Controversy Dogs Reform Of 160-Yr-Old Criminal Law

14 Jul 2020 10 min read  Share

The last time the government tried to reform India’s 160-year-old criminal code, it took 2.5 years (and was not accepted). A new, contentious attempt is being made with five men who have day jobs and a six-month deadline.

Home Minister Amit Shah chairs a meeting/TWITTER

Updated: Oct 9, 2020

New Delhi: “Five men sitting in Delhi think they can change the law of the country.” Rebecca John, senior advocate.

A five-member, all-male committee constituted in May 2020 to examine India’s criminal laws, some of which hark back to British colonial rule, has run into a wall of criticism, with three public statements and letters by eminent jurists, lawyers, academics and civil society organisations (CSOs) against it.

There are “serious concerns regarding the intention of the Committee as manifested in its objectives, composition, time frame and methodology,” read a letter signed by 506 civil society organisations and individuals addressed to Ranbir Singh, vice chancellor of the National Law University and chairman of the Committee.

A second statement dated 8 July is signed by 69 former judges, bureaucrats, academics and lawyers, of whom John is one. It has called upon the Committee to “demonstrate its bonafides and its commitment to a rigorous law reform exercise by ensuring full transparency regarding its constitution and its functioning”.

“There are criminal law practitioners across the country who have a wealth of experience, there are other groups and organisations that engage with the law. Consultation must be serious and broad-based,” John told Article 14.

In a third letter dated 9 July, some of India’s most prominent women lawyers, including senior advocates Indira Jaising, Priya Hingorani, R. Vaigai and Gayatri Singh, expressed concern and “in fact their anger” at the lack of gender representation.

The letter, also addressed to Ranbir Singh, said the absence of Dalits, religious minorities, the LGBTQIA+ (Lesbian, Gay, Bi-sexual, Transgender, Queer, Intersex and Asexual) community, differently-abled lawyers and other grassroots workers of society from across the country was a “foundational defect”.

Set up in May 2020, the Committee for Reforms in Criminal Laws is in line with proposed reforms to the Indian Penal Code promised by Home Minister Amit Shah in August 2019. It will also look at the possibility of newer legislation on a range of issues from sedition to marital rape and consider whether mob lynching should be penalised as a separate offence.

The last attempt at such sweeping law reform was nearly two decades ago by the Justice Malimath Committee set up in November 2000 by the then Atal Behari Vajpayee-led Bharatiya Janata Party (BJP) government. Submitted in March 2003, that report suggested a range of reforms including lowering the standard of proof “beyond reasonable doubt” and was never accepted.

Four Primary Objections

Criticism of the present Committee had begun even before released a first set of questions on 4 July on its official website. The criticism is focused around four issues:

  1. The objectives: The Committee’s terms of reference have not been made public.

  2. The truncated time frame: The committee has a six-month deadline to propose reforms to the Indian Penal Code (IPC), 1860, Code of Criminal Procedure, (CrPC) 1973, and the Indian Evidence Act, (IE) 1872. For perspective, the Justice Malimath Committee took two-and-a-half years.

  3. The methodology: Questions will be released in six tranches and respondents were given a 200-word limitremoved after an uproar for responses. Critics said these questions should have been framed after holding public debates.

  4. The composition of the Committee: There is lack of diversity in terms of gender, caste socio-religious communities and class. Dalits, Adivasis, LGBTQIA+, the differently abled, and grassroots workers are absent.

In addition to these four objections, a common criticism of the Committee has been its lack of transparency, since the notification constituting the Committee, its terms of reference, and its methodology have not been made public. The letter signed by the 69 signatories called upon the Committee to release these documents on its website, which had not been done at the time of writing.

In response to a questionnaire sent by Article 14, Ranbir Singh refused to provide the documents and directed most questions to the Ministry of Home Affairs (MHA), which is funding this endeavour. The notification constituting the Committee, the terms of reference, the rationality behind the truncated time frame, and the project proposal may be obtained from the MHA, Ranbir Singh said in an email response.

“Any other query about the Committee and its composition or any other related aspect should only be addressed to the MHA,” Singh’s response read.

After the letters criticising the Committee were made public, the Committee’s website underwent a change: The emblem of the MHA (until then on both the website and the official letterheads) was removed. When Article 14 sought a response on this issue in the questionnaire we mentioned previously, Singh said he would respond “by Monday” (13 July). This copy will be updated when Singh replies.

Five Men And A Lack Of Diversity

All three letters in the public domain object to the composition of the five-man reform committee.

In addition to Vice-Chancellor Singh, the other members include G.S. Bajpai, registrar, NLUD, Balraj Chauhan, vice chancellor, Dharmashastra National Law University, Jabalpur, senior advocate Mahesh Jethmalani and former district and session judge G.P. Thareja.

