Dangerous haste to reform criminal law

The Committee for Reforms in Criminal Laws has adopted measures that raise serious concern about its rigour, and its haste to rush through its mandate will have long-lasting consequences for the criminal justice system.

Outside New Delhi’s Tihar Jail, the largest prison complex in Asia, a file picture. India’s prisons are overcrowded, with over 70 per cent of the inmates comprising undertrials.

In May 2020, the Ministry of Home Affairs (MHA) notified a five-member Committee for Reforms in Criminal Laws comprising Professor Dr Ranbir Singh, Vice-Chancellor, National Law University, Delhi; Professor Dr G.S. Bajpai, Registrar, National Law University, Delhi; Professor Dr Balraj Chauhan, Vice-Chancellor, Dharmashastra National Law University, Jabalpur; Mahesh Jethmalani, Senior Advocate; and G.P. Thareja, retired judge, Delhi Higher Judicial Services. From the very beginning, the committee met with very strong reactions against its all-male composition, lack of social diversity, and hurried attempts to carry out a mammoth exercise in the middle of a devastating pandemic with very little public consultation. However, in this article, our interest is to examine methodological concerns with the committee’s approach, which in turn reflects the broader politics of criminal law reform.

Politics of criminal law reform

India’s criminal law regime comprises three main pieces of legislation, along with a host of special statutes criminalising specific offences. The Indian Penal Code (IPC), 1860, covers essentially a variety of substantive offences; the 1973 Code of Criminal Procedure (CrPC) delineates the procedure for the investigation of offences and conducting trials; and the Indian Evidence Act, 1872, governs the rules of admissibility of evidence. The IPC and the Indian Evidence Act were drafted and promulgated during the colonial era and have continued in independent India with amendments as and when needed. The law on criminal procedure was originally passed in 1898, to which there were subsequent amendments and an overhaul in 1973. There have been amendments to these laws over the years and a significant set of amendments were made in 2013 as a response to the Delhi gangrape case.

Criminal law codifies the coercive power of the state and is enabled by provisions of the Constitution. The right to life and liberty guaranteed to all citizens by Article 21 of the Constitution has a crucial exception, that of life and liberty being deprived in accordance with law. Since crimes are considered wrongs against the society as a whole (and not just the individual victim), it is the obligation of the state to prosecute offenders and bring them to justice. Being accused of an offence can perhaps be a life-altering experience for an individual, as it brings them face to face with the entire might of state coercive machinery.

However, more often than not, the might of this criminal justice machinery is pressed into action against the most vulnerable and marginalised sections of our society. Coercive laws have a disparate impact on these communities, which have no means of defending themselves. The consequence of the misuse of these laws is irreversible repercussions on the lives of the accused, their families and indeed even the victims of the offence.

The Indian criminal justice system faces a strange paradox. At one end of the spectrum, brutal custodial violence, manipulated investigations, wrongful prosecution, and lack of effective access to justice are all stark realities that accused persons routinely face. At the other end, victims of crimes also struggle to have their cases effectively registered, investigated and tried. Victim support is hardly available in our system, and the burden of accessing the legal system dissuades large numbers from seeking justice in their cases. The political and public discourse on crime has sought to chip away at the rights of the accused as a means to give more rights to victims. That is politically convenient, but the occurrence of crime must be viewed as the state’s failure to protect its people.

Apart from the law itself and its potential for misuse, a noteworthy Indian problem is that the process itself is the punishment. Our prisons are overcrowded, with over 70 per cent of the inmates comprising people who are yet to be found guilty by any court (undertrials), while our bail system has long been known to be against the poor. Burdened by the lack of independence, resources, infrastructure, training and personnel, the Indian criminal justice system has multiple crisis points. This crisis is further exacerbated by the trend to over-criminalise and over-punish. The tendency to use criminal law to respond to every social problem by providing for harsh punishment has further burdened the criminal justice system.

The devastating impact on the criminal justice system in Bihar as a consequence of alcohol prohibition laws is just one example from the recent past. We have a criminal justice system that is replete with archaic laws, unjust and violent laws, and exclusionary and discriminatory procedures, and yet there has been very little effort to make such a system more equitable and democratic. It is a system crumbling under the weight of its own contradictions, and since its effects are mostly felt by the worst-off in our society, there have not been any genuine attempts at reforming the various components of the criminal justice system. However, given the widespread concerns with the use of criminal law by the current dispensation, the enthusiasm for criminal law “reform” faces significant democratic mistrust. Given the nature and intensity of violence by state and non-state actors, criminal law has emerged as an even greater tool of oppression.

