In a series of hasty policy creations and law reforms, such as the New Education Policy and the Environmental Impact Assessment, the Ministry of Home Affairs is now planning to bring reform to the Criminal Law system.
The decision to carry out criminal justice reform stems from the Union Ministry of Home Affairs' goal to improve the justice system by "ensuring the safety and security of the individual, the community, and the nation and which prioritizes the constitutional values of justice, dignity, and inherent worth of the individual," as reported by the Indian Express.
It plans to completely revamp the criminal law to make it befitting for the more open-minded and modern age. 'A great initiative' - you might be thinking but publications and activists have revealed numerous flaws in the government's plan to better criminal procedure.
Why the Criminal Law Reform is problematic
It has an all-men panel
The first issue lies with the lack of representation in the committee as five upper-caste men form the dream team of the criminal justice reform report. How ironic is it that five men are supposed to advocate for law amendments to protect minorities, women's rights, and the LGBTQ community?
The social identity of the members embodies homogeneity and reeks of patriarchy and erasure of lower-castes. It's daunting to know that privileged men will decide the law of the land especially when our country's political climate is becoming intolerant towards minorities especially those who criticise the government.
In reaction to the panel, the women's bar across the country has refused to accept the composition of this committee.
Over a 112 women lawyers from across India have written a letter to the chairman of the committee urging him to rethink the formation of the committee. The women in their letter say that it should be a prerequisite to have women, Dalit leaders, minorities to be a part of the committee if the government genuinely wants to reform law from a post-colonial and non-patriarchal perspective.
The timing of the reform is strange
The committee which was first announced in December 2019, had begun its proceedings from July with online consultations during a pressing pandemic in order to stick to the 6-month-timeline to complete the report.
Making it online means excluding a majority of public and law experts from the discussion. Why is a notable criminal law reform such as this being made so exclusive and inaccessible? Unequal access to the internet among Indians means an online discussion will make it almost impossible to gain a broad, well-informed consensus among different strata of society.
The chairperson of the Committee for Reforms in Criminal Laws, professor Ranbir Singh responds to the criticisms about the timing of the reform in conversation with the Frontline.
He says that he completely agrees with the suggestion to extend the time frame and claims to have spoken about this to the Home Ministry during a meeting.
"In all our meetings we have been saying to the government that the Malimath Committee took three years, the [Madhav] Menon committee took more than one or two years, and even the Law Commission took a lot of time," he discloses.
Singh also feels that holding online consultations will make the law reform process more cumbersome. Hence, he hopes to speak to the Home Ministry about the same.
Most people are unaware of this reformation
The committee was formed in December 2019 but the public is only recently learning about it as there were no efforts by the Ministry to spread awareness about the exercise. You would be surprised to know that the committee had closed its consultation process on October 9, 2020, and a significant number of people still have no inkling about the existence of such a committee.
Now, the committee is promising to consider public opinion on the law reforms but this provision is merely tokenism if most people aren't aware of their role in the first place.
Initially, the consultation process relied only on questionnaires with a 200-word answer limit but was later changed after backlash and uproar about the word limit. For a wider discussion, the committee notified an open consultation process, inviting suggestions, comments and recommendations, but there is no proposal/working paper/issue paper from its end that can be responded to.
The discussions are only in English excluding millions
The problem with the consultations is that the committee only functions in English, excluding many in a linguistically disparate country. The meetings are online, in English, lacking diversity and public awareness - it's as if they've checked all the boxes to keep the consultations a private matter to be only discussed by the privileged.
According to the Wire, there has been no official statement from the committee about debating and deliberating on the responses received in the consultation process. So, is the offer for public engagement just a facade of inclusivity? Clearly, they have no intention of making it meaningful or genuinely participatory.
Several issues are missing from the discussion
The current mandate of the committee concerns itself with updating aspects of the - ‘The Indian Penal Code, 1860 (Substantive Criminal Law)’, ‘Criminal Procedure Code, 1973 (Procedural Criminal Law)’ and the ‘Indian Evidence Act, 1872 (Law of Evidence)’.
However, there are several kinds of crime that bear no mention such as marital rape and custodial torture. Brutality committed by the police has made headlines in the past few months but hasn't been included as an agenda of the Reforms Committee. Have we already forgotten about the Jayaraj-Benniks' custodial deaths in Tamil Nadu?
Under current laws against custodial torture, police officers are imprisoned for three months along with a three-month pay cut - a trivial consequence for unreasonable torture. This is proof of our tendency to downplay custodial violence even though it has caused several deaths at the hand of law enforcement.
Reading about the mission statement and post-colonial agenda, one would expect the committee to reform laws that protect people from police brutality and laws that protect people who criticise or call-out the government on their mistakes. But these issues are virtually missing from the committee's agenda.
Why you should know about the criminal law reform
India's legal system has several flaws including a major implementational hiccup and every Indian is aware of how lethargic the Indian legal system remains even after changes in laws. For example, even after introducing more stringent anti-rape laws, more and more rape accused are acquitted in court.
We've failed to bring justice to rape victims due to inefficient investigations, lenient court judgements and low conviction rates - this requires us to evaluate why. As citizens who demanded stricter rape laws, we need to understand why our solutions didn't work and collaboratively think of better law reforms.
The IPC [Indian Penal Code] is almost 160 years old and not any major effort was made to have a meticulous look at the criminal law. The scope of the changes include:
- Revising definitions of offences
- Revising punishments
- Reviewing amounts of fine
- Identifying offences that need to be added to the IPC
- Identifying redundant offences
Under procedural law, the committee will look at restructuring the Criminal Procedure Code (CrPC) by:
- 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 committee will also have a look at the law of evidence in terms of what kind of evidence is admissible and how electronic evidence will be dealt with in courts. Overall, the decision seems like an ambitious revamp of the criminal justice system, which on its own, is a revolutionary step but is essentially futile if only a certain section's interests will be catered to, namely, men.