Guest Post by PRATIKSHA BAXI
In May 2020, the Ministry of Home Affairs constituted a Committee to recommend reforms in criminal laws in India with NLU Delhi. The National Level Committee for Reforms in Criminal Laws (henceforth, the NLUD Committee) is to review and recommend changes to the Indian Penal Code, Criminal Procedure Code and the Indian Evidence Act in 90 odd days. On 26 June 2020, responses were solicited from experts on ‘questionnaires highlighting issues in the Indian Penal Code, Code of Criminal Procedure and Indian Evidence Act’ for which experts were invited to register. The Committee has uploaded a questionnaire, extended time for experts to reply and announced concessional consultation with non-experts. 68 Bare Acts, and 89 Law Commission Reports, along with some links and some op-eds by committee members are uploaded on the website, as resources for experts. The Open Consultation can be accessed for a period of two months starting from 17 July 2020 to 16 September 2020. This process is virtual since the process of reviewing and revising criminal law is being performed during a pandemic.
Former judges, lawyers and academics have written to the NLUD Committee expressing their concerns about the manner in which the reform consultation has been scheduled, designed and executed. Some are participating under protest, while others are trying to dialogue with the Committee to re-think its very premise. It has been pointed out that there is no clear terms of reference, the all-male committee is not representative, its two consultants an eminent academic and an eminent police officer are both men, and that the reform project is carried out in English during a pandemic marked by a digital divide in undue haste.
This post thinks alongside those who are trying to dialogue with the Committee to emphasize the need to think through the distinction between autocratic legislative change and law reform, and to adopt the best practices of law reforms and its most representative and inclusive models globally.
One of the central objections has been that the NLUD Committee has ignored the precarity and vulnerability created by the pandemic that has hit lawyers, academics and gender rights and human rights communities hard, and victims of crimes and communities of under trials. In this sense, not only is the composition of the five member committee all male, the very process is muscular.
However, any law reform project such as this does not become less muscular if women, minorities, or Dalits are merely added to its committee. Reform from below stems from asking the questions that people affected by the repressive power of the criminal code have raised; and creating safe conditions for questions to be asked.
First, it is not clear why the pandemic is an opportunity to review the criminal legal apparatus? Or for whom is this an opportunity? How is the time-table of law reform determined, by whom and why? Why is it urgent to review the criminal law in 90 odd days?
Pandemic notwithstanding, shot gun law reform was questioned even in 2013 at the time of the Justice Verma Committee – the reform of the rape law in ninety days was followed by shoddy cut and paste legislative drafting of the criminal law amendment in 2013, which had abandoned the core proposals of the Justice Verma Committee Report without giving reasons.
Second, the Committee’s objective and its website is more or less unknown to most of the vernacular legal community, let alone social science and humanities, and human rights communities. It is those who are disappointed by the process of review of criminal law, who have ironically made legal communities aware of this project. Lawyers, human rights communities and citizens are already besieged with the jurispathic changes in law and policy in the fields of education, environment, labour, and gender. These unilateral changes in law are devoid of any concept of law reform. Although the NLUD Committee adopts the framework of reform, it depletes law reform as a process.
Third, the site of law reform is perplexing. The meaning of “graded” autonomy of universities becomes manifest since law universities are now expected to carry out new functions of governance, which shift the earlier idea of academics contributing research to law reform to becoming the arm of the state that collaborate in statist models of law reform. In this sense, this shift mimes autocratic models of law reform, where peoples participation is not even a performative. The IPC-NEP moment marks a break with earlier models of academic freedom and hospitality that marked universities like NLUD.
Fourth, the project of law reform negates the pandemic as a lived reality, by ignoring struggles with care work, affliction, penury, loss and bereavement. It is urgent to re-write the law, we are told, but is it not more urgent to attend to the cries of loss, affliction, grief and human rights violations that haunt us through the pandemic? Should cause lawyers spend many hours filling up the questionnaires or attend to the briefs of social suffering that is amplified in the pandemic?
Fifth, does the form and procedure of such a consultation, which is not representative or conducive to wider consultations, not coincide with the consolidation of autocratic legality? How may law schools stem the formations of autocratic legality rather than participate in such consolidation?
Sixth, does the NLUD consultation process not institutionalize the digital divide, by assuming that the digital divide does not really exist? In this sense, law reform is then reduced to a conversation among even smaller circle of legal autocrats, which coincides with the consolidation of legal autocrats.
Seventh, to ask a question, as every academic knows, one needs to know what to ask, which is also a function of empirical research. Law professors who read and write books of law do not often know what lawyers and sociologists do, for the practice of law seldom resembles what is written in law books. And indeed some of the academics or consultants in the NLUD Committee themselves are advocates of empirical research in law.
Eight, the pandemic has taught us important lessons about law and society. We have seen the repressive face of the state ranging from the unleashing of contempt powers against a rape survivor to unspeakable police torture, among other newer forms of repressive power. Younger law academics and lawyers have mounted a spectacular critique of the repressive power of the state. Their questions, forms of learning and pedagogy stand excluded by this model of law reform. Sadly, judicial hierarchy by design does not encourage younger academics and lawyers to critique established scholars and cannons freely.
Ninth, the negation of knowledge is not only generational but it is also indifferent to the human as a species. In this sense, such law reform which disregards the knowledges of indigenous peoples, of environmentalists and those who work on the Anthropocene, negates important questions about how the penal code conceptualises the relationship between law and nature; or the human and the post-human.
