[Repost] — On the Draft Criminal Codes

[This post first appeared on VerfassungsBlog]

 

On August 11, the last day of the ongoing session of Parliament, the Indian Government tabled a notice that it wished to introduce three new bills on the Floor of the House for consideration. These were proposed statutes to replace the holy trinity of Indian criminal law: The Indian Penal Code of 1860, the Criminal Procedure Code of 1973, and the Indian Evidence Act of 1872, were to be replaced by the Bharatiya Nyaya Sanhita, the Bharatiya Nagrik Suraksha Sanhita and the Bharatiya Sakshya Adhiniyam respectively.

 

Even though the reform was marketed as an attempt to break from the colonial origins of criminal law, it actually represents a resurgence of the colonial-style authoritarian approach, rather than an effort to build upon the relatively modest progress made half a century ago in advancing individual freedom and civil rights.

 

For now, these draft laws have been sent for consideration to a Legislative Committee and may yet fall by the wayside as India heads into a general election in 2024. Nevertheless, the development is arguably one of the most significant legislative developments on matters of criminal law in India for at least half a century and deserves greater scrutiny.

 

 

How did we get here?

 

That the ruling BJP government wished to ‘reform’ the existing criminal law architecture had been no secret — it was part of announcements made soon after re-election in 2019, followed by the formation of a Committee for Reform of Criminal Laws to helm the reform process in early 2020. One would have imagined that the imposition of one of the strictest lockdowns globally to deal with the spread of Covid-19 would have put this process on hold for the time being. However, in spite of this, at the end of May 2020, the Committee suddenly announced the start of an online consultation process, consisting of responding to questionnaires within relatively short timelines (which were slightly relaxed after an initial outcry).

 

The highly exclusive nature of this consultation exercise, given India’s average income, coupled with the apparently biased nature of the questionnaires, left anyone hoping for a truly democratic and participatory process of law reform severely disillusioned. In the three years that followed, no reports were published by the Committee, and no responses to the questionnaires were made public, but periodic news reports suggested something was afoot. But even so, there was hardly a whisper in the media that any draft laws had been prepared pursuant to this reform exercise, let alone drafts ready enough to be tabled in Parliament. Understandably, therefore, the introduction of draft laws on the last day of the Parliament session garnered considerable attention.

 

How was the ‘Decolonisation’ Attempt Received?

 

A primary, if not the only, prong for the government to justify replacing the existing trinity of laws appeared to present it as a ‘decolonisation’ or ‘indigenisation’ effort [even the word ‘Code’ or ‘Act’ was dropped in favour of heavily formal Hindi which is the dominant language in North India and one of India’s many official languages].

 

The Minister, while introducing the drafts, declaimed that the old laws were colonial impositions — even though the current Procedure Code had been enacted in 1973 — and replacing these with indigenous laws was to celebrate the spirit of India’s independence. Not to mention the pragmatic necessity of bringing newer laws that not only incorporated the impact of many judicial verdicts interpreting the old codes but also make the law more responsive to a vastly different societal context than the 19th century. For instance, it was stated that the colonial offence of sedition, the legal validity of which is currently pending adjudication before the Indian Supreme Court, was being repealed.

 

In the few weeks that have passed by, even those who were on the Committee have found it difficult to shower fulsome praise upon the draft laws, and their reception has been largely critical. That the laws offered precious little in terms of new ideas for a new India was made painfully apparent in how little was changed from the 19th-century colonial codes [see here for annotated comparisons with the earlier laws]. Claims such as the repeal of sedition were discovered as being falsehoods, as the existing offence was given a broader and more rights-effacing avatar than its colonial ancestor. The consensus view emerging so far is that repealing existing laws and introducing fresh ones would not only achieve very little reform but do so at the cost of throwing the entire criminal law administration into disarray for years to come.

 

Critiquing the Draft Laws

 

Having offered this brief roundup of the intriguing developments that reflected the opacity of the process by which the new draft criminal laws came to be introduced for discussion, I move to critique the re-codification exercise on two broad parameters. First, focusing on the procedural code, I argue that the effort embraces the colonial and anti-constitutional aspects of the existing Indian criminal codes; it continues the failure of the criminal laws to respect that very basic change in the citizen-state dynamic ushered in by India’s independence and recognition of fundamental rights. Second, the effort displays a startling lack of understanding about codification as a legislative and or law-reform exercise and worsens the status quo on matters of clarity as well as application.