The Committee “lacks diversity both in terms of the social identity of members, as well as their professional background and experience”, the statement by 69 legal luminaries said. The CSO statement added that it is “an insult to the federal structure of the nation” and “epitomizes the constant discrimination of other states, especially from the South and the North East".

The Committee does not agree with the assessment. A public notice on its website, seemingly in response to the public criticism, stated that “the Committee has remarkable diversity and competence in professional experience, affiliations and scholarship”.

Officially, the committee’s website states that its objective on reforming the substantial laws is “to modernise and reform the substantive criminal laws and to align them with constitutional morality and social aspirations…” To this end, it will re-examine, review and rewrite provisions of the IPC, CrPC and the Indian Evidence Act.

But the objective of the committee is unclear since the terms of reference have not been made public. Former Bombay High Court judge Abhay Thipsay said the purpose of the Committee was indeed unclear to him. “In the Malimath committee there was a clear mandate and an objective which was encapsulated in the preamble. Here it is not there,” he said.

Former Supreme Court judge Madan Lokura member of Article 14’s advisory boardalso questioned the lack of transparency. “Even now the terms of reference are not available,” he told Article 14. When asked, Ranbir Singh refused to provide the Committee’s terms of reference, directing the question to the MHA.

A Question Of Timing

There is a fear that reforming a centuries-old legal framework during the Coronavirus pandemic smacks of a “malafide”. Senior advocate N Hariharan expressed concern over the haste with which the Committee has been tasked to propose reform. “In the absence of informed debate and opinion, the clock is pushed back on reforms,” he said.

The CSO statement also criticises the government for its “opportunistic use of a crisis situation to dilute legislations that protect the vulnerable sections of society” and to “flagrantly further the pro-corporate agenda of the State.” Introducing “such drastic amendments to the law during a pandemic would mean that… a majority of the people” would be unable to respond, it said.

“The Government has rolled out a draft proposal to amend Environment Impact Assessment procedures that would place many projects outside the purview of public hearings, effectively rendering local communities voiceless in such decisions,” the CSO statement added as an example of non-consultative reforms undertaken recently.

“Having demolished hard won environmental, labour, and land rights of the people, this government now turns towards reforming the criminal law,” the CSO statement said.

Speaking to Article 14, former Madras High Court judge K. Chandru said: “Of late many laws are pushed in Parliament which were lobbied by various interested lobbies including NGOs. If there are two opposing lobbies, both interests are also accommodated resulting in serious contradictions and a number of court cases. The history of the Insolvency and Bankruptcy code (IBC), 2016 and section 138 of the Negotiable Instruments (NI) Act, 1881 are two such examples. That one lobby did not have their last word and it could be seen they have gone through changes no sooner they were passed.”

Chandru said the intention of the government is “clearly motivated” in wanting to “rush through a legislation which has a far-reaching effect on the population”.

Six Months To Overhaul Criminal Law

The first Law Commission, established in 1834, recommended the drafting of a Penal Code which began in 1837. India’s first war of Independence in 1857 necessitated a Code for Criminal Procedure by the British colonizers.

But the IPC and the CrPC finally came into effect only in 1860 and 186123 years and five years respectively since they were first conceived. The CrPC however underwent several facelifts over the years before its final overhaul in 1973.

The government’s time frame of six months to reform the entire legal framework of criminal jurisprudence, is “very, very ambitious,” said Justice Lokur.

“Unlike previous law reform efforts of similar magnitude, this Committee does not consist of full-time members. The members continue to discharge their full professional commitments alongside their work on this Committee,” reads the letter by the legal luminaries. The present Committee consists of two university vice chancellors, one registrar and two lawyers.

It is a “mockery to envisage a re-haul of the criminal law within a period let alone granting three months or even six months,” the CSO statement read.

Directing the committee to complete its recommendations in just six months during a pandemic is being done so that “no extensive consultative process is possible,” Justice Chandru said. Even if there are suggestions or objections, “now that the present government has majority in both houses of Parliament, it can bulldoze any legal changes at its whims and fancies,” he added.

Any “bonafide approach to criminal law reform” must be a “a long-drawn out process involving all sections of society and all regions of the nation,” the CSO statement said. Failing which, they doubt whether “this Committee is merely a rubber stamp for certain reforms already prepared by the Ministry of Home Affairs.”

People must have “reasonable time” to respond, said John. “You have to give all the questions in advance. There can be no surprises here. Encouraging a slipshod response is not in the spirit of transparency.”

Moreover, “the procedure adopted by the Committee smacks of a preconceived design. Nothing done so far convinces me that this is a bonafide exercise. I am not opposed to any reviews of the law, but you can’t bypass the law commission nor can you do it in an arbitrary manner,” John said.

