Are the new criminal laws better or worse? | India's Top Lawyers | Sibal, AM Singhvi, Mukul Rohatgi

Summary

In this episode of 'Dil', a critical discussion on India's criminal jurisprudence is presented, highlighting the colonial legacy of the legal system and its impact on constitutional freedoms. Eminent lawyers, Mukul Rohatgi and Dr. Singh, debate the perpetuation of outdated laws, the misuse of police powers, and the challenges in the bail system. They call for a task force to review and align criminal laws with constitutional rights, emphasizing the need for legislative and judicial reforms to protect individual liberties and ensure justice.

Takeaways

• 📜 The discussion revolves around the colonial legacy of the Indian criminal justice system and its impact on constitutional freedoms.
• 👥 The conversation features two prominent lawyers, Mukul Rohatgi and Dr. Singhi, who have contributed to landmark judgments in India.
• 🇬🇧 It acknowledges the colonial origins of the Indian legal system, including laws that were designed to control the native population during British rule.
• 🚫 The speakers criticize the current system for allowing police remand and the potential for abuse of power, which can infringe on individual liberties.
• 📝 They argue for a reevaluation of criminal laws in light of constitutional rights, such as freedom of speech and the right to life and liberty.
• 🔍 The script highlights issues with the current arrest procedures, where individuals can be arrested on suspicion without a thorough investigation.
• 📉 Concerns are raised about the misuse of laws like UAP and PMLA, which allow for arrests based on subjective suspicions and can lead to prolonged detentions.
• 🛑 The discussion emphasizes the need for a task force to review and align criminal laws with the Constitution's fundamental rights and freedoms.
• 📊 There's a call for legislative changes to ensure that the power of arrest is not abused and that it is balanced with checks and balances within the system.
• 🚨 The misuse of Section 120B (conspiracy) is highlighted as a significant issue, where individuals can be implicated without direct evidence of their involvement in a crime.
• 🏛️ The script concludes with a call for structural changes in the judiciary to prioritize cases involving fundamental freedoms and to prevent irreversible damage to individuals' lives.

Q & A

What is the main topic of discussion in the video script?

The main topic of discussion is the issues related to the criminal justice system in India, particularly the colonial legacy of the legal system and its impact on constitutional freedoms.

What are the two legal codes mentioned in the script that are part of the colonial legacy?

The two legal codes mentioned are the Code of Criminal Procedure and the Indian Penal Code.

What is the good aspect of the colonial laws mentioned by one of the lawyers?

One good aspect mentioned is that a statement made to a police officer is not admissible in evidence, which was a provision made because the British did not trust the native police.

What is the issue with the current system of arrest in India as discussed in the script?

The issue is that a person can be arrested on suspicion without fully investigating the matter, and this process can be abused, leading to dangerous consequences.

What is the 'police remand' mentioned in the script, and why is it problematic?

Police remand refers to the period during which a person is under the control of the police in a police station or headquarters. It is problematic because it allows for potential abuse of power and infringement on individual rights without proper oversight.

What is the suggestion made by the lawyers for reforming the arrest system in India?

The suggestion is to establish a legal framework that differentiates between the power of arrest and the need for arrest, and to possibly involve a higher authority like a magistrate or a neutral body to approve arrests based on substantial evidence.

What is the issue with the current bail system in India as per the script?

The issue is that bail is often denied on the basis of the gravity of the offense, which contradicts the principle of presumption of innocence. This has led to a misuse of the bail system, keeping innocent people in jail for extended periods.

What is the problem with the use of Section 120B of the Indian Penal Code as discussed in the script?

Section 120B, which deals with conspiracy, is being misused to implicate individuals in crimes without direct evidence. This can lead to people being denied bail and kept in jail for long periods without proof of their involvement.

What is the criticism regarding the Supreme Court's handling of cases related to constitutional freedoms?

The criticism is that the Supreme Court is not prioritizing cases that involve the fundamental freedoms of individuals. Instead, it is focusing on mundane cases, which should not have reached the Supreme Court in the first place.

What is the concern about the use of special laws like the Prevention of Money Laundering Act (PMLA) and the Unlawful Activities (Prevention) Act (UAPA)?

The concern is that these special laws have provisions that can drastically limit individual freedoms, such as the right to bail, and they are being inconsistently interpreted by the judiciary, leading to confusion and potential injustice.

What is the proposed solution to address the misuse of conspiracy charges under Section 120B?

The proposed solution is to bring a structural change in the interpretation and application of Section 120B, possibly through clear guidelines or tests by the courts to ensure that it is not misused to implicate individuals without substantial evidence.

Outlines

00:00

📜 Colonial Legacy in Criminal Justice

The conversation begins with a critique of the colonial-era criminal justice system in India, which is still in use and has adverse effects on constitutional freedoms. The speakers, Mukul Rohatgi and Dr. Singh, are introduced as prominent lawyers who have contributed to landmark judgments. The discussion will focus on the need to reassess and reform these laws in line with constitutional rights, with a particular emphasis on the issues of police remand and the admissibility of statements made to police officers.