 

The Constitution and Criminal Law

 

The idea to replace or reform the existing Indian criminal codes is not unsound in theory. What lies at the heart of the existing trinity, and is best highlighted through the Procedure Code of 1973, is a culture of command and control that was necessary to run a colony, covered with a veneer of legality in the form of legal rules constraining the exercise of discretion by state actors.

 

The police are conferred with broad powers of arrest with scope for seeking detention in police custody for up to 15 days (section 167), with no general right of bail for all crimes. No rules of probable cause govern searches, with the law explicitly authorising the issuance of general warrants when deemed fit. Not to mention the existence of a sprawling set of preventive powers, enabling the police machinery to arrest and detain persons for being threats to public order (section 107, for instance).

 

These executive powers contained some self-defined legal limits to suggest there was a rule of law approach in place. But the so-called limits permit retention of unbridled executive power, with little or no recognition for basic civil liberties. For instance, the introduction of the search and seizure regime in 1882 was accompanied by an explicit acknowledgment by the administration that the rules for the colony were far broader than anything in the metropole as the colonial law was not concerned with issues of privacy. Any challenges to the alleged improper use of executive power would remain confined to an administrative law logic, requiring courts to defer greatly to the actions of the boots-on-the-ground. .

 

The limited respect for civil liberties, coupled with a limited scope for judicial review of executive action, remained hard-wired within the statutory text even as they went against the constitutional logic. Retaining the existing colonial criminal codes with their culture of command and control while ushering in a new constitutional culture of justification was thus a serious contradiction in terms. Would the old order relent to the new? The answer was a resounding no and it was apparent before the end of the first decade of India’s independence that the police, so long seen as ‘bully boys’ of the Raj, were not becoming the ‘willing servants’ of the new citizens of India.

 

The retention of old attitudes was made possible by a belief in those at the helm of affairs — across all branches of the State — to see newfound in the oppressively powerful state machinery which they had fought against not too long ago. A strong executive was necessary at a time when the country was yet to stand on its own two feet, and rather than focus on asking questions, citizens ought to trust those in power who were guided by the law. In this 'trust us’ mould of reasoning, the old features of oppression within legal structures were dissociated as being problematic facets of State power, to being problematic because they were used by a colonial power.

 

Combating this logic and placing curbs on executive power while widening independent judicial review were some of the driving motivations behind the push for a new criminal law architecture in the 1960s, a movement that ended with the new Code of Criminal Procedure, 1973 being enacted in 1974 (with moves for substantive changes to the Penal Code and Evidence Act falling through). While there were a few significant additions to protect individual liberty in the new Procedure Code, by and large the scheme of the old colonial law was retained, especially on matters of arrest and bail and preventive powers to keep the peace.

 

In the 2023 draft law to replace the existing Procedure Code, it is unsurprising and disheartening to witness a renewed embrace of the colonial culture of command and control rather than an effort to build upon the significant, but few, moves made fifty years ago to claim more space for personal liberty and civil rights. If anything, calculated moves have been made to reverse some of these gains, for instance by expanding police powers for obtaining custodial detention before an indictment is laid (section 187 of the draft) and enabling trials (section 356) and property confiscations (section 107 of the draft) in absentia without little recourse in the event of improper use of such powers by the state. Despite the crisis of prolonged undertrial incarceration no efforts have been made to widen the scope for bail and judicial discretion while deciding such question, which continues to implement a legal regime enacted in 1923.

 

The chasm between the constitutional culture of justification and the wild-wild-west of criminal procedure could not be starker in how the new drafts seek to expand the already enormous search and seizure powers (yes, general warrants are still there) without adding any limitations on exercise of the powers (sections 94, 96 of the draft). Since it comes after a landmark Supreme Court ruling in 2017 affirming that the Indian Constitution protects a fundamental right of privacy, the message is loud and clear — there is no change to the place of citizens in the constitutional order as compared to those of subjects under colonial rule.

 

The Promise, and Premise, of Codification

 

Codification as a legislative or law reform exercise carries a rich and extensive history (especially across the European continent). The idea stems from a recognition that the existing morass of law is too disorderly and ought to be replaced by a comprehensive code which can speak to both the public and the professionals involved in the administration of justice with equal clarity. Once in place, the code requires periodic revisiting and updating for it to remain true to its ambition.