'An Undemocratic Push'

The Committee seeks consultation from the public and experts through its official website. This, the CSO statement observed, betrays the Committee’s “intent of an undemocratic push to make anti-people suggestions.” Women lawyers in their letter to Ranbir Singh observed that the original 200-word limit placed by the committee while answering questions was “absurd”.

Women lawyers found the Committee’s approach to the different actsIPC, CrPC, IE and NDPS “deeply flawed” since they are interlinked. They are demanding the release of the full tranche of questions. “The Committee’s schedule of releasing separate questionnaires for each statute on different dates and seeking isolated responses, betrays a lack of understanding of the working of criminal law jurisprudence,” the letter read. The letter signed by the 69 luminaries echoed this sentiment.

Some questions are “purely academic” and have no bearing on what is ailing the criminal jurisprudence, said retired Bombay High Court judge Thipsay. “What is the purpose of discussing such questions? Procedural laws are more troublesome and need urgent attention. In fact some of the new acts are thoughtlessly drafted and poorly implemented,” he said. “Even if these reforms are necessary, they only serve a theoretical purpose. The point to be made is, these are not topics requiring any urgent reforms.”

Other questions are “superficial” said Justice Chandru and do not “address the fundamental changes that are required, especially a critical appraisal of the existing system of criminal administration and its biased approach towards minorities Dalits, Adivasis and transgender persons”.

In light of the criticism, the Committee issued a late-night notice on 8 July doing away with the 200-word limit. The Committee further submitted that it was willing to make the questionnaire available in other languages, though this has not been done so far. The deadline for receiving responses to the first set of questions is 17 July.

Committee Or Law Commission?

Many have questioned the Committee’s existence when the Law Commission, a statutory body mandated to look into laws and suggest reforms, already exists.

Hariharan said courts have been relying on Law Commission reports since British times. “Function of the commission was to look into matters in great detail and give its opinion. Will this Committee override previous recommendations made by the Law Commission?” he asked.

Home Minister Shah had initially called on the Bureau of Police Research and Development (BPR&D), the think-tank of the police department, to lead the consultation process. The BPR&D has also been entrusted “to review the criminal laws and Acts and suggest revisions”, state home minister G. Kishan Reddy had said in Parliament.

However, according to a 26 June notice, the National Level Committee for Reforms in Criminal Laws to undertake a review of criminal laws in India was constituted by the judicial division of the MHA. No mention of this Committee could be found on the Press Information Bureau (PIB) or the Home Ministry website. The Committee’s official website, its address and contact information reflect that of NLUD even as the Home Ministry’s logo was clearly visible. However, since 10 July, the MHA logo has gone missing, as we said, on the website and is no longer visible on all recent notices as well.

A Poor Track Record On Civil Liberties

The BJP-led government’s handling of civil liberties in India has come in for a fair amount of international criticism by rights groups.

The 2020 Freedom in the World report by pro-democracy group Freedom House, found that the government’s “nationalist agenda” is “threatening the democratic future” of the country. In December 2019, the United Nations High Commissioner for Human Rights said the Citizenship Amendment Act appeared to undermine India’s commitment to equality before the law as enshrined in the Constitution.

The lack of confidence in the Committee and its proposed reforms can be seen against this track record. “The attempt by the BJP-led government to rush through various legislations which may otherwise face resistance (e.g. reforms in labour laws) is clearly anti-people and to make the state more draconian by arming it with extraordinary powers,” Justice Chandru said. “Only a few weeks ago we saw the Uttar Pradesh government suspending all the labour laws evolved over a century and without any consultation process with the stakeholders. The present constitution of the Committee by resorting to ad-hocism is clearly a sign of despotism and arbitrariness.”

The manner in which existing laws such as the Unlawful Activities (Prevention) (UAPA) Act and National Security Act (NSA) are being used against political opponents is another cause for worry. “The National Investigation Agency (NIA) is being used as an arm twisting body of the political party in power and clearly shows that the intentions of making exhaustive changes in criminal law was not for any bonafide reason of democratizing them,” Justice Chandru told Article 14.

Justice Thipsay echoed a similar sentiment. “Nothing works in a vacuum. The idea (for the questions and the final reforms) may have been given to the Committee members before the questions were framed,” he said.

Hariharan argued that India was in a "state of emergency".

“Every functioning (of the government) is curtailed," said Hariharan. "Are amendments affecting personal liberties taken so lightly? There are big talks about protecting civil liberties, but when it comes to the test, it is missing."

"Hence, all the more reason that any move that changes personal liberties must be treated with alacrity, trepidation and reluctance," he said. "Here you are doing it with (sic) a drop of a hat.”

(Ritika Jain is a New Delhi-based freelance journalist)