Ramblings on the New Codes

This is a short post which hopes to make three brief points. First, I want to draw attention to an interesting contribution by Prof. Arudra Burra and develop further on his critique of using the colonial / decolonial framing in context of the new criminal codes. Second, I want to bemoan the startling lack of imagination in how successive governments, scholars, and us lawyers continue to display when we think about reforms. Third, I hope to urge readers to continue to write on the intended and unintended consequences of the codes!

Of the Colonial Milieu

Prof. Burra argues that the decolonisation framing to argue on the merits / demerits of coming up with new criminal codes to replace the 19th century ones is 'the wrong answer to the wrong question'. He does not comment on the substantive content of the codes itself but his limited focus is to argue that the framing itself is spurious, tying to his earlier work on this subject. 

The intervention is extremely vital and helped me frame some thoughts I had after reading an excellent book on Myanmar's criminal process by Nick Cheesman (hat tip Rohit De) and earlier research on the growth. What I was left thinking after finishing Cheesman's book was that the decolonial / colonial framing to argue about the criminal codes is not merely spurious, it is actively detrimental to the development of law. In projecting everything colonial as 'bad' but retaining most of it, we are not only being facetious but actively jettisoning valuable links to a global legal tradition with a remarkable history that would help us immensely to continue to make sense of our immediate milieu. Sure, it is a bloody and oppressive history, but it is in equal parts an erudite, revolutionary, and inspirational history of the world which we must hold close and keep learning from, rather than shut our eyes to. The level of interconnectedness in the colonial legal world is crying out for exploration, and not for being consigned to the record rooms by a bandwagon of jingoism and arrogance. 

The Barren Reform Imaginary

Throughout the conversations about the 'Aparajita' Bill — only the most recent example of how it is always politics which wins over principle in matters of criminal law — it was one aspect which stood out. A criminal process which is more punitive and more quick to deliver outcomes (soon faster than the transmission of thought) is all that the political class seems to view as 'reform'. In this regard, it is ironic that barely three months after the new codes promised exactly these two developments, a state government has brought in such a set of amendments as if to say "I see your reforms Mr. Union Government, and raise you tenfold".

Maybe it is not their fault. Look at the debates which we have around the legal system and it is clear that the reform imaginary is just completely barren. Today all that the "smart people in the room" (yes, economists and data scientists, I am looking at you) want to do is for the process to be faster to free up more time and give us more GDP growth by showing some chain-reaction of cause and effect. The more ethical set of reformists will also focus on this conversation, but for good measure decry deterrence as not being evidence based. 

There is far too little radical thinking about the process and its contents. Where is the paper that dares to re-imagine what the criminal process may be like, or what a new set of crimes may look like for contemporary India? Gathering cobwebs in the physical and digital spaces. The more I look at the literature generated in the last two decades on issues of the criminal process, the more I am left to wonder whether any outcome other than the codes with their minimal changes to status quo could have been realised even by the most agreeable of dispensations.

Time to Write!

We are all witnessing an unprecedented time where an entire system of legal professionals appears to be trying its best to somehow make sense of the relatively few changes that the new codes have brought upon us. Until such time that High Courts issue practice directions to help, which I would argue is the most sensible way to resolve many issues, let us try to write about the problems we are facing and solutions that courts are working out! 

For instance, how are the provisions on service by way of electronic means being treated by the courts? Or, what about the provisions requiring the accused be heard before taking cognizance in cases instituted upon private complaints? And, of course, what about Section 531? By sharing insights across state boundaries, all of us can do our measly bit to improve the lot of litigants who are the ones ultimately suffering the vagaries in interpretive choices that courts will make.