Siddhartha Dave: The ideal thing to do is to scrap the committee

Interview with Siddhartha Dave, Senior Advocate, Supreme Court.

Siddhartha Dave.

The process of reforming laws should be as broadly consultative as possible. Many criminal law experts believe that the Law Commission is more equipped to conduct a proper review of criminal laws than the Home Ministry-appointed five-member committee. Siddhartha Dave, a Senior Advocate in the Supreme Court, has expertise in criminal law. He is of the view that if the committee is serious about reforming criminal law, it should look at police reforms first. Excerpts from an interview he gave Frontline .

The Home Ministry has constituted a five-member committee to review and overhaul criminal laws. Do you agree with the manner in which this committee has been constituted and its timing?

The responsibility of reviewing and overhauling criminal laws should not be the prerogative of a committee but that of Parliament and the Law Commission. Ad hoc committees constituted by the Home Ministry has no locus to review the laws, especially if the Home Ministry is going to place it before Parliament. With a pandemic going on for the last four months, how will the consultations take place? It is not a transparent procedure. It should been an open forum, as it was when people deposed before the Justice Verma Commission. If I email them something, there is no guarantee that it has been received. The ideal thing to do is to scrap this committee.

The alternative is the Law Commission. It has a structure and is a formally recognised body which has been dealing with such issues since Independence. Why bypass it? Also, why select one university for this? What does a university have to do with it? What are its credentials and what great work has it done in this area? Tomorrow, laws can be reviewed by IIT Delhi by this logic. Ideally, the Law Commission should look into it, hold interactions and place its recommendations before Parliament. All ad hoc committees are extra-constitutional authorities. They have no business recommending changes.

Is it possible to suggest far-reaching changes in the Indian Penal Code (IPC), the Indian Evidence Act (IEA) and the Criminal Procedure Code (CrPC) within the time-frame of six months suggested by the government?

There should be no time-frame. These are far-reaching changes that are being proposed. There are examples of the best-drafted pieces of legislation from 1860 onwards that have stood the test of time. Whatever laws we have drafted in the last 20 years are riddled with loopholes. Forget criminal laws, amendment after amendment was moved in the Arbitration Act and the Insolvency and Bankruptcy Code, 2016, because they are so unworkable. I shudder to think what amendments they are going to bring.

Merely because a law is colonial does not make it a bad law. The Transfer of Property Act and the Registration Act (1908) are colonial laws. Review those. Our political governance is based on the Westminster model; we should review that. Parliamentary privileges follow the colonial model and it should be reviewed. Why single out criminal laws is beyond my comprehension. The CrPC needs some changes as it was largely based on an earlier one. I am not sure whether we are actually capable of a review given the time-frame. It will take six months for the committee just to understand the workings of the IPC, CrPC and IEA.

But each and every definition in these laws is outstanding. It is amazing that something that existed in 1860 covered circumstances today. Look at the Terrorist and Distruptive Activities (Prevention) Act (TADA) or the Prevention of Terrorism Act, 2002 (POTA). Both are badly drafted laws. The reason for the present review is not clear.

Do you also feel that the setting up of this committee at a time when a lot of normal functioning of society has been paralysed is another example of executive overreach?

If at all it requires any review, it should have been done by the Law Commission and no one else. It was bypassed even when the Verma Committee was set up. The 2003 Justice V.S. Malimath Committee’s recommendations on the criminal justice system have not been implemented. Justice Malimath, a retired judge of the Karnataka High Court and Kerala High Court, traveled all over the country. His recommendations are still pending and now we have another committee.

When the Bharatiya Janata Party (BJP) came to power in 1999, it wanted to review the Constitution. A committee was also set up to review the working of the Constitution. Then A.P.J. Abdul Kalam remarked that it needed to be seen whether it was the Constitution that had failed us or the people who had failed the Constitution. That same logic applies. From the Constitution we have come to criminal law now.

There are some who believe that the objective of the committee is to establish and strike a coherence between the various laws. It comprises widely respected and accomplished academics but lacks representational diversity, which has attracted criticism. Do you feel this is a valid criticism?

There is nothing called coherence between various laws. Criminal law is divided according to the subject matter. There are subject matters or laws dealing with each offence. Our procedural law is not colonial. It came about in 1973. So, there is no need to review that. If being a colonial law is the only criterion, the question of coherence does not arise. I don’t think these academics should be in this committee or dominating the committee as they don’t have any understanding of criminal law.

Why only academics? They only teach what is laid down by the courts. There are journalists, engineers who can also be in the committee. Having one member from the Bar Council and another judge here and there doesn’t serve any purpose. Let there be more judges and lawyers in the committee. There is diversity even in the interpretation of the law. There are laws dealing with crimes against women that are applied in a regressive manner in some parts of the country, but in States with a better education level, the experience is different.

If at all we are going ahead with this committee, it should be diverse.

Do you feel that this kind of a consultation would lead to substantive changes in criminal law, especially the way it is applied in lower, trial courts?

