Guest Post: Section 187 of the BNSS

(This is a guest post by Aadi Belhe)

The President gave assent to the Bharatiya Nagarik Suraksha Sanhita Bill, 2023 (‘BNSS’) on the 25th of December, 2023. This Act is intended to replace the Code of Criminal Procedure, 1973 (‘Code’) due to its “colonial” nature. Section 187 of the BNSS deals with pre-trial detention in cognizable cases and is the equivalent of section 167 of the Code. This piece argues that the text of section 187 suffers from a fundamental issue brought about by an attempt on the part of Parliament to change the existing legal position on pre-trial custody. Further, I point out that the text of section 187 is such that courts cannot salvage it.

Bewildering Nature of Section 187

The Supreme Court has held in multiple cases such as CIT, Agri. v. Keshab Chandra Mandal and Kanailal Sur v. Paramnidhi Sadhu Khan that the words of a statute must be given effect to, irrespective of the consequences, if their meaning is plain. I would argue that this rule of interpretation cannot be applied to section 187 since a plain reading of this section is impossible.

To discuss the issue, it is necessary to first look at the relevant parts of section 187:

(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 58, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary hereinafter specified relating to the case, and shall at the same time forward the accused to such Magistrate. 

(2) The Magistrate to whom an accused person is forwarded under this section may, irrespective of whether he has or has no jurisdiction to try the case, after taking into consideration whether such person has not been released on bail or his bail has been cancelled, authorise, from time to time, the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole, or in parts, at any time during the initial forty days or sixty days out of detention period of sixty days or ninety days, as the case may be, as provided in sub-section (3), and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction. 

(3) The Magistrate may authorise the detention of the accused person, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this sub-section for a total period exceeding—

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of ten years or more; 

(ii) sixty days, where the investigation relates to any other offence, 

and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXV for the purposes of that Chapter.

The issue with section 187 is present in section 187(2) and its interplay with 187(3). A corollary of the power to grant detention “at any time during the initial forty days or sixty days” is that the 15 days of detention ordered under 187(2) need not be the first 15 days of the detention period. In other words, out of the total detention period of 60 or 90 days provided for under section 187, it is not necessary that the first 15 days of detention be ordered under section 187(2). Further, this detention can be in "such custody" as the court thinks fit.

This gives rise to a conundrum, and flowing from it are some serious problems. The conundrum is that now a court has power to grant custody at any time during the first 40 or 60 days of one's detention, such that detention may be from Day 11 to Day 20 only, or this period coupled with Day 25 to Day 28. Which brings the question — what about detention prior to Day 11, and what about the intervening period between Day 25 and Day 28? Section 187(2) seems to assume the existence of some other power-conferring provision under which detention can be ordered during those periods in the first 15 days of detention when the accused is not detained under sub-section (2). Section 187(3) cannot be used to plug these gaps since it becomes applicable only after the 15th day of detention under section 187(2) is over. 

The conundrum may seem a theoretical problem, but is arguably quite a serious problem as it undermines what appears to be the legislative intent behind section 187(2). It can be inferred this intent was to change the position obtaining under Section 167(2) of the Code since it would not have otherwise made Section 187(2) a modified version of section 167(2). Currently, as clarified by the Supreme Court in CBI v. Anupam J. Kulkarni (‘Anupam’), police custody cannot be granted beyond the initial period of 15 days provided under section 167(2). While a division bench of the Court has expressed its reservations regarding the correctness of this view in V. Senthil Balaji v. State, no judgment has overruled Anupam. It would thus seem to be the case that the main purpose behind the changed wording of section 187(2) was to ensure the nullification of Anupam by extending the period during which detention in police custody could be ordered. Get rid of the first fifteen days by expanding it statutorily to the first forty or sixty days. 