A committee formed to suggest “reforms” in this political context starts on the backfoot already and must confront that reality. It is a reality that justifiably views this attempt at reform as really being about giving power to the state and watering down protections. The committee for criminal law reforms needs to be acutely aware of its position in this political conversation. As a result, the burden to go about its task in the most rigorous and transparent manner is non-negotiable. Without such rigour and transparency, the committee runs the serious risk of losing legitimacy and the democratic acceptance of its proceedings. It is in this context that this article seeks to examine the methodology that the committee has adopted thus far. Unfortunately, it does seem that in its efforts to rush through its mandate, the committee has adopted measures that raise serious concerns about its rigour and, in the process, making choices that undermine the legitimacy of the process.

Committee’s methodology

To begin with, there is no clarity about the terms of reference for the committee’s work. The ‘Mandate’ section of the official website (www.criminallawreforms.in) does provide a list of points on substantive and procedural criminal law along with evidence law issues that are of interest to the committee. We might be well served to first provide the best account of the committee’s methodology.

The committee has released five out of six questionnaires, two each on substantive criminal law (on offences), procedural criminal law and evidence law. In its wisdom, the committee has released these questionnaires in a staggered fashion with 28 days to respond to each one, but the periods have overlapped significantly. The substantive criminal law questionnaire on the definitions, additions, deletion and modification of offences had 87 questions in two parts, while the two procedural questionnaires had 108 questions.

The committee, in a public notice published on August 25, probably in response to the wave of public criticism, sought to provide more details on the methodology and process. The public notice said that the questionnaires were “products of extensive research, analysis and discussions” and that “the hallmark of the exercise had been its reliance on proper methods”. The committee also said that great effort had been taken to maintain the neutrality of questions that were based on the analysis of “judicial precedents, law commission reports, other committee reports, and authoritative treatises”.

Further detailing the method adopted to identify issues, the public notices provided the following information:

a) those issues which have been previously identified/recommended by the authorities mentioned above;

b) those issues on which much public debate has occurred;

and

c) issues identified through deliberations with multiple professionals, functionaries, and legal practitioners.

Apart from the identified issues, the committee has also developed an option called “open consultations” to receive responses on any issue relating to criminal law that has not been specifically identified in the questionnaires. However, the committee has not provided any details on what it intends to do with all the responses and the methodology it will adopt to prepare its report. The demands to make public the responses received by the committee have not received a response.

Criminal law is per se intertwined with the politics of state and governance, and it is therefore important that we identify and acknowledge the politics of the methodological choices of the Criminal Law Reforms Committee. A strategy of open and voluntary consultation has significant concerns of underinclusion and overinclusion.

The questionnaires are drafted in such a manner so as to make the consultation relevant only for those proficient in the law. The broader relevance and implications of criminal law go well beyond just the interest of lawyers, judges, legal researchers and scholars. Undoubtedly there are elements of the law that lie at the core of criminal law reform, but to design the entire process of consultation as the exclusive domain of the law is to effectively deny the interdisciplinarity of criminal law. In its imagination, language and approach, the questionnaire-based approach in its current form is severely underinclusive.

And yet, it also suffers from the vice of being overinclusive. In its design, the methodology does not envisage the necessity of ensuring the presence of certain voices based on the issue under consideration. In leaving participation as purely voluntary, a committee of this nature falls short of proactive obligation to ensure that, depending on the issue, a multitude of perspectives are placed before it. For example, it would be imperative that in an exercise like this, issues concerning children, sexuality, marginalised groups, sexual violence, scientific evidence, etc., would mandatorily require in-depth engagement and perspectives from stakeholders and experts. It would necessarily involve the committee undertaking a rigorous methodological exercise to match a whole range of issues with the voices and stakeholders that need to be heard. This might seem very cumbersome and requiring a lot of work, but since we are talking of laws that have such a deep impact on all our lives, the truth is that there is no way around it.

In adopting this open-voluntary methodology with the questionnaires during a severe pandemic, the committee has made participation technology-dependent while ignoring the exclusionary politics of technology in a country where quality Internet access is abysmal. Even for those who might have the expertise to understand and respond to the legalese in the questionnaires, access is not just about using the Internet to register and send responses. In times when libraries and books are difficult to access, the requirement of access is also about reaching resources behind expensive paywalls.