05:01

🚨 The Issue of Arrest on Suspicion

This paragraph delves into the problematic nature of arrests made on suspicion, which are subjective and can lead to abuse of power. The speakers discuss the need for a more objective standard for arrests, such as requiring evidence or a multi-level approval process involving senior officers. They also address the issue of bail, arguing that the current practice often contradicts the principle of presumption of innocence and the constitutional right to freedom.

10:04

🛡️ The Need for a Legal Framework for Arrests

The discussion continues with a focus on the necessity of establishing a clear legal framework for arrests. It is argued that the power to arrest should not be equated with the need for arrest, and that legislation should create a filter mechanism requiring the approval of multiple officers or a magistrate before an arrest can be made. The paragraph also touches on the misuse of conspiracy laws (Section 120B) and the challenges faced by the accused in proving their innocence.

15:05

🏛️ Judicial Overreach and Legislative Reforms

The speakers critique the judiciary's role in interpreting laws that infringe upon constitutional freedoms, such as the Prevention of Money Laundering Act (PMLA). They call for a robust judicial approach to strike down provisions that are contrary to basic rights and argue for legislative reforms to prevent the misuse of laws like PMLA and the Unlawful Activities (Prevention) Act (UAPA). The conversation also addresses the issue of bail denials and the inconsistency in judicial interpretation of laws.

20:06

📖 The Impact of Delayed Justice

This paragraph highlights the issue of delayed justice in the context of cases involving fundamental rights and freedoms. The speakers express concern over the prioritization of cases in the court system, arguing that matters affecting individual liberties should take precedence over others. They discuss the irreversible damage caused by prolonged legal battles and the importance of timely judicial decisions.

25:07

🔄 The Misuse of Conspiracy Laws

The conversation turns to the misuse of conspiracy laws, particularly Section 120B of the Indian Penal Code, which has been increasingly applied to implicate individuals without direct evidence of wrongdoing. The speakers call for a judicial reevaluation of the application of conspiracy charges and argue for a more cautious and limited use of such provisions.

30:07

🚫 Bail Denials and the Chilling Effect on Liberties

The final paragraph addresses the systemic issue of bail denials in the Indian criminal justice system. The speakers discuss the reluctance of trial courts to grant bail and the chilling effect this has on individual liberties. They also touch upon the negative impact of special courts and the potential for bias when judges are assigned to cases for extended periods.

35:09

🌐 Conclusion: The Urgency of Criminal Justice Reform

The conversation concludes with a call to action for the reform of the criminal justice system, emphasizing the urgency of addressing issues that undermine constitutional freedoms. The speakers reiterate their commitment to the broader interests of the country and the importance of future discussions on these critical issues.

Keywords

💡Colonial Legacy

The term 'Colonial Legacy' refers to the systems, laws, and traditions inherited from the period of British colonial rule in India. In the video, it is discussed as a foundational aspect of the Indian criminal justice system, which the speakers argue has had negative impacts on personal freedoms as enshrined in the Constitution. The colonial laws, such as the Code of Criminal Procedure and the Indian Penal Code, are critiqued for being perpetuated without sufficient adaptation to modern democratic values.

💡Criminal Jurisprudence

Criminal Jurisprudence is the study of the law relating to crimes and their punishment. The video discusses how the current criminal jurisprudence in India is influenced by colonial-era laws and how it may not align with the constitutional rights of citizens. The conversation indicates that there is a need to reassess and reform these laws to better protect individual freedoms and ensure justice.

💡Code of Criminal Procedure

The Code of Criminal Procedure is a statutory law that outlines the formal procedure for conducting criminal trials in India. It is mentioned in the script as part of the colonial legacy that is still in use, with discussions around its implications on freedoms such as the right to life and personal liberty. The speakers suggest that this code may need revision to align with the constitutional rights of Indian citizens.

💡Indian Penal Code

The Indian Penal Code is the main criminal code of India, defining crimes and punishments. In the video, it is mentioned alongside the Code of Criminal Procedure as part of the colonial legacy. The discussion implies that this code may contribute to the issues faced by the criminal justice system in terms of safeguarding the freedoms guaranteed by the Constitution.

💡Police Remand

Police Remand refers to the period during which a suspect is held in police custody for interrogation before being presented to a court. The script discusses the concept as a part of the criminal justice system that may not be in tune with constitutional freedoms. It is implied that the practice of police remand could lead to potential abuses of power and infringement upon individual rights.

💡Article 14 and 19

Article 14 and 19 of the Indian Constitution pertain to the right to equality before the law and the right to freedom of speech and expression, respectively. The video discusses the need to align criminal laws with these fundamental rights, suggesting that current laws may not sufficiently protect these freedoms and may need to be revised.

