Representation, diversity and inclusivity seem to be lost on the Ministry of Home Affairs (MHA)-constituted Committee for Reforms in Criminal Laws.
The committee is mandated with the arduous task of reforming “colonial” substantive, procedural and evidentiary criminal law in the country i.e. the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act, or so the website – which seems to be the only portal of information – has publicly claimed so far.
The committee comprises five upper-caste cisgender men and has received condemnation from all quarters for lacking diversity and the glaring absence of women, Dalits, religious minorities, people from the southern and north-eastern regions of the country, the LGBTQIA+ community, persons with disabilities etc.
The social identity of the members, as well as their professional backgrounds and experience, embody homogeneity. This absence of representational diversity in a committee that is going to decide on legislation that affects every citizen in the country – even more so in the current political climate where any kind of criticism, resistance or dissent, is met with belligerence, and where police brutality has become the norm – raises red flags.
To add insult to injury, the exercise is being undertaken at a time when people are struggling to survive, and do not have the bandwidth to meaningfully engage with the “consultation process”.
The Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act are taught over a course of three semesters in a law school. The Law Commission of India took ten years to review the Code of Criminal Procedure. To presume that the committee would be able to reform criminal law within the tight deadline of six months is preposterous, and leaves one befuddled as to the reason behind the hurry to usher in these reforms.
Is the MHA in denial about the magnitude and importance of these reforms – probably the most important ones to come in decades? The alternative agenda is a nightmare come true in the form of restricted individual rights and liberties. While the aims, guidelines and objectives of the committee seem to cover every aspect of the three criminal law codes, the terms of reference of the committee have not been made public, despite multiple requests to that effect.
There seems to have been no positive obligation undertaken to disseminate awareness regarding an exercise having seminal consequences of civil and political liberties, the fulcrum of democracy. As I write this, the day the committee closes the consultation process on October 9, 2020, a significant number of people have no idea that the committee exists and that laws impacting their lives and liberties are going to be rewritten by five privileged men.
In the absence of wide public outreach, making provisions for public deliberation becomes tokenism. The initial consultation process relied only on questionnaires with a 200-word answer limit, which was subsequently removed in the face of uproar. The committee then notified an open consultation process, inviting suggestions, comments and recommendations, but there is no proposal/working paper/issue paper from its end that can be responded to. The deadlines for consultation have been extended more than once, on the day of the deadline itself.
Moreover, the committee functions only in English, enhancing the futility of the consultation process in a linguistically disparate country like India. The consultation will only be online, and in English, thus, not even creating a façade of inclusivity. The functioning seems to be within the cocoon of elite privilege and enabling token participation.
Further, there has been no statement from the committee with regard to placing responses received in the consultation process for debate and deliberation. Why even attempt to create public engagement if there is no intention to make it meaningful? We will never know what the minimal participation has resulted in. The draft reforms will be released, but they won’t be the people’s.
The curveball in this scarily dystopian narrative is the notice released on the committee’s website on October 7, 2020, following the same pattern of a dismal lack of communication. The committee now has an added mandate of reforming the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS), a piece of legislation which has recently been in the news and created quite a stirring debate with regard to its relevance, severity and harshness.
If we all weren’t forced to be so sceptical all the time, this might have actually been a good move. The notice invites suggestions, opinions and views, from October 17, 2020, to November 16, 2020. However, an exclusively composed club, with no transparency, soaked in secrecy, sitting and making reforms to the NDPS Act is not reassuring. The most perturbing question is to do with the additional task mandate being given in the first place.
When there is absolutely no transparency with regard to the functioning of the committee, we are compelled to chew on what we are given to eat. The information made public on the website only discussed the three codes, coming back full circle to the question – what were their terms of reference and have they since been altered?
The timing of this exercise coincides with sensationalised media reporting and is strikingly odd. Will the committee then have a schemingly continued mandate and series of consultations to reform all criminal laws? The committee’s functioning seems to have become more and more suspicious. Why single out the NDPS Act?
This is like watching a shoddily made reality TV show, where the rules keep changing arbitrarily, not knowing when to expect the next wild card entry or an unexpected elimination, or like calling a toll free customer service number that is surprisingly never accessible. The questions continue to stream, but the answers refuse to buffer.
Veera Mahuli is an independent lawyer.