If we are correct to assume that this was the intent, it has gotten severely muddied through the drafting of section 187. Sub-clause (2) does not clarify the only detention in police custody is being conceived of, and just says that the court may authorise detention in "such custody" as deemed fit. Similarly, sub-clause (3) does not specify the kind of detention beyond fifteen days i.e., whether detention will be in police custody or judicial custody. Read together then, section 187(2) and (3) make very little sense, because while section 187(2) talks of fifteen day remands up to a certain period (first 40 / 60 days) to possibly take us beyond the first fifteen day logic, sub-clause (3) says that detention beyond fifteen days is possible and to an extent renders 187(2) redundant. 

Courts Cannot Fix the Clause

Arguably, the only sensible way to apply section 187 would be to use it exactly like section 167 of the Code is used. This entails using section 187(2) for the first 15 days of detention and section 187(3) for the rest of the detention period. Still, this would not resolve the problem fully, creating serious gaps which can result in scenarios such as authorising detention in police custody for much more than fifteen days.

The text of the section is such that nothing short of adding or subtracting words from the section is going to clear up this confusion. Thus, this situation fits well within the rule laid down in Bhavnagar University v. Palitana Sugar Mill (Pvt) Ltd. In this case, the Supreme Court had laid down that the wording of a provision can be altered only if restraining from doing so would lead to absurdity or unworkability.

However, this gives rise to a further difficulty. In what manner should section 187 be altered by courts? In Inco Europe Ltd. v. First Choice Distribution (A Firm) (‘Inco’), the House of Lords stated that the driving aim of alteration must be conformity with the purpose of the provision. This case also laid down that courts should keep in mind the wording which might have been used by Parliament had it noticed the error before enactment happened. While not binding on Indian courts, it provides a sound principle of statutory interpretation. As mentioned earlier, section 187 is so incomprehensible that the manner in which Parliament intended to change existing law is not clear. Thus, it is not possible to arrive at any reasonably certain conclusion regarding the words which might have actually been used by Parliament.

However, it has been laid down in cases such as Commissioner of Income Tax v. M/s Hindustan Bulk Carriers that statutory provisions have to be interpreted in such a manner that they are workable in nature. Thus, the Supreme Court will have to give some interpretation to section 187 to make it coherent if a case revolving around that section were to come before it. I would argue that subtracting the words “at any time during the initial forty days or sixty days out of detention period of sixty days or ninety days” from section 187(2) would be the best possible way forward. This would bring the law back to the position under the Code. While this would not be in consonance with the intention of Parliament, it would not be possible for the Supreme Court to do anything else since this intention is itself unascertainable.

Due to the above reasons, it would be best if Parliament itself passed an amendment as soon as possible to rectify section 187. This is unfortunate given the fact that sections like section 187 are going to be heavily used once the BNSS comes into force on 1st of July 2024. It seems probable that the implementation of the BNSS is going to be rough when it comes to the pre-trial stage due to section 187.

Conclusion

Keeping aside the merits of the change which Parliament intended to bring about through section 187(2), it is clear that it has failed to bring it about in a comprehensible manner. The propensity of Parliament to pass poorly drafted laws had been criticised a few years ago by the then Chief Justice of India N.V. Ramana. It is rather perturbing that Parliament is not willing to take such criticism to heart. One can only hope that Parliament soon amends section 187 and does not hastily pass laws in the future, at least insofar as crucial legislations like the BNSS are concerned.

Guest Post: The judgment in S. Harish and the CSAM Conundrum in India

(This is a guest post by Aaditi Sinha)

Introduction

The case of S. Harish v. Inspector of Police (2024) (“S. Harish”) brings to light critical questions regarding the interpretation and application of Indian law concerning possession of child sexual abuse material (“CSAM”). I will primarily use the term CSAM to mean any material that depicts or gives the impression of children in a sexually explicit or obscene manner. While the term child pornography is also used here when referring to legal provisions, it is preferable to use CSAM, as calling it pornography implies a level of consent that is absent in such material. Further, it is a result of exploitation and sexual abuse that is inflicted on children rather than being the primary reason for it. Calling it porn would disregard the children involved in it as victims and the gravity of their abuse.

