Old Law Machine Seeks A New Engine

What Mahatma Gandhi said may well resonate now as the country looks to overhaul its criminal justice system, with some of its laws as old as 160 years. “There are  unjust laws as there are unjust men,” he wrote, speaking primarily of laws designed, legislated and enforced by colonialists on millions of people they have enslaved. India of the 21st century is a free country, a vibrant democracy, but its people still slave under the yoke of archaic colonial-era laws, which have never been changed wholly to sync with the times, except for a few desperate amendments. There have not been any comprehensive reforms, though successive governments have promised a recast and legal luminaries often flagged the dings and dents, the chinks and cracks in the system.

This May, however, during the Covid lockdown, the Union home ministry set up a five-member committee to re-evaluate India’s criminal justice laws. The mandate of the committee headed by Ranbir Singh, vice chancellor, National Law University (NLU), Delhi, is to review the three codes of criminal law—the Indian Penal Code (IPC) of 1860, Code of Criminal Procedure (CrPC) of 1973 and the Indian Evidence Act of 1872. “The aim...is to recommend reforms in the criminal laws...in a principled, effective and efficient manner, which 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,” says the committee’s website. Other members of the all-male committee are G.S. Bajpai (NLU, Delhi), Balraj Chauhan (NLU, Jabalpur), senior advocate Mahesh Jethmalani and former judge G.P. Thareja.

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The committee invited recommendations from experts via questionnaire-­based online consultation. The consultations, which began in July, soon ran into rough weather, with the legal fraternity and activists flagging issues of representation and ambiguous methodology in two petitions to the committee. Another letter signed by a group of fem­ale lawyers points at the lack of representation of women, marginalised castes and minorities in the panel.

The committee’s terms of reference are not clear, says Anup Surendranath, assistant professor at NLU, Delhi. Many point out that the committee hasn’t taken any step towards repealing laws against blasphemy, which are not in sync with the Constitution’s secular character, and the law against sedition, even though the UK has got rid of the law on which India’s sedition law was based. Ranbir Singh, however, says the committee is carrying out its mandate assigned by the MHA in a transparent way. “These are very old laws and reforms are long overdue. The British-era IPC has not seen any major amendment so far. Probably it’s time for the government to look into it,” he adds.

Meanwhile, the deadline for consultations has been extended from October 9 to October 26. The committee’s time limit of six months has baffled experts, who say the first five law commissions took more than 10 years to change one-third of the CrPC. Lord Thomas Babington Macaulay, who chaired the first law commission, had drafted the IPC in 1837, more than two decades bef­ore it became law. “Any scholar would have refused to chair a committee that is given so little time,” says Justice A.P. Shah, former chief justice of Delhi High Court. “Pushing reforms during a pandemic in a hasty manner will only produce half-baked results. Reforming the criminal justice system involves mammoth work. I suspect that something unp­redictable is going to come out of this exercise. I am not sure whether the idea is to reform criminal laws or just make them stricter. The questionnaire reflects the government’s agenda.”

Justice Shah believes the need of the hour is to address prison and police ­reforms. The latest National Crime Records Bureau (NCRB) data show that 70 per cent of prisoners in India are und­ertrials, the majority of whom belong to socially backward communities and imp­overished sections of society.

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The committee has released six questionnaires for consultations—two each on substantive criminal law, procedural criminal law and evidence law. The methodology has also come under scrutiny from legal experts. “The committee is conducting the consultation like an opinion poll,” says Anup Surendranath. “The questionnaires fail to address aspe­cts like infrastructure reforms, which play a crucial role in criminal law refo­rms. The questions are too broad, as if they were meant for a PhD thesis. Ideally, the committee should have spoken about the background research and policy discussion that have gone into ­deciding the questions. It should have conducted empirical research before embarking on public consultation. The scope of amendments should have been the first point of discussion.”

