'Lacks Diversity': Former SC/HC Judges, Lawyers Express Concern On Composition And Working Of Central Committee For Reforms In Criminal Law

The five-member Committee was constituted by the Union Ministry of Home Affairs vide Notification 1-2-19 Judicial Cell (Part I) dated 4-5-2020, to recommend criminal reforms in India. It comprises three professors from National Law University, Delhi, including the Chairperson and the Convenor.

The composition of the Committee is as follows:

• Prof. (Dr.) Ranbir Singh (Chairperson), Vice-Chancellor, National Law University Delhi
• Prof. (Dr.) G.S. Bajpai (Member & Convenor), Registrar, National Law University Delhi
• Prof. (Dr.) Balraj Chauhan (Member), Vice Chancellor, Dharmashastra National Law University, Jabalpur
  
• Mr. Mahesh Jethmalani (Member), Senior Advocate, Supreme Court of India
• Mr. G.P. Thareja (Member), Former District & Session Judge, Delhi

Through a letter addressed to this Committee, 69 signatory luminaries from the legal and administrative fraternity have questioned the establishment of a separate Committee, despite the fact that the 22nd Law Commission of India, which has the mandate to recommend law reforms, has already been constituted.

The signatories include (Retd.) Justice Madan Lokur, (Retd.) Justice Gopala Gowda, (Retd.) Justice AP Shah, Senior Advocate Indira Jaising, Senior Advocate Anand Grover, Senior Advocate Sanjay R. Hegde and Professor at TISS Mumbai Dr. Vijay Raghavan, to name a few.

The letter states,

"We are concerned that the composition of the present Committee lacks diversity both in terms of the social identity of the members, as well as their professional background and experience. Unlike previous law reform efforts of similar magnitude, this Committee does not consist of full time members. The members continue to discharge their full professional commitments alongside their work on this Committee."

On Composition & Transparency

Highlighting the significance of "meaningful public engagement" with the work of the Committee, the luminaries have called upon the Committee to "demonstrate its bonafides and its commitment to a rigorous law reform exercise by ensuring full transparency regarding its constitution and its functioning."

In particular, they have sought the following details from the Committee:

• The MHA notification constituting the Committee, and specifically any communication detailing: (i) Terms of Reference of the Committee; (ii) Time frame provided for completing this exercise.
• 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 the setting up or functioning of this Committee.
• 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 the approval of the MHA or any other ministry?

The letter reads thus,

"Since the Committee is located in a public university, it is also the responsibility of the University to ensure that the functioning of the Committee is consistent with the best traditions of rigorous academic research including robust peer review, combined with the highest ideals of public institutions, including transparency in functioning and close and meaningful engagement with all stakeholders."

Further, the letter has called upon the Committee to include more expertise and diversity in the consultation process by creating "sub-committees" with outside experts and other consultants with established track records in the field of criminal justice who can redress the lack of diversity and experience in the Committee's current composition.

On Consultation Process

Recently, the Committee had released a questionnaire for public consultation on various aspects of Indian penal law.

Expressing variance on the same the letter suggests that since the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act are all "intrinsically connected" in their operation,

"Inviting answers to questions on one aspect of substantive or procedural criminal law, without knowing what reforms are being contemplated in other areas will be counterproductive and has the potential for much confusion."

They have therefore called upon the Committee to "release upfront, in one single tranche, the list of all questions/issues on which the Committee will be seeking inputs."

Significantly, the consultation paper released by the Committee seeks suggestions with respect to many debated aspects of criminal law viz., inclusion of acts of "Mob Lynching", "Honour Killing" and "Corporate Homicide" as offences under the Indian Penal Code.

The consultation paper further seeks public opinion on (i) decriminalization of Section 312 (Causing miscarriage); (ii) deletion of Exception 2 under Section 375 of the IPC, i.e., criminalization of marital rape; and (iii) employing gender-neutral terms for the offender and the victim in cases of sexual offences.

Other important proposed reforms relate to introduction of "strict liability offences" within the IPC, alteration of "General Exceptions" under Chapter IV of IPC, revision and rationalization of quantum of punishment and fines imposed should be revised, and inclusion of Judges of HC/SC, CECs, CICs, CAGs, Attorney General, Advocate Generals, Solicitor General etc. under Section 124 of IPC (Assaulting President, Governor, etc., with intent to compel or restrain the exercise of any lawful power) be expanded to include other functionaries such as?

Through this letter, the Committee has been urged to:

• Provide at least 3 months time for stakeholders to respond to all questions/ issues;
• Ensure that the questionnaires are made available in all major Indian languages;
• Remove word limits for responding to the questions.

The Committee has also been asked to provide "additional mechanisms" for inputs by creating mechanisms on the website, through email, mail/postal system for providing inputs on issues "not covered by the questionnaire".

Lastly, the letter seeks that that (i) all the responses received by the Committee should be made available publicly; and (ii) there should be wide dissemination of the Committee's draft report for public feedback for at least one month, with advance notice on when the report will be made available for feedback.

Click Here To Download Letter

Click Here To Download Questionnaire