In this piece, I critique the judgment for its incorrect application of the law concerning CSAM and argue for bringing consistency in law by criminalising intentional possession of CSAM. I first look at the incorrect application of S.67B of the Information Technology Act, 2000 (“IT Act”) by the court in S. Harish. Secondly, I will point out the inconsistency in those legal provisions, namely the IT Act and the Protection of Child from Sexual Offences Act, 2012 (“POCSO Act”). This section is divided in three whereby in the first subsection I will mention the current Indian law regarding CSAM. The second subsection will deal with vagueness apparent in S.67B and the third subsection will cover the problems arising from S.15 of POCSO. Lastly, I will make a case for criminalization of intentional possession of CSAM.

What S. Harish gets wrong

The case involves the prosecution's assertion that the petitioner downloaded pornographic material related to children onto his mobile phone. During the investigation, the petitioner's mobile phone was seized and analyzed by the Forensic Science Department, which identified two files containing child pornography involving preteen boys. A final report was filed, leading to the court taking cognizance of the offences. The petitioner challenged these proceedings in the Madras High Court. The charges against the petitioner were under Ss. 67-B of the IT act and 14(1) of the POCSO act. The High Court found that no offence was established on either charge. It held that for S.14(1) of POCSO, the necessary requirement was to “use a child for pornographic purposes” which was not fulfilled here as the petitioner had simply watched a video. It was only a “moral decay” on his part, not an illegal act. Furthermore, an offence under S.67B was not made out as according to the court, it does not criminalise downloading and watching child pornography.

This is in ignorance of the law by the court which can be seen by a bare reading of S.67B. It seems that the court only partially looked at the provision and overlooked clause (b) which is reproduced here–

“Whoever,...(b) creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner; shall be punished…” 

The section thus punishes even browsing and downloading child pornographic material. Hence, it is difficult to understand why the court observed that this provision “does not make watching child pornography, per se, an offence”. In Imran Shabbir Gauri v. State of Maharashtra (2021) with a similar charge under S.67B, the appellant had taken nude photographs of his own daughter on his mobile handset but had not published or transmitted them. Even when there was no fulfilment of requirements in clause (a), i.e., publication or transmission, the court took notice of clause (b) to convict the appellant as he was in possession of implicating material.

The court in S. Harish also referred to Aneesh (2023) to observe that an act done by a person in private is not illegal if that act does not affect or influence anyone. The underlying requirement for this to hold true must be that the act done in private in itself must not be illegal. This case can be distinguished from the present one on many grounds. Firstly, Aneesh dealt with the scope of S.292 of the IPC, i.e., sale, etc., of obscene books, etc., while the present case concerned a special act (POCSO) and a special provision (S.67B of the IT act) for child pornographic material in electronic form. Secondly, while Aneesh was talking about adult porn, here the petitioner was accused of downloading child porn of pre-teen boys. There must be a different standard for the two because while consuming the former, i.e., adult porn, in private, is not illegal per se, the latter, i.e., child porn, is. Although Aneesh held that consensual sex or watching porn in private is well within the legal domain, there are legal provisions in both the IT Act and POCSO that criminalise bare possession of child pornography. The act of the petitioner here was an illegal one in itself and hence, it cannot be argued against on the grounds of privacy.

Inconsistency in Indian law regarding CSAM

At this stage, it is imperative to look at the legal provisions we have regarding CSAM. Currently we have provisions in both IT Act (2000) and POCSO Act (2012). S.2(da) of the POCSO Act defines child pornography as “any visual depiction of sexually explicit conduct involving a child which include photograph, video, digital or computer generated image indistinguishable from an actual child and image created, adapted, or modified, but appear to depict a child.” S.15 of POCSO makes it an offence to store child pornographic material only if it is done:

(1) with an intention to share or transmit,

(2) for transmitting or propagating or displaying or distributing in any manner at any time except for the purpose of reporting,

(3) for commercial purposes

This is significantly different from S.67B of the IT Act that criminalises various aspects of child pornography listed in five clauses, (a) to (e). Among these clauses, the most relevant one is clause (b) which punishes acts including collecting, seeking, browsing, and even downloading CSAM without any qualification of commercial use. In all, S.67B criminalizes even the possession of CSAM which is clearly different from S.15 of the POCSO which focuses only on the commercial use of CSAM.

