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Women Lawyers Express Grave Concerns about Composition, Time Frame and Methodology Adopted by The Committee for Reforms in Criminal Law

Mehal Jain
9 July 2020 7:30 AM GMT
Women Lawyers Express Grave Concerns about Composition, Time Frame and Methodology Adopted by The Committee for Reforms in Criminal Law
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Expressing their "concern" and "in fact anger" that there is not even a single woman on their National Level Committee for Reforms in Criminal Law, apart from it being totally non representative of minorities and other marginalised communities, women lawyers from across India have written to the Committee

"It is essential that the Committee be expanded to include eminent women, Dalit, Adivasi and various religious minorities, LGBT, differently-abled criminal law practitioners and grassroots workers from different parts of India", urges the letter addressed by numerous women Advocates of the Supreme Court and the Delhi, Bombay, Bangalore, Calcutta and Madras High Courts and District and Sessions Courts.

Stating that "the only manner in which systemic and institutional biases can be cured" is by "ensuring diversity and representation of various stake holders in the legal reform process", prominent Senior Advocates Indira Jaising, R.Vaigai, Gayatri Singh and Priya Hingorani, among others, have pressed that the authorities cure what is a "foundational defect" in the composition of the Committee.

"At the outset we welcome the constitution of a National Level Committee for Reforms in Criminal Laws to undertake a review of criminal laws in India and are reassured by the fact that the reforms envisioned are to hold at its core, as stated, 'the constitutional values of justice, dignity and the inherent worth of the individual'", reads the communication.

It is asserted that most of them have registered for participating in the consultation exercise and have or are going to fill out the questionnaires, and that from the first questionnaire uploaded, it appears that a very useful and important exercise in the nature of jurisprudential introspection is being undertaken on various issues, such as

- whether definitionally sexual offences should be located within the category of offences against the body or under that of gender discrimination

- whether rape sexual assault laws are to be gender neutral vis a vis both victim and offender

- whether the provisions relating to "consent" need rethinking

- whether separate offences of "mob-lynching" or "honour killing" need to be created

- whether sedition laws require re-examination

- whether more strict liability offences are required under the IPC

- How criminal culpability of corporates needs to be dealt with

- re-examination of several common law principles relating to mens rea, right to private defence, insanity defence, theories of punishment and sentencing, the competence of minors above the age of 12 years.

"This is indeed a seminal exercise and as lawyers we welcome these debates and pursuant reforms", applaud the advocates, at the same time, stating that they are "very concerned" by issues of the composition of the Committee and the consultative methodology and time frame.

The writers submit that are "a group of women litigating lawyers – trial as well as appellate level", that many of them have "over 40 years of practice experience – some of us are designated Senior Advocates". On the criminal side, they have acted in the capacity of defence counsel, state counsel and victims' counsel, and that some of them are, or have been, empanelled Legal Aid counsel or have held amicus curiae briefs. "Therefore, we have rich experience of representing all kinds of stake holders on the criminal side – whether it be the State, the accused, the victim; from corporations to marginalised/ vulnerable individuals", it is indicated. Further, it is pressed that their expertise in not only limited to handling cases involving IPC offences, but those under special statutes such as terror, drugs, POCSO, Prevention of Corruption Act, Money Laundering and corporate fraud.

The writers comment that it is "troubling" and "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.

"Can a discussion on criminalisation of honour killing or mob lynching be meaningful without the inclusion of Dalits and religious minorities on the Committee?", they wonder.

Further, it is pointed out that barring one senior member of the bar, there is a glaring failure to include any practicing advocates in the Committee- "Any need reform in criminal laws must be articulated by those who, on a daily basis, engage with these laws and see how they play out in practice. Else, this will either become a mere academic exercise, devoid of real impact, or worse, will result in harm. Not just law practitioners, even grassroots workers should be invited to participate in the process"

"After all many changes in law have been spearheaded by non-lawyers, such as the Right to Information Act, the Forest Rights Act, dowry laws – to name just a few legislations", it is advanced.

Consultative Methodology and Time Frame

It is insisted that the entire approach - the expert consultative process taking place over the course of the next two and half months through a series of six questionnaires, each dealing separately with the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act - is "deeply flawed".