Tenth, the question of the forensic architecture of law – for example, design of its courtrooms, its prisons, its police stations, its laboratories, the interpretation of the visual, the droning of electronic records, or the challenges of the digital and the dark places of detention or interrogation – whether virtual or physical – have been thrown into a crisis. What forms of critical learning about the forensic architecture of law underpins the NLUD Committee?
Notwithstanding the pandemic, as we stand or fall in the third or fourth phase of the unlocking our cities, and minds, we know that critical thought and analysis is necessary to understand how law creates vulnerability, and remains immune to justice.
First, it is unclear whether the learned Committee is committed to de-criminalise a series of laws that criminalise critique and dissent, communities, sexualities and identities? Is it willing to engage with the law on contempt, the abject state of prisons, police excesses and/or engage with abolitionist perspectives? Is it committed to reform law from the perspective of ending impunity?
Second, to reform criminal legal system do we not need to research the contemporary socio-legal contexts of the life of criminal law? The political, social and economic impact of the pandemic and the lockdown remain unknown. The Committee would surely gain by learning how the criminal legal system produced impunity and social suffering during the pandemic, so that such social suffering can be avoided in future evocations of the disaster law.
Third, nor has the NLUD committee provided a detailed research note and a comprehensive bibliography explaining why some questions have been asked in the questionnaire for experts. Who decides which question is more important? And why is such a question asked? For a question when asked from the point of view of a judge is very different from the point of view of a victim of violence.
Fourth, questions also arise from method, disciplines and frameworks. Think about how lawyers and sociologists approach the question of the nature and use of law. For example, for lawyers and judges the question of misuse of law is not a question of dominance and power. Sociologists however know that law is used for social control, and the dominant seek monopoly over the law to use or abuse it. While courts express shock over false cases against men by women, they do not find the misuse of law by men against women worthy of exclamatory legal rhetoric. Misuse of law is only evoked in the instance of laws that protect women or Dalits, not when law is used against them by the state, family or the dominant caste.
Fifth, there are vast areas of criminal law which law academics do not research. For example, law academics have not researched why women who injure the genitals of their assailants in self-defence are thrown into jails for committing the crime of emasculation? Or why is the provision on divine displeasure is evoked in stripping and parading cases?
Sixth, poor drafting can lead to sheer rightlessness. While gender neutrality is a serious point of debate in rape law reform, there was no explanation or apology for the 2013 gender neutral sexual assault Ordinance which allowed husbands to prosecute wives for sexual assault while prohibiting wives from prosecuting rapacious husbands. Such frivolous legal drafting, if not anti-women in its design, should give pause to the NLUD Committee. One would have imagined Indian law schools would have by now produced law graduates with excellent drafting skills, as a necessary condition for any law reform, in all Indian languages. This has not happened sadly enough but can be rectified.
Finally, should tribunals and public hearings with people affected by the inhumanity of the criminal legal system not be a site of learning, as a necessary condition for reform of the penal code? Will the NLUD Committee speak to the persons in detention camps or those in prisons under lockdown today, yet assure them safe conditions of testimony? If the NLUD Committee were to engage with architects of human rights on re-designing inhuman, cruel and degrading prison designs, would the call for abolition of the anda cell be seen as a stance against national security or will it be seen as a stance against torture? Will a position against death penalty be attacked as a anti-national stance or will it be seen as a legitimate critique of what the criminal legal apparatus condemns a human life to? Or will the Committee encourage the use of truth technologies or see these as torture?
Can lawyers and academics, irrespective of their identities or politics, speak freely and frankly about law and justice without the spectre of contempt or defamation to the NLUD Committee or make submissions without any fear or hesitation? The NEP-IPC moment gives pause to academics, students and activists within and outside NLUD, which is the second best law university in the country. Would expressing a difference of opinion about the reform process attack reprisal, allegation or political stereotyping. Would expressing genuine disappointment about the NLUD Committee itself be polarised as everything else is?
One would have imagined that a university such as NLUD which has supported talented researchers and empirical research thus far and admirably so, would commission extraordinary talent and initiate empirical research studies of different aspects of the penal code by collaborating with social scientists and other experts outside the field of law alone. That it would first assure academics, activists and researchers that the law university is a space for free exchange of ideas and perspectives without fear, or reprisal, unlike other universities recovering barely from the trauma of police violence or riots.
There is still time to re-imagine this ambitious project by replacing the idea of reviewing the criminal legal apparatus with the largest, inclusive empirical and interdisciplinary research collaboration, in conversation with affected and afflicted peoples, academics and researchers from world over.
The social suffering caused by the criminal legal system is hard to grasp, and certainly cannot be grasped without recognising the depth of social suffering that allows constitutional briefs to be fought and constitutional law to become an expert domain in the first place. To re-form criminal law, the languages of social suffering must be allowed articulation and understanding.
The disappointment stems from the fact that the epistemic muscularity of law reform has replaced epistemics of care and solidarity in the times of pandemic.
It is however not too late to refuse to lockdown conversations with people invested in just articulations of law and society. It is not too late to reject the muscularity of law reform. It is not too late to be in solidarity and conversation with epistemic communities that desire just social orders.
Pratiksha Baxi is Associate Professor, Centre for the Study of Law and Governance, JNU