Vagueness inherent in S.67B

It is interesting that S.67B, under clause (b), makes it illegal to even possess such electronic material which depicts children in an obscene or indecent or sexually explicit manner. S.67 and 67A which deal with adult pornography do not have the same standard which implies that the legislative intent was for the law to be stricter in the case of child pornography. One problem which might originate from S.67B is the vagueness surrounding what constitutes as, say, “browsing”, because it can be argued that someone who had no intention of watching or downloading CSAM but accidentally did so while surfing the internet and came across a pop-up. To counter this and ensure effective implementation of the law, words like “collect”, “seek”, “browse”, and “download” must be read with a requirement of the basic standard of criminal intention.

Furthermore, such terms must be defined properly so as to not render the law ineffective. Such clear wording of the law can be seen in the 18 U.S. Code § 2252A (5B) which makes it criminal to knowingly possess or access material containing child porn if it is with the intent to view. How to determine that intention is the next problem for the prosecution. Downloading volumes of CSAM and/or regularly accessing a source for the same can more conclusively imply criminal intention. But this becomes difficult to prove in more isolated circumstances.

This also involves a mammoth task for the prosecution and courts to determine whether the person depicted in the material was adult or not, specially when a child is defined as anyone under the age of 18. The person in question might belong in the age group of, say, 16-20, making it difficult to ascertain for sure whether they are an adult or not. Hence, the basis on which this dichotomy between legal possession of adult pornography and illegal possession of CSAM is created, lies on a slippery slope if one considers the problem involved in determining the knowledge or intention of the offender and age of the person present in the material. Though one might ask how the authorities can even trace the private use of CSAM, companies and developers have been on the task to fine tune their detection systems.

How POCSO becomes a roadblock

Since POCSO focuses on storage of CSAM for commercial purposes contrary to bare possession in S.67B of IT act, effectively, an accused who stored child pornographic material for private use will not be held guilty under POCSO but can very well be charged successfully under the IT Act. Hence, it is difficult to understand why a 2012 act, aimed at the welfare of children, added these requirements of commercial use when a 2008 amendment, bringing a special provision through S.67B, did not envisage such a requirement and applied a blanket ban on possession of CSAM.

The preamble of the POCSO bill reads that the act is to “protect children from offences of sexual assault, sexual harassment and pornography” and that it is “necessary for the proper development of the child that his or her right to privacy and confidentiality be protected and respected”. This is because the “best interest and well being of the child are regarded as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child”. Then, an important question must be asked: What benefit does it bring to the welfare of children if only that storage of CSAM is criminalised which is for commercial purpose while excluding the one done for private use because both involve a violation of child rights and result from exploitation of children?

It can be argued that the idea behind criminalising commercial use is linked to the extent of harm directly caused by distributing and selling of and profiting from CSAM, which directly fuels the market for this illegal material. For this, it is important to understand how intentional possession of CSAM, even for private consumption, causes harm to the children, the very group that the state is responsible for protecting.

A case for criminalisation of intentional possession of CSAM

Once a material enters the CSAM market, even if one simply watches or stores it without sharing, there is a violation of the rights of the child depicted in that material. The same was reiterated by a High Court in South Africa when the judges observed that possession of the prohibited material creates a trading platform or market for this illegal 'industry'. It reflects the sexual violation of and the impairment of the dignity of a child. Hence, every time that it is viewed there is a revictimization of the child involved. The fact that Indian judges seem to take a lenient view regarding watching and possessing CSAM, as can be seen through a distinction made by Madras High Court between “one time consumer” and those who transmit it in the digital domain, is simply worrying from the perspective of child rights.

