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Reforms And Criminal Laws: A Layperson's Perspective

M.S.Palekar
18 Oct 2020 1:30 PM GMT
Reforms And Criminal Laws: A Laypersons Perspective
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The Committee for Reforms in Criminal Laws was instituted by the Ministry of Home Affairs (MHA) in May 2020, with a mandate to "recommend reforms in the criminal law of the country in a principled, effective, and efficient manner…" among other things. Since then, legal practitioners, law students, activists, and even members from allied fields like the Indian Civil Services have spoken up against the nature and constitution of the Committee, against the deadlines that have been set, and against the implications the Committee's recommendations would have for the field of criminal justice.

Apart from the criticism and questions aimed at the MHA, the members of the Committee for Reforms in Criminal Laws have also received a significant portion of the criticism. This has partly to do with their own existence on the Committee, and partly to do with the people they have employed to assist in the Committee's work. Therefore, in addition to the opacity that shrouds the reasoning and justification of the procedures adopted by the Committee, there are concerns regarding the credentials of the researchers who are assisting the Committee members.

This concern was pointed out in a letter dated July 16, 2020 by prominent practitioners and associates of the legal fraternity. The letter noted that all the researchers employed in this project have been students and associates of National Law University, Delhi (NLUD) alone, in some capacity or the other, for degrees undergraduate and postgraduate, and holders of previous university contracts. Many of them seem to have co-authored articles in print media with the Convenor-Member as well.

What might seem natural or understandable about a university drawing from its own student body to find intellectual resources needs to be broken down in terms of its repercussions, to better understand what is at stake here. Until the Committee clarifies the nature of work undertaken by the research team, it should be reasonable to assume that the questionnaires have been put together with the assistance of the research team. It is, therefore, crucial to have transparency in terms of the procedure(s) adopted by the research team in formulating the questionnaires.

Who decides what questions would be part of the final questionnaire? Do the Committee members internally decide the themes on which the questions should be formulated and then take the assistance of the researchers? Or has a corpus of questions been forwarded to the members who then determine the questions to keep or reject? The answers to these doubts are meant to define the extent of intellectual engagement as well as the autonomy enjoyed by the research team. This enquiry assumes greater significance when considered in light of the fact that the five Committee members already have other, full time jobs. It then also becomes more explicable to assume that the research output produced by the members is derived from the work done by the researchers they have employed with the title of Researcher, Research Associate and Honorary Researcher.

The website of the Committee lists out nine researchers (as of August, 2020). Three of them have completed their undergraduate degrees from National Law University, Delhi (NLUD). Three have done their masters degree from NLUD. There is nothing to indicate the procedure of appointment of the researchers. It is unconvincing to accept that during the appointment process, five of those researchers deemed fit for this Committee were already engaged in projects undertaken by the Centre for Criminology & Victimology (CCV), of which the Convenor-Member is the Chairman. It may be established beyond doubt that these individuals are well-qualified to undertake research work; however, for a Committee seeking to recommend reforms on such an ambitious level, the constitution of its body, including the researchers, should represent a certain diversity, which this Committee, members and researchers included, absolutely does not. If anything, drafting the majority of researchers from the very same campus and institution that has received the mandate can only represent convenience.

There is no information to indicate that the researchers have demonstrable professional experience or expertise in criminal justice administration. The question may arise as to what the stated prerequisite for the position of researcher within the Committee is or should be. Is a postgraduate degree sufficient? Would a doctoral candidate be required? Research, whether legal or otherwise, is an academic domain and therefore the qualifications of the researchers, along with the academic backing of published work or fieldwork to demonstrate expertise, have to be treated with significance.

There have already been reports that a few questions in the questionnaire have been borrowed from recommendations already made by other committees. The Committee's website mentions that it will examine the work and recommendations of the previous commissions and committees. There's no denying, however, that deriving questions from previous research with little to no emendations shows a lack of rigour adopted by the present research team.

The website clearly states as part of its mandate that it seeks to examine "the work and recommendations of previous Committees and Commissions on various aspects of substantive criminal law…" However, given the sheer corpus of legal documents being taken on, it would be insufficient to provide no further insight into how much and what kind of previous research is being incorporated into the current work, and how, or why. Now, the belief was that an ancillary document providing these insights would have helped greatly, and brought a certain specificity to an otherwise discouragingly expansive ambit of inquiry. However, in late August, a document of such a nature was, in fact, uploaded to the committee's website, and to the dismay of many, it proved just as ambivalent and all-encompassing. Tokenism in the name of transparency will not go a long way.

Sufficient material has already been produced on the issues surrounding the workings of the Committee for Reforms in Criminal Law, enough to constitute what can be called a furore. The aim of this article, apart from reiterating the intellectual crux of this furore, is to spell out why it is crucial that such noise be made, such awareness be spread, across academic disciplines and faculties, even and especially to people who may consider themselves most removed from law and legal discourse. The many subfields of law and legal theory, criminal law being one among them, are continually running the risk of becoming areas of partisanal engagement dominated by experts, with no space or value assigned to the comprehension of the layperson. In the case of criminal law and justice, the questions become even more pointed: why preoccupy oneself with questions and issues that exclusively pertain to criminal behaviour? Why dedicate one's attention to matters that seem so utterly removed from one's quotidian law-abiding existence?

The answer is: law as wielded by the State is a site of power. And to have power over someone means turning them - or making them turn - into someone they do not identify as. And that includes the role of criminal, that of victim, that of abettor, and of accomplice. For the past half decade, various laws have been invoked repeatedly by the Indian government to turn the unlikeliest candidates into criminals, and equally unlikely candidates into victims. Most governments have a bad track record when it comes to protecting human rights and making unequivocal economic progress. The Modi government would have one believe that it is an exception, and the fierceness of most of its critics comes from the fact that it is absolutely not. Along with the criticism being produced, we need more pictures of what will happen if this committee, formed under and ultimately answerable to Home Minister Amit Shah, abides by the uncertain deadline to review and revise one of the most intimidating documents our democracy has produced. The idea is outlandish, and that it's headed in all likelihood towards realisation is disturbing.

Views are personal only.

(M S Palekar is a student of English and German at the Jawaharlal Nehru University,Delhi)

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