:53] and then there has to be the concept of matrimonial property and rather there should

[00:33:57] be more emphasis on educating and empowering our girls children so that they don't have to

[00:34:02] put up with these kind of things so ma'am do you think are there enough programs to educate

[00:34:09] women to let them know that they have this recourse available when their husbands are cheating

[00:34:15] so awareness is something that needs to be spread they have to be told and actually as a

[00:34:20] ground of divorce was already there which was always there you don't think it is any time

[00:34:25] before rocket science it is something which everybody knows that when you are in a committed

[00:34:29] relationship it is wrong to have a relationship out of the body when you are in a regular

[00:34:36] so it is something which everybody has to know how can anybody be so naive in today's day and

[00:34:41] time as to not know that it's not an ambulance to continue with such a stance there is a provision

[00:34:48] accessibility of law is definitely there are several impediments when a woman wants to approach

[00:34:55] the courts so that is something which can be addressed and should be addressed

[00:35:02] just to jump on the whole discussion because of you know because you ended the

[00:35:07] issue with accessibility of law and we see that there are a lot of there's a lot of effort

[00:35:13] through different legislations to the government where they're trying to look into providing legal

[00:35:18] aid of late so where do you put in the whole debate of legal aid especially of let's say

[00:35:24] in situations where it is less accessible can be women in certain cases it can also be

[00:35:29] under trial prisoners in a lot of cases so where do you put in the new law with respect

[00:35:33] to this aspect how well have they been able to address you know gaps that existed in the old

[00:35:39] legislation with respect to legal aid this there and the old law also legal aid is the right of

[00:35:46] the accused person it is the duty of the police officer to inform them about their rights to

[00:35:51] engage your council where they are not able to engage your council a council has to be provided

[00:35:56] at state expense then there is Nalsa there is district state legal services authorities who

[00:36:02] are all working and legal aid is accessible it is the prison authorities also who are now duty bound

[00:36:08] to tell the accused persons the under trials that he has legally you see in law school though so we

[00:36:13] are all running legal aid and we all take our students to these prisons and where they interact

[00:36:19] with under choice and then inform them of their rights and also I mean just to add on to that

[00:36:27] also the constitutional aspect of it which already exists but I just want to quickly move on to from

[00:36:33] that to another very significant part of it which has been quite debatable over the last few months

[00:36:39] that's that's the forensic evidence aspect in which the acts bring in and have essentially given

[00:36:45] more importance to and the argument contrary to it is regarding the fact as to what whether

[00:36:51] the country has enough infrastructure with respect to forensic forensics given the

[00:36:56] importance that it has given and although you know there have been instances in the budget where

[00:37:00] they have talked about forensics but as a somebody who's involved in the criminal you know

[00:37:06] who has taken extensively and has done a lot of work in criminal laws how do you think

[00:37:10] what what do you think or what is your take on how the government is looking at foreign

[00:37:14] six for criminal cases and what is the step forward to other than investment of course to

[00:37:19] include or increase the importance of forensics in a criminal in a criminal

[00:37:25] on k or a lot of importance has been given to inclusion of forensics and criminal justice

[00:37:31] investigations and it is extremely important also if we have to adhere to timelines that we have

[00:37:37] to crack cases within the specified timelines we cannot leave forensics out now the thing is

[00:37:44] despite so much of budget being allocated to these what we are saying in setting up of new

[00:37:50] NFSUs which is national forensic science universities and all that are to be set up in many states now

[00:37:56] across the country and despite there being guidelines that in case there is no forensic

[00:38:02] laughter or no forensic facility in the state we have to notify what would be the concern

[00:38:08] but we have to definitely leverage technology we have to utilize forensics no matter

[00:38:15] again see what is written on paper and what the reality is that is quite different it will

[00:38:22] take time before we make these forensic facilities accessible to all our police also

[00:38:27] it is very easy when it is easier said when we look at these web series and all

[00:38:33] and we see these police officers having these body cameras and having access to all sorts of

[00:38:39] latest technology here it is see our police officers not all of them have smartphones also

[00:38:46] and when we are talking about recording of the of the crying scene they don't even know how to

[00:38:51] record it properly their hands are not stable it would be sometimes vertical sometimes horizontal

[00:38:57] then it did so quality of evidence all that is lost so a lot of training has to go in we need to pump

[00:39:06] in a lot of money so that we can make all the infrastructure accessible to them only then well

[00:39:12] what has been provided in the statutory books transcount to reality it is a long way right I

[00:39:19] mean that's a completely you know because this is in a way I think we are somewhere

[00:39:23] barred between the idea of transforming the legal system but also the necessary infrastructure that

[00:39:28] is necessary for you know to take that next step from that to another aspect is that you know again

[00:39:34] a lot has been discussed considering that this is a completely new no set of set of laws that

