Are the new criminal laws better or worse? | India's Top Lawyers | Sibal, AM Singhvi, Mukul Rohatgi
Summary
TLDRIn 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 Singh, debate the perpetuation of outdated laws, the misuse of police powers, and the challenges in the bail system.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
📜 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.
🚨 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.
🛡️ 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.
🏛️ 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.
📖 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.
🔄 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.
🚫 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.
🌐 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.
Mindmap
Keywords
💡Colonial Legacy
💡Criminal Jurisprudence
💡Code of Criminal Procedure
💡Indian Penal Code
💡Police Remand
💡Article 14 and 19
💡Arrest on Suspicion
💡Bail
💡Presumption of Innocence
💡Judicial Activism
💡Conspiracy (Section 120B)
💡Special Courts
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
浏览更多相关视频
India Rolls out new Criminal Laws to Replace Colonial-era Ones | Vantage with Palki Sharma
No more IPC, CrPC: 3 new criminal laws to come into effect on July 1 | UPSC
PANCASILA dalam Konteks Ketatanegaraan ZM
Chief Justice of India Dhananjaya Chandrachud speaks about the role of judges in humanising the law
Attorney General Kamala Harris: Innovation & Evolution in our Criminal Justice System
Surveillance Laws in India: Legal Breakdown & Privacy Concerns
5.0 / 5 (0 votes)