"Criminal Reforms Committee Ill-Equipped": J&K Lawyers Seek Suspension of Committee

A representation by lawyers from Jammu and Kashmir (J&K) has been placed before Prof. (Dr.) Ranbir Singh, Chairperson, Committee for Reforms in Criminal Laws opposing the Committee on grounds of composition, online consultations and other issues stipulated.

The representation expresses "deep concern about the agenda of criminal justice reform, which can be discerned from the material shared on the website of the Committee for Reforms in Criminal Law"

"We wish to express our firm opposition to this proposal of initiating far-reaching changes in the country's criminal justice system at this moment," the representation reads.

The representation adds that "the Committee's predetermined questionnaire, parts of which suggest that it is merely seeking an endorsement for increasing police powers instead of addressing police excesses, raises concerns that the Committee will entrench the Union Home Ministry's power." "Such provisions which undermine procedural safeguards to individuals and can facilitate persecution of innocent people only stands to disproportionately impact the people of J&K whose lived experiences are already a testimony to the deleterious effects of the abuse of criminal laws in India', the representation reads.

The representation regards as "deeply disturbing" the Committee's mandate equating individual security and national security. The representation reminds the Committee that the ongoing restriction of internet services in J&K was also imposed for "so-called national security reasons."

The representation particularly highlights the "conscious" decision of the Committee to adopt an online method of consultation at a time when there are government-imposed restrictions on internet access throughout J&K, terming it as a "rude shock" and a "deliberate choice to exclude the people of J&K from this important deliberative process."

Stating that the representation echoes concerns of fellow civil society members in India that the Committee's composition is "severely lacking", it is stated that the Committee excludes women; racial, sexual, gender, religious and caste minorities; members from the working class; persons with disabilities; and, marginalized groups that are over-policed and civil society organizations that work with such groups.

It is highlighted that the Committee's clarification that consultations are open to everyone without any discrimination ignores the failings of its own lack of diversity and narrowness in perspective, which is certainly not going to be resolved by its wholly "inadequate and "undemocratic consultative process".

Calling the timeline of six months for wrapping up the Consultative Committee "woefully short", it is stipulated that, "it is nothing short of baffling" that the Committee intends to complete this mammoth task in a "principled and effective manner" in just about six months.

"One only needs to contrast this with previous law reform efforts of similar proportions ((such as the criminal justice system reforms proposed by the Malimath Committee, which took at least two-and-a-half years), to question whether the Committee is only acting to further some preconceived design prepared by the Ministry of Home Affairs," the representation states.

Further to this, it is stated that the fact that the Committee's website and questionnaires are entirely in English, which is fundamentally exclusionary. "Although the Committee has offered to translate the questionnaires into regional languages, this has not been done so," it adds.

"In the specific context of J&K, it bears noting that Urdu is the language of all court and prosecutorial processes (such as filing of FIRs and chargesheets, pleadings, documentation of evidence, etc.)". The representation states that the use of English language also excludes the voices of the people of J&K who are already disadvantaged by the web-based consultation process.

In this backdrop, it calls on the Committee to:

(i) recognize that it is ill-equipped, in its current form, to recommend reforms to India's criminal justice system "in a principled, effective and efficient manner";

(ii) suspend itself; and

(iii) join civil society members in petitioning to the Government of India to act more responsibly in undertaking this mammoth task, which is bound to have irreversible consequences, particularly for vulnerable populations like the people of J&K.

[Read The Full Letter Here]

To,

Prof. (Dr.) Ranbir Singh

Chairperson & Vice-Chancellor

Committee for Reforms in Criminal Laws

Centre for Criminology and Victimology

National Law University, Delhi

Dear Sir,

Sub: Concerns of lawyers from Jammu & Kashmir about the Committee for Reforms in Criminal Laws

This representation is by lawyers from Jammu and Kashmir (J&K) deeply concerned about the agenda of criminal justice reform which can be discerned from the material shared on the website of the Committee for Reforms in Criminal Laws.

We wish to express our firm opposition to this proposal of initiating far-reaching changes in the country's criminal justice system at this moment in time for the reasons set out in brief below:

1. Constitution and Mandate

The fact that this Committee has been set up by the Ministry of Home Affairs is concerning for several reasons. To begin with, it is unclear why the Indian government is breaking from the norm of initiating legal reform processes through the Law Commission of India, which advises the Ministry of Law & Justice. The propriety of the exercise is marred by the lack of transparency of the Terms of Reference of the Committee and the objective of the Ministry of Home Affairs in forming the Committee. What is further disconcerting is that the Union Home Ministry is responsible for the functioning of policing and investigative agencies, including the J&K police, whose excesses in J&K are well-documented. The Committee's predetermined questionnaire, parts of which suggest that it is merely seeking an endorsement for increasing police powers (such as by increasing strict liability offences, enhancing the evidentiary value of statement made to police under section 161, CrPC) instead of addressing police excesses, raises concerns that the Committee will entrench the Union Home Ministry's power. Such provisions which undermine procedural safeguards to individuals and can facilitate persecution of innocent people only stands to disproportionately impact the people of J&K whose lived experiences are already a testimony to the deleterious effects of the abuse of criminal laws in India.

Further, the Committee's mandate falsely equates individual security and national security, which is deeply disturbing, particularly for the context of J&K. The Indian government has for years compromised, and continues to compromise, the collective and individual security of the people of J&K in the name of national security. Procedural safeguards that individuals are generally entitled to under criminal laws have long been ignored in J&K. A regime of draconian laws like the Public Safety Act, the Armed Forces (Special Powers) Act, the Unlawful Activities (Prevention) Act, etc. have been systematically used to create an atmosphere of impunity for human rights violations in J&K – all under the garb of national security. The Committee will do well to remind itself that the ongoing restriction of internet services in J&K, which is nothing short of collective punishment, was also imposed for so-called national security reasons.