[00:39:41] are governing a very serious aspect of our day-to-day lives consider the another acquisition

[00:39:47] that the ones criticizing the new laws make is with respect to the fact that the new laws

[00:39:52] especially gives a lot of power to the police um and especially with respect to F.I.I. and

[00:39:59] cognisable offenses so do you believe that this new law somewhere shifts that power and gives

[00:40:05] excessive you know in our control to the police with respect to that or do you think

[00:40:09] contrary to this idea at all F.I.L has to be mandatorily registered in all possible offenses

[00:40:17] see what the new law talks about is preliminary inquiry which was earlier also there we have

[00:40:24] Anita Kumari guidelines now what the law says is under section 173 of the BNSS or section 3

[00:40:31] it says now preliminary inquiry may be conducted in cases that are punishable with imprisonment

[00:40:37] between 3 to 7 weeks again for that we have SOPs in place the VP Argyl has laid down SOPs it says

[00:40:45] that if the police officer decides to conduct the preliminary inquiry he has to see prior

[00:40:52] approving from a police officer who is not below the rank of DSP within whose jurisdiction the

[00:40:58] crime has taken place and preliminary inquiry is to be conducted only after evaluated the

[00:41:05] nature and gravity of the offense to determine the necessity for such preliminary inquiry further

[00:41:12] preliminary inquiry is also time bomb it has to be conducted and completed within 14 days

[00:41:18] during those 14 days also the police officers they have to document all findings and

[00:41:24] all the evidence that they gather during such preliminary inquiry if a prime of

[00:41:29] a case exists then they proceed with investigation otherwise they close the inquiry to the report

[00:41:35] will be approved by authority and they are also supposed to communicate the findings to date

[00:41:40] of late see where preliminary inquiry does not control within 14 days then they have to

[00:41:46] mandate a really registered an FIA every officer in charge of police station is

[00:41:51] duty bound to maintain a register of preliminary inquiries in the format prescribed by the

[00:41:57] direct the general of police if DSP does not grant permission within 24 hours on receiving a

[00:42:04] request from the officer in charge or even if the DSP denies permission for it for the

[00:42:10] standard of preliminary inquiry then FIA has to be registered immediately where police officer

[00:42:15] does not conclude preliminary inquiry within 14 days then DSP shall show cause the inquiry

[00:42:22] officer and if reply is not satisfactory then departmental actually would be initiated against

[00:42:28] the inquiry officer in every jurisdiction the superintendent of the Mrs. Drekwai to review

[00:42:34] the preliminary inquiry is in this jurisdiction during monthly crime review meetings and take

[00:42:40] corrective measures wherever required now why we need them to bring in this concept of

[00:42:45] preliminary inquiry is see anyone can go and register an FIR it does not necessarily

[00:42:50] need to be the victim anyone can be an informant who's are comes to know about the crime

[00:42:55] and seldom our FIRs based on boss said too many times people they might not be

[00:43:03] exactly sure and it is not necessary that every FIR is a truthful version you register

[00:43:09] an FIR against a person once an FIR has been registered the inquiry has to be taken

[00:43:15] through its logical conclusion you have to conduct the investigation then either FIA

[00:43:20] will report or you have to I mean register a case you have to file a police report in such cases

[00:43:27] so the problem that a person faces when a fake FIA has been registered against such a person

[00:43:33] in order to do away with that preliminary inquiry is a good check in place then at

[00:43:39] the same time there are certain provisions which have been excluded from the ambit of

[00:43:43] preliminary inquiry in which cases there is absolutely no discretion to the police officers

[00:43:48] and they will have to mandatorily register the FIR that is in cases of rape, sexual assault,

[00:43:54] molestation, acid attack in cases of crimes against the SCST community in all these cases

[00:44:00] the police cannot exercise a sterile stitching of registered FIR only after conduct in the

[00:44:08] so it is only in those crimes for which punishment is between three to seven years if it is below

[00:44:14] three years again there is no discretion if it is over three years again you see there is no

[00:44:19] discretion when the facts that disclose the commission of a commissive office for which punishment

[00:44:25] is more than seven years it's a serious crime but it's a situation absolutely without

[00:44:29] its officers they would have to register an FIR so preliminary inquiry is just in the form

[00:44:35] of a check so that unnecessarily people are not harassed you've given a very detailed

[00:44:46] perspective on how the concerns and how the idea for a preliminary inquiry and the modalities with

[00:44:52] respect to the enforcement authorities essentially the police who are dealing with the law and who

[00:44:56] are essentially bringing the law into action you know staying on the lines of your response

[00:45:02] and how you pointed out the fact that the law tries to balance these aspects you know the

[00:45:08] modern trend as we've seen is that the world is moving towards the idea of a very reformative

