(This is a guest post by Lakshana Ramakrishnan and Arshdeep Singh)
The Ministry of Home Affairs vide Notification 1-2-19 Judicial Cell (Part I) of 04.05.2020 constituted a Committee to “recommend criminal reforms in India”. The aim of the committee, as per its own website, is “to recommend reforms in the criminal laws of the country in a principled, effective, and efficient manner which ensures the safety and security of the individual, the community and the nation; and which prioritises the constitutional values of justice, dignity and the inherent worth of the individual.” We submit that the committee’s composition, its objectives, and its functioning till date act as a barrier to fulfilling its own aims.
Many objections as to the composition and functioning of the committee have already been highlighted by ex-judges, senior lawyers, and women lawyers particularly. The committee has also released a public notification responding to some of the objections stated. The Bar Council of Delhi had written to the committee as well, asking for members of the bar to be included.
This piece tends to raise some new objections, revisit some of the already highlighted objections, while responding to the public notifications released by the committee.
1. Lack of gender diversity
The committee as it stands today comprises Dr Ranbir Singh as Chairperson, Dr G S Bajpai, Dr Balraj Chauhan, Mr Mahesh Jethmalani, and Mr G P Thareja as members. There are admittedly no women or persons belonging to the LGBTQIA+ community in the committee. The two consultants listed on the committee’s website happen to be men as well. A questionnaire was released by the committee on July 4 for initiating the public consultations process. The third section of Part C of the questionnaire has been dedicated to sexual offences. The questions raised pertain to the standards of consent, offences amounting to sexual harassment, the marital rape exception, alteration in scope of rape laws to include gender-neutral definitions, and factors to be considered in sentencing. If persons with relevant lived experiences were to engage with these questions, concrete and beneficial change could be brought about in law pertaining to sexual offences. Engaging women, queer persons, and those advocating their rights in a merely consultative capacity reeks of tokenism. The committee's clarification that registrations for the consultations were open to everyone irrespective of sexual orientation, sex, gender, and other social denominators belittles women & queer persons as legal experts in their own rights, and is not a valid explanation to the lack of gender diversity in the committee itself. The concerns that this lack of gender diversity raises have been highlighted in detail in a letter written to the committee by women practitioners.
2. Lack of regional diversity
Apart from the lack of gender diversity, the committee is currently represented by persons whose experience in criminal law does not go beyond parts of Northern and Central India. The two non-academicians in the committee have had a majority of their exposure to the criminal justice system in metropolitan-cosmopolitan cities like Delhi and Mumbai. The reforms forthcoming from the committee’s recommendations would have impacts across the country, a fact that demands adequate regional experience be brought to the table. Going beyond the high-profile or headline making cases, there is a vast majority of citizen interaction with criminal law that has remained unseen and unaddressed. Including persons with experience in the insurgency affected regions of Kashmir and the north-east, the naxal-affected areas such as Chhattisgarh and Jharkhand, and the southern states in the committee would bring the rarely heard narratives to light in so far as these reforms are concerned. Additionally, there is no religious and caste diversity in the committee, which goes to show how far from social realities the committee in its present form is, especially since the questionnaire released has questions pertaining to mob-lynching and honour-killing.
3. Lack of practitioners and civil-society groups
The committee consists of three academicians, one retired judge, and one lawyer. Sweeping reforms in criminal law as a whole should not be spear-headed by academicians alone, without active involvement of practitioners who deal with these laws on a daily basis. With due respect to the members of the committee, more practitioners will bring diverse experiences about the functioning of the justice system, which would ensure a meaningful discourse and practical solutions. The involvement of civil-society groups and practitioners should go beyond mere consultation, to determining the nature and scope of the reforms itself. Adding more members that have experience with crime-investigation, prison-system and law-enforcement in general is also desirable, given that the police force plays a primary role in invocation and execution of the criminal justice system.
We understand that it is not administratively practical to have a large number of members in the committee. However, a balanced representation in form of academicians, police officers, members from the bar, judges of the constitutional courts, judges from the lower courts, and members of prominent civil-society groups would go a long way in ensuring that the committee meets its aim of suggesting “effective” and “efficient” reforms, that take into account the practical goals alongside academic aspirations.
Another addition worth mentioning is that of law-makers. In a parliamentary democracy, it is only fair that experienced parliamentarians can contribute to committees such as this, especially since a major problem with committees have been that their suggestions are often not implemented by legislature. This may bring to the table the much-needed considerations of law-makers. This is especially important given the fact that members of the legislature often criticise courts for their interventions in legislative matters, but ironically, are not included in committees discussing reforms.
It is also recommended that medical professionals, especially mental health professionals, be represented in the Committee. This is important as one of the questionnaires released by the Committee engages with issues of age of consent, intoxication and insanity as defences, etc. A very significant aspect that is often overlooked in so far as criminal justice system is concerned is link between substantive & procedural aspects and issues of mental health. Experts from this field could provide key insights to interplay of mental health and the criminal justice system.
A suggestion that would go a long way in this regard was suggested in the letter written to the committee by a group of ex-judges, senior lawyers and bureaucrats. It recommended creation of sub-committees dealing with specific areas, consisting of members having relevant experience.