2. Online Consultation: Internet Restrictions in Jammu & Kashmir

The adoption of an online method of consultation at a time when there are government-imposed restrictions on internet access throughout J&K comes as a rude shock. The Committee's admission in its notification dated 25/08/2020 that it "consciously" decided to adopt an online mode, despite knowing that the people of J&K can only access limited internet services (2G speed), suggests mala fides and can only be regarded as a deliberate choice to exclude the people of J&K from this important deliberative process. It is not unknown that the State machinery uses criminal laws as a tool to suppress the people of J&K, as is evidenced by the thousands of arbitrary and unlawful detentions of Kashmiris over the past year. To reform criminal laws by freezing out a population that has for decades borne the brunt of the damaging effects of the criminal justice system is abhorrent and yet another instance of the authoritarian pattern that the Indian government demonstrates in J&K.

As several civil society members before us have pointed out to the Committee, the choice of an online mode is exclusionary even otherwise because of low internet penetration in India and the gender, caste, economic, social, etc. disparities that permeate internet usage.

3. Composition

We echo concerns of fellow civil society members in India that the Committee's composition is severely lacking. It excludes women; racial, sexual, gender, religious and caste minorities; members from the working class; persons with disabilities; and, marginalized groups that are over-policed and civil society organizations that work with such groups. The lack of regional diversity is equally appalling. The Committee's clarification that consultations are open to everyone without any discrimination ignores the failings of its own lack of diversity and narrowness in perspective, which is certainly not going to be resolved by its wholly inadequate and undemocratic consultative process. Even if the Committee's clarification is taken at its face value, it will never be able to include the experiences of the people of J&K with a consultation mechanism that is inaccessible due to internet restrictions. The Committee's ability to speak to victimization through mob-lynching is also limited, because Kashmiris in India, who are regular victims of such harassment and vigilantism, stand excluded under the present mechanism. Additionally, custodial and extra-custodial uses of force by State agents and the use of new and outdated laws to limit freedoms are a very real part of Kashmiri lives that demand attention and correction – a Committee that lacks representation from J&K is simply incapable of doing that.

4. Timeline

According to the website, the Committee's mandate is to "recommend reforms in the criminal laws of the country in a principled, effective and efficient manner". The ambiguity and vagueness of the mandate aside, it is nothing short of baffling that the Committee intends to complete this mammoth task in a "principled and effective manner" in just about six months. One only needs to contrast this with previous law reform efforts of similar proportions (such as the criminal justice system reforms proposed by the Malimath Committee, which took at least two-and-a-half years), to question whether the Committee is only acting to further some preconceived design prepared by the Ministry of Home Affairs.

The timeline of the consultative process in particular is woefully short and ripe to make the process meaningless. The Committee envisions to complete its consultations on three massive areas of criminal justice – substantive law, procedural law and evidence – in a short span of 3 months. This betrays that the consultations are a mere lip-service to democratic ideals, and not a good-faith effort to include all voices and narratives. With a Committee composed entirely of members who have taken on this role on a part-time basis, it is unimaginable that the Committee will be able to review inputs from civil society members.

One wonders what really is the urgency behind beginning and completing this process in the middle of a global pandemic that is debilitating India. At a time when marginalized communities are already struggling to cope with the disparate impact of the pandemic on their lives, the Committee surely cannot be expecting them to take active part in this consultative process and make their voices heard. The move reeks of imperialism, and ironically resembles the exact colonial mindset that the Committee is supposedly seeking to reform. Particularly, in J&K, where the pandemic is already being used to ramp up repression and normalize surveillance and control, the Committee's exclusionary process comes across as one more tool in the toolbox of State repression. Importantly, the Committee ought to realize that several Kashmiri political leaders, activists, lawyers, and other civilians are still languishing in Indian jails across the country on account of abuse of criminal laws, and no criminal justice reform that ignores their concerns about police excesses will ever be complete or meaningful.

5. Questionnaire and Website

The Committee's website and questionnaires are entirely in English, which is fundamentally exclusionary. Although the Committee has offered to translate the questionnaires into regional languages, this has not been done so. When the opportunity to respond to five out of six questionnaires is already over, providing translated questionnaires now will be nothing but a pretence of inclusion. Even otherwise, this in no way allays the concern that one would still have to navigate an English website to access the questionnaires. In the specific context of J&K, it bears noting that Urdu is the language of all court and prosecutorial processes (such as filing of FIRs and chargesheets, pleadings, documentation of evidence, etc.). Notwithstanding threats to Urdu continuing as the prosecutorial language, it is a fact that those familiar with the criminal justice system in J&K, including the local police, primarily verbalize their expertise in Urdu. Therefore, the use of English also excludes the voices of the people of J&K, who are already disadvantaged by the web-based consultation process.

Further, the Committee's questionnaires are neatly divided into three areas: substantive law, procedural law and the law of evidence – and solicit distinct responses in respect of each area. This ignores the fact that the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act are interdependent in their operation, and reforming one area without considering that reform's impact over another area and the system as a whole, oversimplifies the reform exercise. We further echo other concerns raised in the letter from academics sent to the Committee on 21 August 2020 on the methodology and substance of these questionnaires.

For all the reasons above, we call on the Committee to:

(i) recognize that it is ill-equipped, in its current form, to recommend reforms to India's criminal justice system "in a principled, effective and efficient manner";

(ii) suspend itself; and

(iii) join civil society members in petitioning to the Government of India to act more responsibly in undertaking this mammoth task, which is bound to have irreversible consequences, particularly for vulnerable populations like the people of J&K.