The committee, in its public notice, seems to make a case that it has uploaded resources on its website to facilitate access to resources that might assist with responding to the questionnaires. However, a bare perusal of those resources suggests that those resources are not a fair representation of the perspectives and resources on criminal law and criminal justice in India. There is a heavy dominance of material produced by state institutions, and it must be a matter of serious methodological concern that in attempting to give public access to material, the op-ed section of the official website has articles only by one author. It prioritises one set of perspectives to the exclusion of almost all other perspectives. While the committee has made participation open and voluntary, it has unfortunately not done enough work to ensure meaningful participation. Its current methodology and structure of participation excludes large sections of people with varying interests in the criminal justice system from participating.

Burden of law reform

A fundamental difficulty with the committee’s methodology is that we have no information on the background work that has gone into developing the questionnaires. The public notice of August 25 assures us that a lot of good work has gone into developing these questionnaires. While there is no reason to doubt those assurances, it does not tell us what this work is and does not put up its work and methodology for public scrutiny. The public assurance is no test of its rigour and credibility.

It is necessary to see the extensive research and the background papers produced after such research that went into the development of the questionnaire. Undoubtedly there is a methodology document that has guided the development of five of the six questionnaires thus far. These documents need to be put out for public discussion and debate to ensure that such a large and profound law reform exercise is based on sound foundations.

It is undoubtedly a burdensome exercise to engage in the kind of research required to produce questionnaires that will be the basis of criminal law reform on this scale. Each of those 200-odd questions are extensive areas of study in and of themselves, and the task of identifying those 200 is an incredibly complex exercise. It is an unenviable task, but for this process to receive public confidence, it is essential that such background research be made public.

Apart from issues of public confidence, such background research and papers are necessary to ensure that those responding are sufficiently informed of various perspectives. The committee is seeking to traverse through a very complex terrain, but by calling for opinions from the public without the necessary background information, it risks converting these issues into a popularity contest.

There must be a methodological justification as to the manner in which the committee arrived upon the issues in the questionnaire. We get no indication from the material published by the committee as to the process and justifications for inclusion and exclusion of issues.

The only indication we have are a few lines in the public notice dated August 25: “The issues on which responses have been sought too, are: a) those issues which have been previously identified/recommended by the authorities mentioned above; b) those issues on which much public debate has occurred; and, c) issues identified through deliberations with multiple professionals, functionaries, and legal practitioners.”

Unfortunately, that is just not good enough in terms of methodological rigour. Why have only questions raised by some sources considered? Why were others excluded? What amounts to sufficient public debate for an issue to qualify for the committee’s attention? What were the sources from where “public debate” is discerned?

The committee has also not provided details of the deliberations with “multiple professionals, functionaries, and legal practitioners”. These are not quibbles over minor details but are, in fact, very significant issues that throw light on the choices that the committee has already made.

For example, there seem to be a disproportionate number of questions on the crime of “mischief”. Three out of 87 questions (more than 3 per cent) in the substantive criminal law questionnaire are on mischief when it forms only 0.1 per cent of IPC crimes in the country as per the 2018 statistics of the National Crime Records Bureau (NCRB). The point here is not that the committee must provide a question-wise justification, but even after five out of the six questionnaires, we are yet to be provided with any details on the methodology adopted by it.

It would be no justification to say that excluded issues can be raised through the ”open consultation” procedure, where respondents can write in about any issue relating to criminal law. The committee has played its hand and the questionnaires demonstrate the issues that are priority for it. And since there are no publicly available reasons for these choices, there is no way for us to know if the committee has already considered and rejected other issues.

The opacity surrounding the methodology adopted to frame the questions is made worse by the language employed by the questions. The committee has used certain phrases, which by no means have the same meaning universally and are subject to much interpretation and debate. To make matters worse, it has casually prefixed phrases such as mob lynching and honour killing with “colloquially understood as”. These are terms that have created sharp divisions amongst sociologists and legal scholars alike, and to leave such terms to multiple interpretations defeats the purpose of a consultation.

Another example. In the first substantial questionnaire, the committee seeks responses on introduction of “strict liability” offences within the IPC, without elaborating as to what strict liability offences are in the committee’s conception. For some scholars, strict liability offences are those that do not require any element of mens rea (intent or knowledge of wrongdoing) at all; for some others, an offence which criminalises a negligent act is also a strict liability offence. There is no consensus among scholars on the subject and, thus, the committee should have been more careful while using such terms, especially when it potentially seeks to alter the structure of the IPC.

