Former CJI U U Lalit interview: ‘Bharatiya Nyaya Sanhita has partly decolonised laws… very difficult to shrug everything off’

IE: Now, you can say that very well, the colonial burden which this country was still carrying on, to a certain extent, has been shrugged off.

U U Lalit: However, criminal laws in vogue in this country for more than 150 years have been our heritage, our ethos in the administration of criminal justice. So, therefore, it is very difficult to shrug everything off.

IE: But sedition as an offence still remains even in the BNS…its name changed from ‘rajdroh’ to ‘deshdroh’…

U U Lalit: No, not at all. As I told you, see the very fact that sedition as a tool was used by the rulers to curb the voice of protest, correct? So, take, for instance, Tilak’s trial. The moment he criticised the policies of the government, he was slapped with that particular charge and finally sentenced and sent (to prison) for six years. The idea was to remove all such people from the active political scenario or the scene.

Now, in a free country, you can’t equate that kind of logic here, correct? So, in theory, what this offence now percolates down to — even in Kedarnath Singh, what the court had said was — if there be any incitement to people or a section of people to take up armed rebellion against the government then it would amount to sedition.

But mere criticism of the policies of the government would not amount to sedition. So, what is now put (in the BNS) in a distilled form. Whatever is incitement is certainly part of that (Section 152), going by the law laid down by the SC. This is exactly what the new law seeks to achieve.

IE: Is there anything that the new law has missed, are there any colonial holdovers that still have made their way into the new laws in any way?

U U Lalit: Not to my mind. Not colonial hold, but the entire administration of criminal justice which was outlined as a result of these three erstwhile legislations. So, the perimeter of that has been maintained even in the new laws.

IE: The BNSS has introduced timelines for each stage of a criminal trial. Are these timelines realistic or restrictive?

U U Lalit: They can certainly be realistic. In instances where agencies would prolong, some fetters have been put. The only thing is that with the tremendous burden of cases on the courts at every level, to what extent they are able to be on the right side of these timelines is something which we will have to see.

IE: In 2017, the SC read down Section 377 of the IPC to the extent it criminalised consensual homosexual relationships. But the BNS omits it entirely, taking away a legal recourse for non-consensual sexual activity too. The LGBTQ community when they are victims of sexual offences could have invoked this law…

U U Lalit: That’s right, 377 has been completely deleted. What lawmakers have now done is, they have done away with this particular provision altogether, so that even in case of non-consenting adults, it could never be taken to be an offence.

There are enough provisions under the IPC where the issue can still be ventilated. So, Section 377 necessarily was not the only plank available.

IE: But since rape law is not gender neutral, 377 was a alternative route…

U U Lalit: Perhaps lawmakers should have then made a distinction that Section 377 will not apply to consenting adults but when it comes to somebody who is a victim, then Section 377 be retained in its original form. You have taken away a plank, which was available easily. That is true.

IE: The BNS also brings special, stricter laws for organised crime and terrorist acts under its fold. There are fears about mixing special laws which give the agencies greater, exceptional powers with ordinary laws.

U U Lalit: Firstly, even now there are certain special state legislations which apply along with ordinary law. For example, the Maharashtra Control of Organised Crimes Act (MCOCA) and similar laws in about six or seven states, including Gujarat, Rajasthan, Karnataka, Madhya Pradesh. These laws not just define organised crime but also create a separate regime. A police officer can record the confession which can be relied upon in court. The police officer also has the right to intercept the conversation, of course subject to taking clearance from the appropriate authority.

Now, the BNS has simply taken the definition and said that this is organised crime, and this shall be the punishment. But all these appendages, the extended powers of the police, are not part of any procedural law under the BNSS. So, there are two things which can emerge.

First, the Parliament thinks that the police powers are not needed and that the existing framework is good enough for organised crime also. Second, there may be a slight overlap between the definition of terrorist law under BNS and UAPA and both will apply. For instance if you use explosive substances for committing an offence, you can be charged under Explosive Substances Act and principally under the BNS also. If you have an arms, you can be charged under Arms Act and (the BNS).