💡Arrest on Suspicion

The concept of 'Arrest on Suspicion' is a legal provision allowing law enforcement to detain an individual they suspect of having committed a crime. The script debates the subjectivity of suspicion and its potential for misuse, particularly in stringent laws like the Unlawful Activities (Prevention) Act (UAPA) and the Prevention of Money Laundering Act (PMLA), where the power of arrest can be abused without adequate checks and balances.

💡Bail

Bail is a legal provision that allows an accused person to be released from custody, usually upon the promise to appear in court when required. The video discusses the conditions and difficulties in obtaining bail, especially in serious offenses, and how the current interpretation and application of bail laws may not always uphold the presumption of innocence until proven guilty.

💡Presumption of Innocence

The 'Presumption of Innocence' is a fundamental principle in criminal law that an accused person is considered innocent until proven guilty. The script points out that this principle is sometimes overlooked in the current judicial practices, particularly in the context of bail and the conditions imposed upon it, which may infringe upon the rights of the accused.

💡Judicial Activism

Judicial Activism refers to the practice of courts taking a more active role in shaping the law and policy, often by interpreting constitutional provisions broadly. The video discusses the need for a change in judicial mindset and the role of the judiciary in interpreting and upholding constitutional values, particularly in the context of criminal law and individual freedoms.

💡Conspiracy (Section 120B)

Section 120B of the Indian Penal Code pertains to criminal conspiracy. The script discusses the misuse of this provision in cases where there is a lack of direct evidence against an individual, leading to prolonged detention without bail. The conversation suggests that there is a need for clearer legal parameters to govern the use of conspiracy charges in criminal cases.

💡Special Courts

Special Courts are designated to handle specific types of cases, often to expedite the judicial process in matters of significant public interest or complexity. The video mentions the establishment of special courts for certain categories of cases but raises concerns about the potential for bias and the importance of judicial rotation to maintain fairness and integrity in the judicial process.

Highlights

Discussion on the colonial legacy of criminal jurisprudence in India and its impact on constitutional freedoms.

Mukul Rohatgi's experience as Additional Solicitor General and his views on the current state of criminal law in India.

Dr. Singh's perspective on the need for a task force to examine criminal laws in accordance with constitutional provisions.

Critique of the police remand system and its potential violation of basic freedoms outlined in the Constitution.

The issue of arrest on suspicion and the subjective nature of 'suspicion' in the context of laws like UAP and PMLA.

Concerns about the power of arrest being given to junior police officers without proper checks and balances.

Dr. Singh's argument for a fundamental legislative restructuring and a change in the judiciary's mindset towards criminal law.

The problem of bail being denied on the basis of the gravity of the offense, contrary to the principle of presumption of innocence.

Critique of the inconsistency in the interpretation of bail provisions by the judiciary.

The misuse of Section 120B (conspiracy) in criminal cases and its impact on the right to bail.

The need for a clear legal framework to determine the necessity of arrest and the role of magistrates in this process.

Concerns about the overuse of police custody and the lack of effective judicial checks on this power.

The debate on the role of the Supreme Court in upholding constitutional freedoms and its current approach to bail matters.

Discussion on the importance of prioritizing cases that involve fundamental liberties and the delays in the judicial system.

The impact of legal and judicial delays on the lives of individuals and the need for structural changes in the court system.

The misuse of special provisions in laws like PMLA and UAPA, and the challenges faced by the accused in obtaining bail.

Final thoughts on the urgent need for reform in the criminal justice system to protect constitutional freedoms and ensure justice.

