Ex-CJI UU Lalit says new criminal laws ‘the way ahead’, commends provision on mob lynching

Speaking at an event, the former judge also spoke about the allowance of 15 days police custody, the new provision on hit-and-runs and 'burial' of the colonial era sedition law.

Former CJI Uday Umesh Lalit | The West Bengal National University of Juridical Sciences, Kolkata

New Delhi: Former Chief Justice of India Uday Umesh Lalit has welcomed changes in the new criminal laws, including the incorporation of provisions on mob lynching; allowance of 15 days police custody, in parts or as a whole; and the “burial” of the colonial sedition law. 

The former judge said this Thursday during his keynote address on the new laws — the Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS) and Bharatiya Sakshya Adhiniyam (BSA) — at a study circle organised by the Supreme Court unit of the Akhil Bharatiya Adhivakta Parishad (ABAP), also known as the RSS lawyers’ wing. 

Notably, Justice Lalit’s father, Justice Umesh Ranganath Lalit, was a former judge of the Bombay High Court (Nagpur bench) and a member of the ABAP.

Comparing the newly-enacted criminal laws with previous laws dealing with terror offences— such as the Maharashtra Control of Organised Crime Act, 1999 (MCOCA); Terrorist and Disruptive Activities (Prevention) Act, 1985 (TADA); and the Prevention of Terrorism Act, 2002 (POTA) — the former CJI underscored that the new laws are the “way ahead” and reflective of how a “democratic society” is meant to “behave and conduct itself”. 

“We had a set of legislations defining terms like continued unlawful activity and terrorist acts. They also included the principle that police officers can record confessions. However, the BNS defines these terms without introducing such invasive procedures in the corresponding code of criminal procedure or the Bharatiya Nagarik Suraksha Sanhita,” Lalit said during his address.

He also said that a “drastic idea” introduced in the MCOCA for the first time was that police officers could intercept telephonic conversations between two individuals, one of whom was an accused, and present them as reliable means of evidence, despite this being an invasion of individual privacy. The idea was borrowed by states like Madhya Pradesh, Gujarat, Karnataka and Rajasthan, he added.

What former CJI said on new criminal law provisions

The former judge also recalled the SC’s five-judge bench verdict in Masalti vs State of UP (1964), where 40 persons were charged with committing murder and for the offence of vicarious liability on account of being part of an unlawful assembly. 

Before the court, the question then became whether or not death sentence should be given to persons found guilty “not because they themselves committed the murder, but because they were members of an unlawful assembly” in cases where the murder was committed by one or more members of such an assembly in pursuance of a common object. 

However, the court gave a death penalty to all members of the mob, barring three young men, who it found to have joined the unlawful assembly “under pressure” and “influence” of elders in their families.

“S.149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence is a member of the same assembly, is guilty of that offence,” the court had ruled.

Comparing the rigours of the law laid down in Masalti with the new provision against mob lynching under the BNS, former CJI Lalit said at Thursday’s event: “In normal circumstances, we would rely on Section 149 (vicarious liability of members of an unlawful assembly) but if there was a large mob, we would rely on safeguards such as identifying those persons beyond doubt, and in some cases also say what role is attributable to them.” 

He added: “Perhaps, I think in the new definition of mob lynching under the BNS, Masalti would have perhaps been given a decent burial. So we can say that when it comes to mob lynching or offences committed by a sizeable number of people on the ground of religion, etc, I think certain considerations must follow. This also indicates incorporation of a different logic of the vicarious liability principle and is commendable.”

Additionally, the former judge said that Section 187 of the BNSS replaces Section 167 of the Code of Criminal Procedure (CrPC) by removing the bar of maximum 15 days of police custody within the first 15 days from the arrest. 

Pointing to how a large number of accused attempt to evade arrest by getting themselves hospitalised and so on in an attempt to hinder an effective investigation, he concluded that the BNS provision tackles this problem.   

Therefore, Justice Lalit said, permitting the magistrate to order police custody for 15 days any time during the initial 40-60 days of detention is a “welcome change” and a “deliberate attempt” by the legislature.

About the provision on hit-and-runs under Section 106 (2) BNS, he said, “If the driver flees from the scene, leaving the victim without any medical aid, he can be sentenced to 10 years imprisonment. However, if the accused is driven by normal human conditions, the sentence should be at a lower level. If he stays back, gives aid to the injured person and doesn’t run away from the scene, the sentence for him will be 5 years instead of 10.”

Critics have raised concerns over the addition of these provisions in the new criminal laws, particularly those for terror offences. In January, the Centre took cognisance of truckers’ concerns regarding the provision of 10 years imprisonment and fine, and held detailed discussion with the representatives of the All India Motor Transport Congress. The Centre also said that it wouldn’t invoke this provision until after consultation with the All India Motor Transport Congress.

(Edited by Radifah Kabir)