Criminal law reforms: Arbitrary panel, ad hoc process, inherent biases

The ‘Committee for Reforms in Criminal Law’, set up by the Union Home Ministry at the National Law University-Delhi has been widely criticised by the legal fraternity for, among other things, being unrepresentative by excluding criminal and constitutional lawyers, women, members of the minority community and members of the Scheduled Castes and Scheduled Tribes. Experts have also raised doubts about the propriety of the Home Ministry setting up a private committee to recommend these reforms bypassing the Law ministry and Law Commission. This concern becomes even more pertinent when the ruling party has an overwhelming majority in Parliament and has pushed through several laws in the recent past, riding roughshod over the serious concerns of Members of Parliament with regard to their constitutionality and ignoring requests that the bills be scrutinised by Parliamentary Standing Committees.

The committee has tried to justify its lack of representative character by saying that the wide consultation by email through questionnaires will give a voice to all concerned. This argument doesn’t hold much water when the process is sought to be run during a pandemic and especially when it seeks to do a three-year process of consultation that the Law Commission engaged in across the country with a six-month e-mail consultation with only those who have access to the internet and facility of English language. A reading of the questionnaires, sadly, reveals the mindset at work and the inherent biases and motives.

The questionnaire on substantive criminal law, for instance, asks if the offence of sedition should be expanded to include words and signs that not only bring into hatred or contempt the government but also the High Court and the Supreme Court, the Attorney General and other government functionaries. How can such a suggestion even be considered when the sedition law itself is blatantly in violation of the freedom of speech guaranteed by Article 19 of the Constitution and in fact should be repealed!

In another instance, it suggests the removal of Section 498A of IPC, which has had a visibly deterrent effect on cruelty to wives and dowry deaths which were rampant when it was introduced in the 1980s. It clearly reflects the lack of a female perspective. The questionnaire also suggests that rape or sexual assault be made a gender-neutral offence. The refusal to acknowledge that violence against women is a menace faced by our society, inside and outside the family, which is not faced by men, defeats the entire purpose of criminal law as a deterrent.

The questions pertaining to procedural changes are as surprising, in that there is a suggestion that statements made to a police officer under Section 161 of the CrPC be made admissible as evidence. It shows a lack of basic awareness that there is no way to guarantee that these statements are taken without coercion. Further, suggestions like giving the victim a locus in criminal proceedings to oppose bail, is to peg the liberty of an individual not on evidence, but on emotions. Such a suggestion itself is alien to criminal law and civil liberties.

The morality of a society is reflected in its criminal justice system. With the adoption of the Constitution on January 26, 1950, we transformed from a colonised country to a liberal democracy. The people of India guaranteed to themselves equality irrespective of caste, sex or religion and protection against arbitrary actions of the State, liberty of thought and freedom of expression and fraternity, which guaranteed a feeling of brotherhood and belonging to the country. The Law Commission of India was set up with the view to ensure that the colonial laws imposed upon the people of India are brought in consonance with the morality of a liberal democracy chosen by the people of India through the governing principles laid down by the Constitution.

Unfortunately, despite various progressive recommendations by the Law Commission for amendment in criminal law and for reform in the police service to insulate it from corruption and political interference, government after government has refused to implement these recommendations. The democratic State continues to conduct itself with imperial morality, ruling over its citizens as if they were subjects. This lethargy in legislative reform was compensated by the judicial interpretation by the High Courts and the Supreme Court of the substantive provisions of criminal law, procedure and evidence in the light of the mandate of the Constitution.

Colonial offences like sedition or obstruction of the lawful authority of a public officer were read down and restricted to acts that endangered the sovereignty of the country and should not be made applicable to mere criticism of the government. Offences such as criminalisation of consensual homosexual intercourse among adults, adultery among consenting adults and suicide were also decriminalised.

In this backdrop, it is a matter of concern that the objective sought to be achieved by the Committee for Reforms in Criminal Law is not clearly stated. A process of amending a more then 100-year-old law without a defined objective could create chaos, contradiction and affect the liberties of the people of India. A reading of the questionnaires issued by the committee seems to suggest that the exercise is to undo the achievements of our judiciary to make a colonial criminal law somewhat compliant with the Constitution by statutorily incorporating provisions read down by courts.

(The writer is a Delhi-based lawyer and Additional Standing Counsel (Criminal) for the Government of the National Capital Territory of Delhi)