Hidden agenda behind criminal law reforms?

The urgency to start work on criminal law reforms in the time of a pandemic, without adequate engagement with the marginalised and other groups that are impacted by unjust laws, has made legal experts suspect an agenda to bring in laws that favour an increasingly authoritarian state.

At a time when a pandemic is raging throughout the country and people are not able to live and interact normally and many poor and vulnerable sections of the population are struggling with issues of life and livelihood and barely surviving, the Ministry of Home Affairs has set up a Committee on Criminal Law Reform. The committee is expected to overhaul the entire gamut of laws dealing with the criminal justice system. It is supposed to look at and suggest amendments to the Indian Penal Code (IPC), the Code of Criminal Procedure (CrPC) and the Indian Evidence Act. The time frame for carrying out this exercise is about six months. This is not possible even in normal times, let alone at a time of crisis.

The committee has been strongly criticised for the hurried manner in which it is trying to bring about reforms without adequate public consultation. It consists of five men—three law professors, one retired district judge and a senior lawyer—who have most likely been approved by the government. The lack of wider representation has been noted by, among others, women lawyers and civil society groups, who have pointed out that the committee does not have a woman who has worked on women’s issues. or any representative from marginalised groups such as the Scheduled Castes/Scheduled Tribes (S.Cs/S.Ts), minorities including religious and sexual minorities, and workers from organised and unorganised sectors. Inclusion of representatives from these sections would have ensured that those who bear the brunt of the criminal law processes on a daily basis have some say in their reform.

In a letter emailed to the committee on August 21, legal experts and academics/scholars from across India and from other countries have objected to the setting up of a committee to deal with a subject of such magnitude at a time when there is a humanitarian crisis and democratic institutions are in a state of “suspended animation”. They pointed out that the first five Law Commissions of India had taken about 10 years to complete an exercise to overhaul just one-third of the CrPC. They have criticised the wrong methodology adopted by the committee in not releasing the questionnaires on the IPC, the CrPC and the Evidence Act simultaneously as “calling for engagement with substantive law without any sense of what the procedural and evidentiary law might look like and vice versa guarantees dense confusion”. They want to know why the committee has not released a working paper outlining the “problem” and suggesting matters that needed reform. This could be widely discussed by the public before answering the questionnaire. Like other representations on the committee, they have pointed out that the whole exercise being carried out by the committee is an elitist one as it excludes the vast majority who cannot communicate in English and have no Internet access. They have rightly stated that it is particularly important to get the opinions of the “disempowered sections of society” on whom the legal process often places disproportionate burdens. They have quoted a Law Commission, which had pointed out that “law reform is a matter of vital importance not only for the legal fraternity and the State but also for the average citizens”, and stated that rewriting the criminal law could not be done democratically in the middle of a pandemic and should involve open and transparent discussions.

Another letter, dated July 8, from certain judges of the Supreme Court and High Courts and concerned lawyers called upon the committee to disclose the communication it may have received from the Ministry and to state what terms of reference, if any, had been specified and to disclose any concept note or project proposal that had been submitted to the Ministry. Among other demands, the letter asked for a transparent and robust engagement with the public and suggested that the draft report of the committee be put on its website for public feedback.

In a letter to the Home Minister, the All India Democratic Women’s Association (AIDWA) had pointed out that when the entire country was trying to deal with the pandemic and the suffering because of this, any meaningful participation in this exercise by people belonging to marginalised groups such as women and children, S.Cs/S.Ts, religious and other minorities and differently abled people was impossible. It averred that widespread public participation was impossible at this time since no one could directly approach the committee and air their concerns and grievances about how the criminal justice system and the police and the courts had been illtreating the common citizen. They have questioned the need for setting up such a committee in the middle of the pandemic when only certain experts and others who register with it could communicate with it mostly via questionnaires with a word limit of 200 per question.

