India is undertaking what could be the biggest overhaul of all its criminal laws, but the committee set up by the Ministry of Home Affairs to review the colonial-era laws is facing strong criticism.
On May 4, the ministry established a five-member committee to recommend reforms to criminal laws in a manner that “ensures the safety and security of the individual, the community and the nation; and which prioritises the constitutional values of justice, dignity and the inherent worth of the individual”.
The Indian Penal Code was drafted by British officials in 1860, and the Evidence Act in 1872. Despite amendments over time, many parts of the law retain a strong whiff of colonial ideas and Victorian morality.
Rape within marriage is still not considered a crime, state governments often arrest critics for sedition, and prolonged pre-charge and pre-trial detention are permitted. Same-sex relations and adultery were decriminalised by the Supreme Court only in 2018, after more than 150 years.
The committee released its first consultation questionnaire on July 4, with questions on crimes including sedition, marital rape, honour killings and mob lynchings. Another questionnaire released last Saturday covers laws including those on hate speech, blasphemy and wrongful prosecution.
But the committee has only six months to finish its work. Its consultation process invites online comments to six questionnaires released in phases.
A group of 16 former judges, 100 lawyers and many legal academics wrote a letter to the committee saying the deadline was not feasible, and asked why this complex endeavour was being done in the middle of the coronavirus pandemic, “when 600 Indians are dying every day and when large swathes of the country are in lockdown or in containment”.
“An overhaul of criminal law as we have known it after 900 years of common law and almost 150 years of established jurisprudence is too serious a matter to be wrapped up in all of six months,” the letter said.
Another letter from over 150 female lawyers asked why the committee comprised five dominant-caste Hindu men and no women, lower-caste Dalits, religious minorities, tribals, lesbian, gay, bisexual and transgender persons, or people with disabilities.
The letter said: “It seems to us simply absurd that, when a large part of the questionnaire is devoted specifically to reform of sexual offences, women practitioners of criminal law have not been included on the committee.”
Members of the ruling Bharatiya Janata Party have previously been clear about their position on some contentious issues that the committee will consider.
For instance, Defence Minister Rajnath Singh said last year that the party would make the law on sedition (a crime punishable with life imprisonment) “even more stringent”.
The female lawyers say the questionnaire-based methodology seems to indicate that the committee has already arrived at certain foregone conclusions.
“Laws in any country should evolve with time, but we would be very disturbed if the fundamental basis on which criminal law is built in this country is changed,” said Ms Rebecca John, a senior Delhi-based lawyer.
She was referring to the principles that a person is innocent until proven guilty, gets a fair trial at all stages, and any confession to police officers is not admissible as proof in court.
Legal experts and former judges are wary of the committee giving in to populist demands of more policing and harsher punishments.
They are asking for larger engagement with stakeholders over a period longer than six months as legal reform committees, such as the one to reform rape laws and update electronic evidence standards, have done in the past.