[00:45:13] concept of justice especially the way people are dealt with crimes are dealt with and so it

[00:45:20] essentially seeks to incorporate more and more humane provisions and you know in a in a bit to

[00:45:25] secure the rights of the innocent and make sure that no innocent person is wrongly punished

[00:45:31] or wrongly bought under the law so and these also tie in with the fact that

[00:45:38] and the discussion that we've had today itself regarding the time period in custody

[00:45:44] as well as a preliminary inquiry these are all layers of that very conversation

[00:45:48] of trying to get into a whole reformative aspect of how justice is administered

[00:45:54] so you know you've already pointed out some very key aspects of that on that note

[00:45:59] with regards to you know time frame for investigations as well as ensuring that the

[00:46:04] bail the way bail is granted or the modalities of how bail is given under these acts and as well

[00:46:11] as the judicial custody or as well as the custody or the time period of custody for the under trials

[00:46:17] how do these laws try to enshrine these principles and you know strike a balance between

[00:46:23] the interests of the criminal justice system or those trying to enforce the system

[00:46:27] as well as the people who are facing the system

[00:46:31] see first let us talk about the reformative aspect of punishment or restorative justice principles

[00:46:39] that have been brought into our criminal justice system by way of introducing community service

[00:46:45] as a kind of punishment see community services are non custodian kind of punishment in which

[00:46:52] you don't put the convict with the hardened criminals so you don't put the convict behind bars

[00:47:00] this is an attempt at re-socializing the convict by making him do some community service

[00:47:07] which helps the community for which he is not being made for which he is not going to be paid

[00:47:13] any money because it's a kind of punishment now this has been prescribed only in very

[00:47:18] guilty offenses and that's only for first time offenders when there is a possibility of

[00:47:24] reform of such person say I'll give you an example suppose there is a woman

[00:47:29] who has children to feed and she has no resources to feed her children so she steals a loaf of

[00:47:35] as per the law she's guilty of theft so would any person have the heart to send this person

[00:47:43] to prison for three years just because she's done that which he was compelled to do because of party

[00:47:50] in such cases what does the law say for head if a person steals and he's a first time thief

[00:47:58] and the value of the property that has been stolen is below 5000 rupees and the accused is

[00:48:04] willing to either restore the property or pay back the loss that was caused due to his active

[00:48:10] stealing then in such cases the accused can be sentenced to community service similarly if a person

[00:48:17] causes misconduct in public after the person is drunk such a person can be asked to do community

[00:48:24] service instead of being put behind bars see there is this lady judge of Delhi airport Justice

[00:48:30] Swain Akanta Shobha who was once I heard her and she was telling that she had gone to the

[00:48:37] school or while this group of our Kanya Sahab you must have seen in Konath place in Delhi

[00:48:41] and she said that there was some boys who were just creating a lot of ruckus outside the Guru

[00:48:47] Dua they were driving their motorcycles at great speed she said my first response was to ask the

[00:48:53] police officers on duty there to arrest them and bring them to color but then she said

[00:48:59] I realized that these are just misguided youth it is not that these boys are out there to

[00:49:06] commit a crime they are there just for the thrill of it because they don't know that what they are

[00:49:11] doing is wrong it could be harmful for them it could be harmful for others also so in such cases

[00:49:18] that the boys they can be asked to perform some community service as a measure of punishment

[00:49:23] for disturbing the peace of society and for indulging in such dangerous act then that

[00:49:28] could convey a better message instead of putting them behind the bars where they could come

[00:49:34] in contact with other ardent criminals and in fact learn a trick or two about how to commit a crime

[00:49:39] so in such cases community services to be introduced so this is an excellent measure

[00:49:45] that has been introduced in our laws so what was the other part of your question me

[00:49:52] it was regarding how you know it ensuring that the innocent people in terms of obviously

[00:49:58] in terms of the procedure the enforcement authorities have to follow certain measures

[00:50:03] and take certain because obviously the entire process of investigating a crime coming to a

[00:50:08] conclusion making sure that the process works in a very efficient way it's a big challenge

[00:50:14] even for those implementing it because again we are dealing with real life problems here

[00:50:19] which are which cannot be just limited to change in the text or change in the wordings of

[00:50:25] love real life challenges are often situations which come up suddenly abruptly and police

[00:50:30] officers have to be equipped to deal with that so you've already dealt with how the idea of

[00:50:35] a reformative justice and these aspects are very important and the example of the Guru Dwarah

[00:50:40] is very interesting because it comes from someone who is a judicial officer at the

[00:50:45] one of the highest levels at the high court especially of a city like state like Delhi

[00:50:51] so the other aspect is that you know how do the interests of the innocent people who might be

[00:50:58] involved in such investigations or who are subject to these processes can be ensured and

