As govt tasks panel to suggest law reforms, jurists see red

Amidst the pandemic, India is in the process of a fundamental shift in its criminal jurisprudence. A five-member committee has been formed to take up the mission of suggesting drastic changes in the Indian Penal Code (IPC), Criminal Procedure Code (CrPC) as well the Indian Evidence Act – the three major pillars of India’s criminal law.

Many eminent jurists and intellectuals in India unanimously say that this is a dangerous shift that would subvert the spirit of the basic structure of the Constitution and the very concept of fair trial. “This is a reversal of what we have gained and developed over centuries. The very formation of the committee is not reasonable. India is facing a pandemic. Even the courts are not functioning properly. What is the hurry to change the IPC and CrPC amidst all these?” Justice Gopal Gowda, a former Judge of the Supreme Court, expresses his discontent while speaking to The Federal. He is the first among the signatories, a group of retired judges, lawyers and intellectuals, who submitted a series of representations to the committee, demanding suspension of the whole process.

The five-member committee was formed in May 2020 by the Union Ministry of Home Affairs to suggest significant amendments in IPC, CrPC and Indian Evidence Act. The committee, headed by Prof Ranbir Singh, vice-chancellor of the National Law University, Delhi, does not have a single jurist – a retired judge of the Supreme Court or any high court. Besides Dr Ranbir Singh, Prof CS Bajpai, registrar of NLU, Prof Mrinal Satish, another professor of NLU, GP Threja, former sessions Judge in Delhi and Mahesh Jethmalani, advocate in the Supreme Court, are the members of the committee. There are no legal historians, no constitutional experts and not a single woman from any area of expertise in the panel.

The committee has been conducting online consultations with regard to the amendments. The consultations are being done in different phases which are supposed to be completed in six months. The committee has a website that provides a set of questionnaires leading to the intended changes for which the stakeholders are being asked to write answers. In the previous notification, it was stipulated that each answer should not exceed 200 words. This was later clarified by a public notice by the committee as “only a guideline but not rule.”

Besides an array of questions carried in the website for consultation, the committee neither has terms of reference, nor a concept note. “The questions appear to be very general, as if prepared by someone who has not done any research on the subject. They cater to the perceived social morality concerns rather than the nuances of law,” says Dr PV Dinesh, a senior advocate in the Supreme Court.

The questions are suggestive of fundamental changes like that of shifting the burden of proof, bringing admissibility for the confession before the police, changes in the nature of trial, punishment and the process of investigation.

The representation, submitted by 16 former judges of the Supreme Court and the high courts and 100 lawyers from across various courts in India and former civil servants, academicians and intellectuals, demand to suspend the activities of the committee and to revisit the whole process right from the beginning.

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“The timeframe set by the committee is unmatched with any process of law reformation in the history of India,” says Adv. S Balan, a lawyer at the Karnataka High Court. The website of the committee provides a set of questionnaires for six phases of consultation on the IPC, CrPC and Evidence Act. The whole process, according to the website, begins July 4 and ends October 9, 2020. “The IPC, the CrPC and the Evidence Act have been formed through consultations over years. Is this committee going to do the same in such a short span of time?” asks Adv. Balan. The representation sent by the jurists and lawyers coherently establishes this point.

The First Law Commission was set up in 1834 and submitted the draft Indian Penal Code three years later in 1837, drawing not only from English and Indian laws and regulations, but also from Livingstone’s Louisiana code and the Code Napoleon. The draft code underwent further revision and was completed in 1850, presented to the Legislative Council in 1856, and finally passed in October 1860.

Similarly, the CrPC too has a long history of deliberations and amendments since 1852, and undergone several changes till it became the Code of Criminal Procedure of 1973. Over a period of 121 years, several law commissions, jurists, and countless number of enactments and judgments brought value addition to these changes.

Same is the case of the Law of Evidence. The history of Indian Evidence Act too has its roots in colonial history since the late 18th century. The Enactment in 1835 applied common rules of evidence and proof to all courts in British India. Between 1835 and 1853, a series of acts introduced reforms for the improvement of the Law of Evidence that reflected developments in English law. In 1868, the Indian Law Commissioners prepared a draft bill but was found unsuitable to the needs of the country. Later in 1870, a new Evidence Act was prepared which finally passed into law in 1872.