The urgency to bring in reforms without adequate engagement with the marginalised and other groups that are impacted by unjust criminal laws and during a raging pandemic has made many suspect and fear that the committee has a pre-determined agenda for bringing in certain laws to favour an increasingly authoritarian state.

This suspicion is further strengthened by some of the queries that are raised in the questionnaire on certain subjects. One also has to look at the track record of the government in effecting only certain kinds of law reforms that suit its ideological standpoint and actions and in using the criminal law against those who are opposed to its policies and speak and protest against it, plus its openly communal and anti-Muslim stance. If one examines the laws that have been amended by the present government, they, for example, include the rape law under which the death penalty has been introduced for child rape expanding the areas in which this penalty applies. Further, rape per se and aggravated forms of rape by police personnel, rape in a place of custody, are treated in the same manner with similar punishments prescribed for both aggravated forms and other rapes. It becomes obvious, therefore, that the committee is not likely to suggest doing away with the death penalty or going against a harsh regime of punishment which primarily believes in retributive justice. Another example is the introduction of a law against triple talak, which was communal in its intent and targeted Muslim men by specifying a jail sentence for men who pronounced triple talak and not just making it void as the Supreme Court had done. Since “cruelty” by a man towards his wife is already punishable under Section 498 A of the IPC, which is applicable to all communities, a Muslim man who had abused his wife could always be punished under this offence. However, since no man from any other community is put in jail for merely deserting his wife, why target Muslim men alone? Another amendment that went against child rights and which was decried was to make the child culpable in certain heinous crimes. The committee’s question relating to decreased age for criminal responsibility shows it is open to this concept, which militates against recognised children’s rights.

Also, as a letter from members of civil society groups to the committee has pointed out, several anti-people steps have been taken by the government during the pandemic. The draft proposal of the government for amending the Environmental Impact Assessment procedures under the Land Acquisition Act “would place many projects outside the purview of public hearing effectively rendering local communities voiceless in such decisions”. The proposed suspension of labour laws is again an anti-labour proposal that would whittle away the minimum guarantees given to labourers such as the cap on the number of hours at work. The letter also points out that the habitual invoking of draconian laws such as the National Security Act (NSA) and the Unlawful Activities (Prevention) Act (UAPA) against peaceful protesters, using the spectres of national interest and sovereignty, to stifle fundamental freedoms of citizens makes civil society groups wonder whether the committee wants to overhaul the criminal law in order to “align it with the framework of the UAPA and the NSA, such that the accused’s rights are further whittled away”.

Misuse of laws

Some High Courts have commented on the misuse of these laws. The cases of Devangana Kalita and Dr Kafeel Khan illustrate how these laws have been misused to serve the government’s self-interest. In Uttar Pradesh, when all else failed to keep an innocent Dr Kafeel Khan in jail, the Yogi Adityanath government maliciously and conveniently slapped charges under the NSA alleging that he had promoted hatred and violence and threatened the peace and security. The Allahabad High Court quashed the detention order and held that Dr Kafeel Khan had in fact given a speech calling for national integrity and unity and deprecating violence, and he had thus not acted in a manner prejudicial to public order as required under the NSA. In Devangana’s case, the Delhi High Court noted her presence in a peaceful demonstration and stated that this was a fundamental right guaranteed to all citizens and no evidence was produced to show that she had instigated Muslim women to use violence or made a hate speech.

