 in a move that the government has variously defended and described as a welcome departure from colonial-era jurisprudence, as a move against gender stereotypes in India's legal processes, and as a shift away from trunitive law to a deterrence-based system. India now has a new code of criminal procedure, a new evidence act, and a new Indian penal code. These laws are now known as the Bharatiya Nagrik Suraksha Samhita, the Bharatiya Saksha Samhita, and the Bharatiya Nyaya Samhita. They will come into operation the moment these laws are notified by the government, followed by the president's assent granted on 25th December. The biggest questions now are how, if at all, do these new laws and regulations affect ordinary people? Should citizens listen to some of the very earnest sounding criticisms of these laws which have come lately from very serious and reputed legal thinkers and practitioners? For example, that the police have been given very wide powers which will hurt citizens' right to liberty, that the nature of criminal cases, the jurisprudence around them will change in character to make the state more repressive. Today, we have with us joining us over Zoom Sanjay Higde, a senior advocate at the Supreme Court of India who has had an illustrious career in the law for over three decades. They're going to pose some of these important questions and concerns to him. Thank you very much for joining us. It's a very important day. Yesterday, we found that we have a new IPC, a new CRPC, a new Indian Evidence Act. Of course, the names are now in Hindi. But let's begin with one of the very important claims the government is making. These laws are breaking the colonial shackles. Is that really true? Is that what you would say about these three new procedural and substantive laws? I wonder what breaking the colonial shackles means because ultimately, most of these three laws are replications of what already existed. About between 80% and 90% of these laws are still the same word for word. You have broken the colonial shackles by repackaging them or by using Bharatiya Samhita so and so, et cetera, et cetera. Well, you're entitled to that opinion. But at the end of the day, it is not as if you dwelled into new jurisprudential concepts or took them out of some ancient Upanishad or the other and then built upon that. Laws are often a product of societies. You had most of the Western world's laws come from the Judeo-Christian code from the 10 commandments, thou shalt not kill this, that, and the other. And then they've been put into shape. And as far as India was concerned, we had the poet, among other things, Thomas Bebbington Macaulay who wrote the IPC, the Indian Penal Code, and you had Fitz Ravens who did the Criminal Procedure Code. Now, that has set in a system. You have not really made systemic changes. What you've made is that you've made some changes and you've put in a new cover. Is that breaking the colonial shackles? Well, if you want, you're entitled to think so. But let me give you one more example before we go off this subject. The colonial period also gave us the real ways. Now, assume you decided that that was a colonial relic and we shall have a new Bharatiya gauge measurement. So you would have to necessarily then rip apart the tracks, change the signaling systems, change the bokees, the coaches, everything. What would you have achieved? Nothing much. I mean, trains ultimately still have to go by the laws of physics, right? Absolutely. So what does this exercise bring for the country? Except a lot of aggravation, a lot of uncertainty. Now, can you imagine that in all the police stations all over India, the person who writes the FIRs has learned the new laws. He wants to write 302. What does he write now? Does he go, does he sit with the law books or does he do his normal work? Absolutely, when you rejig the sections and you rename the sections, then it creates a lot of chaos, I can imagine. But then one thing the police stations across the country will probably learn very quickly is that they can have custody instead of 15 days. It goes up substantially now. So is that, I'm not going to say whether it's breaking any shackles, but was this necessary? Was the police struggling when it had just 15 days custody? Most crimes are simple, right? It's a robbery, it's a killing, it's something or the other. And the police have gone about investigating or not investigating them and have filed charges over a period of over 100 and 150 years. So when people asked for bail, the magistrate would first wait normally that let the time for police custody run out. Thereafter, I'll consider your bail. Now, if the police can take you in installments up to a period of 90 days, that initial period itself gets stretched out. So effectively, when a policeman decides that he is going to arrest you, he is saying, please say bye-bye to the world for the next, what is it, six months a year? Three months. Or whatever period I deem fit to keep taking your custody and keep returning you back to judicial custody and whatnot. So what is the essence of a police state? It is giving the policeman too much power over the liberties of the individual. And liberties once lost are not easily regained. So one of the things that the government has again said that, well, look, we are not becoming a punitive state, we are becoming a deterrent state. So that's a very interesting claim because actually the penalties are going up for quite a range of offenses. So is the higher punishment which is written in the statute books going to be a deterrent? Is that the argument? And does jurisprudence work like that? Does a law work like that? See, do you think that a person who is possibly likely to commit a crime is going to be deterred by the quantum of punishment that he's likely to get? No, at that point of time, he's doing a crime because of his particular mindset or his particular circumstances. Okay. And he thinks he's not going to get caught? Absolutely. The deterrent theory of punishment has not been proven to have worked anywhere. Punishment is there as your debt to society, if you have gone wrong. And also, so that there is a sense of justice which is visited upon the victim, which the victim gets that so and so the bad man has been put away. Now that goes, the deprivation of life at liberty under the constitution has to be by a procedure that is fair, just, and reasonable. That's what the Supreme Court held in Menka Gandhi. The question is now that the procedures that you've bought in are they