The Indian Penal Code was enacted in 1860. It was formed after the draft was created by the first law commission in 1837. Thomas Babington Macaulay was the chairman of that law commission. The idea was to create a uniform law for the whole of British territory in India on the scale of English law. It was also to be in the line of Napoleonic Code and Edward Livingston’s Louisiana Civil Code of 1825. This act underwent editing by Barnes Peacock. This was later passed by the legislative on October 6th, 1860. Since then, there have been little changes in the law. Two other acts constitute India’s criminal law. These are the Indian Evidence Act, 1872, and the Code of Criminal Procedure, 1973.
Keeping in mind that modern times need law as per the modern time, a new committee has been appointed by the Home Ministry. This committee has been granted the task to analyze the various parts of the criminal law and give possible changes that must be made.
What is the Committee?
This committee was appointed on July 4th 2020 to analyze and give suggestions regarding the criminal law in India. But work had started some days back. It was in December 2019, when the home ministry asked for suggestions. They asked the states to give identify the gaps in criminal law. This was the first step in setting the wheel of change in criminal law in motion. This committee is being chaired by Vice-Chancellor of National Law University- Delhi, Ranbir Singh. The other four members of this committee are as followed:
- G S Bajpai, Registrar National Law University-Delhi.
- Mahesh Jethmalani, Lawyer
- Balraj Chauhan, Former Vice-Chancellor NLU- Jabalpur
- G P Thareja, Former Judicial Officer
This committee is working online. The only way to check the work and finding of this committee is to check their website. This website sites the aim of the committee as;
“[r]ecommend reforms in the criminal laws of the country in a principled, effective, and efficient manner”.
It also states that ensuring the safety and security of the individuals, community, and the nation is also one of its prime tasks. This committee aims to prioritize the constitutional values.
The primacy of the constitution, fair and time-bound investigation and trial, victim justice, and principled sentencing are a few of the guiding principles of this committee. The committee has been working with consultations since July 2020. They have prepared questionnaires for both substantial and procedural law. These questionnaires deal with topics of arrest, bail, investigation, prosecution, plea bargaining, and offences against body and state. The schedule of the consultation with the committee was modified in July month. Their first consultation on the topic of Procedural criminal law ended on August 28th. Their consultation on the topic of Law of Evidence ended on October 9th, 2020. Currently, the consultation on Narcotic Drugs and Psychotropic Substances Act, 1985 is active. It is supposed to end on November 16th 2020. To solve the issue regarding regional consultation, the committee undertook an innovative task. They requested various institutions and organizations to organize a Regional Consultations on reforms in the Criminal Law. They had to submit the result of such consultations with the committee. Till now, many law institutions have joined the committee to work on the same. Some of them are the Gujarat law university, Symbiosis law school (Pune), Maharashtra National Law University, and University of petroleum and energy sciences.
What are the major changes in law needed?
The criminal law of India has been created by a committee that knew nothing of India. These laws with a little amendment were adopted by the drafting committee. Constantly, by way of judgments and legislation changes have been made in the criminal law in India. One of the latest and major changes that were made in the criminal law was the amendment of 2013 after the Nirbhaya Rape case and the change in POSCO Act in 2019. At regular intervals, the various committee has suggested changes in the criminal law. The Malimath committee and the Madhav Menon committees have suggested changes to be made in the Criminal Justice System of India.
There are many words in the criminal law which are not defined anywhere. This makes them easy to exploit. They are used by the politicians and police officers against those who rise against the government. Special attention is needed for gender neutrality. India has now recognized the third gender, and yet the laws are not gender-neutral. Even the punishment for the same offence for different gender is different. Punishment for rape against women is graver compared to that in the case of the transgender community. Even the law of sedition needs a revamp. This act has completely been misused by the governments. The punishment rate is lower than a per cent in sedition. And yet every year sedition is used as a weapon to silence those who raise voice against the government. There is also a need for revamping the trial procedure. Indian courts are overburdened with cases. There are currently four crore cases pending in the Indian Judicial System. We need to find to way to get the cases solved quicker. Cases are pending since 1950 in the Supreme court today. As per the reports, more than 60% of people in jail are undertrials. Hence arises the problem of overcrowded jail. We need to improve this situation also.
