What is the Committee for Reforms of Criminal Law?
The committee wants to change the operation of the entire criminal justice system and it wants to do this in six months.
What do you mean by Criminal Laws of India?
Criminal Laws in India refer to the three major laws i.e. Indian Penal Code, Code of Criminal Procedure and Indian Evidence Act. In simple words, the Committee will reform law which define crime and punishment (Indian Penal Code), the procedure of implementing criminal laws, be it investigation or trial (Code of Criminal Procedure) and the basis to prove innocence or guilt (Indian Evidence Act).
These are really old, colonial laws made by the British, so isn’t it good that we are finally reforming them. Why are we opposing reforms?
We are not opposing the idea of reforms in the Criminal Laws. Everyone agrees that we need to review these laws and update them according to present times. Our opposition is limited to the manner in which the entire exercise is intended to be conducted by the current government.
So, what are the problems?
Briefly stating the issues with the Committee are regarding:
The limited time frame for this process.
The non-representative composition of the Committee.
The opaque and non-inclusive manner of functioning of the Committee.
The very broad and generalized mandate of the Committee.
Why was the Law Commission not given the mandate?
What is the problem with the time frame?
The Committee has been given just 6 months to review all these 150-years old laws and suggest reforms, and that too, when the country is in the middle of a grave pandemic. In these 6 months, the Committee is expected to not only review the three laws to identify lacunae and areas of change but also recommend the reforms, while ensuring that fair consultations and participation happens; which is impossible.
Isn’t a short time span good, especially in India, where Committees take years and years but no report comes out? Won’t this make the Committee efficient?
Six months is not enough even to just review these laws let alone suggest reforms. To give an analogy, it is like giving a student a day’s notice and saying that they have to appear in an examination on the entire syllabus of all their college and school years or like ordering the construction of a bridge overnight and expecting it to last! Couple this with the fact that all this is happening in the middle of a nationwide pandemic, where 40, 000 + people have lost lives, most people are in acute economic distress, the courts have come to a standstill, public meetings are not allowed, lawyers are facing a crisis of employment and Bar Associations cannot function. One fails to understand the urgency to make such massive changes in these laws at this time!
Ok, but the Government can always extend the time frame?
Yes, the Government may extend the time but that is not certain. Also, why have an unrealistic time line, to begin with. The mandate of the Committee is very wide and has a far-reaching impact for everyone, and this demands a serious commitment on part of the government, which is not reflected in a 6 months schedule.
What is wrong with the present composition of the Committee? Aren’t they all well respected professionals?
The issue is more regarding who are not part of the Committee, rather than who are. The Committee has no representation of women, dalits, adivasis, transgender and queer persons, nomadic and de-notified tribes (NT-DNT), persons with disabilities (PWD), religious minorities and for that matter it has very little representation of criminal law practitioners and persons beyond Delhi. The Criminal Law is experienced differently based on where you stand in a society. For example, a woman might find it harder to go a Police Station to file a report than a man. Similarly, the issues faced by a transgender person, dalit, adivasi, NT-DNT, PWD or a religious minority person regarding the law can best be articulated by someone from the community. Further, the primary player in criminal justice - the trial Court lawyer - who is best suited to provide a practical and true understanding of the criminal law, as it stands, and its lacunae is not represented. An effective review can happen only when voices across the spectrum are given the platform to give suggestions.
But isn’t the Committee sending out public questionnaires so people across spectrums can have their say. Doesn’t that make the Committee inclusive and participative?
No, it doesn’t. There is a big difference between being a member of the Committee, having the power to draft the recommendation and being someone who merely makes submissions to the Committee. Also, the questionnaires are not necessarily participative. Till now, the questionnaire released has been only in English and accessible only to people with internet connectivity. Thus, by itself it excludes a large percentage of people. There have been murmurs of providing translations, however the time to answer the first 2 questionnaires has already elapsed with no translation and several key stake holders not even being aware of it. Three more questionnaires have been released in only English. Moreover, a written questionnaire is a very limited form of ensuring participation.
For the review and reform to be meaningful, it needs to not only review the laws but also the challenges or issues faced by citizens across the country. In India like with everything, there is diversity even in the experience one has had with criminal law. Further, collating detailed and in-depth information on the issue during the pandemic is impossible. Participative consultation across the country is not possible during the pandemic. The consultations, as of now, are limited to some people based out of metros like Delhi and Mumbai, which is a tiny fraction of the stakeholders. Why the urgency to have this Committee in a pandemic?
What is the issue with the mandate of the Committee?
Simply put we don’t know the exact mandate of the Committee. Neither the Committee’s Terms of Reference nor Proposal/Concept Note have been made public, but questionnaires are being released. Participation is happening only on a vague idea of what the Committee is for.
What do you suggest instead?
Simply remove the time frame, change the constitution to make the process more inclusive, and defer the working till the Pandemic ends or at least subsides. Global best practices of criminal law reform would include publishing of think papers prior to public consultations, having workshops with various stakeholders etc, work on these heads should be started before setting up the Committee. Also, the Government needs to tell us why the Law Commission, a body designed to review laws and suggest reforms, was not entrusted with this task.
All this is fine, but I am not related to the legal field, so why should be bothered by this?
The simple answer is because you are citizen of India. Whether as a victim of a crime or an accused or as a member of a society wanting to live in a peaceful society, we all are affected by Criminal Law. So, when large scale review and reform is to be undertaken, we have a right to be able to know the process and be able to participate in it. Because we are the ones who will be governed by these reformed laws.
Issued in Public Interest by: Citizens Against Criminal Law Reform Committee