CSAM is a permanent record of child sexual abuse and its harm to the child involved is exacerbated by its circulation. The market for such material cannot be effectively dealt with if the law only concerns those who produce and distribute it while leaving out those who consume it. To eradicate the entire market for something illegal and as heinous as CSAM, there is a need to criminalise its demand as well which actually encourages its production.

The moral attitude that the law ends up promoting by not criminalising intentional possession for private use is that it is considered “normal” to consider children as sexualised objects that can be exploited for personal sexual satisfaction. This is completely contrary to the duty that the state takes upon itself, i.e., to protect children, as it is empowered to make special provisions for children under Art.15(3) of the Constitution. India, being a signatory to the UN Convention on Rights of the Child, has ratified the Second Optional Protocol under it. The protocol mentions the growing availability of child pornography on the Internet and under Art. 3 calls for worldwide criminalization of the production, distribution, exportation, transmission, importation, intentional possession and advertising of child pornography (emphasis added). Not only that, the statement of object and reasons of POCSO amendment bill mentions the increasing number of cases of child abuse and child pornography which can be further substantiated with NCRB data on crimes against children. It is harrowing to note that crimes against children have been on a steady rise and there has been an increase in demand for CSAM as well. The fact that this continues to exist even where there are operations like 'Megha Chakra' by CBI and resultant raids speaks of the gravity of the problem.

Guest Post: Legal Pitfalls in Combating Manual Scavenging

(This is a guest post by Nachiketh Patil)

On 20 October 2023, the Supreme Court in Balram Singh v. Union of India issued various directions to ensure the proper enactment of provisions in laws to eradicate manual scavenging in India. The judgement highlighted various issues, such as inaccuracies in surveys conducted to establish the number of people involved in manual scavenging labour as well as shortcomings in the implementation and functioning of institutions arising from the acts.

Seemingly in the face of these efforts comes the Judgment and Final Order dated 14.12.2023 passed by the Hon’ble High Court of Karnataka at Bengaluru in Crl. Petition No. 103546/2023, wherein the Ld. Single Judge quashed proceedings in P.S. Vidyanagar against the Accused, on the sole ground that the complaint should have been filed before the Magistrate and not the police as per Section 10 of the PEMSR Act. The High Court does so without giving any clear reasoning or taking into consideration relevant aspects of criminal procedure relating to offences of a cognizable nature.

In the present case, FIR No. 150 / 2023 was filed against Smt. Saroja Bhairi at P.S. Vidyanagar alleging offences under Section 5 of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 (PEMSR Act). During the inspection of the scene, it was found that the accused personally lowered a labourer into a manhole without safety equipment, breaching sections 5 and 7 of the Act. Section 9 considers contravention of Section 7 as an offence and section 8 considers contravention of sections 5 and 6 as an offence respectively.

Section 22 outlines the specific procedural aspects concerning the cognizance and bail provisions within the framework of this legislation. In accordance with this section, irrespective of the stipulations in the Code of Criminal Procedure, 1973 (2 of 1974), it is mandated that all offences falling under the purview of this Act are to be treated as cognizable and non-bailable.

This means that law enforcement authorities are empowered to take immediate action upon the commission of an offense under this Act, without the need for a warrant, and to initiate the necessary investigation procedures promptly. Furthermore, the provision establishes that individuals accused of offenses covered by this Act are not eligible for bail as a matter of right, emphasizing the seriousness with which such offenses are regarded under the law.