[00:51:04] and how can a balance be struck between their interests as well as the efficiency of the

[00:51:10] process and how are aspects like bail you know the timing has to be dealt with in under the

[00:51:15] new laws see the provisions should that I will earlier see our issue did not defend the concept

[00:51:22] of pay now there is a clear definition of the term they know the law also says that there is

[00:51:27] a provision for release on personal okay see there was the sword judging if you've read

[00:51:33] Modi Nam versus state in which Justice Krishna had remarked that when you compel a person to

[00:51:39] pay a huge amount of surety and when you compel a poor person to do that it is a virtual

[00:51:46] genital of pay moreover this was a case which dealt with the case of a migrant labor he did not know

[00:51:54] any person in that particular state so if you're insisting on that person to get a surety from

[00:51:59] that particular state whereas he belonged to some other state then you're insisting on huge

[00:52:04] sums of money to be deposited as a purity now this is all a virtual deny of a grand justice

[00:52:10] Krishna here had remarked that effluents don't be afraid in DJs right so now there is a provision

[00:52:19] for release on personal bonds also because what we need to understand is how we can ensure

[00:52:25] that the person does not commit it is not possible if only we have deterrent punishments

[00:52:33] prescribing a higher punishment for a crime is no guarantee that the kind will not be committed

[00:52:39] what we guarantee non-commission of a crime is the certainty of the punishment it is only

[00:52:45] when the accused knows that you will not be able to evade the long arms of the law and the law

[00:52:50] is going to eventually catch up with you and you will be punished and the punishment would

[00:52:55] be executed in a very fast manner it is that which is going to have a deterrent effect and when we

[00:53:02] talk about those people who are wrongfully part of the net of the crime we have provision of bail

[00:53:08] or jail the rule is they are not jail and the provisions such as personal bonds and all

[00:53:14] now we can ensure that people they are not unnecessarily incarcerated you know thank you

[00:53:21] so much ma'am for pointing out the intricacies of these aspects because again as we started this

[00:53:27] discussion on the same note of how these laws will function in society so various social factors

[00:53:32] and social realities especially in our country need to be taken into account and you really

[00:53:37] dealt with those aspects in throughout the episode we are very well aware that you've written a

[00:53:42] book extensive book on the GEE's new laws and where you also laid down a comparison with

[00:53:47] previous provisions and the evolution of the law can you take us a bit through

[00:53:52] analysis as well through the new book and how it came to be and how you got down to writing it

[00:53:58] see when the bills were introduced in august at that very time i thought we should contact him

[00:54:04] but ma'am we need to do something in this area because i've already written a book for tax

[00:54:09] fund that was in 2013 that was a small book deal with general principles of criminal

[00:54:14] openity so we were thinking of writing a book on criminal laws but when the new criminal laws

[00:54:19] were introduced so now this was the opportunity so we waited for him here let the new criminal laws

[00:54:25] be formally introduced in the parliament then we started the talk so we were already halfway

[00:54:30] through the book where the law was introduced in an amended form so we immediately set on to

[00:54:38] work because the section numbering had changed some new provisions had been introduced and

[00:54:43] there were a couple of changes so we were already halfway through and this is a law which is a

[00:54:48] which is a this is a three book fed on the three new laws and it's a law and practice series

[00:54:54] primarily which came just to practicing law because as it is we have to unlearn the old

[00:55:01] laws the old numbers of the provisions especially and to relearn the new so this is going to

[00:55:09] be a very difficult process and that has by a comparative table actually right so what we've

[00:55:14] done is they analyzed the new provisions the town comparisons with the old provisions what

[00:55:20] are the changes if any leave have been highlighted and what are the judgments if any the old ones

[00:55:25] which can be applicable for the new judgments will happen because they have to see as of now

[00:55:32] there will be judgments from the trial codes and before we get conclusive judgments from

[00:55:36] the I quotes of Supreme Court it would be sometime it would be maybe a year or two before we get some

[00:55:41] new judicial pronouncements to be inserted in the new clause so as it is this is a law these are books

[00:55:48] which deal with the new laws and a comprehensive analysis of the provisions along with comparisons

[00:55:53] with the old laws I think that's very helpful especially because all of us are some in

[00:56:00] somewhere you know other dealing with the law in our daily lives as well as with our background

[00:56:04] in the legal field and on that note thank you so much man for joining us it was a really insightful

[00:56:10] episode we really wanted to discuss the new laws and how you know the way the because a lot of

[00:56:16] conversations have been happening around these laws but the fact that we could get you on more

[00:56:21] of a personal extent extensively on these last two BLR sorry it was really glad we're really

[00:56:28] glad and we hope that we can host you in future episodes as well it has been a pleasure thank you

[00:56:33] god bless if you enjoyed listening to this episode of the chicken neck podcast check out our other

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