The representation, submitted by the former judges and lawyers, states that this is too serious a matter to be wrapped up in six months with the method of time-bound questionnaires, the modus outlined in the public notice, and a five-member Committee.

“How can a committee for law reforms in these modern times go without having a single woman member,” asks Adv. Balan. The committee lacks diversity, according to the experts who go against this process of reform. “India is a land of diverse range of people and conflicts. A law reform committee should have representation of all voices,” says Justice Gowda.

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“The committee needs to be more broad-based and should have greater diversity in terms of gender, SC/ST and minority representation” says Vijay Raghavan, Professor at Centre for Criminology and Justice at Tata Institute of Social Science, Mumbai. The representation argue that Dalits, Adivasis and Muslims and sexual minorities in India bear disproportionate share of prosecutions. “The questionnaire format does not allow for greater civil society consultations which is essential in an exercise of this kind and scale which plans to overhaul our criminal law,” he adds. Vijay Raghavan is also there in the list of experts signed the mass representation sent to the Committee.

The committee proposes to make a confession before a police officer admissible in evidence. Since 1872, the settled legal position is that confession before the police under any circumstance is inadmissible in evidence under sections, 24, 25 and 26 of the Indian Evidence Act. This has been strengthened by several judgments in the course of time. Section 330 and 331 of the IPC explicitly prohibit “voluntarily causing hurt to exhort confession” from an accused in police custody and make the crime punishable up to 10 years of imprisonment. Section 29 of the Indian Police Act provides for imprisonment up to three months for offences committed by the police officers. The Law Commission of India’s 185th report observes that the conduct of the police appears to have deteriorated rather than improving. Hence, the commission rejects the previous recommendations to provide evidentiary value for the confessions made to a police officer.

The committee proposes a reverse burden of proof on the accused. “The golden rule that runs through the web of civilised criminal jurisprudence is that an accused is presumed to be innocent until proven guilty of the charged offence,” says Adv. Balan. The suggestion to shift the burden of proof from the prosecution to the accused is a departure from the fundamental right provided in the Constitution. It also goes against the principles of many international treaties such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.

The website of the Committee provides questions only in English. This is highly inadequate, say legal experts. The committee, in the public notice, promises that the questions will be made available in all languages, but no such attempt has been made yet, though one month of consultation time has already passed.

Another mandate of the committee is to expand the concept of strict liability to more offences defined under IPC. In criminal law, mens rea or mental element is an inevitable factor to be proved by the prosecution for convicting an accused. In other words, it has to be proved that one has the deliberate intention or motive to do the crime. Mental element or motive is unwanted in strict liability. The experts in law are concerned that such changes would weaken the foundations of fair trial set by the criminal law evolved over years.

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It must be noted that such a committee is formed when the 22nd Law Commission of India, which has the mandate to recommend law reform, is in place. The commission has already been constituted, but it remains unstaffed. There are allegations that the five-member committee has been given the job of suggesting reforms that Union Home Minister Amit Shah wants.

According to a PTI report of August 28, 2019, addressing the top brass of police organisations during the 49th Raising Day event of the BPRD in Delhi, Shah said that the conviction rate is very poor in India. Addressing the 47th All India Police Science Congress event at the UP Police headquarters in Lucknow on November 30, 2019, he said, “The conviction rate in the country is still very poor. It is due to the long legal process and transfer of investigating officers. Conviction rate should improve and there should be accountability of the state police as well.”

“Conviction rate needs to be enhanced, no doubt, but scrapping the very idea of fair trial is not the way of doing it,” says BT Venkatesh, a former state prosecutor with the Karnataka government. “The conviction rate is low in India due to the inefficiency of the police. The investigation process in India is so distorted with errors, mistakes and abuses, that it makes the whole process of investigation itself a sham. These are the things required to be changed for raising the conviction rate and not taking away the grounds of fair trial,” says Venkatesh.