Scope and Timelines: The committee wants to change the operation of the entire criminal justice system and it wants to do this in six months
The ‘Aims and Guiding Principles’, the ‘Objectives’, and messages from the committee’s Chairperson and its Convener on its website indicate that there is nothing in criminal law as it is presently practised that might not be torn up and rewritten by the committee. (We are left to make sense of the committee’s remit from these documents available on its website because the committee has still not yielded to requests to publish its Terms of Reference.) (The resources page of this website has a more detailed analysis of the ‘Aim and Guiding Principles’, the ‘Objectives’, and messages from the committees.)
This is an exercise with potentially the greatest consequence for civil and political liberties in India since the drafting of the Constitution, an exercise that could fundamentally reconfigure the relationship between citizen and state. Each of these laws was preceded by earlier versions that went through many modifications and reviews. After independence, these laws underwent a modernisation, revision, and review process by the Law Commission. Separately from this modernisation, revision, and review process, each of these laws has been amended several times to respond to specific demands. Apart from this, several provisions of these laws have also been tested for constitutionality: some provisions were struck down for being unconstitutional, some others were “read down” in conformity with the Constitution, and a third category was determined constitutional. There is, therefore, a substantial body of Indian jurisprudence on the three codes running back almost 150 years.
This does not mean that the laws do not require amendment. Several aspects of these laws need to be reviewed and revised such as the laws on sedition, marital rape, excessive pre-trial detention, and on overly restrictive bail provisions etc. However, before such review and revision can be undertaken, there must be detailed research and study to identify which aspects of these laws need to be revisited. The reviewing body must prepare, circulate and discuss position papers/issue papers/discussion papers identifying the problem and the possible solutions in line with national and international best practices. Such research and study are impossible given the committee's timelines and the committee seems to have no interest in conducting such research and study. (The Resources page of this website has material on best practices, procedures and processes for Law Reform)
Composition of the committee
This committee that is set to rewrite Indian Criminal law is constituted of five men with no representation for women, Dalits, Adivasis, trans-persons, or other historically marginalised communities; no representation for religious and social minorities; and no representation for the disabled. The Committee’s membership also has limited geographic spread - three of its members are from Delhi, one is from Jabalpur and one is from Mumbai. There is no representation for any of the five southern states, or from the east or the northeast of the country. And the committee has no trial court lawyers who are the lawyers who deal with these three laws on an everyday basis. Diversity in the committee’s membership is crucial to ensure that the conceptualisation and design of the law reform exercise is alive to an array of concerns such as whether the exercise should be conducted entirely in English or whether it should be translated into other languages, whether conducting the exercise entirely online is exclusionary will exclude communities, whether public deliberation will be possible without workshops and seminars in different regions of the country and so on. Diversity will also ensure that the Committee is asking the right questions that represent the concerns of most marginalised communities, such as whether provisions relating to police investigation deter women from filing complaints, whether non-payment of wages should be made a cognizable offence, and in what circumstances mental cruelty should be punishable, and so on.
Procedure and Outreach: Any attempt at rewriting India’s fundamental criminal laws must be an exercise in public deliberation involving as wide a swathe of Indian society as feasible. Given widely disparate access to material resources and power, and widely disparate levels of literacy – especially legal literacy – this requires special efforts at public outreach. Most of the country, however, does not even know that such a committee has been set up even though the Committee has already exhausted more than half its six-month tenure.
Conditions must be created to ensure that marginalised communities, whose experience of criminal laws is vastly different from the experience of those with access to power, are able to participate in the exercise.
The committee has made no effort at communicating its project to the public at large. The only public communication from the committee about its project is letters to some individual lawyers in Delhi and a notice on its website announcing that it had been set up. Apart from this notice – on the website of the committee itself – there is no public notice of the setting up or functioning of the committee: no notifications, no circulars, and no advertisements.
Workshops, public consultations, and public deliberation are an important way of deepening engagement with the public, especially where literacy and legal literacy might be low. It is through such exercises that conditions are created for marginalised communities to participate, inform, and influence the law reform process. The committee will, however, not be conducting any public consultations. In place of public consultations, the committee's website provides for interested persons to log onto its website between 4 July 2020 and 9 October 2020 to participate in a questionnaire-based survey of criminal law.
Globally, it is well understood that for questionnaires to be sensible as a part of a law reform exercise they must be preceded by a Working Paper/Issue Paper, which will identify and formulate the issue/problem from empirical and legal research, identify comparative international experience, and list possible solutions. This is a format accepted by the Law Commission for India. However, since the committee has conducted no empirical or legal research, there is no issue/discussion/working paper. Instead, the committee has jumped straight into administering questionnaires.
Because of the lack of research, study, or serious attempt at identifying the problem, the questionnaires put out by the committee so far are poorly constructed, generic, vague, and scattershot – a mishmash of some areas of concern that have been a part of public discourse for a long time, mixed with others that seem to appear from nowhere, without any context or justification.
The committee’s decision to have only online consultation and solely in English excludes all but the most privileged from participating. While Internet penetration in India is low, Internet literacy of the kind that will allow for participation in the committee’s online processes is even lower, ensuring that only a small fraction of the country’s population will be able to participate. Importantly, the decision to have an online-only, English-only consultation will exclude a large proportion of trial court lawyers.
Further, a commitment to public deliberation would have required that all responses received by the committee be placed in the public domain so that there is open debate and discussion. The committee, however, has not acceded to demands to place responses it receives in the public domain. What little engagement there might be, therefore, will also be shrouded in secrecy.
We are concerned that the committee’s recommendations will dilute essential procedural safeguards while weakening whatever few safeguards there are against police excesses. These concerns are lent some weight since the committee has refused to publicise its Mandate/terms of reference and has also refused to commit to placing its draft report in the public domain for comment before finalisation.es.
Reform in the time of a devastating pandemic only adds to the and exclusionary nature of the process, affording no opportunity for engagement for most citizens of the country. The country is in the middle of the worst pandemic in living memory- 58,000 (and rising) Indians have died on account of the COVID 19 pandemic. Beginning March, lakhs of migrant workers from cities for their homes in towns and villages, undertaking perilous journeys that cost many lives. Now, many months later, some are attempting to return to cities where jobs have evaporated. Central and State governments have been treating the pandemic as a “disaster” under the Disaster Management Act, 2005 and the Supreme Court has called the pandemic a “national calamity”. The communities most affected by a malfunctioning criminal justice system – that will also be the most affected by the removal or loosening of what safeguards exist in that system – have been the worst hit by the pandemic and are in no position to participate in deliberations to reform the criminal justice system. Representations from several communities have called on the committee to suspend this exercise at least until the pandemic has abated.