 

Since the landscape of law in India had indeed undergone tremendous transformation over the 150 years since the criminal codes were first brought in place, it made sense to revisit the codification effort. The language and structure of the codes was archaic and outdated. More importantly though, the general law of the codes gradually came to be surrounded by a thicket of special laws that dealt with different kinds of crime besides punishing aggravated forms of the same kinds of harm while introducing special rules (by and large liberty-reducing) of procedure and evidence (such as laws punishing terrorism, drug possession and sale, child sexual abuse, money laundering, corruption, food adulteration, etc.).

 

Revisiting the codes to make them more accessible and for harmonising the interplay between the general and special parts of criminal law are great ideas, even if these come at the cost of some administrative upheaval. Sadly, the new draft laws achieve a fraction in terms of the former goal and probably worsen the position in terms of the latter.

 

A look at the three proposed replacements shows that while considerable effort appears to have been made in redrafting the Penal Code, this has not been thought through, leaving rather basic problems. For instance, ‘insanity’ has been replaced by ‘mental illness’ (section 22 of the draft), but this has been done without changing the actual test for determining when a person can be declared as suffering from ‘mental illness’ to trigger the excusatory defence. Rather than redrafting, it is perhaps more accurate to say that the Penal Code has been rearranged. Even such rearranging is practically absent when it comes to the codes on procedural law and evidence, even though the evidence law was crafted for a setup catering to trial by jury (or assessors), which are not a part of the Indian setup since the 1960s and were formally ousted in the 1973 Code.

 

A cache of laws dealing with specific offences has sprung up alongside the codes and streamlining the machinery of criminal law administration across the general and special parts should have been a mainstay of any revisit of codification in India today. What we find instead is a deafening silence on this front, casting indelible doubts on the reform credentials of this endeavour. There is neither a trimming of the vast expanse of the general part offences nor any considered assimilation of the special part with the general part. Instead, the uneasy and confusing coexistence of the two shall continue, with more overlaps than before by introducing proposed offences punishing terrorism (section 109 of the draft) and organised crime (section 109) in the general part itself.

 

Nor is there any effort to clarify the vagaries of procedural and evidentiary rules across the vast savannah of special part statutes, which have fostered immense litigation over time and continue to do so. Are officers enforcing these laws akin to police? Are the reverse burdens imposed by them even applicable at the stage of bail? How does the right against compelled self-incrimination apply in these contexts? What is the position of victims across these statutes? How is jurisdiction determined? At present, answers to such questions which routinely arise in the application of special part statutes are context-specific and determined by arbitrary turns of phrase rather than any clear legal policy (see, example, here). If a codification attempt ignores such fundamental questions, one wonders if it is of any use at all.

 

Conclusion – All Hands On Deck

 

The proposed draft laws seeking to replace the existing Indian criminal codes are the outcome of an incredibly opaque and inscrutable process helmed by a committee that had no representation of persons from minority communities most directly affected by the enforcement of criminal laws and had one female member who was a government appointee. The Committee adopted arbitrary consultation processes, the government publicly adopted none except appointing the Committee, and not a single report out of the drafting process has yet been made publicly available to enable any meaningful debate or discourse.

 

There are many problems with the content of the new draft laws proposed to replace the existing criminal codes. The internet has had a field day with its incomplete sentences and glaringly obvious errors (an excusatory defence of involuntary intoxication appears to excuse any harm caused after voluntary intoxication, as seen under section 23 of the draft). These are problems that can be fixed. What cannot be fixed, is the clearsighted and unequivocal embrace of the colonial logic of command and control displayed through this set of draft laws. It is yet another instance of what Mehta suggests is an ongoing effort in India to retain the exclusionary authoritarian structures of colonialism, but colouring those power-imbalances with an Indic flourish to somehow legitimise them.

 

The 2023 draft laws constitute perhaps the most obvious transgression of India’s constitutional promise to instil a culture of justification for safeguarding civil liberties since the retention of permanent laws for executive detention without trial (or, preventive detention). To accept that the draft laws are part of a reform effort and an attempt to rid the country of its colonial past is to disbelieve the evidence of one’s eyes and ears. If pushed through, they shall undoubtedly worsen the existing power-imbalance between the state and its citizens, not to mention worsen the status quo in respect of applying and administering criminal law. All hands on deck will be needed to spread awareness about the many problems of these new draft laws and hope that the idea can be sent back the drawing board, and not become part of the statute book.

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.

Guest Post: Re-Form the Criminal Laws Committee

(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.

Composition

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.

Functioning

1. Timeline

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.

2. Questionnaire

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.

Suggestions

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.