Concerns raised (again) over diversity, transparency of MHA-constituted Committee for Criminal Law Reforms [Read Letter]

Concerns raised (again) over diversity, transparency of MHA-constituted Committee for Criminal Law Reforms [Read Letter]

A letter dated July 16 also urges the Committee to suspend its functioning as long as COVID-19 persists, while raising concern that the work contemplated by the Committee is "too serious" to be wrapped up in 6 months.

Meera Emmanuel

Former judges, lawyers and academicians have written again to the Committee constituted by the Union Ministry of Home Affairs (MHA) to recommend criminal law reforms raising concerns about the diversity of its constitution and the manner of its functioning, more so in the backdrop of the COVID-19 pandemic.

The signatories to the letter raise alarm that the criminal law overhaul contemplated by the Committee is "too serious a matter to be wrapped up in all of six months with the method of time-bound questionnaires, the modus outlined in the public notice, and a five-member Committee."

"The scale of what this committee has set itself is unmatched by any law reform process at any time either before or after the Constitution of India came into force", the letter dated July 16 notes.

In the backdrop of such concerns, the Letter also goes on to urge for the suspension of the Committee's working while the COVID-19 pandemic persists. Various specific concerns outlined in the letter include the following.

Lack of diversity in the Committee constitution

The signatories assert that it is of utmost importance that the Committee's constitution reflects at least some of India's rich diversity.

The letter raises concern that there is a need for representatives for women, the Dalit community, Muslims, the transgender community, academics with criminal law expertise, advocates practising in the trial Court, Legal historians and Constitutional scholars, the labour classes etc.

While concerns over the lack of diversity were raised in a previous later dated July 8 as well, the signatories opine that the response of the Committee by way of a Public notice has not been satisfactory.

"We note that while the Public Notice initially stated that the composition of the committee “lies with the MHA” – and stated nothing more about diversity within the Committee – it was subsequently amended, without notice or explanation, to state that “the committee has a remarkable diversity and competence in professional experience, affiliations, and, scholarship...”. We call on the Committee to reconsider its position", it is stated in the latest letter.

Earlier, the Bar Council of Delhi had addressed a letter to the Union Home Minister urging that representatives from Bar Councils also be included in the Central Reforms Committee given that, "the legal community in India has many well experienced experts in criminal law and by virtue of their dealing with criminal cases extensively, they can help the government for bringing a better system and suggest suitable amendments."

The July 16 letter goes on to note that a number of the researchers on the team are in some way or the other connected to the core committee members.

"Of the six researchers listed on the website of the committee, one of them appears to have co-authored six articles with the committee’s Convenor- member, another has co-authored three op-eds with the Convenor-member, and a third has co-authored one op-ed with the Convenor-member. All six researchers appear to have been drawn from NLU-D alone."

Concerns of transparency

The letter notes that while July 8 letter had also called for the Terms of Reference to be published, "The committee’s website still does not have this information."

The signatories have now made a specific request that the terms of reference and the project proposal and concept note be published on the committee’s website.

The letter goes to to note that the committee "has not yet committed to making all responses received by it publicly available and has not yet committed to ensuring wide dissemination of its draft report for public feedback for at least one month."

Another issue concerns whether the committee has been doing enough to ensure the wide dissemination of questionnaires for the purpose of recieving public opinions.

Whereas the committee's Public Notice had stated that it would make all questions in its questionnaire available in various regional languages, steps were yet to be taken in this decision, the letter points out.

How autonomous is the Committee's functioning?

The letter notes that another concern that remains unanswered is how the Committee's report would be finalised.

In this regard, it is stated, "whether the committee’s report will be finalised in consultation with the Ministry of Home Affairs or any other ministry, made in the representation of 8 July 2020, remains unanswered."

It goes on to add, "We notice also that the Committee’s website carried the state emblem and the logo of the MHA on all days until 10 July 2020. Please clarify why the state emblem and the logo have been dropped from the webpage of the committee."

Pandemic not the time for law reform

An overarching concern raised is regarding the statement made by the committee that it was expected to complete its work within six months.

It is noted that even the first questionnaire designed by the Committee appeared to be "without serious study and engagement with the issues important to criminal justice."

"There is no indication whatsoever either in the questionnaire or on the committee’s website about what international standards and what empirical research and domestic academic output have led to these questions", the letter states.

The criminal reform proposed to be undertaken would require "substantially more time than has been given the Committee by the MHA (six months)", the signatories go on to emphasise.

Added to this, the letter highlights that the present COVID-19 pandemic is not the best time to be carrying out law reform.

Suggestions made

The signatories have now put forward the following suggestions

  • Suspend the functioning of the committee while India remains in the grip of the COVID 19 pandemic;

  • Write to the MHA asking for the committee to be reconstituted to reflect social diversity and diversity of professional and academic expertise;

  • Place on the committee’s website and ensure wide public circulation of the committee's Terms of Reference and project proposal and/or concept note submitted by National Law University Delhi or its member research centres to the MHA;

  • Clarify both on the committee’s website as well as through wide public circulation why the website carried the State Emblem and the logo of the MHA until 10 July 2020 and why they have subsequently been dropped from the website;

  • Clarify both on the committee’s website as well as through wide public circulation, whether the committee will work independently of the executive and legislative arms of government;

  • Clarify both on the committee’s website as well as through wide public circulation, whether the committee's report will be finalised in consultation with the Ministry of home affairs or any other Ministry;

  • Place on the committee’s website the way all material that is reaching the committee and all material that the committee will be considering would be translated.

  • Abandon the questionnaire put out by the committee and abandon the questionnaire method of public engagement. In their place, put out Think Papers on specific areas of concern that have their bases in empirical study and other research;

  • Place on the committee's website all material that the committee has studied or is considering in dealing with this project;

  • Commit to placing on the committee's website all material that the committee receives;

  • Commit to publish and ensure wide dissemination of the committee's draft report for public feedback, and ensure at least one month for such feedback;

  • Place on record the nationwide analysis of the trajectory followed by trials under particular heads, POCSO, Sedition, UAPA, and others that can be identified.

Read the letter:

Representation to Comm. for Reform in Crl. Laws, 16 July 20.pdf
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