"Criminal Law rests on three interlocked and interlinked statues. The Committee's schedule of releasing separate questionnaires for each statute on different dates and seeking isolated responses, betrays a lack of understanding of the working of criminal law jurisprudence", it is stated.

Besides, it is hinted that the methodology of soliciting contributions from expert consultants on reforms within the confines of the questions posed seems to indicate that "the Committee has already arrived at certain forgone conclusions" and is "appearing to merely evaluate whether these positions garner enough endorsements or not".

It is further argued that certain issues are "deserving of contributions that go much beyond a 200 word limit!"- "A law reform exercise which applies a methodology reminiscent of feedback Google Forms runs the grave risk of being rendered farcical"

Moreover, the letter says that the questions are without context whatsoever. By way of example, it is suggested that the entire section of strict liability offences ought to have been prefaced with the nature of offences the Committee had in mind and what its concerns were while posing these questions.

"Or else, we are rendered no better than law students writing a 200 word essay answer on the meaning of strict liability", the lawyers express their regret.

Additionally, it is stressed that the two and a half month, extremely short time frame set out is, by default, designed to defeat any serious engagement with any of the "expert consultants". "The mandate of the Committee is a task of great magnitude, the outcome of which is to affect the lives of citizens in extremely significant, immediate and corporal ways", the letter earnestly avers, adding that "this daunting task requires to be undertaken with extreme care, rigour and diligent knowledge building".

Read the Letter here

To

Prof. (Dr.) Ranbir Singh

Chairperson & Vice-Chancellor

Committee for Reforms in Criminal Laws

Centre for Criminology and Victimology

National Law University, Delhi

Dear Sir,

Re: National Level Committee for Reforms in Criminal Laws: Serious Concerns Re. Composition, Time Frame and Methodology adopted by the Committee.

We are a group of women litigating lawyers – trial as well as appellate level. Many of us have over 40 years of practice experience – some of us are designated Senior Advocates. On the criminal side, we have acted in the capacity of defence counsel, state counsel and victims' counsel. Some of us are, or have been, empanelled Legal Aid counsel or have held amicus curiae briefs. Therefore, we have rich experience of representing all kinds of stake holders on the criminal side – whether it be the State, the accused, the victim; from corporations to marginalised/ vulnerable individuals. Further, we have expertise in not only handling cases involving IPC offences, but those under special statutes such as terror, drugs, POCSO, Prevention of Corruption Act, Money Laundering and corporate fraud.

At the outset we welcome the constitution of a National Level Committee for Reforms in Criminal Laws to undertake a review of criminal laws in India and are reassured by the fact that the reforms envisioned are to hold at its core, as stated, "the constitutional values of justice, dignity and the inherent worth of the individual." It is also worth-while, at this juncture, to reiterate the integral principles of criminal jurisprudence that are enshrined in our Constitution - such as fair trial, presumption of innocence and burden of proof, equality before law and equal protection of the law.

Most of us have registered for participating in the consultation exercise and have or are going to fill out the questionnaires. From the first questionnaire uploaded, it appears that a very useful and important exercise in the nature of jurisprudential introspection is being undertaken on various issues, such as

- whether definitionally sexual offences should be located within the category of offences against the body or under that of gender discrimination

- whether rape sexual assault laws are to be gender neutral vis a vis both victim and offender

- whether the provisions relating to "consent" need rethinking

- whether separate offences of "mob-lynching" or "honour killing" need to be created

- whether sedition laws require re-examination

- whether more strict liability offences are required under the IPC

- How criminal culpability of corporates needs to be dealt with

- re-examination of several common law principles relating to mens rea, right to private defence, insanity defence, theories of punishment and sentencing, the competence of minors above the age of 12 years.

This is indeed a seminal exercise and as lawyers we welcome these debates and pursuant reforms. However, we are very concerned by issues which can be broadly classified under 2 broad heads:

- composition of the Committee

- consultative methodology and time frame

Composition of the Committee

We find it rather troubling that the Committee is completely lacking in both diversity and in representation of relevant stake holders – there are no women, Dalits, religious minorities, adivasis, LGBT persons or differently-abled person on the Committee. Further, the Committee is mainly Delhi based, with members drawn exclusively from urban metropolitan cities.

Over decades it has been established in various jurisdictions that the only manner in which systemic and institutional biases can be cured is by ensuring diversity and representation of various stake holders in the legal reform process.