One cannot forget the call of declaring marital rape as a criminal act. It is still not a criminal act in India. Every year thousands of women face this problem, but they cannot approach the court for the same.
Is this committee India’s new Simon Commission?
In 1928, Britishers sent a group of 7 MPs from England to India. Their task was to study constitutional reforms and make recommendations to the government. This commission was to study India, help in forming a government for India. And yet lacked any representation of any Indian. This commission faced a stiff protest and boycott from all over India.
India has now created a new commission. Its task is to suggest the possible reforms that the criminal justice system needs. And yet the commission has only five male members. There has been no representation from the other genders. All the members of this commission are from upper caste society. No Dalit, Adivasi, or any other minority is present in the team. It is exactly what the Dalits and other backward classes and minorities have been protesting against. That they are not adequately represented in the state. A country where there are 49% female gets no representation from that part of the society. A country with more than 60% of people belonging to the SC/ST and OBC category gets no representation from them. A country with millions of marginalized transgenders has no representation from them. Due to this, various organizations have raised questions against the functioning of the committee.
Also, this committee is functioning in English. This is a language that is a privilege in-country in India. There are only 12% of the total population who speak English. Hence the work of the committee is literally beyond the understanding of most Indians who don’t know English. This process is being done online. Ground reality might get escaped due to this. Also, a large population in India has no supply of fast internet. These sections will also stay out of the reach of this committee. The question arises that how can a committee which lacks diverse representation work in a country with so much diversity. How is this committee any different from a commission appointed 92 years ago in England to modify Indian laws and government?
Changes that the committee needs
Indian society has been a symbol of unity of diversity. And yet lack of diversity in the biggest law reforming committee since independence comes as a shock for everyone. India needs to change the composition of the committee. Just like the constituent assembly consisted of all religions, communities, and genders. This committee needs something similar.
This society is working in a way that is away from ground reality. This committee needs to get the ground reality. The method of regional consultation is a great step taken by the government. But they need a more offline approach. The language which they are using is English. Meanwhile, the constitution of India recognizes 21 other languages which this committee completely ignores. This completely cut off the access to this committee for a large part of the society. One of the changes that the committee needs is that they need people from different backgrounds. As Abhinandan Sekhri puts that this committee seems to be working out of law school, all the members of this committee are one or the other way related to the profession of teaching.
This committee was supposed to transform the laws in 6 months. India is a country that took about two years to form its constitution at the time of independence. They debated over every possible thing and then included the best of all the solutions that they could think of. Now it wants to transform a large portion of those laws in 6 months. This committee should be given a longer period. The committee needs to stop working as school teachers who change the deadline on the last date as the students haven’t done the project.
The Indian Criminal Justice systems have been needing changes for a long time now. But that doesn’t mean that these changes should be made at the cost of ignoring half of India. This committee is working based on questionnaires. This means that the research behind the reforms is going to be like whether one wants to bring X or Y change in any law. Every scholar is being given a set of pre-decided options to choose from. But the changes should not be made like this. 13 ex-judges and many advocates questioned the committee regarding the complete exclusion of the marginalized communities from the committee. The question which arises is that how can we amend the laws for the present by a committee which is similar to the type which created these laws. On the one hand, we say that we need to change these laws as they are outdated. But on the other hand, we use an outdated way of choosing a small group of privileged elites to form the laws. It is not fair for what our country stands for. We have already caused injustice to a large section of society with these laws. We must stay carefully while transforming them. Otherwise, the communities which were being exploited due to laws made by an outsider will be exploited by the laws made by their own country.
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