Transcripts

namaskar in this episode of Dil

say we are going to

discuss several issues relating to our

criminal jurist

Prudence as we all know that the code of

criminal procedure and the Indian penal

code um are part of the colonial Legacy

that we inherited and we seem to be

perpetuating it and it is having

disastrous consequences on the freedoms

that we cherish under our Constitution

and I'm going to uh discuss this and

have a conversation about these issues

with two of the leading lawyers of our

country perhaps uh lawyers who are um

who have rendered and participated in

pathbreaking judgments in this country

on all aspects of the law we have mukul

rohi uh who has been additional

solicitor general attorney general for

India and uh

and in fact led many a Battle for people

of this country for the citizens of this

country we have Dr singi

Who uh is again some say a master uh of

of the way in which he argues in court

he is a doctor incisive always on the

point and of course uh mul is a doctor

in a far more expansive sense he is

doctored many a client and given giv

them the appropriate medicine uh to get

them relief so let's start the

conversation by asking you this question

are we

perpetuating the colonial era and the

colonial Legacy by allowing the the same

system of legal

um of what is the code of criminal

procedure to continue in the same

fashion what are views on it see there

is no doubt that there is some

perpetuation of the system because

because we are still following those

laws and those laws were made at a time

when the British ruled this

country there are there were some good

aspects and some bad

aspects one thing which immediately

comes to mind the good

aspect namely that a statement made to a

police officer is not admissible in

evidence because they did not trust the

native

police and therefore they made this

provision

but the colonial Legacy as you just

mentioned a while ago that you have what

is called a police remand so somebody is

is under control of the police in a

police station or in a police

headquarter or a room

whatever uh under control of the police

what he has to say he doesn't say you

know all that all that goes on and uh

what we

need is to tune our criminal laws in

accord with the basic freedoms of the

Constitution namely article 14 19

freedom of speech freedom to move around

freedom to live freedom to work and

right to Liberty life Etc Unfortunately

they have not been so

attuned and I have not as yet seen the

new new act which has come it's much

worse sorry so my my view is that there

should be a task force which should look

at these laws on the Touchstone of these

34 provisions of the Constitution and

only then we'll be able to come out let

me ask you a follow-up question before I

go to Dr singi see our law says that I

can arrest a police officer can arrest a

person on

suspicion now suspicion is a subjective

thing so you have drastic laws like UAP

you have drastic laws like pmla and you

can arrest a person on suspicion and

nobody can challenge it this very

process of arresting somebody on

suspicion without fully investigating

the matter so again is a very dangerous

yes so I come back to this if you look

at those laws in the light of the

Constitutional freedoms you need to

tweak those laws you tweak it in the

light of the Constitution that you don't

give the power of arrest to a junior

police officer who will lock you up and

tomorrow it is found that there no real

grounds in our court said there no

there's no compensation for vexatious

arrests say well I thought he was guilty

I've arrested that's of the matter so

you must tune it in that

and even if you have some drastic Powers

because of terrorism and stuff like that

give it not merely to a senior police

officer that by itself hasn't worked you

know you has worked so you must have

some checks that it must go through two

or three levels of senior officers who

should on the file order that yes not

one but two or three have seen uh the

basic facts and we feel that an arrest

is made out unless it's a case of

somebody committ a crime committing a

crime in your that's different before

you rise like somebody commit a Mur if

you have these things and you have those

checks again you look at the touchone

the Constitution maybe we can come up

uh Kil actually you raised a very

important question and I think uh it is

far more than mere you know changes I

think a it either needs fundamental

legislative

restructuring and along with that I

think it needs a complete change of

mindset of the Judiciary also both have

contributed to a de degradation and

decay of the criminal system qu the

Constitutional values we are talking

about we've got these Grand articles 21

20 Etc in the Constitution now what's

the reality give you a very telling

example uh take bail Now Bail in the

most serious offenses everywhere in the

world you get baill leave aside a few

categories of terrorism or child

molestation Etc you get

baill the classic and the only test for

bail is that a you have a presumption of

innocence and the presumption of

innocence can be only effectuated by

giving you bail but putting you on

conditions and it is what we call the

famous triple test you will not

interfere with Witnesses you will

cooperate you will not free flee and

there is no Flight Risk but that is

actually in practice and I'm now talking

of the Judiciary turn on its head by

adding a fourth test which has no place

according to me if you marry the

principle of presumption of innocence

and freedom that

is gravity of the offense

I have for long believed that I must

argue a matter where this gravity of the

offense must be investigated what are

the question of gravity of offense

you're not convicting me you're not

trying me you are giving some subjective

view of gravity of the offense the whole

point of bail is that till you convict

or equit me on the gravity of the

offense you give me bail so the point

I'm making is assume all the three tests

are in my favor I have Roots I can't

flee I'm going to come every day to the

police station still bail is denied

regularly on gravity it's the norm so

this is turning the Juris Prudence of

Bon's head second example this fact of

creating more and more laws with skewed

and special Provisions for Bill I mean

section 45 and all this of the pmla or

the uapa is only some example point is

these

provisions and this is where I fault the

Judiciary have to be consistently

interpreted by the Apex Court to give us

clear Direction and momentum what

happens is today this judge interprets

it in the right way but then there is

