HOW NOT TO REFORM CRIMINAL LAW

The Union home ministry has constituted a ‘Committee for Reforms in Criminal Laws’ to propose changes to three foundational pieces of criminal justice legislation—the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act. There is no dearth of instances, from the mundane to the extraordinary, showing that India’s criminal system is riddled with problems. Recent events have shown how extraordinary criminal laws such as the Unlawful Activities Prevention Act can be used to suppress dissent. Regular aspects of the process, such as precharge arrest and detention, mean that thousands of people are arrested and detained for months, without sufficient cause. There are other issues, of which most know little. For example, what is the average length of a criminal trial? Or, year-on-year, what is the caste, religious and gender composition of the people arrested by the police? We lack basic information about the criminal process.

The committee is untroubled by this lack of information. Instead, it has set about proposing solutions to problems it has not identified, and possibly not understood. The only problem that has been identified on the committee’s website is the colonial origin of these laws and their unsuitability to the present Indian context. Surely the problem needs a more detailed articulation than that?

A serious diagnosis requires research into the criminal process, and to commission that research should have been the committee’s first logical step. For example, why do trials take as long as they do? This is a recurring complaint, and beyond vague aspirations to ensure a ‘time-bound trial’, what is needed is empirical evidence on the causes of delay. The committee seems uninterested in the lived reality of criminal law.

This indifference is manifest in its own composition and the way it has gone about the exercise. In embarking on one of the most ambitious re-evaluations of criminal laws in India, the committee should have included representations from different communities and invited wide-ranging public consultation. Since this is not possible in the middle of a pandemic, it should have deferred the exercise until it became feasible to run such a wide survey. Instead, the committee has embarked on the undemocratic expedient of electronic ‘consultation’.

To take part in these ‘consultations’, one has to either enter comments in an online form or register on the committee’s website and obtain a unique ID, after which the committee will send a series of questionnaires on criminal law reform. The general public does not have access to these questionnaires, and the committee is making no proactive effort to reach out to different parts of society to understand their experience of the criminal process. These e-consultations limit participation to English-enabled people with access to a computer, an internet connection, and the means to engage with this narrow and opaque process.

The questionnaires themselves betray a scattershot approach to this reform. For example, Part A of the first questionnaire (only the first two series of questionnaires are currently available) has two sections—one on ‘strict liability’ and the other on punishments. The doctrine of ‘strict liability’ is contentious in criminal law since it advocates that people be held responsible for actions, regardless of intent. Why the committee has decided to foreground this question is bewildering in the absence of a context.

Further, the committee reduces complex ethical issues into questions that can only elicit simplistic answers. For example, Part C, Q7 asks whether ‘[the provision defining abetment of suicide] of the IPC should be amended to create an exception for active euthanasia?’ Or Q14, which goes: ‘What should be the standard of consent [in the provision criminalising sexual assault] under the IPC?’ These are complex questions that require a layered understanding; they require debate; they cannot be answered in an online form.

For an exercise of this scale—and import—the committee’s mandate seems to give short shrift to community engagement, relying as it does on an electronic questionnaire accessible to few. Where other bodies have taken years or decades of wide-ranging consultations and careful debate to suggest changes in criminal laws, this committee believes it can complete this mammoth task in six months. Recall the cautionary words of the original draftsman of the penal code about the process of legal reform: “To the ignorant and inexperienced, the task in which we’ve been engaged may appear easy and simple.” The committee charged with this onerous exercise should know better. ■

The current review of India’s criminal laws is illtimed and deeply flawed. This process requires painstaking research and wide community engagement