Friday, July 17, 2020

Criminal Law Reform — Many Misgivings, and the Long, Uncertain, Road Ahead

The Indian law school experience revolves around the idea of submitting "projects" or "assignments". At the start of the 5 year marathon, many of us used to be petrified about the idea of failing to submit the assignment beyond the "Last Last Day" — the last permissible date for handing in the project, after the stipulated deadline. I found it quite strange that the senior students displayed little or no trepidation at the thought of the impending deadline, while the rest of us rushed to print and submit. Why? Because the seniors knew that if many students asked for more time, for some reason or another, surely the University is not going to flunk them all. So the "Last Last Day" could easily be extended, and it was.  

True to form, citing the many requests for extension of time, the Committee for Reforms in Criminal Law (incidentally operating out of a Law School) just went ahead and extended a deadline for submissions, on the date of the deadline. Lest we forget, this is a Committee that has been tasked with possibly one of the most burdensome mandates ever — suggesting reforms to the entire landscape of India's criminal process, within the sweet time span of six months. 

This extension of time by the notice of July 17 is just the most recent chapter in what has thus far been an extremely turbulent start to the life of this committee and the consultations it has sought to initiate. Within the few weeks that have passed since the first announcement was made by the Committee about how the consultations will proceed, and from the release of its first Questionnaire on July 4, several representations have been issued expressing serious misgivings about the whole process. These representations (some of which I have been a part of) have, amongst other things, called for (i) abandoning this effort at least while India struggles with Covid-19; (ii) reconstituting the Committee which, in its current form with 5 men sitting in New Delhi, embodies the worst tendencies of prior "reform" efforts and appears akin to the same colonial mindset that the Committee explicitly has set out to remove.

But at least for me, what has been particularly galling and difficult to stomach, is the consultation process itself. And that is the focus of my ire.

From Moving the Goalposts, to Removing Them
The Committee presently has a sleek website which, unfortunately, does not manage to distract attention long enough for one to not see the big bundle of fluff that has been offered to us at present. There is no White Paper or Consultation Paper on offer telling us what are the specific areas that have been identified as needing reform and the specific issues that the Committee thinks require consideration. This is not to ask for the moon and the stars, but this is only to highlight what is standard practice for any efforts to carry out law reform in any functioning democracy.  

What we do have, is an "Aims and Guiding Principles" tab, and other separate tabs outlining "Objectives" for substantive law, procedural law, and the law of evidence. The former is nothing but a collection of the best homilies that one could give for any criminal justice system. The second at least outlines some issues (finally some specifics) but, alas, it does not tell us what is the problem in the first place. And of course, the few specific objectives are couched between wonderfully vague ones such as "Revising foundational definitions and classifications in order to bring the Cr.P.C. in line with modern legal developments". 

Basically, while the Committee has suggested that it is time to move some goalposts, what it has actually done is to temporarily remove the goalposts altogether. There are no positions held, no beliefs about what is good or bad about the law. Conveniently, the goalposts shall reappear one day when the Committee so chooses, and we can only hope that do not appear straightaway in the form of draft legislation itself.

The Questionnaire Process
The removing of goalposts is a problem that has paled into insignificance once we moved into the process of consultations itself. The "Expert Consultation" process was announced, in which there would be two questionnaires each on the three areas of the criminal process flagged above. Responses to each of these questionnaires were due in two weeks time, completing this part of the exercise in twelve weeks. As of July 17, the duration is now four weeks per questionnaire, completing the exercise in 24 weeks, i.e. around four months. Now, as before, all the questionnaires have not been released together. Instead, they will be released in tranches — first substantive law, then procedure, then evidence.

The breaking up of the criminal process into silos through these questionnaires is plainly inexplicable. If anything, what is required is a consolidated approach that considers, at the same time, what effects might be borne by the system by tweaking one of its components. So, for instance, how can we be entering into a conversation about defences without having a conversation how any of these defences might be proved in court? But since the former is substantive law and the latter get covered by procedural and evidence law, in this bizarre consultation process we will only ever look at the picture piecemeal and never as a whole.   

I will try and capture my anguish and frustration at this process with the following image. On July 4, when the first questionnaire was released, it was like the start of a long cycling tour (Tour de France kinds). The race was divided into stages, which came non-stop one after the other. But, here's the twist: Nobody in this tour knows what will happen at the end of each stage; I might go sideways, or up the mountains, or maybe do hardly anything except flat-track sprints. Nobody even knows where the race will eventually end (since there are no goalposts and they will conveniently appear). And every stage is compressed to make it seem like it is legal to now run the Tour de France on steroids. 

What made the nightmare particularly harrowing for me (yes, there is still room for things to get worse) is the questionnaire itself. It does not systematically proceed from laying a foundation on general issues to then move into specifics, it does not systematically go through the list of objectives outlines on the website for substantive law. There is not even indication of the broad themes to be covered within the two sets of questionnaires to be released. Instead, it is a scattershot mix of general queries of principle, with clearly loaded questions designed to favour certain answers, and some very pointed questions (the only ones I had the gumption to attempt to answer) such as should marital rape no longer be a defence to rape. 

All of which we must answer in tiny little boxes of space which keep-expanding. While the 200 word limit has been removed (again, after the questionnaire was released), it is still difficult to not be left feeling that the questionnaire and its overarching undefined consultation process had reduced the task of reforming criminal law to the banality of customer satisfaction forms asking for my opinion on the quality of service. Note, that the Committee has declared that an "Open Consultation" process will also be launched (not yet live), where people can write anything and do not need to feel bound by the questionnaires. The way I see it, the cat comes out of the bag with this one. Tell us, dear Expert, what is the problem with general defences and do our work for us. For a vast majority of the questions, and indeed with the open consults, one is not being asked to consult on a position that the Committee has identified, inasmuch as one is being asked to opine about the desirability of taking a position itself. Will the reform agenda now be determined based on which aspects of the law receive the most criticism in the questionnaire? Is that not the worst kind of majoritarianism on display? I simply do not understand.

The Long, Uncertain Road Ahead
This is not law reform, it is a nightmare that is going to continue for nobody knows how long. Considering the pathetic publicity that the activities of the Committee have thus far received in the national and local media, it is bound to be a nightmare that only the select few who are invested in the process will have to knowingly suffer through. What does one do? One could choose to participate in this process and salvage what can be salvaged, or fight the process tooth and nail to ensure it receives no legitimacy whatsoever, or do a mixture of both. There is, as always, no right answer. 

This blog has, and remains in favour of, the argument that the criminal process requires serious attention and consideration. But that consideration cannot be in the nature of an opinion survey asking whether X or Y aspect should go and A or B should come instead in one questionnaire, and later turning attention to the other parts, all of which happens without any clarity about the positions adopted by the Committee which is running the consultation process. A holistic approach which considers the criminal justice "system" will need integration and clarity, not these tranches of questionnaires. 

It is remarkable that the Committee thinks that it can deliver on its principles within 6 months when a look at India's history suggests that delivering on those principles, such as primacy of the constitution, is task that we still have not managed to fully achieve. I ask myself, if the country has supposedly suffered with this colonial baggage for over 150 years, why not we spend a few more to try and make sure we don't end up under a different kind of ideological baggage this time? The impetus for reforming the criminal law has not come very often. It gives a chance to improve the life of each and every citizen and secure the promise of liberty. It is a chance that cannot be squandered.

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