What Is At Stake In India’s Criminal Law Reforms Consultation
A pair of standard issue handcuffs sit on a table. (Photographer: Jerome Favre/Bloomberg)

What Is At Stake In India’s Criminal Law Reforms Consultation

India’s criminal laws are set to see a complete overhaul. Tasked with the review is a five-member committee, appointed by the Ministry of Home Affairs. Within a few weeks of this announcement, the government-appointed panel ran into controversy with a number of senior lawyers, judges and academicians questioning its composition, process and approach.

The committee is headed by NLU Delhi’s Vice-Chancellor Ranbir Singh, and has GS Bajpai, NLU Delhi; Balraj Chauhan, NLU Jabalpur; senior advocate Mahesh Jethmalani; former judge GP Thareja as its members.

Sixty-nine senior members of the bar have questioned the lack of social diversity, professional background of the members, and their experience. Another letter, written by a group of women lawyers, has criticised the lack of representation of women and minority groups such as Adivasis, LGBTQI, religious minorities and the differently-abled.

“As women lawyers, 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? These are but a few stray examples.” - Letter by 126 women lawyers.

Skewed representation isn’t the only aspect that the committee has been critised for. The method adopted for stakeholder consultation has seen sharp opposition as well.

The Committee's Process

The committee is required to recommend amendments to the three statutes that govern India’s criminal justice system — the Indian Penal Code, 1860; the Code of Criminal Procedure,1973; and the Indian Evidence Act,1872.

To this end, the committee has adopted a questionnaire approach to seek feedback.

  • On July 4, it released 46 questions on subjects like strict liability offences, offences against the human body, offences against the state, sexual offences, etc.
  • The second set of questions was made public last week and captured issues like abetment, criminal conspiracy, religion, public health, offence by or related to public servants, etc.
  • The committee will have a two-round window of consultation for reforms in the Indian Penal Code and then later the Code of Criminal Procedure and the Indian Evidence Act. Each round of consultation will have a four-week window (increased from two weeks earlier), where stakeholders can send their comments and suggestions. After complaints from certain quarters, the committee has agreed to provide the questionnaire in regional language as well.

Senior lawyers, in their letter, have criticised this piecemeal approach.

‘’The Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act are all intrinsically connected in their operation. Inviting answers to questions on one aspect of substantive or procedural criminal law, without knowing what reforms are being contemplated in other areas will be counterproductive and has the potential for much confusion’’ – Letter by 69 lawyers

The Committee’s Approach

In the questionnaires made public by the committee so far, it has stated the need for change in sedition laws, asked if acts like mob lynching and honour killing need to be included in the Indian Penal Code, and whether terms like consent, force, assault defined under the Indian Penal Code need a re-look.

The committee has also sought views on whether active euthanasia should be allowed and defamation decriminalised or amended to balance the need of protecting privacy, reputation of people versus the right to free speech and expression. Another area of focus is need to repeal or restrict blasphemy.

Some of the other questions being considered by the committee include:

  • Should ‘corruption’/bribery/illegal gratification in the private sector be criminalised?
  • In light of the recommendations of the 277th Law Commission Report, what should be the definition, scope and liability for ‘wrongful prosecution’?
  • Should conspiracy to commit offences carrying the punishment of imprisonment for less than two years be decriminalised?
  • Should defamation by public servants in the course of their public functions be treated as an aggravated offence?

Committee’s Response To Criticisms

The composition is not within the committee’s powers, said the reforms panel head Ranbir Singh. But the panel is conscious of the social categories requiring prioritisation in reforms and the committee is guided by “progressive and humane thinking” in the realm of criminal law, he said.

Registrations for the consultations are open to everyone, irrespective of ideologies, views, preferences, sexual orientation, disabilities, race; ethnicity, class, caste, sex, gender, religion, place of residence, or place of birth and as such. Everyone is free to share their views, opinions, suggestions, recommendations, knowledge and experience on the questions of law.
Statement by Ranbir Singh on July 9 as reported by The Leaflet.

The second round of consultation for reforms in the Indian Penal Code is currently ongoing. Consultations on the Criminal Procedure Code will begin on Aug. 1, and for the Indian Evidence Acton on Aug. 29. The process will conclude on Oct. 9.

Stakeholders will have to submit their opinions within the stipulated time frame and the questionnaire can be requested from the official website of the committee.

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