With a triad of new laws replacing the legal core of colonial-era criminal justice—the Indian Penal Code (IPC) of 1860, the Code of Criminal Procedure (CrPC) originally created in 1882, and the 1872-vintage Indian Evidence Act—Union Home Minister Amit Shah foresees that India will have the most modern justice system in the world. One of the ills it addresses is the frustrating slowness of the existing system, where the process becomes the punishment. Shah says people will now not have to wait for years to get justice. “Justice will be delivered to the victims under the new laws in three years. The ‘tarikh pe tarikh’ era has gone into the abyss,” he says, alluding to a popular Bollywood dialogue on the culture of court hearing adjournments. This systemic reform, according to him, will happen in complete sync with the spirit of the Constitution of India.
In a freewheeling interview with Santwana Bhattacharya and Rajesh Kumar Thakur, Shah takes questions on various facets of the three new laws—the Bharatiya Nagarik Surakasha (Second) Sanhita, 2023; the Bharatiya Nyaya (Second) Sanhita, 2023; and Bharatiya Sakshya (Second) Bill, 2023. The first proper revamp of a 160-year-old criminal justice system, Shah calls it “a historic step towards realising Prime Minister Narendra Modi’s resolve to eliminate every symbol of slavery and the colonial mindset from the justice system.”
Excerpts:
You say the three new laws will bring a comprehensive change in India’s criminal justice system, and also free citizens from the colonial mindset. How?
The new laws have three dimensions, and they must be seen from three perspectives. Then only can one understand the larger picture. Firstly, as I have said, these laws represent and embody a fully Bharatiya nyaya vyavastha (Indian justice system), which liberates us from the colonial mindset for the first time after Independence. Two, after implementation, they will become the world’s most modernised criminal justice system, in line with the technological era. Thirdly, in a country of 130 crore where the people were perennially waiting to get justice on time, I can say with full confidence that with the implementation of these three laws, if any FIR is lodged in any part of country, justice will be ensured within three years of the registration of the FIR. Taken together, these laws are thus poised to be an era-changer in the country’s criminal justice system.
I wish to elaborate a bit on the first point: on how these laws embody the spirit of Indianness. The soul of these laws is justice—they are not oriented towards penalising anyone but to ensure justice for all. The old British-era laws were enacted not for the citizens of this country but for the security of British rule. They were aimed at protecting the treasury, the railways, the safety of the British crown. The old laws were in fact enacted after 1857, to suppress any more revolts against the British rule. So they were intended to thwart justice for Indians. Our Prime Minister had said from the ramparts of the Red Fort that India should be freed from that mentality and all symbols of slavery. I can say with certainty that our new criminal justice system will free us from that mindset. It is people-centric and justice-oriented.
These three laws have been brought after wide discussions at 158 meetings, going through literally thousands of suggestions. The Bills were sent to the standing committee of the Home Ministry for consideration and now, under the leadership of Prime Minister Modi, these laws have been brought on the basis of the principles of justice, equality and fairness. The provision of community services for thefts valued at less than 5,000 rupees is an instance of the how these laws have been conceived of as people- and justice-centric, as per the Indian legal philosophy. Their basic objective is to deliver justice within three years and provide victims freedom from the tyranny of ‘tarikh pe tarikh’ (literally: date after date, referring to hearing adjournments). The biggest challenge for the poor used to be the long wait for justice. That era of delayed justice will end.
You assert that the new laws will be justice-centric, not punishment-centric. Apprehensions have been expressed on that score, however, by legal scholars, practitioners and potentially affected parties—for instance, the truckers. How do you meet these objections?
The new laws have a whole host of rational provisions that widen the scope of justice—for both victim and accused. Small or first-time offenders have been given a chance to free themselves from the trap of prison in a total of six offences. Those named in petty cases, either under some compulsion or mistakenly, will get a chance to improve themselves by rendering community service. And summary trials are now mandatory for petty cases; a magistrate now can conduct these for sentences of up to three years. Earlier, the police often used to pick up people and keep them in custody without informing their families about the detention or arrest. Now, all police stations will have to mandatorily keep a register accessible to the public online mentioning whosoever has been picked up and how many people are in custody. And the police will have to produce them in the court within 24 hours or give them official remands. Earlier, the police could do search and seizure without videography; now videography, in the presence of two neutral witnesses, has been made compulsory for all search and seizure operations.
For victims, earlier, your complaint could just languish without seeing any response. Now the zero FIR has been institutionalised, and the victim has the right to obtain a free copy of the FIR. It has been made compulsory to give a response to victims after they lodge a complaint, to provide them information within 90 days thereafter, and also about the progress of the trial fortnightly by SMS or other electronic modes of communication. Earlier, the victim’s consent was not needed to withdraw a case; now that has been made mandatory. It has also been made compulsory to present audio-video recordings in court. Witnesses, the accused, experts and victims had to appear in court in person. Now they may appear in court virtually. Another notable part of the laws is mandatory submission of investigation reports within seven days in cases of sexual harassment and framing of charges within 60 days of the first hearing. The judgment too must come within 45 days of conclusion of hearing in criminal cases.