This piece tries to argue that, firstly, the High Court erred in quashing the proceedings solely by reason of a mistaken and restrictive reading of the term ‘complaint’ as under Section 10 the PEMSR Act, without any consideration of the FIR and merits of the case. Secondly, the interpretation of ‘complaint’ under Section 10 of the PEMSR Act is erroneous and contrary to established principles of statutory interpretation. Thirdly, it failed to appreciate the cognizable nature of offences under the PEMSR Act, and hence failed to consider meaningful differences in procedure envisaged for the role of the police in such cases. Lastly, by conducting an overtly narrow and restrictive construction of the PEMSR Act, the High Court went against the legislative intent and beneficial nature of the legislation

The High Court erred in quashing the entirety of the criminal proceedings by mistakenly equating ‘complaint’ under Section 10 of the PEMSR Act and ‘complaint’ as defined under Section 2(d) of the CrPC, and without giving any cogent reasons for drawing such an equivalence. The High Court also failed to appreciate the cognizable nature of the offence punishable under the PEMSR Act, as clearly laid out under Section 22 of the Act. Section 2(c) of the CrPC clearly defines a “cognizable offence” to be one in which “a police officer may….arrest without warrant”. 

Furthermore, the Supreme Court in Neeharika Infrastructure (P) Ltd. v. State of Maharashtra observed that Section 156 “provides that any officer in charge of a police station may without the order from a Magistrate investigate any cognizable offence…”. Additionally, the Court also noted that Section 156(2) of the CrPC “declares that the proceedings of a police officer in a case of cognizable offence shall not at any stage be called in question on the ground that….he was not empowered to investigate under the provision”. Similarly, in Union of India v. Ashok Kumar Sharma & Ors, the Supreme Court specifically held that: “police have the statutory right to investigate into the circumstances of any alleged cognizable offence”. 

In the instant case, despite it being in the nature of a cognizable offence, the High Court does not make reference to any of these provisions and instead only makes a selective and mistaken reference to Section 2(d) of the CrPC which is meant to deal with non-cognizable offences. Therefore, the order of the High Court erroneously equates procedure envisaged for a non-cognizable offence with one that is of a cognizable nature. The construction of Section 10 of the PEMSR Act by the High Court is incorrect, in light of principles of statutory interpretation and previous decisions of the Supreme Court.

Section 22 of the Mines and Minerals (Development and Regulation) Act 1957 (“MMDR Act”) is similarly worded to Section 10 of the PEMSR Act, and reads: “No court shall take cognizance of any offence punishable under this Act or any rules made thereunder except upon complaint in writing…”. The Supreme Court, in State of NCT of Delhi v. Sanjay observed that “Section 21 does not begin with a non-obstante clause”, and that the legislative intent of the provision must be ascertained by considering the “nature, its design, and the consequences which would follow from construing it the one way or the other”. The Supreme Court, in that case, went on to hold that considering “the principles of interpretation and the wordings used in Section 22…the provision is not a complete and absolute bar for taking action by the police…”. Therefore, by preliminarily quashing the proceedings in the instant case on the ground that the complaint itself should be filed before the Magistrate, the order of the High Court is contrary to established precedents by the Supreme Court. 

Interestingly a different bench of the High Court has itself in National Institute of Rock Mechanics v. Assistant Commissioner and Executive Magistrate and Others while dealing with the question of whether a complaint has to be lodged with the Executive Magistrate held that: “As there is not provision in the PEMSR Act corresponding to Section 17(3) of the 1993 Act, I find it hard to give acceptability to the submissions urged on behalf of the petitioner that the State Commission for Safai Karmacharis cannot lodge any first information report with the Police. Section 21 of the PEMSR Act only enables the Government to confer certain powers on the Executive Magistrate.” In the instant case, the High Court did not refer to its own precedent, and moreover mistakenly equated the enabling power conferred on to the Magistrate under the PEMSR Act to be a mandatory and restrictive one.