The questionnaire should be viewed in the light of the prevailing political situation. For instance, in Part C there is a question whether Section 124A dealing with sedition should be omitted or amended in terms of its definition, scope and cognisability. In the past few years the indiscriminate use of the sedition law against those who have protested and sometimes written against government action and policies has resulted in several demands being raised, including from the Left, for its abolition. Though this particular law was enacted by the British to stifle all voices against British rule in India, we have not managed to remove it even after more than 70 years of Independence. Given the frequent use of this draconian law, which militates against the constitutionally guaranteed freedom of speech, it is unlikely that the committee will recommend its abolition. Since the Supreme Court has already outlined the limits under which this law should function and restricted it to speeches that actually incite violence, the committee should not tamper with this law. Similarly, it is mystifying why in Part A of the questionnaire the committee wants to perhaps expand strict liability offences that make a person guilty whether or not the intention to commit the particular offence exists. Many fear that this could be a way of punishing the oppressed who come in conflict with public servants. Again, the question on abetment is mystifying because the law is well settled on this issue and broadening it could have dangerous consequences for the individual or groups involved. In the aftermath of the so-called Delhi riots (which was actually a pogrom), although it was Muslims who lost more lives than Hindus (42 out of 53) and suffered bigger losses in terms of properties, businesses and livelihoods, the Delhi Police has alleged that it was the anti-Citizenship (Amendment) Act protesters (mainly Muslims) who conspired to cause the riots. The police arrested mainly Muslim youths and protesters indiscriminately, even during the lockdown, and reportedly violated procedures required to be followed under the law relating to arrest.

Women’s issues

Although various political parties and human rights groups and others working with marginalised sections have been demanding more accountability mechanisms for the police and stricter laws in place on police excesses and so on, the questionnaire does not have any question on these issues. One hopes that the committee’s recommendations will not make it easier for the police to act with greater impunity and that the country’s bail law, which has already been indelibly altered, is not further tampered with to suit the government’s self-serving interest. Questions around women’s issues are particularly intriguing and smack of mala fides. Undeniably, abolition of the marital rape exception has been a long-standing demand of the women’s movement as has been getting rid of the archaic terminology in Sections 354 and 509 of the IPC, but gender neutrality of the rape law has already been extensively discussed and rejected. In fact, the women’s movement has fought hard for several years for amendments to the sexual assault laws and managed to get the laws amended after the Nirbhaya case with the support of the Verma Committee in 2013. Why should the Criminal Law Reforms committee, which does not even have a woman representative from the movement, take a relook at the clauses that were recently enacted in Section 354 A to D of the IPC dealing with molestation and sexual harassment, among other things? The committee has asked whether “honour killing” should be made a specific crime in the IPC. The women’s movement has not raised this demand. AIDWA and other women’s groups and the National Commission for Women (NCW) had proposed a comprehensive standalone law on not only “honour killing” but also crimes in the name of honour, committed mostly by the young woman’s family and relatives and community panchayats, which include acute harassment and coercive restriction of movement, forced marriage, imposition of fines and extradition. The Law Commission had subsequently suggested a standalone law, though this had a narrow intent and was only meant to target khap panchayats. The committee seems to be unaware of these laws or the discussions that went into their making.

One of the most sensitive laws that affect women’s right to get the police to act during physical abuse and assault and in violent marriages is Section 498A. There have been several efforts on the part of conservative elements to dilute this section; the Supreme Court has already given some guidelines for arrest. The committee seems to want to make suggestions to further dilute this Section perhaps in line with the 43rd Law Commission Report. This report on Section 498A was considered by many as anti-women as it suggested a preliminary inquiry before arrest and a three-month cooling period, and making the offence compoundable, thus treating the crime not as a normal crime but as a crime in which the police need not act immediately. Naturally, this patriarchal agenda will be unacceptable to most women. Apart from this, the committee also seems to want to make suggestions on Section 125 CrPC, which is widely used by women of all communities for claiming maintenance. The basis on which maintenance is granted is well established by law. While certain portions of the Section may require reform, the committee seems to want to amend the whole section. Some fear that this will adversely affect their rights to maintenance. In short, a committee set up by a government that has carried out many anti -people reforms and which is not transparent about why it has chosen to look at criminal laws at this crisis-ridden moment cannot be trusted to have a pro-people agenda and is unlikely to make suggestions for the benefit of the poor and marginalised groups who bear the brunt of the criminal justice system and its processes.

Kirti Singh is Advocate, Supreme Court of India;ex-member (part-time) 18th Law Commission of India, and legal adviser , All India Democratic Women’ s Association.