July 19, 2020

On Govt Panel for Changes in Criminal Laws

Som Dutta Sharma

THE government intends to bring changes in the Indian Penal Code, Criminal Procedure Code and the Evidence Act. In December 2019, union home minister Amit Shah had announced in parliament that a committee would be set up to assess the need for amendments in IPC and CrPC to deal with the issue of mob lynching.

Through a notification on May 4, the ministry of home affairs constituted a committee headed by the vice chancellor of National Law University, Delhi (NLUD). The panel includes as members G S Bajpai, Registrar of NLUD; Balraj Chauhan, first vice vhancellor of Dharashastra National Law University, Jabalpur; Mahesh Jethmalani, senior advocate of Supreme Court; and G P Thareja, a former district and sessions judge, Delhi.

This committee released a questionnaire for public consultation on July 4 containing about 50 questions on a variety of categories of offences such as strict liability offences, punishment, general exceptions under Chapter IV of the Indian Penal Code, offences against State i.e. Section 124 (seeking opinion of public on the question should the applicability of the section 124 be expanded to include other functionaries such as Judges of HC/SC, CECs, CICs, CAGs, Attorney General, Advocate Generals, Solicitor General etc.?), and 124-A (provision dealing with sedition) whether it requires omission or any amendment in terms of its definition, scope and cognizability?

Apart from provisions mentioned above the questionnaire contains the following categories of offences on which the committee has sought public opinion -- offences affecting human body and sexual offences. Time given to the public to react has been restricted to July 17, which means practically 13 days.

Sixty-nine former judges of SC and HCs, designated Senior Lawyers and former bureaucrats, being stakeholders in the criminal justice system and recognizing the need to bring the system in compliance with the Constitution in a manner that “prioritises the constitutional values of justice, dignity and inherent worth of the individual”, wrote a letter on July 8 to the members of the committee. They expressed their concern about ‘lack of diversity’ both in terms of the “social identity” of the members, as well as their “professional background and experience”.

It is to be noted that the 22nd Law Commission of India (Law Commission has the mandate to recommend law reforms) has already been constituted. Then why the government does not want to entrust this job to the full-time multi-member commission which has got its own secretariat and staff, an office and a rich legacy and intends to seek recommendation of a part-time committee.

The signatories to the representation called upon the committee to demonstrate its bona fides and its commitment to a rigorous law reform exercise by ensuring full transparency regarding its constitution and its functioning and for that required following detail to be shared in the public domain

1.  The MHA notification constituting the committee, and specifically any communication dealing (a) The terms of Reference of the Committee and (b) The time frame provided for completing this exercise.

2.  Any project proposal or concept note submitted by National Law University, Delhi (NLUD) or its members or research centres, to the MHA or to any other competent authority with respect to setting up or functioning of this committee

3.  Details on whether the committee will work independently of the MHA or any other ministry, specifically, will the report of the committee be finalized in consultation with or after approval of the MHA or any other ministry?

The letter addressed by these judges, lawyers, academics and bureaucrats taking note of the fact that that the report produced by the committee is likely to impact the trajectories of criminal justice reform in the country, impressed upon the imperative that the committee should provide for meaningful public engagement with its work and its responsibility to ensure consistency with best traditions of rigorous academic research including  robust peer review, combined with the highest ideals of public institution, including transparency in functioning and close and meaningful engagement with all stakeholders.

The representation sent by them demanded (1) Release upfront, in one single tranche, the list of all questions on which the Committee will be seeking inputs; (2) Provide at least 3 month time for stakeholders to respond to all questions/issues; (3) Ensure that the questionnaires are made available in all major Indian languages; (4) Remove word limits for responding to the questions; (5) Include more expertise and diversity; (6) Provide additional mechanisms for inputs; and (7) Commit to transparency and greater stakeholders engagement in the functioning of the committee.

The committee set up by the MHA seems to be handpicked by some unknown identity. The committee lacks diversity and stakeholders. Women, dalits and other marginalised sections viz. workers and peasants are left out. The vibrant civil society of India is ignored. The committee has not issued any approach paper or suggested changes but has left the questions open ended. No structured mechanism for public participation in this exercise is given. It is not late for the government to correct its mistake and entrust the task of suggesting changes to the Law Commission of India or make the committee broad based with specific terms of reference. Next few months are expected to see intense debate on this issue.