As women lawyers, 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. Can a discussion on criminalisation of honour killing or mob lynching be meaningful without the inclusion of Dalits and religious minorities on the Committee? These are but a few stray examples. However, the point we are trying to emphasise is that plurality of views and debate is essential for a rigorous and democratic exercise in law reform – and the only way to ensure such plurality and debate is to ensure diversity and adequate representation.

Further, barring one senior member of the bar, there is a glaring failure to include any practicing advocates in the Committee. Any need reform in criminal laws must be articulated by those who, on a daily basis, engage with these laws and see how they play out in practice. Else, this will either become a mere academic exercise, devoid of real impact, or worse, will result in harm. Further, not just law practitioners even grassroots workers should be invited to participate in the process. After all many changes in law have been spearheaded by non-lawyers, such as the Right to Information Act, the Forest Rights Act, dowry laws – to name just a few legislations. By their deep engagement with vulnerable groups and those who have either fallen between the cracks or fallen unfairly victims to the criminal justice system, grassroots workers will have significant insights, that we cannot afford to ignore.

Consultative Methodology and Time Frame

From what we are given to understand the expert consultative process is to take place over the course of the next two and half months through a series of six questionnaires, each dealing separately with the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act. This entire approach is deeply flawed - Criminal Law rests on three interlocked and interlinked statues. The Committee's schedule of releasing separate questionnaires for each statute on different dates and seeking isolated responses, betrays a lack of understanding of the working of criminal law jurisprudence.

Furthermore, a questionnaire based methodology of soliciting contributions from expert consultants seems to indicate that the Committee has already arrived at certain forgone conclusions and is appearing to merely evaluate whether these positions garner enough endorsements or not. There is no scope for eliciting from experts what reforms are required outside of the confines of the questions posed. Furthermore, certain issues are deserving of contributions that go much beyond a 200 word limit! A law reform exercise which applies a methodology reminiscent of feedback Google Forms runs the grave risk of being rendered farcical.

Further, the questions are without context whatsoever. For example, the entire section of strict liability offences ought to have been prefaced with the nature of offences the Committee had in mind and what its concerns were while posing these questions. Or else, we are rendered no better than law students writing a 200 word essay answer on the meaning of strict liability. It is plainly disturbing to imagine how our responses will be interpreted and what they will culminate in.

Additionally, the extremely short time frame set out is, by default, designed to defeat any serious engagement with any of the "expert consultants". The mandate of the Committee is a task of great magnitude, the outcome of which is to affect the lives of citizens in extremely significant, immediate and corporal ways. This daunting task requires to be undertaken with extreme care, rigour and diligent knowledge building. That a two and a half month time frame is grossly inadequate for such a task is an understatement.

We therefore feel very strongly that;

- That it is essential that the Committee be expanded to include eminent women, Dalit, Adivasi and various religious minorities, LGBT, differently-abled criminal law practitioners and grassroots workers from different parts of India. Immediate steps must be undertaken to cure what is a foundational defect in the composition of the Committee in its present form.

- That the Consultative Process be completely overhauled in terms of both methodology and time frame.

Yours Sincerely ,

Women Advocates of Supreme Court, Delhi, Bombay, Bangalore, Calcutta and Madras High Court and District and Sessions Court

