How Consultative Was the Framing of the Three Criminal Law Bills, Really?

The committee whose recommendations ultimately culminated in the present form of the Bills has operated in complete secrecy ever since its constitution in May 2020. Sources told The Wire that two non-members – the SG and ASG – exerted influence on the committee.

New Delhi: The parliamentary standing committee on home affairs is set to begin its deliberations on the three new Bills that seek to replace the existing colonial-era criminal law codes in India. However, there is a growing sense of alarm that the government is trying to rush the Bills through parliament without adequate consultation and transparency.

The committee whose recommendations ultimately culminated in the present form of the Bills has operated in complete secrecy ever since its constitution in May 2020. It acquiesced to the involvement of non-members in shaping the recommendations for the Bills and the Ministry of Home Affairs (MHA) violated a statutory law to keep away any information related to the task.

As per its schedule, the standing committee will be briefed by Union home secretary Ajay Kumar Bhalla and other senior MHA officers from Thursday, August 24, until Saturday, setting in motion the parliamentary scrutiny and consultation process.

On August 11, the last day of the monsoon session of parliament, Union home minister Amit Shah introduced three new Bills in the Lok Sabha: the Bharatiya Nyaya Sanhita (BNS) Bill, 2023 to replace the Indian Penal Code, 1860; the Bharatiya Nagarik Suraksha Sanhita Bill (BNSS), 2023 to replace the Code of Criminal Procedure, 1898; and the Bharatiya Sakhshya Bill (BSB), 2023 to replace Indian Evidence Act, 1872.

The minister requested the speaker of the Lok Sabha to refer the Bills to the standing committee. A week later, on August 18, the chairman of the Rajya Sabha, in consultation with the speaker, referred the Bills to the standing committee on home affairs and set a deadline of three months to submit the final report.

The supposedly bipartisan standing committee is headed by Brijlal, a member of the Rajya Sabha and the Bharatiya Janata Party (BJP). It consists of 27 other members from various political parties of both houses of parliament.

On the same day as the Bills were referred to the standing committee (August 18), its members were hastily informed of the home secretary’s three-day briefing.

Some committee members from the opposition parties objected to the “short notice” at which the panel is meeting to begin deliberations and requested the chairman to push the dates to September – but in vain. The original schedule of the standing committee required its members to meet on August 24 only to consider and adopt a draft report on “Prison – Conditions, Infrastructure and Reforms”.

The three Bills have provisions that widen the state’s powers (introduction of special law crimes within the BNS), have the potential to impact free speech (sedition in a new avatar), increase police powers (option to seek police custody from 15 to 40 or 60 days) and have several drafting errors and inconsistencies.

However, one common theme in most demands related to the Bills has been on the need for widespread consultation due to the far-reaching implications of the proposed laws.

Opacity in the crafting of the Bills

In his speech introducing the three Bills, Shah claimed to have undertaken a “comprehensive consultation” process before finalising the proposed laws.

He claimed to have sought views from “all the judges of the Supreme Court, Chief Justices of all High Courts, law universities, judicial academies, Chief Ministers, Administrators, Governors of all states, and all members of parliament”.

He further claimed to have received views from “18 states, 6 union territories, the Supreme Court, 16 High Courts, 5 judicial academies, 22 Law universities, 142 MPs, 270 Members of Legislative Assemblies, and the public”.

Yet, Shah’s government has not put any of these inputs or views in the public domain.

Not just the inputs of the stakeholders, but the final report of the MHA’s Committee For Reforms In Criminal Laws (CRCL) whose recommendations ultimately culminated in the present form of the Bills too has not been put in the public domain.

On May 4, 2020, the Ministry of Home Affairs constituted the CRCL to “recommend criminal reforms in India”. The committee, whose composition changed every now and then, last had the Vice-Chancellor of NLU Delhi Prof Srikrishna Deva Rao as its chairperson, registrar of NLU Delhi Prof.G. S. Bajpai as its Member and Convener, and five other members.

Despite the important nature of this committee, its workings have been absolutely secret, highlighting the lack of transparency in its functioning and the process it followed.

“It is most unfortunate that the MHA has not placed in the public domain materials which formed the basis of the working of the CRCL which has recommended significant changes to the three major criminal laws,” Venkatesh Nayak, director of the Commonwealth Human Rights Initiative India office, told The Wire.

Calling the disclosures a “basic requirement”, Nayak said it would help demystify the contents of the proposed Bills.

“This will help people debate the amendments in an informed manner and give their views to the Parliamentary Standing Committee on Home Affairs which is vetting them,” he added.

Committee conceded ground

While the committee did function, sources within the establishment have told The Wire about the “crucial behind-the-scenes role” played by the solicitor general of India Tushar Mehta and the additional solicitor general (ASG) of India Suryaprakash V. Raju in making recommendations and framing the three Bills. All this, despite not being members of the CRCL.

“The committee had to concede ground. That is what the ministry wanted,” reliable sources said.

Raju, who practised at the Gujarat high court until his appointment as ASG of the Supreme Court in July 2020, had represented Shah in the Sohrabuddin encounter case.

One of the members of the CRCL who spoke with this reporter did not deny Mehta and Raju’s involvement in the committee’s workings. On being asked how they were allowed to frame laws despite not being members of the committee, they said it was a question for the home ministry to answer.

When asked to confirm if the CRCL conceded ground to Mehta and Raju, they said: “We were having discussions [with the duo]. Personally, I did whatever I could do. I suppose we all played our part.”

The extent of influence Mehta and Raju – both the government’s own lawyers – had on the framing of these laws can only be known if and when the records of the committee’s workings are disclosed. Previous reports have shown how government bodies, like the Law Commission of India, have disproportionately relied on inputs from persons whose opinions match with that of the current Union government – instead of undertaking an unbiased and widespread consultation process.

Secrecy at the cost of violation of law

So secret was the working of this committee that not even certain applications filed under the Right to Information Act, 2005 (RTI Act) were entertained by the MHA.

In August 2020, three months after the constitution of the CRCL, this reporter sought information on eight points about the constitution of the committee, including details of all the candidates that the government had considered for appointment to the CRCL.

This, because there were concerns about the lack of representation in the committee, including that of women, members of the LGBT community, other marginalised groups and civil society – people who will be most affected by any changes in these criminal laws.

The RTI Act stipulates a time frame of 30 days for the disposal of an RTI application by the Public Information Officer and 45 days for the disposal of any appeals in case of a rejection, or an unsatisfactory or no response. Non-response can lead to a penalty of Rs 25,000 on the public information officer or even a recommendation for disciplinary action.

Yet, three years since filing the RTI and an appeal before a senior officer, along with multiple email reminders and even issuing a notice to the ministry seeking adherence to the statutory timeframe, no information about the CRCL’s functioning has been provided.

“Releasing the CRCL materials in the public domain will be educational for the citizenry. This is crucial also because the Government has not elected to solicit public comments under the 2014 pre-Legislative Consultation Policy on the draft Bills before they were tabled in Parliament,” Nayak told The Wire.

Some legal minds fear that the new Bills, without wider consultations from experienced minds, would erase centuries-old jurisprudence and require new interpretations that would consume endless court time.

“A fresh litigation explosion exceeding our existing numbers is the last thing this country can afford, but this appears to have escaped the attention of the mostly non-practising eminences in the committee set up for this exercise,” Abhishek Manu Singhvi, senior advocate at the Supreme Court of India and member of the Rajya Sabha, wrote in Hindustan Times.

Saurav Das is an independent investigative journalist and tweets @OfficialSauravD.