‘Laws must provide out-of-box solutions’
Interview with Dushyant Dave, president of the Supreme Court Bar Association.
Do you agree with the process set in motion for criminal law reforms and its timing?
Laws need constant review with changing times and changing societal needs. More so with criminal laws. So, if the government’s intention is honest, and it must be, there is nothing wrong in its efforts to initiate the process by constituting a committee of experts. However, I do feel the Law Commission is the most wellequipped body to undertake this exercise and it can constitute sub-groups to carry out initial research. But then the Law Commission must comprise the best available [legal minds] in the country. In the last few years, governments have made poor appointments to most bodies such as the Law
Commission.
Do you feel that the setting up of this committee in a pandemic situation is another example of executive overreach? Moreover, it lacks representational diversity, which has attracted criticism.
I don’t know the constitution of the committee, but it must have people representing vulnerable sections, especially minorities, women, Dalits and other underprivileged sections. Only then can it achieve a just balance in suggesting reforms in criminal law. Activists and civil society leaders must be involved. Yes, instead of asking the Law Commission [to do the work], constituting a committee in its place is an overreach.
Why not? It can if there is an honest, widespread and meaningful consultation with all stakeholders, including society at large, lawyers, judges, law enforcement agencies, social workers, etc.
During the exodus of migrant workers following nationwide lockdown, we saw how the police behaved with them. There have been many such instances of police highhandedness of late. Do you think the committee should address these issues more specifically in terms of having strong procedural laws that uphold the presumption of innocence of an accused?
The reform process must also address police reforms and must provide for stricter punishment to the police and other law enforcing agencies for wrong arrests, inhuman treatment, torture, custodial deaths, damage to dignity and reputation, among other violations. These must be made non-bailable and cognizable. The judiciary must be given mandatory powers to take suo motu action in such cases.
On the one hand, many offences have been decriminalised. But, on the other, there is an increasing tendency to book people under the most severe of laws like sedition…
Of course, laws like the Unlawful Activities Prevention Act must be reformed drastically. Only in the last few days the Gujarat government began the process of promulgating an ordinance amending the Prevention of Anti-social Activities Act (PASA) to make posting of messages on social media an offence if the messages are false or offensive, in a wide sense. These laws have to be applied very strictly. The arrest of hundreds of persons belonging to the minority community for raising their voice against the Citizenship (Amendment) Act is a blot on governance by the executive and the role of the judiciary.
Similarly, the Armed Forces Special Powers Act needs to be repealed as under its garb thousands of young men and women have been killed in the name of fighting terrorism. Yes, terrorism must be dealt with iron hands but not indiscriminately and wantonly. We are on a wrong path, as Northern Ireland can tell us.
It is strange that despite having laws for almost all offences under the sun, there doesn’t seem to be any let-up in crimes against the poor, Dalits, minorities, women and children. Would you agree that there is an anomaly in the application of criminal law and, by implication, in the criminal justice system?
Yes, crimes against all vulnerable sections of society, including minorities, Dalits tribal people, poor people and women, among others, must be curbed as fast as possible, and for that laws must provide innovative and out-of-box solutions. The Evidence Act must allow use of modern technology and tools while sticking to the basic principles of criminal jurisprudence, right to remain silent ( for the accused) and burden of proof (on police).
to the paradigm shift with regard to the Hindutva perspective on nationhood. This is where the criminal law reforms come into play as one of the components.
Significantly, the formal announcement of the criminal law reforms was made almost a full month after the Supreme Court verdict that paved the way for the occupation of the Ayodhya land by Hindus and the preparations for the construction of the Ram temple. Some Sangh Parivar insiders are of the view that Modi and Amit Shah have some sort of a belief in auspicious days. Thus the bhumi pujan for the Ayodhya Ram temple was held on the first anniversary of the abrogation of Article 370. And the announcement of the criminal law reforms came a month after the Ayodhya verdict of November 9, 2019.