The High Court here also failed to give full meaning and effect to the object and purpose of the Act, as mandated by a catena of binding precedents of the Supreme Court. The object of the PEMSR Act, as mentioned in its preamble, is inter alia to “provide for the prohibition of employment as manual scavengers” and for “rehabilitation of manual scavengers and their families”. Furthermore, the Supreme Court explicitly held in Union of India v. Prabhakara Vijaya Kumar & Ors that: “beneficial or welfare statutes should be given a liberal and not literal or strict interpretation”. The Supreme Court also observed in the same case that “it is well settled that if the words used in a beneficial or welfare statute are capable of two constructions, the one which is more in consonance with the object of the Act and for the benefit of the person for whom the Act was made should be preferred”. Here, a more reasonable interpretation of Section 10 that is in line with the legislative intent of the PEMSR Act would be to allow for taking cognizance of complaints made either to the police or the Magistrate, subject to it being made within 3 months from the date of the occurrence of the offence. By preferring a technical interpretation which creates more barriers for victims of offences punishable under the PEMSR Act in accessing remedies, the High Court has erred to abide by well-settled and binding principles of interpretation with regard to welfare statutes.

Lastly, the High Court does not consider practical realities, and the dangerous implications of restricting the scope of filing a complaint to only the Magistrate. Most victims of manual scavenging and hazardous cleaning, or their families, have the police as the most accessible point of filing a complaint, and would not have the necessary wherewithal to seek out the Magistrate exclusively. Moreover, this also takes away the power of the police to suo moto investigate heinous offences that are punishable under the scheme of the PEMSR Act. In Hindustan Lever Ltd v. Ashok Vishnu Kate the Supreme Court held that a construction of a welfare legislation should be such that it effectuates “the purpose for which such legislation is enacted and does not efface its very purpose of prevention…”. In the instant case, the order of the High Court not only is mistaken in its interpretation of Section 10 of the PEMSR Act, but also goes against the very purpose of enacting the legislation.

Guest Post: On the Decision in Javed Ahmad Hajam v. Maharashtra

(This is a guest post by Prabash Pandey)

A Bench of the Supreme Court recently delivered the judgment in Javed Ahmad Hajam v. State of Maharashtra [2024 INSC 187, decided on 07.03.2024 ('Javed Hajam')] – in an appeal from the Division Bench of Bombay High Court for refusing to quash FIR under Section 153A of the IPC, which pertains to promoting enmity or disharmony between different groups.

The Supreme Court affirmed that even at its most deferential standard (i.e., a mere existence of a prima facie case based on prosecution’s case records), the ingredients constituting the offence must be made out. The court's reasoning provides that such burden falls on the prosecution, and a court cannot approximate or stretch the material so as to meet this criterion nor can uncritically accept the State’s version of the events, however remote the possibility of such events might be, based on available material.

In this piece, I argue that the judgment in Javed Hajam is significant as it reaffirms the “basics” that a judge must consider when adjudicating claims related to personal liberty.

Background

The accused was a professor working in Maharashtra but originally belonged to Kashmir. The case essentially revolves around two sets of messages he allegedly shared on a WhatsApp group comprising of parents and teachers –

1. A message wishing Happy Independence Day of Pakistan, and
2. A message terming the abrogation of Article 370 as wrong and August 5th a Black Day for the Indian Republic.

He was charged under Section 153A IPC, i.e., promoting enmity between groups or feelings of hatred.

The accused’s application for quashing the FIR was moved before the High Court under Section 482 of CrPC, which, as construed by precedent, required a prima facie case to be established where the prosecution’s material is accepted in its entirety and taken at face value. The High Court agreed that no offence was made out on the first set of messages but found that the second set of messages satisfied the ingredients of the offence. While doing so, I would argue that the High Court almost nullified citizens’ Right to criticise the Government’s actions.

The High Court held that criticising the abrogation of Article 370 was motivated by emotion and was made without giving any reasons for the opinion or any critical analysis of the Government’s actions. It went on to hold that abrogation of Article 370 was a matter that involved a lot of contrasting opinions, and thereby, any criticism of the same should be based on an evaluation of all merits and cons and backed by reasons lest there be a possibility of harmful consequences (para 9). The High Court held that –

“9. When the emotions and sentiments behind a particular thing or aspect being criticized run high with different shades and hues among different groups of people. In such a case, the criticism, disagreement; difference of opinion, dissent, whatever one may choose to call, must be, expressed upon an in-depth analysis and accompanied by reasons, so that the appeal that such critique makes is not to the emotions of groups of people but to the reason; the logic; the rationale of the groups of people.”

