Concept Of Remanding A Person To Police Custody On Mere Suspicion Is Incompatible With Constitutional Principle: Kapil Sibal

He was speaking at a seminar on judicial accountability in Delhi, organised by the Campaign for Judicial Accountability and Reforms (CJAR). The theme of the event was 'Supreme Court's Recent Trend on Cases Involving Civil Liberties and Political Rights'.

The senior advocate, known for his vocal stance on legal and constitutional matters, began by quipping, “Jaha bhi jaate hain bagawaat ki baatein kartein hain.”

At the outset, he drew attention to the problematic genesis of the country's criminal laws, including the Indian Penal Code and the Code of Criminal Procedure, inherited from British rule. These laws, he said, were crafted to suppress dissent and enable arbitrary arrests based on mere suspicion. Much of these provisions have also been retained in the new criminal codes which will come into effect from July 1.

“How does this pass the test of the Constitution?” Sibal questioned, “Is suspicion enough of a procedure? Or is there something else that needs to be elaborated and demonstrated for someone to have a reasonable doubt?”

He critiqued the practice of police remand on suspicion, a concept he found incompatible with constitutional principles.

Highlighting a stark contrast in our approach vis-à-vis 'liberal' countries, Sibal remarked, “In liberal countries, you investigate first and then you arrest. In India, you arrest first and then you investigate.”

The senior advocate's concerns extended to what he described as arbitrary arrests and remands, particularly under special laws such as the Prevention of Money Laundering Act and the Unlawful Activities Prevention Act. He said, “The PMLA, the UAPA…These special laws with special provisions – draconian provisions according to me – are entirely unconstitutional.”

Next, he articulated his concerns about the erosion of institutional integrity and the need for robust accountability mechanisms. “We can't trust any law, in the manner we have reached the state of this country,” he lamented, highlighting a systemic issue that demands urgent attention.

Besides raising apprehensions over the lack of procedural safeguards in our criminal laws and eroding institutional integrity, Sibal also delved into the broader role of lawyers in upholding justice and accountability. He urged lawyers, irrespective of political affiliations, to speak in unison for the greater good.

“You are a lawyer first and a politician later,” he categorically said, stressing the duty of legal professionals towards the people. He explained –

“Why? Because your duty is towards the people. This is a service industry, it's not a business. We made lawyering as a business. How much money will I earn today? The moment you do that, you are not a lawyer. Just as good or bad or any other businessman.”

At the conclusion of his speech, the audience was left with a poignant reminder from Sibal about the role of lawyers in India's freedom struggle. He ended with a call to action to members of the legal fraternity, saying –

“It is the lawyers that can lead from the front. These gatherings should inspire us to take the message across the country. We need to give up some of our time for going around the country explaining that we as lawyers can lead the nation as we did when we brought freedom to this country. Let us march along for yet another freedom that we need and require. And espouse for and look for.”

The video can be watched here.

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