These insiders also say that the larger paradigm shift would be in keeping with the Manusmriti perspective that Golwalkar had wanted for the Constitution. Conservative insiders cite the formation of an all-male committee to recommend criminal law reforms as a sign of it. Manusmriti, incidentally, is known for its blatantly antiwoman viewpoints such as: “Women have no divine right to perform any religious ritual, nor make vows or observe a fast. Her only duty is to obey and please her husband and she will for that reason alone be exalted in heaven.” The text also states that “the father guards her in adolescence, the husband guards her in youth, the sons guard her in old age; the woman is never fit for independence”.
Apart from women, the committee is also bereft of representatives from other marginalised communities such as Dalits. The committee also does not have legal historians or constitutional experts.
ARBITRARY EXERCISE
Apart from these points on the organisational structure of the criminal law reforms committee, there are several crucial questions and apprehensions about the whole exercise. Nearly 150 personalities, including 16 former judges of the Supreme Court and High Courts, 100 lawyers from across various courts in India and former civil servants, academics and intellectuals, have flagged these concerns in a representation they submitted to the Ministry of Home Affairs. They have demanded suspension of the committee’s activities and a thorough restructuring of its parameters and functioning.
P.V. Dinesh, advocate in the Supreme Court and one of the founders of the legal portal Live Law, points to the fact that the committee does not have clearly stated terms of reference or a concept note, which he says adds to the arbitrariness of the whole exercise. Amidst the pandemic, the consultations are being carried out online. Said Dinesh: “The questions appear to be general, as if prepared by someone who has not done any research on the subject. They cater to the perceived social morality concerns rather than the nuances of law. Also, the questions are suggestive of fundamental changes like that of shifting the burden of proof; according admissibility for the confession before the police; changes in the nature of trial, punishment and the process of investigation.” The representation submitted by the former judges and lawyers also points out that criminal law reforms are too serious a matter to be wrapped up in six months through methods such as time-bound questionnaires.
JUSTICE CHELAMESHWAR’S PERSPECTIVE
Talking to Frontline, Justice J. Chelameshwar, former Judge of the Supreme Court, pointed out that the framers of the Constitution had enough foresight to realise that all laws of the country, including criminal laws, would have to undergo changes in accordance with the changing times and new developments in society, economy and technology. He said: “But we should clearly know what we want to change and how we would go about changing it. The terms of reference have to be precise and clear. One of the problems that we have is that even practitioners, including people who sit in judgment, do not understand the details, niceties and nuances of a law and the way it plays out in a changing society. These lead to horrendous judgments too, especially when it comes to something as complex as criminal law.”
The former Judge, who once stated in the Supreme Court that by some quirk of fate his judicial career had begun and ended with criminal cases, said that all efforts at reforms should keep in my mind that the interface between criminal law and the Constitution was essentially dictated by the duality of individual liberty and social control and there had to be a judicious balance between these two streams. Several studies based on the relationship between the Constitution and criminal laws have also focused on this duality, but almost all of them have underscored that these two streams are not mutually exclusive or oppositional models or watertight compartments and that they cannot be defined in absolute terms or in binaries. At its core, this duality and the coexistence of these streams is also about a functional political democracy. All efforts to initiate reforms will have to understand and assimilate this broad structure.
As Justice Chelameshwar points out, reform needs to be done knowing fully well what one is trying to reform and the intricacies that such exercises would entail. The history of the formation of the IPC involved a drafting and vetting process that lasted 26 years between 1834 and 1860. The CRPC has an even longer history of deliberations and amendments between 1852 and 1973. The Law of Evidence, namely the Indian Evidence Act, went through processes of consultation and amendments for 37 years from 1835 before it finally became law in 1872.
Most of this happened during the hugely constricting colonial sociopolitical atmosphere of the British Raj. Obviously, reforms in the independent India of the 21st century need to be more broad-based and inclusive. It cannot be driven by a committee, which is markedly imbalanced in terms of gender representation or involving marginalised sections of society. It also cannot be dictated by absolutist or binary prescriptions of the kind advanced through the Manusmriti-driven code of laws envisioned as part of the treatise of Hindu Rashtra and propounded by leaders like the current RSS sarsanghchalak Mohan Rao Bhagwat. m