some inconsistency I speak in a

different voice so there is chaos these

Provisions have to be interpreted very

strictly many of them actually have to

be interpreted on the Constitutional

Anvil and I would say the best example

is Nesh Taran sha very very minutely

examined the Constitutional validity of

that 45 provision of the pmla which is

Draconian and said it's not

constitutional in many ways but yet our

own courts have then held it differently

the point is if you lean in favor of

Freedom then and otherwise you can't do

it then you have to have legislative

intervention that I don't think going to

happen easily so at least within the

interest you can interpret it correctly

I was I was going to come to bail a

little later can you just add one thing

sir he mentioned about

gravity cooperation now I have a serious

problem with the phrase

cooperation if I'm an accused I have a

right of Silence that right is under the

Constitution nobody can force me to

speak what do you mean by

cooperation does cooperation operation

means you must say what the police wants

you to say well does it mean that I

admit the offense what else is

cooperation see I can understand

cooperation in a case where somebody's

accused of murder murder weapon is not

found so you say yeah tell us where the

weapon is so under Section 27 it will

lead to the discovery of the weapon that

is admissible not a statement I can

understand corre but in any other

economic offense

socalled you first say that we turn the

Innocence on its head by saying that we

will believe that you are not innocent

that's the first thing it's the first

error in these laws the second is

cooperation every judge writes like a

mantra you will cooperate you not temper

with the witnesses temper yes but when

you say you will cooperate what does it

mean no it is worse mul there is there

are judgments which say cooperation does

not mean confession cooperation does not

mean you'll say what you will say but

that judgment comes and then there's a

dissent voice after a short what does it

mean every Jud says cooperation so it

has to be consistently applied that's

right I mean we're talking about bail

provisions actually I was wanting to

take the conversation back to prior to

bail right the custody by the police

right I think bail comes later yes

custody comes first so what are the

parameters for custody is the question I

started with you went on to bail but

we'll deal with that a little later so

what are thoughts on that it's very

important we have stopped for many

decades making a distinction couple

between power of arrest and need for

arrest this a fundamental fallacy I have

a power of arrest I equate it to the

need for arrest today according to me

forget the fact that you are filling up

your uh jails with unnecessary uh

occupants forget the fact that you're

doing it politically motivated in many

cases forget the way that you're

harassing the fact of the matter is that

I would say more than 90% of arrests

would not be justified if you made the

difference between the need for arrest

and the power of arrest correct all the

what do you need to do to justify that

for arrest is the question see there are

two things ideally there should be a

filter by legislation you can say you

will first record these it will then go

that stage when two people have recorded

then you can that is one but that's

never going to happen unfortunately it

is not easily going to happen whoever is

in power you tend to go with the it is

for the courts to start reading it like

that and but again there consistently

five supreme court judgment the same

line then the law will be laid down you

have to say that what is the point of

arrest you are arresting people capil in

most cases we are all doing after 2

years after 3 years anything you wanted

to collect is there papers have been

collected rates have been done

statements have been recorded what are

the need for you are also arresting

people without any evidence at all

that's the other category a far more

serious issue because now if you target

individuals who are are politically

against and you arrest them without any

evidence and then no bail is granted

because there is a suspicion that they

are committed the crime where do we go

from there and if you add 120b which is

what is conspiracy you you know he not

directly involved in any offense you

would say 120b conspiracy now you can't

prove conspiracy there is no basis for

proving conspiracy but you'll keep him

behind bars so the issue is how do you

formulate a legal framework within which

an arrest must take place the hierarchy

of officers is not going to make a

difference and I agree with you the we

need a framework through which arrest

can only happen if Prima fasia it is

established that I have committed the

offense unless unless you're able to

show that to the magistrate there should

be no arrest I think that's very

important so the power should be taken

away from the acons of the police yes

and vested in a magistrate right who we

still trust because he's and who where

the evidence will be produced and some

evidence will be produced he will have

some satisfaction yes and he may give

you the green light yes and he will show

it to us that evidence must Prim FIA be

given to us this is the basis on which I

find Prim F that you guilty but that

again what you're saying is very

important but that'll have to be

legislative I agree I mean I'm just

saying the problem is I don't know when

that will happen meanwhile existing if

the court was to hammer this point every

day in the existing law that you must

show a difference between your need to

arrest and power to arrest and we are

going to examine it you'll find a c

change unfortunately courts are not

applying that test they are saying

arrest is done one more thing

41 A was brought in with this kind of

concept in mind that there is some

filter people people listening to you

won't know what 41 is so there is a

section 41A in the code of criminal

procedure where the police can give a

notice ask you to appear and you then

interact with the police and then an

arrest may or may not happen so there is

some kind of a filter some kind of an

exercise at least rather than somebody

testing somebody on mere susp but it's

not followed so the problem is there is

a direct judgment to the Supreme Court

on 41A we call it the Bible it's called

aresh Kumar that's correct but whatever

Kumar it is it's never been followed in

rare cases I come across orders where it

has been followed in rare cases we come

across courts holding the arrest to be