According to senior Supreme Court advocate Kirti Singh, who was part of the 18th Law Commission, the questionnaires suggest there are harsher laws in the offing. “The question on the ­introduction of ‘strict liability’ offences is problematic. The committee asked for suggestions on strict liability. What clause are they trying to bring in? Are they trying to say that if you have a run-in with a public servant, liability will be applied? The real intention behind the setting up of the committee is not known,” adds Singh.

The approach of the committee has riled women’s rights activists too, ­particularly on questions regarding amendments in laws on sexual assault. Some say the suggestion to make rape a ­gender-neutral crime defeats the achievements of the women’s movement. Singh says suggestions on amending pro-woman laws such as Section 498A of IPC and the maintenance act are not in the right direction. “Women’s groups have been campaigning for long against dilution of Section 498A. We have been struggling since 1993 to change laws on sexual assault. It was amended in 2013 after the Nirbhaya case and the Justice J.S. Verma committee’s recommendations. Why do they want to change it again, including the quantum of punishment?” asks Singh.

The questionnaire seems to indicate that “the intent is also to bring back draconian and unconstitutional provisions of old laws like TADA and POTA, such as admissibility of confessions in police custody and sealed-cover evidence,” says Nandita Rao, additional standing counsel for the Delhi government. During its consultation on modifications to the Indian Evidence Act, the panel asked whether there is a need to provide guidelines for the admissibility of sealed-cover evidence in judicial proceedings. “There is also a question on whether statements made to a police officer under Section 161 of the CrPC be made admissible as evidence. The witness has to enter the witness box and prove her statement and stand by it. If statements made to police are treated as binding confessions, then this can be misused,” adds Rao.

Though the committee’s mandate is to reform archaic laws, the questions ­indicate otherwise. While there are ­concerns on the misuse of sedition laws, the committee sought opinion on whether “Section 124A dealing with ­sedition should be amended in terms of its definition, scope and cognisibility”, point out experts. Former Delhi High Court judge Justice R.S. Sodhi ­argues that if criminal law has to be ­reformed, it must ensure the constitutional freedom and civil liberties of citizens. “Many laws like sedition need replacement. Today, we are not a colony anymore and are ­primarily dealing with our own citizens. Therefore, our approach to crimes should be different. Our citizens have fundamental rights, but the governing laws and the incarcerations are colonial ones. Then what is the value of the rights that the Constitution ­ensures us?” asks Justice Sodhi.

The latest NCRB figures show an ­increase in sedition arrests since 2014, alongside a lower rate of conviction. Protests against the amended citizenship law saw a spike in arrests under the sedition law. In fact, no government in independent India has shown an inclination to repeal the sedition law, which was included in the IPC in 1870 as a tool to suppress dissent against the colonial government. Justice Shah believes it should be repealed. “My fear is that they will make it stricter. It can be done ­subtly. Prima facie, some amendments by a committee or a commission will look innocuous. But its implications would be understood when cases go to the court,” he says.

Many experts express concern over the silence of the committee on laws such as the National Security Act (NSA) and the Unlawful Activities (Prevention) Act (UAPA) that are now frequently being invoked against protestors. According to the home ministry, though 3,005 cases were registered under the anti-terror law between 2016 and 2018, chargesheets were filed in only 821 cases. Senior Supreme Court lawyer M.R. Shamshad says these laws have been misused to take away the citizen’s fundamental rights. “Why is the committee not talking about terror laws? Why is it silent on the misuse and abuse of these laws? They say they will ensure public safety. Already there are so many stringent laws that affect fundamental rights. UAPA is, in fact, TADA and POTA coming through the backdoor,” he says.

Justice Shah believes that reforms in criminal law go hand in hand with police reforms. Most legal experts agree. Prakash Singh, former UP DGP, says: “Police reforms are the ans­wer to many problems today. What is happening today is that the police get ­orders from the political masters. The way forward is that police reform should be made an electoral issue,” adds Singh. However, police reforms don’t seem to be the priority of the committee.