Sibal deplores British-era origin of criminal laws, says it quelled dissent

Senior advocate and Rajya Sabha MP Kapil Sibal on Saturday deprecated the practice of arresting persons on the ground of suspicion, saying he had problems with the British-era origin of criminal procedures which was used to "quell dissent".

Sibal was speaking at a seminar organised by NGO 'Campaign for Judicial Accountability and Reforms- (CJAR)'.

"When we adopted the Constitution of India, it was based on the 1935 (Government of India) Act. When we adopted the criminal laws, that was the same (British-era) Indian Penal Code (IPC), the same Code of Criminal Procedure (CrPC). When the British had this provision that you can arrest anybody on the basis of suspicion," the senior advocate said.

 

He said the British adopted the rule of arresting anyone based on suspicion to quell dissent and many atrocities were committed based on the provision.

"I have a problem with this provision. How does it pass the test of constitutionality? You cannot be deprived of your life and liberty, save in accordance with the procedure established by law and what is that with reasonable suspicion?" Sibal said.

He said that it could suspect anyone and suspicion was subjective. There is no provision to make it subjective in the CrPC, the senior advocate said.

"So, I have a fundamental problem with the genesis of criminal procedure. Nobody has challenged it so far. And I don't know why," he said.

Sibal said that anyone who was prosecuted under the Prevention of Money Laundering Act (PMLA) could be arrested on suspicion.

He asked how a magisterial court decided that the suspicion was based on facts. He said even if grounds of arrest were provided to such accused, it was not enough for the defence.

"And in some of these codes now in some of these PMLA and UAPA provisions, especially UAPA the judge has to be convinced that you are not guilty of the offence. Why don't I even know what the offence is? So how do I convince the judge that I am not guilty of the offence?" Sibal said.

He said in the absence of parameters to define a reasonable cause or suspicion, the provision to arrest someone based on suspicion was unconstitutional.

Raising another question, Sibal said, "What do you mean by policing based on suspicion? Of which I don't know the facts. I'm going to be arrested by the police and kept for 14 days. What's the rationality for them?"

He said that a person was arrested in liberal countries only after an investigation, but in the country there was an arrest first and an investigation later.

"What does it mean that I will be in the custody of the police incommunicado to anybody else? Why should I be incommunicado? I will not be told my grounds of arrest because the chargesheet will be filed much later. I will be asked all kinds of questions which have no relevance to the (alleged) incident. And this is especially true in some of these very draconian laws," Sibal said.

He said that when people were called to record statements under the PMLA, they were not informed in what capacity the statements were being recorded.

"Is he a witness? Is he an accused? He doesn't know. You just send him a notice. Enforcement Directorate (ED) sends him a notice saying please come appear on such and such day. It's at such a time. What kind of procedure is that? Is somebody not supposed to tell me before the arrest what is the reason why he wants to call me to arrest me," Sibal said.

He said that he was talking specifically about the so-called economic offences and offences against the state such as the PMLA and the UAPA.

"These are special laws with special provisions, draconian provisions. According to me, entirely unconstitutional," Sibal said.

Sibal said another issue in the special acts was that there was no provision for keeping a diary as opposed to the CrPC, which mandated recording of everyday occurrences, such as what happened on that day, what statements were recorded and who was being visited.

"In other words, the more draconian the law, the less the protection. Is that consistent with the Constitution?" he said, adding that if a law was not consistent with the Constitution, it had to be thrown out.

"The fundamental issue is if the system has no integrity, you can twist any law in the manner that you like. We've reached a stage in this country where systems have no integrity. Police have no integrity, institutions have no integrity," Sibal said.

"When I mean integrity, it does not mean individual persons. There will be individual persons in any system, who are phenomenal human beings, who will try and protect you. I mean as an institutional structure this nation is losing its embrace to integrity," he added.

Sibal said the law was unable to protect anyone if police functioned according to the directions of the government in power.

"So, the fundamental question that we must ask ourselves is how do we ensure that people with integrity are part of the system and there the problem of politics and money power comes," he said.

Sibal said the problem of corruption emerged after liberalisation of the country.

"So the corporate sector, the big businesses had huge stakes in the economy and they were willing to barter away their integrity. And people who were at the helm of power were willing to barter with their integrity," he said.

The solution, Sibal said, was that one, good people should get into politics, and two, the middle class, which was "lying prostrate" had to raise its voice.

He also asked the lawyers to speak in one voice and to lead from the front.