We have judgments interpreting provisions of criminal law since 1860. Until 1947, the Privy Council’s interpretations were the highest call. We have had the Supreme Court since 1950. It has consistently interpreted these provisions, which constitute law and used as case law by judges and lawyers. Now they want to re-haul these laws, which is like going back to square one. A matter goes to the trial court, which gives an interpretation; then it goes to the High Court, which interprets it in its own way and then it travels to the Supreme Court, which again has to apply its mind. It is a sheer wastage of judicial time. This is unsettling what is a settled position. It will lead to nothing, just more confusion.

We saw how the police behaved with migrant workers during the pandemic We also saw how the police entered a campus in Delhi and went on a rampage and how they behaved with a certain community during the recent Delhi riots. Do you feel the committee should address these issues more specifically, in terms of having strong procedural laws that uphold the presumption of innocence?

This is the most important aspect. The only reform the committee should carry out are police reforms. We cannot have a regressive system where the police are in charge of law and order as well as investigation. We have no concept of detectives, or separate units for crime detection.

There is no difference between those who comprise the Central Bureau of Investigation (CBI), the Enforcement Directorate (ED) or the National Investigation Agency (NIA). The cadre is the same and the training is the same. There is no difference in the skills of CBI or ED personnel and local policemen. The urgent thing needed is the implementation of the judgment of the Supreme Court in 2006 relating to police reforms. We should have better forensic laboratories, better scientific investigation. Both the State governments and the Central governments don’t want to let go of control of the police.

On the one hand, many offences have been decriminalised, most of them because of judicial intervention. On the other, there is an increasing tendency to book people under the most severe of laws like sedition, the Unlawful Activities (Prevention) Act (UAPA) which ends up causing a lot of harassment and suffering. Should the reform process look at these aspects as well?

This is precisely the reason why I don’t want this committee to touch laws that have been doing fine since 1860. Take a look at the amendments the Congress brought in 2004. It amended POTA, but brought in UAPA through the back door, which was amended in 2009 and 2013. From a purely legal perspective, it is worse than POTA. Look at the definitions it has. If I work against the economic interests of the country, I can be booked under it because it affects the sovereignty of India. It can be invoked against a black marketeer. Are these laws meant for such trivial things? These amendments were made by Parliament in free, independent India. Some of the laws of 1860 are much better than this.

The stated objectives of the committee do not reveal much. They are broad in scope. They talk about primacy of human rights, the Constitution, simplifying procedures, fair and time-bound investigation, victim justice, balancing the rights between the state and the individual, principled sentencing, balancing between the accused and the victim, and so on. What would you say about this broad mandate of the committee?

There is no point in wasting public money on this. There is a need for procedural reforms. For example, for every special law, there is a special judge. But all these judges are taken from the common pool of judges. It has become a normal legislative prerogative. It deprives the general pool of adequate number of judges. The strength of the lower judiciary is not increased. The committee will not looking into this. Rather than look at the substantive part of law, the procedural parts should be looked at.

We have to take investigation of a crime out of political control. We have a directorate of prosecution but if the political masters instruct that UAPA should be invoked against an accused, it will be done. A person maybe acquitted after 20 years. [But there will be] no restitution for him. [Doctor] Kafeel Khan is a great example of this. Decriminalising some of the offences is not of much consequence. I have yet to see someone convicted for bigamy. Decriminalising Section 377 of the IPC was good but that was not because Parliament willed it. Parliament will amend what suits it. This approach is common to all governments.

Despite having laws for almost all offences under the sun, crimes against the poor, Dalits, minorities, women and children have not come down. Our jails are full of people belonging to the weaker sections of society. Would you agree that there is an anomaly in the application of criminal law and, by implication, the criminal justice system?

This is related to law enforcement and crime investigation. Laws cannot prevent crimes. But it is the political patronage that needs to be questioned. The committee should address why jails are crowded and why bail is not given. It should look at different sections such as Dalits, women, minorities and weaker sections. Lack of bail (for undertrials) has devastating consequences. In some instances, such as murder or a heinous crime, bail can be denied. But the judicial trend today is to deny and not grant bail. If there is a riot case or an anti-CAA protest, why should someone be in jail for it? The trend that the executive can file multiple first information reports for the same offence in different States is growing. As soon as a person’s 90-day remand is over, he is taken into custody in another State. This was not the case earlier. The committee should look into this. It is not the colonial laws that are being misused but these newly drafted laws.

There are apprehensions that many progressive laws might get diluted in the process of reform and that we might see some very tough laws in the name of national security, thereby further shrinking the space of individual and collective freedoms.

Ultimately, laws do get diluted when there is one party in power rather than a coalition. This committee looks like a hand-picked committee with not much knowledge of the working of laws. I don’t have much hope from this committee. I doubt political parties also will look deeply into this. All amendments in recent years, including draconian ones, were framed during Congress regimes. The tables have turned. There is a right-wing dispensation today which is using those laws against the Congress itself. We should not forget that we have a Constitution governed by law. We have a most fundamental article, Article 21, that says no person shall be deprived of life and liberty except by procedures established by law. Only police reforms can save this country. Make the police independent of the executive. But the remit of the committee is not to go into this.