Bills Replacing IPC, CrPC, Evidence Act May Take Time To Come Into Force; Requirement Of Section 41A Notices Non-negotiable: Supreme Court

Section 41A of the Code, which requires a person to be served with a notice by the police prior to their arrest for offences punishable with imprisonment for less than seven years, was introduced as a procedural safeguard against illegal arrest, with the objective of protecting the rights and interest of the arrestee.

A bench of Justices Sanjiv Khanna and SVN Bhatti was hearing similar pleas filed by former law minister Ashwini Kumar and Senior Advocate Abhishek Manu Singhvi, relating to safeguards against custodial torture.

The bench, when Kumar’s application was taken up in the morning, directed the hearing to be adjourned right at the outset. Justice Khanna said, “These matters will have to be heard on a non-miscellaneous day.”

The parliamentarian tried to persuade the bench that the issues raised in his application were wider and would require independent hearing, as he had on earlier occasions. However, Justice Khanna expressed his disinclination to accede to the senior counsel’s request to consider the two pleas separately. At the same time, the judge pledged that the court would hear the former minister out completely. He said –

“We have already disposed of your main matter. When we hear your application, we will hear you out completely. Do not worry. But we will be taking these pleas up together. We are not segregating them.”

“That’s all I am asking,” Kumar replied.

“We would like your assistance in the other matter as well, regardless of your assistance in this,” Justice Khanna told Kumar, before instructing the counsel for the union government to serve him with a copy of the affidavit or status report filed by it.

“I would be most delighted to assist Your Lordships,” Kumar said. “However,” he continued, “I am a bit fearful of what will happen to my petition. Because that is a substantive one. I will show Your Lordships that. I will argue within the four corners of the very well-considered judgment of this court…This should not be at the cost of my petition.”

“No, no. This will not be at the cost of your petition,” Justice Khanna assured.

Bills replacing IPC, CrPC, Evidence Act may take time to come into force; requirement for publication of notice under Section 41A non-negotiable: Supreme Court

Later in the day, the bench also briefly heard the submissions made by Singhvi, before directing for the matter to be adjourned. During the short exchange, the court had an occasion todiscuss the new bills tabled in the Lok Sabha, namely, the Bharatiya Nyaya Sanhita, the Bharatiya Nagarik Suraksha Sanhita, and the Bharatiya Sakshya Sanhita, which seek to replace the Indian Penal Code, the Code of Criminal Procedure, and the Indian Evidence Act respectively.

Additional Solicitor-General Vikramjit Banerjee appeared to question the relevance of the current proceedings. He began, “We feel, now that the entire criminal law has…”

Justice Khanna stopped the counsel. “This does not make a difference, please. That may take a little time.”

The additional solicitor-general also referred to Singhvi’s membership of the Rajya Sabha. “My learned friend is an important position. He may also be part of…”

“Maybe, but that’s something different,” Justice Khanna said, before stressing the importance of procedural checks to prevent abuse of powers by the police - 

“We are very clear on this. As far as Sections 41 and 41A are concerned…Notices must be given serial numbers and put on the website. These are checks required. I think you should be supporting it.”

“I am not opposing it,” ASG Banerjee clarified.

Notably, before the bench adjourned the hearing with a direction to re-list it on November, Singhvi pointed out the glaring lacuna of safeguards against custodial torture insofar as the period before an arrest is formally registered. The senior counsel called it an ‘an arrest before an arrest’. Earlier this year, Singhvi had made a similar submission when this matter was taken up. He had told the court –

“All the safeguards such as display of name-tag, allowing to talk to somebody, etc., arise after arrest. What has to happen is from pre-arrest to the formal date of the arrest. After the arrest, everybody shows the DK Basu guidelines. That dilemma at the heart of Article 21 remains. We have realised that the only way is to approximate an improvement. There has been a substantial improvement but there’s much to be done. When a police officer is high-handed, the DK Basu guidelines will not stop him.”

Background

In June 2020, when the coronavirus pandemic was raging, 59-year-old P Jeyaraj and his 31-year old son J Bennix were picked up by the Tamil Nadu police for violating the government’s COVID-19 lockdown rules. While they were in custody, the father-son duo was allegedly brutally thrashed and sexually assaulted, prompting public outrage and a renewed attention on the rights of a detainee in police custody.

In the wake of the suspected custodial murder of Jeyaraj and Bennix, Senior Advocate Abishek Manu Singhvi, who had assisted the Supreme Court as an amicus curiae in its landmark DK Basu case, filed an application seeking the revival of the proceedings. In this 1996 judgment, the top court issued elaborate guidelines to ensure that the power of arrest was not abused and the rights of an arrestee, including against custodial torture, were safeguarded. Deploring an “increasing trend of normalizing of custodial deaths”, Singhvi advocated for a “robust, uniform, effective and working investigation and mortaring apparatus” in his application.

Earlier, in 2016, former union law minister Ashwini Kumar had also filed a writ petition in the Supreme Court broadly praying for “ensuring an effective and purposeful legislative framework and laws and its enforcement to fulfill the constitutional promise of human dignity and prevention of custodial torture”. In 2017, the top court disposed of this writ petition on the basis of the then-attorney general KK Venugopal’s assurance that Kumar’s prayer had been discussed by the Law Commission, which had already made certain recommendations to the government.

In the same year, the commission – headed by retired Supreme Court judge BS Chauhan – recommended the domestication of the United Nations Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment. To that end, the Law Commission suggested the enactment of an anti-torture law and submitted a draft Prevention of Torture Bill for the consideration of the government. Till date, India has neither ratified the UN Convention against Torture, nor passed a stand-alone law against custodial torture.

In 2018, the former law minister filed an application with a prayer for implementation of the commission’s recommendation, but a bench headed by then-chief justice Ranjan Gogoi dismissed the application saying that the court could not direct the Parliament to enact laws. Kumar filed another application in 2020.

Case Details

1. Dr Ashwini Kumar v. Union of India | Miscellaneous Application No. 1619 of 2020 in Writ Petition (Civil) No. 738 of 2016
2. Dilip K Basu v. Union of India | Miscellaneous Application No. 1259 of 2020 in Writ Petition (Civil) No. 539 of 1986