illegal if there are 100 arrests in

India today probably one may be held to

be illegal on certain facts but it is

kind of given so probably I mean I would

tend to agree with you take away that

power from the eons of the police and

vest it in somebody and if you don't

want to vest it in let's let's say the

magistrate because you know every day

they are also overworked you can think

of a body like the

CVC the the vigilance commission is

generally a good body people don't you

know make allegations against this so

give it that kind of a power that kind

of a level of a person person and you

can grade it if you're talking about an

offense of 7 years arrest in a 7e

offense or a 10 year or 15 years can

grade it and then give that power to

those kind of somewhat neutral

authorities can say look at the file and

say well I feel it's okay I don't feel

it's okay maybe that would be a filter

well you know the problem is the

following if you assume if the police

officer assumes that you suspects that

you have committed the offense and there

are no parameters at all there is no way

to actually test that article 21 says

you life and Liberty Protect life and

Liberty and arrest a man in accordance

with procedure established by law what

is that law

suspicion it is inconsistent with 21

itself how do you correlate suspicion

with article 21 and let's face it this

is a huge reservoir of power which is

abused which you giving to police offic

abused and we also must understand and

it's no critic M to say that the

Manpower which is there in the Western

Country from where we pick up some of

these laws and the Manpower working

under such pressures and conditions here

is totally different it's so easy to

abuse that power here and the checks and

controls Juris I would say put it down

on paper yes the moment you put it down

on paper there is something to test it

with exactly even if it is five lines I

agree with seven lines 10 lines exactly

and somebody looking at it say well you

are not on an unruly he has done

something there is some material yes or

no under the present law when a police

officer arrests you on suspicion he can

keep you in his personal custody that is

what is called police custody for 14

days now under some special statutes and

under the new framework of the nanita

you can be kept in police custody up to

90 days now that's much worse than the

colonial

leader now that means a man or anybody

arrested will never get bid for 90 days

because the investigation is going on so

we are moving to a much worse regime

than we inherited from the colonial era

so I think the Supreme Court must should

be cognizant of these things so kab I

would say that what we call remand to

the police or police

remand is premised on the sanction of

the magistrate right so you have to be

produced within 24 hours of race before

magistrate under the Mandate of the

Constitution the magistrate has to

authorize remand whether it's up to 14

days or any any number of days he has to

authorize right he has to apply his mind

yes should it be done should not

unfortunately I would say that maybe in

one out of probably 50,000 cases a

magistrate would say that not even one

day REM is necessary I have not come

across never you never very very rarely

across case the last case which comes to

mind was Mrs Gandhi's case where the

magistrate said that there is no

material to remand and she was released

some 40 years ago so it is law does

provide for a

check but that check has become

ineffective because the Rems have become

routine mechanical yes a magistrate does

pass an order but you know he's doing

lip service say well they say that we

have to do this we to examine he has to

cooperate to tell us is that okay so

we've seen the case diary and on the Bas

case diary case diary is something which

the accuse can't see cor that is another

so what is the solution the Sol you have

a law being passed like that instead of

a law liberalizing it it's a retrograde

law so the only way out is I mean we are

talking of legislation to improve yes

here you have a legislation in the other

direction the only way would be the

courts have to be robust to strike it

out this will have to be hit by some 21

some but you look at it this way look at

your pmla talk of bail and read the

provision for viewers you will not get

bail unless the public prosecutor has

been given an opportunity to oppose the

application for such release and when

the public prosecutor opposes the

application the court is satisfied that

there are reasonable grounds for

believing that he is not guilty of the

offense now you tell me the accus

doesn't know what's against him I am

arrested on suspicion I am produced

before the Magistrate I have no material

with me how do I convince the magistrate

that I'm not guilty or how does the

magistrate come to the conclusion that I

guilty on the bare text this is an

impossible should have been struck down

no it was struck down the tragedy but it

should be struck down again no but but

but the whole story doesn't end there on

its text this is an impossible standard

to satisfy it was rightly struck down in

a very well- reasoned judgment bying

jurist but the amendment is very

interesting by which they're supposed to

be restored it according to me those

three words added do not at all restore

it what happens after that in the period

after a judgment called Nesh tachan sha

for your viewers which Struck it down

until the amendment came or even after

that even after the amendment most of

the high courts took a robust view they

said this does not mean that I must find

him not guilty by a certification now it

cannot mean that therefore we'll take

broadly the same view then Along Came

the Judgment of the Supreme Court which

we are now trying to review and

therefore that judgment really put the

seal on what a robust view the high

courts were taking despite all this my

fundamental objection to all this is all

this is contrary to our basic freedoms

and why should the court tolerate such

legislative measures which destroys the

very fundamentals of our of the rights

given to us under the Constitution now

if you look at the pmla now and the

viewers will understand you have a 420

offense which is is cheating under the

penal code now if it is put in the

schedule of the pmla it is 420

again under ordinary law you will

entitled to bail if it's under pmla you

will have to show that you're not guilty

of the offense I mean what kind of law

is this and why is the Supreme Court not

looking at these laws that's the next

question I have these kind of laws and