Sexual offences: A case study

Many of the concerns discussed above might be usefully illustrated through the committee’s approach to sexual violence in the questionnaires. The Justice Verma Committee undertook exhaustive consultation for reforms in the adjudication of sexual offences in India and submitted recommendations were accepted by Parliament and passed into law by the Criminal Law (Amendment) Act, 2013.

A study on rape trials between 2013 and 2018 found that the rate of acquittals had actually increased since the introduction of the amendments, concluding that mere legal reforms were futile in the absence of corresponding social and governance reforms. Ideally, a committee undertaking criminal justice reforms should have also considered whether the Criminal Law (Amendment) Act, 2013, was being implemented procedurally. However, the committee has chosen to engage with sexual offences only in its Questionnaire on Substantial Criminal Law, which contains a section pertaining to sexual offences.

The first question seeks responses regarding the classification of sexual offences, and whether they should be classified as a sub-set of offences against the human body, offences under gender discrimination or an independent category of offences. The committee offers no guidance regarding why this has been identified as an issue, or the manner in which it will impact the adjudication of sexual offences. To be clear, this issue has immense importance for the discussion on sexual violence in our society, but the committee fails to provide the necessary perspective for respondents to engage with it as part of a criminal law reform exercise.

By adopting this methodology of single-sentence questions with no prior context of research/perspectives, it drastically reduces the possibility of informed responses. The other questions surrounding addition/modification of offences, standard of consent, marital rape and rape during armed conflict were all considered in detail by the Justice Verma Committee. Again, it is not entirely clear why the committee for criminal law reforms is choosing to re-examine these issues in less than six years, or what according to it were the lapses in the consideration of the Justice Verma Committee.

The questionnaire also seeks responses on the aggravating and mitigating factors that should be taken into consideration during sentencing in cases of sexual offences. The committee has not made it clear whether it envisages recommending statutorily recognised aggravating and mitigating factors only for sexual offences, and its reasons for making this exception.

Over the years, several Law Commission Reports and committees have examined the provisions of substantial and procedural law and recommended changes. One aspect that is entirely missing in the public discourse surrounding the criminal justice system is the dire need for infrastructural upgrade and reforms. This is indicated in some of the questions asked by the committee for criminal law reforms. The questionnaires on procedural law seek responses on time-bound trials and stipulating an outer limit on the conclusion of trials. Ideally, the committee should have undertaken an empirical study of the success of similar provisions introduced for the adjudication and conclusion of rape trials by the Criminal Law (Amendment) Act, 2013. Merely inserting a provision that trials need to be heard on a day-to-day basis and concluded within a fixed time limit will not make the judiciary more efficient.

At the heart of the problem lies the fact that there are more than two crore criminal cases pending in trial courts across the country, but there are only 18,239 trial court judges to adjudicate them. These judges are assisted by fewer than 10,000 public prosecutors and fewer than 65,000 empanelled legal aid lawyers. Envisaging any kind of procedural reforms in criminal law is meaningless without first advocating for increasing the number of judges, prosecutors, legal aid lawyers and court administrative staff.

Apart from court infrastructure, a crucial component of the criminal justice machinery is the police. A crime can only be proved in court on the strength of impeachable evidence collected during the course of the investigation. No reform in the black letter of the law will translate into meaningful change in practice unless there is an emphasis on reforms, training and increasing of manpower in the police.

The project of criminal law reforms is vast, complex and demanding. The attempt to hasten and simplify it is fraught with dangers that have long-lasting consequences. We have now been set upon a course of reforming criminal laws many of which are nearly older than 150 years. There is much that has happened in our society, economy, politics and the legal system that has shaped the evolution of criminal law. It is critical that we understand those trajectories in great detail before we set the agenda for reform.

In not laying out its understanding of those trajectories in developing the questionnaires, the Committee for Reforms in Criminal Laws has unfortunately built this entire process on very uncertain foundations.

It must give us a sense of perspective about the enormity of the task that a colonial ruler took over 15 years to develop and implement many of these laws. In a democratic society governed by constitutional norms of participation, the process of criminal law reforms needs lot more depth, inclusivity, and rigour.

Anup Surendranath is an Assistant Professor of Law and Executive Director, Project 39A, at National Law University, Delhi. Maulshree Pathak is an advocate practisi ng in the Delhi High Court and has a Master’s in Criminology and Criminal Justice from the University of Oxford.