EXCLUSIVE: One Nation One Election Beneficial, Will Not Affect Federalism In India, Says Law Commission Chairman Justice Ritu Raj Awasthi

Justice Ritu Raj Awasthi, Chairman of Law Commission of India exclusively speaks to India.com and discusses the recent reports released and important topics like Uniform Civil Code and One Nation One Election in India..

New Delhi: The Law Commission of India was first established during the British rule in India, by the East India Company in 1834, under the Charter Act of 1833 and was presided over by Loed Macaulay; during the colonial rule in the country, three more Law Commissions were established. Speaking of Independent India, the Central Government established the First Law Commission in 1955 with the then Attorney-General of India, Mr. M. C. Setalvad, as its Chairman. Since then twenty-two Law Commissions have been appointed, each with a three-year term and with a definite term of reference. About the working, according to the official website, the Commission works on projects based on the references received from the Central Government and/or from the Supreme Court and High Courts; at times, keeping in view the importance of the subject matter, the Commission initiates study on specific subjects, suo moto.

The Chairman of the current, i.e. the 22nd Law Commission of India, Justice Ritu Raj Awasthi, exclusively speaks to Ananya Srivastava of India.com, and discusses at length, the important details of its two recent reports, one on the ‘Age of Consent under the Protection of Children from Sexual Offences Act 2012‘ and the other on ‘Amendment in Section 154 of the Code of Criminal Procedure, 1973 for Enabling Online Registration of FIR‘. Former Judge of Allahabad High Court and Chief Justice of Karnataka High Court, Justice Ritu Raj Awasthi also spoke about the prospect and advantages of ‘Simultaneous Elections’ in India and the Commission’s work on the report concerning Uniform Civil Code (UCC) in the country. Excerpts from the conversation..

The Law Commission has recommended against lowering the age of consent under the POCSO Act. Do you think it will wrongly punish those who are involved in consensual sexual relations?

Age of consent is a fairly complicated issue and there are various considerations to be kept in mind and determining ‘consent’ that too of a minor is quite complex. In order to give relief in genuine cases of romantic relationships where the child on whom the alleged offence is committed is between 16 to 18 years of age, we have suggested amendments in the POCSO Act for allowing ‘Judicial Discretion’ in order to award lesser punishment to the accused than the minimum sentence prescribed. There can be no all-encompassing law to cater to all situations and each case needs to be decided on the basis of facts special to that case. Blanket lowering of age of consent can lead to unintended consequences and take away the protective shield of law that is available for children given the special vulnerabilities they face. Hence, we have suggested judicial discretion to balance out all interests involved to the best extent possible.

How do you think the amendments recommended in the POCSO Act and introduction of judicial discretion will make a difference?

The POCSO Act is a special law and within the current scheme, the Special Court is not entitled to award any punishment lower than the minimum mandatory punishment prescribed under the Act. There is also a strong presumption of ‘mens rea’ (Guilty Mind or Criminal Intent) against the accused and the burden of proof on the accused is quite onerous to discharge. Hence, the hands of the Special Judge are tied even if it is claimed that there was a romantic relationship between the accused and the child. Since Special Judges are unable to grant relief in cases of adolescent romantic relationships, the High Courts are flooded with cases for quashing of FIR or writ petitions seeking relief. Introduction of judicial discretion will empower the Special Judges to try the cases and grant relief where required, thus decreasing the burden on the High Courts. Further, the Special Judges will be able to evaluate if there was true consent depending on the facts of each case where such claim is made, thus ensuring relief only in genuine cases of adolescent romantic relationships.

Madhya Pradesh, Karnataka High Court Judges were among those who requested the Commission to consider lowering the Age of Consent under POCSO Act. What do you have to say about your decision against it?

Multitude of factors that have to be kept in mind while dealing with the issue of age of consent. Several aspects were brought to our attention during the course of our extensive consultation process. All this has been detailed in the Report. (Pages 89 to 100). There are also emerging dimensions that need to be kept in mind like that of child grooming, especially the incidents taking place online, (Pages 68 to 72) and the interplay with issues such as child trafficking and child marriage. Thus, the solution is not as straight forward as lowering the age of consent. The Commission has taken a nuanced approach and thought it best to introduce judicial discretion in sentencing instead.

