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COMMITTEE FOR REFORMS IN CRIMINAL LAW: COLONIAL OR DECOLONIAL

Focus: GS-II Governance

Why in news?

  • The Ministry of Home Affairs (MHA) constituted the Committee for Reforms in Criminal Law to undo the “colonial foundations of our criminal law”.
  • The precise mandate of the Committee has not been put into the public.
  • Reforms based on the Committee’s recommendations will have serious ramifications for every person who is subjected to the criminal justice system.

Introduction

  • A smoothly functioning legal system determines our freedom to live authentic lives as full citizens in a democratic polity.
  • Decolonisation is an ongoing process, which requires a commitment to undoing the colonial logic of domination governing citizen-state relations.

Concerns – Disabling Participation

Internet for Participation

  • The Committee’s procedures are designed to disable broad-based participation.
  • The exclusive route to participation is the Committee’s website.
  • However, only about 40% of the population actively uses the Internet.
  • Internet usage itself is linked to structural barriers – like women are less likely to have Internet access; and in Kashmir, Internet services are suspended.

Usage of English

  • All the Committee’s documentation and background resources, including 89 reports of the Law Commission of India (LCI), are in English.
  • The most reliable estimates suggest that only 10% of the Indian population speaks English, and most such persons reside in urban areas.

Pandemic time limitation

  • The life cycle of the Committee coincides with the COVID-19 pandemic.
  • With several marginalised groups struggling to secure even rudimentary healthcare, education and employment during the harsh times of the Pandemic, it is inconceivable that they could participate meaningfully in a reform exercise of this scale at this moment in time.

Lack of representation

  • There appears to be no representation on the Committee from subaltern caste, gender, sexual, or religious groups.
  • There are no members on the Committee based outside of a limited geographic region in north India.
  • It is crucial for a Committee tasked with transforming criminal justice to be more representative.
  • It must include members who can speak to the experience of the many publics governed by the criminal law.

Current Situation of oppression

Oppressed communities across India are over-policed and under-protected.

  • Religious minorities as well as the impoverished Dalit and Adivasi communities bear the brunt of criminal laws through police violence, long periods of undertrial detention, harsh punishments and poor legal representation.
  • Women, transgender people, and sexual minorities, who overwhelmingly experience gender-based violence, are frequently let down by the criminal justice system.
  • The Committee’s composition and operation render democratic participation from these groups impossible.

Concerns – Disabling deliberation

  • There is nothing to explain why an ad hoc Committee was set up for a task of this relevance and magnitude when such questions of law reform are typically entrusted to the LCI, which has established procedures to ensure inclusion and transparency.
  • The Committee has not undertaken to publish the representations it receives from the public during its consultation process.
  • There are no published Terms of Reference.
  • There can be no contestation, debate or deliberation without the Committee communicating openly and honestly with all its interlocutors.
  • The Committee is carrying out consultations from July to October 2020, and within three months, respondents are expected to form and articulate reasoned opinions on almost every conceivable issue of criminal law, procedure or evidence.

Deliberative democracy

  • A deliberative vision of democracy requires that all members of society are able to participate in collective decision-making, and that decision-making takes place through reasoned deliberation.
  • It recognises that participation in political processes is hindered by structural inequalities produced by interlocking systems of oppression, including caste, patriarchy, disablism and communalism.
  • As a response to these hierarchies, deliberative democracy requires that everyone participates in decision-making by giving reasons for why they prefer a particular course of action.
  • This reasoning must be made publicly available for others to contest.
  • Where political decision-making takes place in an open and transparent manner, oppressed groups can influence it through the strength of their reasons.
  • This can mitigate the extent to which a lack of economic, social or political power will otherwise compromise their participation.
  • An inclusive, transparent and meaningful public consultation process for law-making is one practical way to implement a deliberative version of democracy.

-Source: The Hindu

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October 2022
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