these kind of prosecutions are

irreversible unless you

hear the matter

immediately this matter pmla has been

pending now for months in fact I was

very sorry you and I were in that matter

the reconsideration of the main

controlling judgment in pmla which we

believe and I'm open saying that we

don't believe it's right at all Vijay

madal CH

Jud one full day you argued one full day

I argued I'm ashamed to say that every

attempt was made by the government to

make sure the matter is not heard now

that is the review that without that

obstacle being clear I'm not saying that

you have to win it or you to lose it it

should be referred for reference the

issue is this matter should have been

heard much

earlier what are your views on it m no

see cases which involve Liberty of

hundreds and

thousands obviously should get a

priority and they should be

heard and uh according to me not only

this case but there are several other

cases I mean let's put it this way to

every individual his case is important

yes to every individual you know he he

he has his case to be heard we have

unfortunately we are into a big clog you

know there's a clog of cases there's the

the courts are full of cases mostly

corporate matters relating to my feeling

is that unless we

drastically amend the system of hearing

of cases in courts this problem will

remain I mean you may aggravate it or

you may bring it down what do you mean

by amend the system let me sort of ask

you what I mean is that the whole system

is cool what that I mean what what the

let's come to specific yes yes let's

start from the Supreme Court the Supreme

Court was formed in 1950 to hear a

particular class of cases involving the

Constitution or very very important

questions of law of Liberty of uh

freedom of press of

things like that the Supreme Court

itself after 20 or 30 years I would say

or after 20 OD years it forgot the

Supreme Court has forgotten why it was

established it has today become nothing

and nothing more than a regular court of

appeal every day we do hundreds of cases

in the Supreme Court they are mundane

cases they should never have gone even

to the high court much less the Supreme

Court every bail goes to the Supreme

Court every injunction goes to the

Supreme Court unless you set that house

in order so you first set the Supreme

Court in order but you must have you

must revisit the court must revisit what

it was meant to do and what it is doing

that will then percolate to the high

court the high court will say what it is

supposed to do unless you do all that

but I am on another question you're

right I'm you're talking about large

structural change I'm on another issue

there are cases which are of seminal

importance s the Liberties of our people

right those cases are not being heard

for years right there are other matters

that are being heard in priority the

question is who decides the priority

should the priority not be decided in

the context of the damage it is causing

to to people whose freedoms are being

taken away now that should get priority

no that is not in the hands of the

system that's in the hands of of Judges

themselves and the best example of what

you're saying is your recent Judgment of

electoral bonds yes what happens is that

the system ultimately reaches the matter

and possibly gives a right result as it

g the Electoral BS but the damage is

done completely exactly a former Chief

Justice has repeatedly by presence said

that we'll hear it next week next month

that next month next week in 2019 became

2024 the problem is in the pmla for

example if after say 6 months one year

some of these Provisions are declared to

be unconstitutional then what happens

then what happens for example all the of

was gored you mentioned electoral

bonds I would still like to add yes it

is

important it is more important for

political

people an individual who looking for

bail

or his or Maan you don't bother about

electoral Bond both of you are

politicians so it's important from no no

I we didn't I didn't say that no that's

my thought but as a pure practitioner of

the law what is more important by far

is affecting Liberty of hundreds of

people undoubted I mean I would rather

say this should be heard don't give a

damn about electoral bonds whether 5,000

to BJP or not the general public is not

concerned no no no General we'll leave

that out that's that's controversial but

but freedoms are far more far more

important than all other point is little

different that the time taken to give

the right verdict the benefit of the

wrong is already absorbed that's the

point do elor Liberty whatever damage be

is done but then it's happening

everywhere a small individual he gets

acquitted after 8 years he has served

the sentence he has served

everything I agree with decide these

larger issues of law which will affect

not individual whole according to me is

the prime case which should be heard at

the earliest for these kind of

provisions and as to whether it has been

rightly passed as a law or not which

hits at the roote that's right and it

should be heard according to me by five

Jud judges so that it settles the law

five senior most judges should s the law

cap the Judgment which was delivered

which is the bane of all these problems

by a three judge bench that's the

procedure was wrong by saying I will

decide on the validity but I will not

decide whether it was rightly born under

under the money Bill or not you cannot

separate if you find you have upheld the

law people are in jail they can't get

bail for 5 years four years after three

suppose it is held that it was wrongly

passed by parliament it could not have

been done corre how will everything else

be undone you can't leave that challenge

separately that should have been the

first decision absolutely rather than

three straight away five or seven judges

is this law born correctly but assuming

you right this court can easily hear the

matter yes on on the issue of money Bill

it has been pending for long why

shouldn't it hear it that should have

priority especially in the context of

freedoms according to me that should be

heard first and then of the Judgment

these are very important things I think

they realize it but this just not

happening because the threshold question

will affect so many sectors not only it

be irreversible you know after a while

it'll be irreversible now the next big

issue I want to discuss with you we have

had a fascinating discussion is about

conspiracy

120b now in every offense where you do

not have direct evidence against an

individual you add 120b

now that man will never get