The committee was first instituted in December 2019 by Home Minister Amit Shah and was subsequently constituted by the Ministry of Home Affairs in May 2020. Since then, the committee has released a notice containing a schedule through which it plans to have separate consultations with experts on the substantive and procedural aspects of criminal law and the law of evidence. The process, which will last for a mere three months, has been divided into 6 two-week periods. The method and timeline of the consultation process have been criticised by those who have objected to the committee’s functioning and composition. The first consultation was initiated by the committee on 30.06.2020 by releasing a questionnaire comprising 46 widely worded questions on crucial issues plaguing our criminal law framework. Experts have been provided with a woefully inadequate two-week period to engage with these questions after no more than five days of advance notice.
This series of disconnected two-week consultations removes any scope for effective engagement and defeats the entire purpose of the consulting with experts. The committee intends to complete the task allotted to them within a period of six months. It is alarming that such sweeping reforms with a potential to create an extensively deep and wide impact are expected to be developed in such a hasty fashion within a limited period of time.
A questionnaire pertaining to the first round of consultations regarding substantive laws was released on 04.07.2020. A bare reading of the questions excited law students such as ourselves, given its resemblance to our question-papers. One of us having attempted to answer some of them, the exercise seemed no different that writing a short note on the widely debated issues such as marital rape, sedition, death-penalty, etc. On a much more serious note, the questions seem pre-determined, narrow in the areas that they cover, and intended to merely seek endorsements for predetermined conclusions. Working backwards will not do any justice to the process as well as the result. Notwithstanding the concerns with the short timelines, a six-stage consultative process through questionnaires (two stages each for substantive, procedural, and evidence laws) overlooks the manner in which these three core areas are interlinked with each other. A trifurcated exercise, not taking into account intersectional concerns, is inadequate and inefficient to say the least. There has been no indication of how these questions have been arrived at, and nor has any context pertaining to the questions been specified.
As an example, a question reads: “Do you have any suggestions with regards to addition/omission/modification of provisions dealing with kidnapping and abduction?” The question is open-ended and does not contextualise the scope of responses elicited. Another example is: “Which strict liability offences should be included within the I.P.C.?” Apart from being open-ended, the question assumes a conclusion. Moreover, there is no corresponding question on whether or not (and why) strict liability offences ought to be introduced in the first place. At the same time, there are questions that are extremely narrow, seemingly geared towards forgone conclusions.
The questionnaire makes no accommodation for responses beyond the questions already posed, rendering the exercise limited, in-exhaustive, and certainly inefficient. Submissions of the completed questionnaire can only take place online and this excludes a large swathe of persons from participating.
3. Clarificatory Public Notices
Two public notices, seemingly clarificatory in nature, were released by the Chairperson of the committee in response to some of the objections noted herein. We duly acknowledge the same and wish to discuss them.
Notice dated 08.07.2020
Vide this notice, the Committee clarified that its functioning is completely autonomous and is willing to respect all suggestions made. The notice also emphasises that the Committee is ‘conscious’ of the social categories requiring ‘prioritization’. It was also clarified that registrations for the expert consultations would be open to everyone irrespective of their views, ideologies, preferences, sexual orientation, religion, etc.
In doing so, the Committee has have failed to recognise the adverse effects that could arise from its lack of diversity and narrowness in perspective which will not be solved by simply consulting with persons of varying opinions and social identities.
It was also clarified that the 200-word per answer limit is merely suggestive so that participants exercise ‘self-restraint’ for the ‘sake of brevity’. The committee has also justified the short timelines for consultation citing a lack of time, viz., six months to complete the process. It is humbly submitted that large-scale reforms in a system like ours ought not be weighed against brevity and verbal-restraint.
On a positive note, the committee seems to be inclined to receiving external inputs and has made a promise of transparency in its working. However, the notification does not engage with the need to look at the substantive, procedural, and criminal law aspects as a whole.
Notice dated 11.07.2020
In this notice, the Committee has notified the schedule for the open consultation process. Through this notice, the committee has also attempted to respond to objections regarding the scope of its questionnaire. It has been clarified that the circulation of these questions does not signify that the Committee has decided on any of the issues, and the inclusion/non-inclusion of certain questions is not intended to limit the Committee’s mandate, and that they are inclined to consider any issue that is aligned with their mandate. To this end, ‘open consultation’ mechanism has been developed, where any suggestion, advice, opinion, recommendation, knowledge, and experience relevant to the mandate may be submitted to the Committee.
The introduction of open consultations in the manner provided, in addition to the questionnaire system, is a welcome step. However, key concerns regarding short timeline and diversity remain unaddressed.
To cut to the chase, the committee ought to be re-formed, taking note of the various suggestions received. Being overambitious, we appeal to the Ministry of Home Affairs to at least add members to the committee so as to ensure adequate representation of women, queer persons, dalits, adivasis, and religious minorities. As highlighted above, the lack of practitioners of criminal law, representatives from police and other agencies, and civil society groups also needs to be addressed. It is trite to mention that any addition to the committee should also address representation of people having experience in different regions, especially non-urban areas.
If administrative considerations make this difficult, the least that can be done is formation of sub-committees for specific issues, with the membership being considerate of adequate representation. It is also suggested that the timeline and the structure of the consultations be overhauled, so as to ensure a wider and holistic range of perspectives, keeping in mind the implications of engaging with a complex system such as ours.
A top-down approach in reforming systems has its shortcomings, and the present committee will not be able to fulfill its mandate effectively. While working from the grassroots might prove to be an arduous exercise, great reforms require greater efforts. The principle of “Fiat justitia ruat caelum” (Let justice be done though the heavens fall) should guide the functioning of the committee.