1. Indira Jaising, Senior Advocate

2. R.Vaigai, Senior Advocate

3. Gayatri Singh, Senior Advocate

4. Priya Hingorani, Senior Advocate

Advocates

5. Aditi Saxena, Bombay

6. Amala Dasarathi

7. Amita Joseph

8. Amita Singh Kalkal, Delhi

9. Anita Abraham, Bengaluru, Former APP GNCTD

10. Anna Mathew, Madras High Court

11. Anu Narula, , Delhi

12. Anubha Rastogi

13. Anuradha Dutt , Delhi

14. Aparna, Associate Partner, ATV Legal

15. Archana Punja Rupwate Bombay High Court

16. Arunima Bhattacharjee

17. Auxilia Peter

18. Avaantika

19. Bulbul Das, Delhi High Court

20. D. Nagasaila

21. Deepti Bharti, G. Secy, NFIW Delhi Unit

22. Devika .S madras HC

23. DEVIKA RANI

24. Diva Arora, Partner- Fidus Law Chambers

25. E Shailaja V Pillai

26. Ekta kapil, , Delhi

27. Elizabeth Seshadri

28. Vijayalakshmi, Madras

29. Eva Bishwal, , Delhi High Court

30. Firdaus Moosa, Bombay

31. Gargi kumar

32. Garima Bajaj, Advocate on Record, Supreme Court

33. Geetha Devarajan

34. Hiral Gupta

35. Iram Majid

36. Jahnavi Sindhu

37. Jhum Jhum Sarkar

38. Kajal Chandra, Delhi

39. Kaveeta Wadia, Advocate on Record, Supreme Court

40. Kirti Singh, Delhi

41. Lakshya Anand

42. Liyi Marli Noshi

43. Liz Mathew, Advocate on Record, Supreme Court

44. Lousy Biju

45. M. Deepthadevi

46. Manali Singhal

47. Maneka Khanna

48. Mangla Verma

49. Mani Gupta, Partner, Sarthak s & Solicitors

50. Mary Mitzy

51. Maulshree Pathak, Delhi

52. Meenaz Kakaklia, Bombay

53. Megha Bahl, Delhi

54. Meghna Podder, Legal Counsel, Hyderabad

55. Miriam Fozia Rahman

56. Mrinalini Sen

57. Ankur Gulyani Panda

58. Nandita Rao, Additional Standing Counsel (Crl) GNCTD

59. Naomi Chandra, Delhi

60. Nayantara Roy

61. Nehmat Kaur

62. Jhum Jhum Sarkar, Delhi

63. Nicy Paulson, Delhi

64. Nikita Agarwal, Delhi High Court

65. Ninni Susan Thomas

66. Nivedita Menon madras

67. Noorun Nahar Firdausi

68. Praavita Kashyap, Delhi

69. Pragyabaghel

70. Pritika Kohli

71. Puja, Legal Researcher, Delhi

72. Pyoli Swatija

73. Radhika Kolluru, APP, GNCTD

74. Ranjeeta Rohatgi, Advocate on Record, Supreme Court of India

75. Reena Rao

76. Remya M, Senior Manager -Legal

77. Ritu Bhalla, Partner Shardul Amarchand Mangaldas & Co, Delhi

78. Ronita Bhattacharya Bector, Bombay High Court

79. Ronjaboti Sen, Calcutta

80. Ruchi Singh, Delhi

81. Rudrani Tyagi

82. Rupali Samuel

83. Rushda Siddiqui, Member, Exective Council, NFIW

84. S. Meenakshi, Chennai

85. Sandhya Raju

86. Sanobar Kisher Bombay High Court

87. Sarada Hariharan, Calcutta High Court

88. Shahrukh Alam, Delhi

89. Shalini Gera

90. Shashie Singh

91. Shirin

92. Shomona Khanna, Supreme Court of India, Delhi High Court

93. Shweta Kapoor, Delhi

94. Shwetasree Majumder

95. Smrithi Suresh

96. Sowjhanya Shankaran

97. Sumanjit Kaur

98. Sumita Hazarika

99. Sumita Kapil, Delhi

100. Surbhi Karwa

101. Swapna Choubey, Calcutta High Court, NCTL

102. Swaty Singh Malik

103. Tanvi NS

104. Tanvi Sharma

105. Tanya Varma, Partner, Law Firm

106. Tara Narula, , Delhi

107. Tarannum Cheema, Delhi

108. Ujjaini Chatterji,

109. Urmi Chudgar

110. Urmila Chakraborty, Calcutta High Court

111. Uttara Babbar, Advocate on Record, Supreme Court

112. Vrinda Grover, Delhi

Male advocates signing in solidarity

1. Gopal Sankaranarayanan, Senior Advocate, Supreme Court of India

2. Arush

3. C K Nandakumar, Partner, Law Firm

4. Elwin Wilson

5. Jagdeep Chhokar, Retired Professor, Currently practicing Advocate

6. Pranav Arora, Supreme Court of India

7. Rahul shrivastava, Jabalpur MP High Court

8. Yashasvi Mohanram, Partner, Platinum Partners

9. Yugandhara Pawar Jha

10. Mohan Gopal

11. Mehak Sethi


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