In July, the Ministry of Home Affairs (MHA) constituted the Committee for Reforms in Criminal Law to undo the “colonial foundations of our criminal law”. The precise mandate of the Committee has not been put into the public domain, but it is apparent that the Committee aims to recommend an overhaul of the Indian criminal justice system. Among others, judges, lawyers, and activists have voiced their concerns about the composition and operation of the Committee.
Reforms based on the Committee’s recommendations will have serious ramifications for every person who is subjected to the criminal justice system. A smoothly functioning legal system determines our freedom to live authentic lives as full citizens in a democratic polity. The (mal)administration of criminal justice shapes the boundaries of whom we love, what we say, whether we complain about violence, how we respond to hate, and many other foundational aspects of our lives. Despite the pervasive ways in which criminal laws interact with our most intimate decisions, the scope of these laws is now going to be determined by a process that is exclusionary for most of the Indian citizenry.
If the aim is to decolonise the law, by disabling democratic deliberation, the Committee has set itself up for failure from its very inception. Decolonisation was not a moment in 1947. Decolonisation is an ongoing process, which requires a commitment to undoing the colonial logic of domination governing citizen-state relations. The Committee’s methods, on the other hand, entrench structures of oppression. As we analyse below, they treat a majority of the population as having nothing valuable to offer to the reform process.
Disabling participation
The Committee’s procedures are designed to disable broad-based participation. The exclusive route to participation is the Committee’s website. However, only about 40% of the population actively uses the Internet. Internet usage itself is linked to structural barriers. For example, women are less likely to have Internet access; and in Kashmir, Internet services that were suspended in August 2019 are yet to be fully restored. Further, all the Committee’s documentation and background resources, including 89 reports of the Law Commission of India (LCI), are in English. The most reliable estimates suggest that only 10% of the Indian population speaks English, and most such persons reside in urban areas.
Also read: Panel for criminal law reforms lacks diversity, say legal experts
Moreover, the life cycle of the Committee coincides with the COVID-19 pandemic. The pandemic has wrought havoc on people’s lives and livelihoods. With several marginalised groups struggling to secure even rudimentary healthcare, education and employment, it is inconceivable that they could participate meaningfully in a reform exercise of this scale at this moment in time.
Finally, there appears to be no representation on the Committee from subaltern caste, gender, sexual, or religious groups. As far as we can tell, there is no representation from working class or disabled communities. Let alone fraught areas of conflict, there are no members on the Committee based outside of a limited geographic region in north India. It is crucial for a Committee tasked with transforming criminal justice to be more representative. It must include members who can speak to the experience of the many publics governed by the criminal law.
Oppressed communities across India are over-policed and under-protected. Religious minorities as well as the impoverished Dalit and Adivasi communities bear the brunt of criminal laws through police violence, long periods of undertrial detention, harsh punishments and poor legal representation. Women, transgender people, and sexual minorities, who overwhelmingly experience gender-based violence, are frequently let down by the criminal justice system. The Committee’s composition and operation render democratic participation from these groups impossible.
Disabling deliberation
Opacity has characterised the Committee’s mandate and working from the outset. There are no published Terms of Reference. There is nothing to explain why an ad hoc Committee was set up for a task of this relevance and magnitude when such questions of law reform are typically entrusted to the LCI, which has established procedures to ensure inclusion and transparency. The Committee has not undertaken to publish the representations it receives from the public during its consultation process. Nor has it explained the circumstances under which the MHA logo was added to its website and then removed, raising doubts about its autonomy. Why was the membership of the Committee, as originally advertised, altered without explanation? There can be no contestation, debate or deliberation without the Committee communicating openly and honestly with all its interlocutors.
The Committee’s procedures also inhibit deliberation. The Committee is carrying out consultations from July to October. Within three months, respondents are expected to form and articulate reasoned opinions on almost every conceivable issue of criminal law, procedure or evidence. In contrast, the Malimath Committee, which had a comparable mandate, took five times as long as this Committee to submit its report. Just the first of the current Committee’s six consultative questionnaires contains 46 questions, several of them deploying controversial legal concepts as if they have a neutral or objective meaning. There is no formal documentation explaining the context and relevance of these questions, diminishing the prospects of productive deliberation among stakeholders.
Deliberative democracy
A deliberative vision of democracy requires that all members of society are able to participate in collective decision-making, and that decision-making takes place through reasoned deliberation. It recognises that participation in political processes is hindered by structural inequalities produced by interlocking systems of oppression, including caste, patriarchy, disablism and communalism. As a response to these hierarchies, deliberative democracy requires that everyone participates in decision-making by giving reasons for why they prefer a particular course of action. This reasoning must be made publicly available for others to contest. Where political decision-making takes place in an open and transparent manner, oppressed groups can influence it through the strength of their reasons. This can mitigate the extent to which a lack of economic, social or political power will otherwise compromise their participation. An inclusive, transparent and meaningful public consultation process for law-making is one practical way to implement a deliberative version of democracy.
Unfortunately, the Committee falls patently short of these ideals. It locks subjugated groups out of the consultation process so that they have no way of challenging the dominant systems of knowledge and governance that currently shape our criminal laws. It is deeply ironic that a Committee underpinned by this colonial logic professes that its primary aim is to decolonise the law.
Arushi Garg is a Lecturer in Criminal Law at the University of Sheffield and Rishika Sahgal is a DPhil candidate in Law at the University of Oxford
Published - August 19, 2020 12:15 am IST