fair, just, and reasonable? Can you sort of put people away under sections which are so vaguely worded? For instance, there's this very interesting section called section 69. Section 69 says sexual intercourse by employing deceitful means, et cetera. Whoever by deceitful means or by making promise to marry to a woman without any intention of fulfilling the same and has sexual intercourse with her, such sexual intercourse not amounting to the offense of rape shall be punished with imprisonment of either description for a term which may extend to 10 years and shall also be liable to find explanation. Deceitful means shall mean the false promise of employment or promotion, inducement or marriage after suppressing identity. Now, look at the number of value judgments out here. When a policeman has to record an FIR, was there deceitful means right in the beginning and what is deceitful means? After suppression of identity. Now, supposing, now look how wide these terms are. Of course, the intention we all know. People of one religion should not be following another, people of another religion is what will be inarticulate. Not just women, you know. People of one religion should not be following. Women of another religion, of course. Since we don't have gay marriage in this country, fine. Women, now the patriarch, he is writ large here. Then after suppressing identity, what does identity mean? How rich am I? What are my educational qualifications, my caste? Yes, your caste, exactly. So this is a key where when parents do not like what a young in girls choices are, they can very well get a complaint filed under this. And if the policeman chooses to arrest you, then you are 90 days plus out of circulation. So we are criminalizing. We are criminalizing all kinds of things which should not have been criminal in the first place. You know, the Supreme Court sometimes lamented that before you make laws, do you ever go into what is called a litigation impact assessment? Will the law lead to more litigation or less litigation? The normal sort of civil wrong of not paying your debts was criminalized when you had these check-bouncing cases. Right. Check-bouncing was made a criminal offense. And each word of that section had to be passed several times by several judgements. And if you go to any criminal court, there will be at least three or four courtrooms dedicated only to such offenses. Okay. This is such a huge drag on the system. This is one section, mind you, in the negotiable instrument side. Right. Now when you have a whole court full of vague sections, please imagine the amount of time that it will take to get a judge's undivided attention to the facts of your case. That is going to be the real challenge. And then there is also an interesting part in the new laws, which relates to crimes offenses against marriage. Here, the whole section, actually a lot of attention seems to have been paid to offenses against marriage, what kind of penalty you'll involve. And there is, for example, another section which is illicit sexual relations, but they haven't said what is illicit. Now, is it sex before marriage, without marriage, sex while you're with someone else while you have a legal husband or wife? What is illicit? It sounds like a moral judgment rather than a legal terminology. Well, the illicit is whatever the policeman of the day decides before the courts of the day get to decide. That's it. So, if you are having sex with anyone other than your lawfully wedded husband or wife, then there is hell to pay if the policeman decides to get involved. Now, these same sections could conceivably be also used in cases where people are married or have gone through a marriage ceremony, but the marriage ceremony has not been recognized, has not been registered, has not been legalized in some form or the other. Where the marriage is being led. Even there, there could be. Yes. So, all kinds of everything will then again and again come down to judicial interpretation. It will be first at the trial court stage, possibly will reach the high courts and then the Supreme Court and then you will have a leading judgment. So, what I actually see is plenty of work of statutory interpretation for a whole generation of lawyers and judges. All right, let's move to some other provisions. There was often a demand that some of the laws be defined more specifically like the laws related to terrorism, crimes against the state, et cetera. Do you think the government has done a good job of creating these specific crimes which are, are they clearly defined? Do we know now what is terrorism? Do we know the difference between Rajdhru and Rajdhru? Is it going to be easier for the judges and for the police? Nothing is going to be easier for the judges. Everything is going to be easier for the police. When you put in value judgments, like that word illicit, then it would have to be the initial judgment of the policeman as to whether a crime has occurred or not and then to register in a fire and then process the case, including arrest of the perpetrator and it will be a job of fresh interpretations of the new sections for judges saying, yes, the policeman is right. Yes, no, the policeman is not right. And then the judges will have to be second guest up the appellate system. So that will be the natural result. And as far as the sedition part of it is concerned, I mean, it's not as if this is a new code which is written in Hindi, the operative language is still in English. Right. And what the home minister spoke on the house in Hindi does not necessarily impact the interpretation of those sections as they are laid out in black and white in English. And so while the word sedition may have disappeared, the concept remains. And it is as vague as the previous section. So for instance, who is a terrorist? If he participates in a terrorist act, prepares for a terrorist act, promotes terrorism, organizes or directs others to commit terrorism, contributes to the commission of terrorist acts by a group of persons along with the common purpose of furthering the terrorist act where the contribution is made intentionally and with the aim of furthering the terrorist act or knowledge of the intention of the group to commit a terrorist act or is otherwise involved in terrorism or any organization listed in the first schedule to the UAPA or an organization operating under the same name as an organization so listed. So now somebody comes to a lawyer and says, please appear for a client. This is an allegation and the family is