One of the first pronouncements about the Bharatiya Janata Party (BJP)-led National Democratic Alliance (NDA) government’s intention to initiate criminal law reforms was in early December 2019. Addressing a conference of the Directors General of Police and Inspectors General of Police in Pune, which was attended by Prime Minister Narendra Modi and National Security Adviser Ajit Doval among others, Union Home Minister Amit Shah expounded how the criminal law system in India, especially its principal operational frameworks, the Indian Penal Code (IPC) and the Code of Criminal Procedure (CrPC), was not “conducive to today’s democratic set-up” and how the government had “resolved to initiate substantive measures to reform the system”.
A day before this announcement, in a letter to the State governments the Union Home Ministry had sought their suggestions for undertaking a major overhaul of the IPC and the CrPC. The initiative, it said, was aimed at reflecting the aspirations of a modern democracy in the criminal law system and providing speedy justice to people.
At the Pune conference, Amit Shah dwelt on these aspects as well, but he primarily exhorted the senior police officers to convert occasions like annual conferences as a regular platform to debate and formulate policy decisions pertaining to national security. His specific call was to make these occasions a “Vaicharik Kumbh”, or “thought summit”.
“Vaicharik Kumbh” is not a commonplace Hindi expression or one used by the intelligentsia. However, those familiar with the jargons and nomenclatures used within the Rashtriya Swayamsewak Sangh (RSS)-led Sangh Parivar outfits know that terms such as “Vaicharik Kumbh” and “Chintan Shivir” (both mean “thinking summits”) refer to their periodic gatherings for ideological discussions on Hindutva. These conventions have been part of the RSS tradition right from its inception in 1925. However, whenever the political arm of the Sangh Parivar is in power, these gatherings focus on governance-related issues.
Mossad as prototype
Pravin Togadia, the erstwhile associate of Modi and Amit Shah in the Sangh Parivar organisational structure in Gujarat, had organised a series of such meetings during1998-2004 when he was in the top rung of the Vishwa Hindu Parishad (VHP), the ideological arm of the Hindutva combine, and when the Atal Bihari Vajpayee-led NDA government was in power at the Centre.
Interestingly, India’s criminal law system was the focus of a couple of “thinking sessions” that Togadia had organised in western Uttar Pradesh in the late 1990s and early 2000s. About 35 participants drawn from almost all the Sangh Parivar outfits sat together for the three-day sessions and formulated plans to mould the criminal law system on the lines of the Hindutva treatises on governance. Among the specific ideas that came up in these meetings were creation of vigilante groups that would supplement government agencies, especially security agencies, in special drives to protect Hindutva ideas, projects and symbols. A major symbol mentioned repeatedly in this context was the cow, and an important project identified was that of bolstering national security.
Togadia had then told this writer that these meetings discussed special initiatives to combine government and vigilante efforts to protect the cow from human predators and to set up public interest volunteer groups to identify anti-national elements in the neighbourhood and help the authorities to bring them to book. The organisational model highlighted in the discussions, Togadia said, was the Israeli Mossad, with civil society as a key component of security related intelligence gathering.
Thus, when Amit Shah exhorts senior police officers to convert their conferences to “Vaicharik Kumbhs”, Sangh Parivar activists or the Hindutva combine’s close observers see other connotations of those words. According to a retired senior intelligence officer who has worked with the Union Home Ministry and the police departments of various States for over two and a half decades, the Modi government’s official parlance has been periodically marked by a Hindutva tinge, either by design or accident. He cites, for instance, the use of the phrase “in the public interest” repeatedly in official communications in October-November 2018.
The phrase was employed in the context of the mass transfers of 14 Central Bureau of Investigation (CBI) officers, when its two topmost officers, Director Alok Verma and Special Director Rakesh Asthana, clashed on several counts. The retired officer said: “The expression at that time from the Home Ministry was that it would be ‘guided by public interest and the requirements of the Indian economy’. The phrase ‘public interest’ is one of the guiding principles of the Sangh Parivar organisational structure as elucidated by M.S. Golwalkar, one of the premier ideologues of Hindutva. Golwalkar was self-professedly inspired by the idea of fascism and the leadership of Italian dictator Benito Mussolini. Incidentally, Mussolini denotes the concept of ‘public interest’ as one of the core principles fascism.” The retired officer said the expression ‘public interest’ had been repeatedly used during the 1975-77 Emergency period too, independent India’s first and unambiguous experience with an authoritarian, oppressive regime.
It is not just the telling, perhaps unintended, phraseology that points to the larger political and ideological context and framework of the criminal law reforms initiated by the government. The Sangh Parivar’s top leaders and activists have steadfastly maintained throughout independent India’s existence that the country that came into being on August 15, 1947, does not fit in with their idea of a nation. In August 1947, an editorial in the Organiser, the RSS mouthpiece, warned Indians “not to be influenced by false notions of nationhood” and to recognise “the simple fact that in Hindustan only the Hindus form the nation”. Golwalkar made caustic comments about the Constitution and the final stages of its framing in 1949. His complaint against the Constitution was that it contained nothing from ‘Manusmriti’, ‘Bharat’s own code of laws’. He later said that this “Constitution is just a cumbersome and heterogeneous piecing together of various articles from various Constitutions of Western countries”. Pronouncements over the years by Sangh Parivar leaders—from the “moderate” former Prime Minister Vajpayee to the “militant” VHP founder Ashok Singhal—have all underscored this point.
Core issues and tactical compromises
In later years, the Sangh Parivar, especially its political arms, the Bharatiya Jan Sangh and the BJP, evolved a public strategy that stressed three so-called core issues: abrogation of Article 370 in relation to Kashmir, formulation of a uniform civil code, and construction of a Ram temple in Ayodhya at the very spot on which the Babri Masjid stood. But discussions within the Hindutva combine consistently advocated thorough restructuring of the paradigms of India as conceived by the leading lights of the freedom movement and the makers of the Constitution.
Pursuit of this line necessitated tactical compromises to capture power. Thus, even the “core issues” were diluted in the interests of capturing power. The three Vajpayee-led governments that assumed office at the Centre between 1996 and 2004 displayed this astonishing ability to make adjustments for political expediency. All these governments were dependent on coalitions with smaller secular parties, which had reservations about the Sangh Parivar’s core agenda. So, the Sangh Parivar promptly put them on the back burner, making it clear that it was just a tactical position. Vajpayee himself stated this on the floor of Parliament when his first, 13-day, government in 1996 was about to collapse. He said that his government had not pursued the BJP’s core agenda only because the party did not have a majority on its own. “We will come to it when we have a majority on our own,” Vajpayee had then said.
Absolute power
In 2014, the BJP, under Modi’s leadership, secured a single party majority in the Lok Sabha. The majority was bigger for his second term in 2019. Following this, the Sangh Parivar took big steps towards fulfilling its core agenda, first by abrogating Article 370 of the Constitution and later by taking concrete steps for the construction of a Ram temple in Ayodhya. According to Sangh Parivar insiders, formulation of a uniform civil code is also well on course. With the core agenda expected to be fulfilled before the second term of the Modi Ministry ends, it is time, insiders aver, to address matters relating 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 anti-woman 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.
(Venkitesh Ramakrishnan is a journalist with Frontline and is Chief of Bureau in Delhi and Senior Associate Editor. Article courtesy: Frontline.)
