26, Aug 2020 | Sanchita Kadam

The Ministry of Home Affairs has commissioned a Committee for Reforms in Criminal Laws in May, 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.”

This Committee was announced in December 2019 by Central Home Minister, Amit Shah and on May 4 came the notification. The Committee is being headed by Chairperson Ranbir Singh (vice-chancellor, National Law University Delhi. The members include G.S. Bajpai (registrar, National Law University Delhi), Balraj Chauhan (first vice-chancellor, Dharmashastra National Law University, Jabalpur), Mahesh Jethmalani (senior advocate, Supreme Court) and G.P. Thareja (former district and session judge, Delhi).

The guiding principles of this committee are:

• Primacy of constitution
• Primacy of human rights
• Simplified, unambiguous and consistent procedure
• Fair and time bound investigation as well as trial
• Transparency and accountability
• Victim justice
• Principled sentencing
• Infusing techno-centricity
• Revisiting the relationship between the state and the individual
• Balancing the rights of the victims vis-à-vis the accused

Objectives of the Committee

The Committee is required to look at substantive criminal law, procedural law and law of evidence. Under substantive criminal law it is looking at revising definitions of offences, punishments, reviewing amounts of fine, identifying offences requiring addition to the IPC, identifying redundant offences and so on.

Under procedural law, the committee will largely look at restructuring the Criminal Procedure Code (CrPC) in line with the preferred model of criminal process and specifically it look at Streamlining the trial process, strengthening the plea bargaining process, Reforming punishments, developing a coherent sentencing policy, aligning the code with judicial decisions and so on.

The mandate for the law of evidence is for examining exclusionary rules for admissibility of evidence, update admissibility of electronic evidence and so on.

Consultation process

The Committee has been open to consultation since July. It has prepared questionnaires for substantial law and procedural law; the questionnaire for law of evidence is yet to be released. The procedural law questions deal with topics such as arrest, bail, investigation, prosecution, commencement of proceedings, law and order, sentencing, trials, plea bargaining, appeals, maintenance, victims and witnesses.

The questions for substantial law deal with strict liability, general exceptions, various types of offences such as ones against the state, against the body, abetment, conspiracy and so on.

The schedule for consultation was modified on July 17 and as per revised schedule, the First Consultation on the Procedural Criminal Law is currently in progress until August 28 and this goes on until October 9 when the last consultation of Law of evidence ends.

The consultation process was heavily criticised for having a word limit for questionnaires, for having a restricted consultation schedule, for not encouraging regional consultation due to linguistic limitations, and so on. In response to these criticisms, the consultation schedule was revised and extended. Further, the committee has now encouraged consultations for even topics for which the consultations have ended as per schedule and have prompted to send consultations via email. Yet, there are still a few issues that have not been substantially addressed by the committee.

To address the issue of regional consultation, the committee has requested several institutions and organisations to organise Regional Consultations on reforms in criminal laws and to share the results of such consultations with the Committee. Until now, Gujarat National Law University (Gandhinagar), Symbiosis Law School (Pune), Maharashtra National Law University (Nagpur), and UPES, Dehradun, have held such regional consultations, as per notice issued by the Committee.

The issues identified

The main issue that has been identified with the committee is its constitution. There are criticisms that the members are all men, from two metro cities, no women, no dalits, no adivasis, no transgender or queer persons, no nomadic and de-notified tribes, no persons with disabilities and no religious minorities. Therefore, the stakeholders have been kept out of the purview in the constitution of the committee that is making a report that could possibly lead to a rehaul or reformation of the criminal justice system and the laws.

A representation made by some members of the legal fraternity demanded that sub-committees be created with outside experts and other consultants with established track records in the field of criminal justice, who can redress the lack of diversity and experience in the Committee’s current composition.

There are also criticisms that the whole process is being carried out only in English, thus making it exclusive of people who can communicate only in regional languages. The Committee has asked law colleges to engage to get inputs at regional level but it is unclear how seriously the same is being implemented since it is not mandatory.

The letter written by the legal fraternity has also asked that the responses received from the public consultation should be made public and the draft of the report whenever it is ready, should also be kept open for public feedback. It further demands that the MHA notification for the constitution of the Committee and the time frame for making the report should be made public on the website. The website of the Committee, criminallawreforms.in does not mention any information on the MHA notification, the mandate, whether it is working independently of the MHA, will the report be finalised after approval of MHA and so on.

The other criticism is that the call for public consultations has not been advertised or publicised as much and hence the reach is extremely limited. The public at large is not aware of any such committee having been formed and hence the consultation is not purely public in spirit.

To form a committee with such an important and wide scope, mandated during a public health emergency, raises questions on the intention of the Centre. There is no doubt that the criminal justice system and the laws are in dire need of reformation to be in line with new developments in the field of law, jurisprudence as well as technology. But this process needs to be long drawn, extensive as well as inclusive so as to ensure that all possibilities are ventured into and a truly reformative criminal law is put in place. There is a need to involve various stakeholders in this process instead of just 4 or 5 individuals making a report based on secondary information/research.

While the move for reforming criminal law is appreciated, the timing of the same is not, neither is the manner in which it is being carried out which is seemingly stealthy and rushed. This is a chance for the people to become a part of formulation of policy and they need to be given a free and fair chance at it so that new reforms are representative of the needs and opinions of people from all classes and communities.

Related:

Monitoring the condition of Indian prisons

How do you police the police?

Protecting the eyes and ears of justice: The Witness