India's overhaul of century-old criminal laws during pandemic draws flak

BANGALORE – India is undertaking what could be the biggest overhaul of all its criminal laws ever.

But the committee set up by Ministry of Home Affairs to review the colonial-era laws is facing strong criticism.

On May 4, the Ministry established the five-member committee to recommend reforms to criminal laws in a manner that “ensures the safety and security of the individual, the community and the nation; and which prioritises the constitutional values of justice, dignity, and the inherent worth of the individual”.

The committee is chaired by Dr Ranbir Singh, the head of the National Law University, Delhi.

Reforms to India’s criminal laws are widely considered overdue. The Indian Penal Code was drafted by British officials in 1860 and the Evidence Act in 1872.

Despite amendments over time, many parts of the law retain a strong whiff of colonial ideas and Victorian morality.

Rape within marriage is still not considered a crime, state governments often arrest critics for ‘sedition’, and prolonged pre-charge and pre-trial detention is permitted.

Same-sex relations and adultery were only decriminalised by the Supreme Court in 2018, after over 150 years.

The committee released its first consultation questionnaire on July 4, with questions on crimes including sedition, marital rape, honour killings and mob lynchings. Another questionnaire released on July 18 covers laws including those on hate speech, blasphemy and wrongful prosecution.

The committee’s procedures, timing and composition, however, are raising eyebrows.

The committee has only six months to finish its work. Its consultation process invites online comments to six questionnaires which will be released in phases.

A group of 16 former judges, 100 lawyers, and many legal academics wrote a letter to the committee saying the deadline was not feasible, and asked why this complex endeavour was being done in the middle of the coronavirus pandemic.

“An overhaul of criminal law as we have known it after 900 years of common law and almost 150 years of established jurisprudence is too serious a matter to be wrapped up in all of six months… Surely, humanity requires that the committee not commit to an exercise of this scale when 600 Indians are dying every day and when large swathes of the country are in lockdown or in containment,” the letter said.

The committee’s future questionnaires will cover issues of criminal procedure and evidence, an approach that the former judges’ letter described as piecemeal and confusing, since the various statutes were “intrinsically connected in their operation”.

Another letter from over 150 women lawyers asked why the committee comprised five dominant-caste Hindu men, and no women, lower-caste Dalits, religious minorities, adivasis (tribals), lesbian, gay, bisexual and transgender (LGBT) persons or the disabled.

Two members of the committee teach in the same university as chairman Dr Singh. Other members are senior lawyer Mahesh Jethmalani and former judicial officer GP Thareja.

The letter from the women lawyers said: “It seems to us simply absurd that, when a large part of the questionnaire is devoted specifically to reform of sexual offences, women practitioners of criminal law have not been included on the Committee.

“Can a discussion on criminalisation of honour killing or mob lynching be meaningful without the inclusion of Dalits and religious minorities on the Committee?”

Members of the ruling Bharatiya Janata Party (BJP) have previously been clear about their position on some contentious issues the committee will consider.

For instance, Mr Rajnath Singh, the Defence Minister, had said in 2019 that the party would make the law on sedition (a crime punishable with life imprisonment) “even more stringent”.

The letter from the women lawyers said: “A questionnaire-based methodology of soliciting contributions from expert consultants seems to indicate that the Committee has already arrived at certain forgone conclusions.”

“Laws in any country should evolve with time, but we would be very disturbed if the fundamental basis on which criminal law is built in this country is changed,” said Ms Rebecca John, a senior Delhi-based lawyer.

She was referring to the principles that a person is innocent until proven guilty, gets a fair trial at all stages, and any confession to police officers is not admissible as proof in court.

In 2018, the BJP-led government under prime minister Narendra Modi had proposed to reform criminal laws by revisiting the recommendations of a 2003 committee.

They included allowing confessions to police officers as evidence in court, and lowering the standard of proof for crimes.

Legal experts and former judges are wary of the committee giving in to populist demands of more policing and harsher punishments.

They ask for larger engagement with stakeholders over a period longer than six months as legal reform committees like the one to reform rape laws and update electronic evidence standards, have done in the past.

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