bailed there are no there is no proof of

conspiracy till the end of the

trial now what happens to that category

of cases and those kind of those accused

who are involved in the I 120b is should

120b be used in this fashion under a

criminal that's the point first of all

it has been around but the misuse and

the use in which it is done now was not

being done earlier that's the tragedy

even with similar Provisions you are

really misusing it now number two in

every case I'm finding an argument which

is completely used not to be raised

earlier that 120b is a standalone 120b

the tail will Wag the Dog it will stand

alone now there is fortunately and these

are the kind of things which are

required judgment which says that you

cannot have a 120b alone under for

example the pmla it's a very robust

judgment but even today at as of

yesterday or day before the argument is

still continuing it is Justified it is

not there any number of cases I'm doing

where 120b as a stand alone is Justified

after a judgment there has to be also I

think somewhere a sense of

responsibility by the people who still

propound an individual case that look

this is now covered this should go

forget pmla 120 be used in

every to get involved to get people as

accused who they want I am only I I

believe I really hope that judgment like

this are also made in the other non pmla

category and they're consistent my fear

is always that you make the right thing

and then somebody changes the law in

another judgment shortly again in 120b

there should be some legal parameters on

the basis of which you can involve

somebody and in conspiracy what are your

thoughts on that my thoughts are on your

last comment see one thing is to lament

that the court is doing this court is

not doing it that's one issue I mean

there's no point of lenting Beyond a

point you have to bring a structural

change in 120b it's a 150 year old law

correct it is being used or misused or

whatever just as we were discussing that

the power of aresto custody should be

with the body apart from the police some

structural change should be brought in

that because it's it's a all Encompass

encompassing provision be conspiracy

small conspiracy big conspiracy larger

consp all these things are developed so

you put in something in 120b and if the

legislature doesn't do it the court

should step in to say that the rigers of

120b will be tested on this

this some some

material correct in some form or the

other correct and the classic test is a

pre Council test where some people

robbed a

bag one guy was waiting in the car the

the getaway car get away getaway car

he argued that look I didn't do the

robbery I was only driving a car so they

said no you are a part of the scheme and

you were looking police and therefore

you will be a part of conspiracy because

you were in the scheme cases you were

talking about nobody this man doesn't

know what is going on there exactly

exactly so unless there is some

structuring said by PR Council 100 years

ago so you structure that through the

court it won't happen through Parliament

structure it through the court

take out that prev Council judgment put

your own impr in whichever manner you

want into it I have seen cases speech

the Mumbai and some violence took place

in Delhi they will say but he was the

lynchpin the man who gave the speech in

Mumbai and he'll be involved in

conspiracy I've seen this happening and

people are in jail for 3 years four

years for this kind of stuff this is a

very serious issue and the problem then

and the last issue before we before we

close this uh wonderful discussion

is that why does the trial court never

Grant bail to

anybody this is a very serious issue as

a matter of course no magistrate will

grant bail in the rare case maybe I'll

tell you you this very serious issue our

experience shows that when we started

practice the high court used to write a

five line order and Grant bail hearing

would last 5 to 10

minutes as things progressed the laws

became more complicated and

unfortunately the Supreme Court which

was supposed to be the beacon beacon of

these freedoms despite saying bail is

the rule not jail

Etc the Supreme Court I sorry to say has

become

small-minded a large number of bail

orders are today interfered with yes

which was never the the job of the

Supreme Court even 25 years ago that's

correct every second B order is

interfered with a gr of bail is stayed

by the court that's correct that you

remain in jail normally if you have bail

it can never be stayed you cancel it in

case but you never stay but since that

is now happening in a mundane fashion

routine fashion you know that also

filters down I mean High Court judges

also say if we Grant bail next day is St

comments are made why you granted bail

so it filters

down remarks are

made mindset the magistrate

is it's a strange I think there is also

feeling being

generated goes to

the the Supreme cour that is one part

there is another part for special

categories and this is I think important

in practical terms for special

categories you have special

judges now it's okay special judges is

valid you must have special Judes you

must Fast Track certain categories but

why should you have the same human being

a special judge for

years you know whether it special M MP

MLA Court speci by MP MLA Court you

certainly have but we are now finding a

chain where trial judges are lasting two

years there's no problem we nobody's

asking for a particular judge you rotate

the judges every 3 months High Court

judges in that category are lasting two

or three years the net result is the

chain of command is made straight away

where the result is virtually you know

known because you know the particular

I'm not saying anything Bona or not but

it could be Bona but my predilection

even Bona makes a consistency of

negativity right up to the Supreme

Court you know recently even now people

used to say

that's

[Music]

corre that's

corre

mindset you know this is actually well

all that I can say is that we've touched

the tip of the iceberg absolutely there

are so many very serious issues

absolutely that bevil the functioning of

the Criminal Justice System but thank

you very much for being here because uh

this this will I hope I hope people who

listen to this uh understand because we

are here not for any personal issues we

are here for the larger interests of the

country in the context of the freedom

that we cherish and I hope that we are

going to meet in future and have some in

discussion on many of these issues thank

you very thank you sir thank you very

much