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Tuesday, October 27, 2020

Committee which proposes to reform criminal law from non-patriarchal perspective excludes women, minorities

The strong critique by the legal fraternity of the Criminal Law Reform Committee set up at the National Law University by the MHA, on its composition, methodology and time-frame is a bell of caution against any attempt by this committee to dilute the procedural safeguards of individuals in the name of national security.

Written by Nandita Rao | Updated: July 13, 2020 7:13:36 am
National Law University, National Law University Delhi, Delhi National Law University criminal law team, NLU Delhi Committee for Reforms in Criminal Law, Committee for Reforms in Criminal Law NLU Law reform is ordinarily within the mandate of the Union Ministry of Law and historically, various law commissions have been set up to recommend law reforms.

A five-member Committee for Reforms in Criminal Law has been set up by the Union Ministry of Home Affairs at the National Law University (Delhi). The vice-chancellor of NLU ( Delhi) is the chairperson and the members include G S Bajpai, registrar, NLU, Delhi, Balraj Chauhan, vice-chancellor of DNLU Jabalpur, Mahesh Jethmalani, senior advocate and G P Thareja, former district and sessions judge, Delhi. The mandate of the committee 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 inherent worth of the individual. In its wisdom, the committee has decided to commence “online” consultations at the peak of the COVID-19 epidemic to ensure that it has its report ready in the six-month time-frame fixed by the home ministry.

Law reform is ordinarily within the mandate of the Union Ministry of Law and historically, various law commissions have been set up to recommend law reforms. Apart from government servants, the commission consists of area experts, lawyers and is given a specific mandate, such as removal of obsolete laws or identification of law that obstructs economic progress. After holding nationwide consultations over a period of three years, the commission gives a report that is studied by the law ministry and then placed before Parliament. There is no reasonable explanation why a university is being charged with making recommendations on the reform of criminal law and that too, with an ambiguous objective, in a truncated time-frame of six months.

The purpose of criminal law is not only to deter criminal deviance and protect society from crime, but also to provide procedural safeguards to individuals and protect innocents from State persecution. The presumption of innocence, the principle of equality before the law, non-admissibility of statements made to the police and restrictions on admissibility of incriminating evidence obtained from search and seizure are all integral to the purpose of criminal law. The fact that the Union home ministry, under whom three investigative agencies function, has notified this reform agenda is in itself a cause of concern and raises questions as to the propriety of this exercise.

The composition of this committee, its methodology and time-frame, have also been received by the legal fraternity across the country with disapproval, suspicion and discomfort. The Bar Council of Delhi was one of the first to raise an objection to the almost complete exclusion of practising lawyers and the Bar from the committee. Several retired judges and senior advocates have also raised concern over the lack of diversity in the composition of the committee and the inadequacy of the time-frame and lack of clarity on the objectives that the reforms or amendments seek to achieve. The women’s bar across the country has refused to accept the composition of this committee and has demanded its reconstitution — 112 women lawyers from the Delhi, Bombay, Calcutta, Banglore and Madras High Courts have written to the chairman of the committee expressing their grave concern that a committee which proposes to reform criminal law from a post-colonial and non-patriarchal perspective excludes women, minorities and representatives of the marginalised sections of society.

Causing even further ambiguity on the exact focus of reform and at odds with the notified objective of the home ministry, which is “ensuring the safety and security of the individual and the nation”, the mission statement of the chairman of the committee on its website states that: “The colonial foundations of our criminal law have long been a matter of concern in legal discourse. The fundamental principles of Indian Penal Code, Criminal Procedure Code and Indian Evidence Act continue to reflect state paternalism and Victorian morality of the colonial state.” One would have imagined that with this mission statement and a post-colonial agenda, the committee would seek to reform the laws that provide qualified immunity for police excesses or invite consultation on rationalising the punishment and definition of offences against the state and against public tranquillity. Instead, the focus of this committee seems to be on increasing strict liability offences and making sexual offences gender neutral.

The methodology adopted by the committee based on questionnaires, also reflects a predetermination on what is to be amended and the process of consultation is more like a referendum on the amendments predetermined by the committee members, rather than an open-ended discussion to determine the reform priorities of Independent India.

The inhuman killing of George Floyd in the US has sparked off a global introspection into criminal law and an acknowledgment that law enforcers are themselves becoming a threat to the lives and liberties of citizens, especially those from minorities and marginalised communities. World over there is no longer tolerance for rationalising police excesses in the name of community or national security. It is unfortunate that in India, the criminal law reform agenda has clubbed the security of an individual with the security of the nation. This runs contrary to the experienced reality of most marginalised people across the world, who are mostly at the receiving end of police atrocities and harassment. Their safety lies in strong procedural laws that ensure the presumption of innocence and deter arrest and long incarceration on flimsy grounds.

The strong critique by the legal fraternity of the Criminal Law Reform Committee set up at the National Law University (Delhi) by the MHA, on its composition, methodology and time-frame is a bell of caution against any attempt by this committee to dilute the procedural safeguards of individuals in the name of national security. It is also in the optimism that a committee with a truly post-colonial vision will respect the democratic voices of dissent and change its composition and clarify its objective.

The writer is a Delhi-based lawyer

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