You could summarise the three main justice-centric features as: the opportunity to be heard, the right to information, and the right to compensation for damages.
As far as truckers are concerned, we are in discussions with them and we will not notify those particular sections till that’s done. The provisions are that if a driver knocks down anyone but informs the police, no stringent punishment will happen. If drivers inform the authorities about accidents that occurred due to a mistake, their liabilities are finished. There is an arrangement on each National Highway to dial 108 in case of accidents—in India, the maximum number of accident victims die due to excess bleeding. So the law incentivises the saving of lives.
How will these laws help tone up policing?
Look, the entire system will change with these laws. They utilise all new technologies and space has been created to accommodate all upcoming technologies in the next 50 years so as to ensure swift justice to victims. The entire policing system will thus be overhauled. No aspect will get stuck in paperwork—from e-records to zero FIRs, e-FIRs and chargesheets, a number of procedures have been digitalised. Chargesheets can now be on pen drives, instead of having to be produced in paper. Evidence can be brought to court virtually. Rape victims can give e-statements, recorded on their mobiles in the presence of family members. In offences liable to a sentence of seven years or more, scientific forensic methods have been made mandatory in investigations with an aim to increase conviction rates to 90 per cent.
At the same time, now trials can be conducted online. It used to take months to serve summons to accused. Now summons can be issued on WhatsApp and the moment the person named opens the message, it is deemed to have been automatically served. A provision has also been made for e-appearance, so there would not be any need to take the accused from prison to court. So, from police investigation to court proceedings, everything has been computerised because we are aiming to create the world’s most modern justice system.
We have made several decisions in line with PM Modi’s vision to eradicate corruption from the justice process, in addition to a provision for having a director of prosecution at both state and district levels. One of the most notable provisions relates to the objective of ending corruption in civil services: these laws now make it mandatory to take decisions regarding such cases within 120 days of registration.
The modern trend is towards reformative justice, towards more humane provisions, securing the rights of the innocent not to be punished, to reduce time in custody for undertrials and enhance chances of bail, and fix the time-frame for investigations. How do these laws relate to that?
We are in line with that spirit. Besides the chance for reform through community service for small or first-time offenders, any first-time offender who completes one-third of the sentence will now be eligible for bail. If an offence is committed a second time, and the accused has completed half of the total sentence, he or she is again eligible for bail. During the entire prosecution period, the police, prosecutors and judges have been bound in a time-frame in 35 sections. The investigation has to be completed within 90 days. The time-frame has been fixed for taking cognisance. The judges will have to deliver judgments within 45 days after completion of hearings in criminal cases.
And what about “proclaimed offenders”? How do the new laws move there?
To declare anyone as a proclaimed offender, we have to see that the accused carries a sentence of 10 years or more, or life imprisonment, or the death penalty. With these, the fugitives’ or offenders’ property—either within the country or outside—will be attached. We have made a provision to start trial for bhagora apradhis (fugitives) even in their absence. For example, earlier, if say Dawood Ibrahim runs away and settles down somewhere else, due to that the trial does not start in a key Mumbai bomb blasts case. Now the court will provide a defence lawyer and start trial and, if the case is worthy of sentence, it will be pronounced. If any fugitive has any dispute with the pronounced sentence, they would have to come to the court and appeal. If they don’t, the legal status of their case will change. They will be convicted. Be it economic offices or terrorism-related offences, the property of all those who have escaped from the country after committing such crimes would be attached…even outside of the county. The case for their extradition will get stronger. It is for the first time that such provisions have been made in the Indian justice system.
How do the laws relate to the need for transparency and accountability to the citizenry?
It has been often seen that poor victims, who don’t have much influence, are denied justice or have to endlessly wait. Individual and systemic corruption was the cause. Whether any appeal is to be made or not was earlier decided by those who did not deliver them justice in the first place. Now, in line with PM Modi’s vision to eradicate corruption from the justice system, we have decided to set up an independent body at three levels to decide whether appeals are to be made or not in cases where the poor are victims.
There will be a Directorate of Prosecution in every state consisting of a Director of Prosecution, and a District Directorate of Prosecution comprising as many Deputy Directors and Assistant Directors of Prosecution as it thinks fit. The Director of Prosecution will decide whether appeals are to be made or not in cases involving a sentence of above 10 years; sentences between 7-10 years will be decided by the deputy director; less than seven years by the assistant director. The overall objective is to eradicate corruption, improve the efficiency of legal processes and ensure effective prosecution at both the district and state levels. We have also worked to create a uniform justice system throughout the country with provisions related to judges. With the implementation of these new laws, there will be only four types of judges—second class judicial magistrates, first class judicial magistrates, sessions judges and executive magistrates. The third class of judicial magistrates, metropolitan magistrates and assistant sessions judges have been eliminated.