poor, they can't pay, but please, out of your pro bono instinct, please appear. So have you then organized or directed others to commit terrorist act or contributes to the commission of a terrorist act? So there are so many vague kind of sections right now. And we are leaving Indian society and the Indian people to the tender mercies of the Indian police. Well, I want to ask you, how did this happen? I mean, the opposition was not participating in the debates on this law, but what about the pre-discussion legislative stage? Was, you know, certain amendments were suggested, but they didn't seem to relate to many of these things we're discussing now. No, no, these drafts were out. These drafts were out. They had been criticized. People like me, Professor Mohan Gopal, who was former head of the National Law School of India had written about it. Nevertheless, there was also an assumption that after the bill was introduced and went to a committee, that the committee report would be possibly taken seriously, but then things were rushed through the committee. Descent notes were not, had to be then penned by people like P. Chidambaram, Derrick O'Brien and a few others, but none of that was taken into account. You see, there is a obsession of this regime with the grand gesture. We have to be, we have to do something. This is something. Let us do it. And here too, it was like when GST came in. It was rushed through Parliament so that there was a midnight session and all that. And the operation of it is still not there in place. You ask any set of traders what all they have suffered and also the possibilities of arrests which have been very frequently done. Now, we are going to be in a GST-like situation as far as the criminal law in India is concerned. But they say that only those who have done something wrong need to fear the law. Those who are, those who are not. I'm sorry, everybody is a potential suspect. Whether you have done something or you have not done something, you are entitled to your day in court, but that day in court for a trial is at some distant point in the future. Tomorrow, if your neighbor were to file an FIR against you, say, he did this, that and the other, and you say, no, I did not do it. Who is the first point of interface? It is the policeman. And if a policeman can put you away for more than 90 days because that 90 days, 60 days or 90 days need not be consecutive, then you have given the policeman extreme power. And then we come to the last bit which has drawn some attention, which is the changes to the evidence act. Now, is it that what somebody says to a police officer becomes admissible as evidence? Can you explain for a layperson what that means, how it changes life for the ordinary citizen when such a change comes about? I see the normal law, the previous law was that statements to a police are not evidence, but if you make a statement and subsequent to the statement, there is something like a recovery. Say I, supposing I tell a policeman, well, we got into a fight, there were, and I had a knife on me, I tried to defend myself. The knife went in, then I took the knife and I threw it away in a field. Now, I can show you which field it was. And thereafter, if the policeman went there and found that knife and tellied it with the wounds. So that last part, that look, a knife was found, pursuant to a statement made by him, that could be used as evidence. All right. Now, if the entire contents were to be, were to be available as evidence, that I actually stabbed the person, the contents of the statement were to be used in evidence, then it's a whole new game. So what incentive is there for a policeman to actually investigate a case? All that he needs to do is to take the person into custody for 90 plus years with the hell out of him, get a statement and say he is confessed. Will there be a challenge? Is the Supreme Court going to be where these laws are discussed? No, every interpretation of the each section might end up in the Supreme Court, but that's going through the normal process and over a period of decades. But the very constitutionality of these sections, I doubt that the Supreme Court will take a kind of bulk challenge. I doubt it when, and for all you know, there will be some overzealous first filers who will come up with not necessarily a well-drawn petition who might just tell, who might just get the court to say, no, no, no, we are not going to look at it at this stage. And therefore, all those challenges, all potential finely crafted challenges to each separate section, might all die in a kind of comprehensive manner. I hope that people do listen to this and consider very carefully as to what challenges that they want to really live in. So, what I'm actually wondering is, is it inevitable now that these laws will come into operation? What are the options for citizens who might be very concerned about what's going on? See, the laws will come into operation the day the government notifies them. But there are some laws where the governments have passed it, presidential assent has been given, but yet the government finally took a look at it and did not decide to notify it. One example was the delirium control amendments. And the Supreme Court said that we can't force the government to bring into force laws or as far as the timing goes. So I would hope that there are people of sense who can tell the government or people with clout who can tell the government, look, this is radical change that you have brought about. People need to be educated. The system needs to absorb it. Policemen have to be retrained. If you have computer programs to record FIRs and sort things out, categorize them, even they need to be upgraded. So all this is going to take time. So now that you've passed the legislation, please leave implementation of the legislation to a future government. If you come into power after the next elections, then you do it. Otherwise, let the new government take a call. So when people vote, if this law is not yet been brought into force, they may yet have a chance of preventing it from being brought into force. If this becomes an electoral issue. If on the other hand, people do exactly what Dr. Ambedkar advised them not to do, which is lay their liberties at the feet of a great man. If you trust that your liberties are safe with a great man and the great Indian police, then there is nothing much that can be done. All right, with that note of what I can only see as a warning, we'll end this discussion. Thank you very much, Mr. Hector.