What are the benefits of the e-filing of FIR? How will it help the citizens?

With the advancement of technology, we want to use the technology for this purpose where by sitting at home, you can lodge the FIR and you don’t have to go to the police station for just getting your case registered. There are many people who do not feel comfortable in going to a police station, there are many crimes that are not reported just because a person has to go the police station and interact with the police persons. We have dealt with the benefits of e-filing of FIR in the report, kindly refer to its Chapter 6 (Pages 48-54).

Why is the e-filing of FIRs being introduced in a phased manner? What is the idea behind it?

There is a definite reason for it. We have said that it should be introduced in a phased manner just because there were strong apprehensions from the police persons and people managing law and order that there will be a lot of misuse of it. This will happen because people will start filing false cases to settle their scores with each other and so, that is the main reason we have asked to allow online FIR filing for cases where punishment is up to only three years.

We have spoken about three years because under the new IPC for which the bill has been introduced in the Parliament, the cases where the punishment is up to three years, are summary trials, i.e. petty offences; here if the accused is named in the FIR, it can still be filed because it is for petty offences. Only in cases where the FIR is against an unknown person, there FIRs can be filed for any offence, even murder or rape; since the accused is not named, there are no chances of misuse.

The third category is of Complaint Cases, that are filed under Section 155 of CrPC for non-cognizable offences. For now, online FIR filing has been allowed for these three categories and eventually when this comes into practice, the police is also comfortable and it can be seen how the practice has benefitted, e-filing of FIR for serious offences can also be allowed. For a detailed description on the e-filing of FIRs in a phased manner, kindly refer to Pages 55-57 of the Report.

What do you have to say about Simultaneous Elections in the country?

We cannot disclose details as it is still under consideration but basically, what we feel is that it is very beneficial for the country’s development and will reduce the expenses because frequent elections hamper the development. Every time when the elections are held for the Assembly, Parliament, etc., what happens is that the security forces have to move from one place to another. Their transportation, travel, lodging and other such unproductive expenses would be reduced if only one election is held in five years. It can be done because it was implemented in our country till 1967, people are aware about it, authorities are aware of it; it derailed because of many reasons and now it can be put back by certain efforts and certain amendments in the Constitution. What we find is, that it does not, in any manner affect the concept of Federalism which we are having in our country. We are working on the mechanism and how it is to be done.

So will we be having ‘One Nation One Election’ this time?

This is for the government to decide, we will submit our report. Now, how this report is to be implemented, from which date it is to be implemented, that is for the government to decide and we cannot say anything about it. We will suggest because it will take some time to synchronise all the Assembly elections and simultaneously hold the elections. We feel the Assembly elections should be held along with the Parliamentary elections which are now due in 2024 and then in 2029. So they will either be synchronised for these elections or for the ones to be held in 2029.

The Law Commission had asked for responses and views on Uniform Civil Code. Is there anything you can tell about the possibility of application of UCC in India? Also, when will the compiled report be out?

We cannot give any cut-off date but we are working on it, we have got a huge response from 80 lakh people who have given their suggestions. It is a huge number and we are analysing every suggestion, we are doing the consultation process during which we have consulted many scholars, stake-holders, religious and political organisations and all those who are connected with it and are coming forward with their concerns about their religious rights, women rights. Now we are preparing the report, it is in process and will be submitted to the government.

We cannot help but notice that the reports have been released by the Law Commission recently, ahead of the Assembly elections in 5 States and the Lok Sabha Polls early next year. Are these reports politically inclined or can be interpreted politically?

We have nothing to do with the political parties or elections. We are doing our work as and when our reports are ready, we submit it to the government. We are not in touch with any political party or the government; we are a totally independent body and are working as per the law. We have submitted six reports since our joining, and in all these reports, like POCSO Act, Online FIR, Adverse Possession and Sedition, I do not find any political implications in that.