There are also misgivings in the legal fraternity, and not only about adjusting to the new laws and their vocabulary. Will that delay the implementation?
Whenever you change laws, such situations arise. Will this country be run with 160-year-old laws? We can search for ways to ease any contradictions or problems in practice, if they arise. Soon after notifying the laws, the old sections and laws would be seen written in brackets with the new laws. We have already published books on the new laws in all the scheduled languages of India, with the old nomenclature in brackets. The MHA is also developing an app explaining the new laws and dispelling confusions, if any. It will be launched soon and be made available on mobiles. In two to three months, every section and provision of the new laws will be memorised by all in the legal fraternity as well as the law-enforcing agencies. We are moving towards victim-centric justice and towards freeing people from the colonial mindset and its symbols. But those attempting to harm the country will not be spared at all.
But the apprehension is that the new laws will bring police raj in the country.
I am telling you that today, when the police conducts raids or does search and seizure, no videography is done. Now that will become mandatory. Does this increase or decrease the authority of the police? For the first time, we have made a provision for a Preliminary Enquiry to check against the registration of fake cases. This will have to be conducted before lodging cases. Does this decrease or increase police authority? Today, if the police arrests anyone, it does not have to inform the family of the arrested individual. Now it will have to keep registers in each police station and make the information available. Does that increase or decrease arbitrary police rights? As per the new laws, if an arrested person is not produced before a magistrate or in court within 24 hours, the police officer will be liable to a criminal offence. Does it increase or decrease police rights? When a case was lodged against a police officer, permission from the authority concerned used to take years. Now, if such permission does not come within 180 days, it would be treated as deemed permission. In total, 20 provisions have been made to ensure police accountability and to curtail arbitrary police authority. But where criminals used to escape taking advantage of the lack of police adhikars, we have given the police due authority to act. Those who do not respond to the country’s judiciary system should have no rights.
What about mob lynching? Some have found it striking that there is an explicit provision there.
I am happy to make it clear that, for the first time, mob lynching has been defined through these new laws. There is a section in our nation that sees the menace of mob lynching as an outcome solely of the communal divide. But you will find it surprising to know that in most of the cases of mob lynching, the victims are thieves. The second highest number of victims are women who are targeted as witches because of superstition. Then there are couples in inter-caste or inter-faith marriages. Mob lynching is also done following religious fights. The Narendra Modi government is committed to checking all such crime with an iron hand. Till date, the so-called secular governments of the Congress never brought any laws against mob lynching. We have made special sections on it, with provisions for seven years of imprisonment and 10 years in case anyone sustains permanent disability in a mob lynching case. We have also made a provision for the death penalty. That model of deterrence is also there in cyber crimes.
‘India will have the most modern justice system’
Has terrorism too been defined in the new laws?
Yes, it is difficult to deal with anything without first having a proper definition of it. Adopting the zero tolerance policy towards terrorism, we have for the first time defined acts that will invite the charge. Acts that endanger India’s unity, integrity, sovereignty, security or economic security have now been categorised as terrorism, with provisions for the death penalty or life imprisonment. Whosoever tries to play with India’s unity will be dealt with heavily.
Do you think, as the home minister responsible for internal security, that such laws can curb insurgency?
I cannot claim that laws will end insurgency. First let it be known that insurgency does not come under the definition of terrorism. But the process to end insurgency will get faster now and police forces will get strong legal support from these laws.
We also see a shift in definitions when it comes to sedition—with the concepts of ‘rajdroh’ (crime against state) as distinct from ‘deshdroh’ (treason). There are also concerns about it given the use of sedition laws in the past. Could you explain the new concepts?
There is a big difference between ‘rajdroh’ and ‘deshdroh’. Earlier, speaking against the state was enough for it to be treated as sedition and under that many, including Savarakar and Gandhi, were jailed. We have removed the idea of ‘raj’ from this and kept the offence related only to ‘deshdroh’. Whosoever acts against the unity and sovereignty of India are sentenced with seven years of imprisonment. We have left no space for any misuse of this law. But if anyone says even performing an act against the country should not be seen as a crime, we are against this. We will not spare anyone who goes against the country.
It is being said that the adultery law has been diluted and it is no longer gender-neutral?
The adultery laws have not been diluted. The SC has already taken a decision on it.
There is unhappiness on the use of Hindi vocabulary for the new laws. How do you take this?
Look, several laws have been enacted in Hindi before this and, out of those, many were made when the DMK or AIADMK was in alliance. This is being made into an issue just because we have brought these laws. You are accepting English but not accepting a language of the country. Slowly, these words will be on the tongues of everyone. For it is not only the titles that have been changed. The very spirit of the old laws has been changed.
When will the new laws be notified?
I can’t give the exact date right now but we will not allow the notification to drag into February.
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