The High Court, I would submit, made two grave errors –

1. It prevented any simple disagreement of government actions by citizens, making it dependent upon a complete analysis of merits and cons and providing reasons for disagreement.
2. It provided for a very wide criterion wherein such rational analysis needs to be done, i.e., “when emotions behind a particular thing are high.” This by itself and the court’s reasoning further did not shed any light on when such circumstances exist, for presumably, any decision by the government that affect interests of one community will make their emotions High and make criticism by common citizenry almost impossible.

Furthermore, the High Court’s reasoning in my view fell flat even on first order principles of hate speech jurisprudence. It seems to follow earlier views which lay down considerable emphasis on the words themselves and not whether such words were valid criticism or a truthful version of the account. This effectively led to a Heckler’s veto on citizen’s speech, with Section 153A being used to suppress any speech which harms majoritarian sentiments.

Jeremy Waldron has argued that Hate Speech does two things –

· It promotes exclusion of a community and thus violates the constitutional value of equality.

· It damages inherent dignity of the community.

Based on the above framework, it has been argued that hate speech should be seen not by its contents but rather through the lens of constitutional morality, i.e., only speech that has no inherent value or is made with express intent to violate inherent dignity of a community should be punished, and constraints not be over-broad so as to give a heckler’s veto or restrict artistic expression, which is what distinguishes it from thought crime or blasphemy law.

A similar framework for hate speech was recognised by the Supreme Court in Pravasi Bhalai Sangathan and Amish Devgan, emphasising that hate speech has no redeeming or legitimate value other than hatred towards a particular group. This is different from mere advocacy or criticism of government policies, which is at the heart of Article 19(1)(a).

The High Court, in its reasoning, not only misconstrued the purpose behind hate speech law and thereby the necessary ingredients but approximated the prosecution material of (the accused belonging from a minority religion) to a prima facie possibility (howsoever, remote) of disorder (para 9). A liberty-enhancing view would have recognised that the burden lies on the prosecution (even at a prima facie stage) to establish a direct link between disorder and speech and not for the court to engage in the gap-filling exercise of the prosecution’s case.

Supreme Court’s Reversal – Affirming the Basics

The Supreme Court disagreed with the High Court’s order on the second set of messages and quashed the FIR in its entirety. The Supreme Court's reasoning is significant, as it shows that even in an application for quashing of FIR, wherein the law demands considerable deference to be given to the prosecution, there remains a space for the Courts to substantively engage with the materials presented by the prosecution.

The Supreme Court’s order adopts a line of judicial reasoning that can be described as liberty-enhancing, that envisages scrutiny of the ingredients of the offence and the materials presented by the prosecution. At the heart of the court’s reasoning is that the essential requirement of Section 153A IPC is the “intention to promote enmity or hatred.” The court relied on the earlier decision of Manzar Sayeed Khan v. State of Maharashtra to hold that the gist of the offence is the intention to cause disorder or incite the people to violence, and the prosecution has to prove a prima facie existence of mens rea on the part of the accused. Based on this interpretation, the court holds that the alleged objectionable messages sent by the appellant must, on the face of it, promote disharmony or feelings of enmity, hatred, or ill-will between different groups.

The court notes that there was no intention to ignite feelings of hatred behind the messages sent by the appellant; instead, they were an expression of his individual view and reaction to the abrogation of Article 370. This was merely a simple protest, protected by Article 19(1)(a). The court correctly reaffirmed that the right to dissent from government actions is an integral part of Article 19(1)(a) rights and also must be treated as a part of the right to lead a dignified and meaningful life under Article 21 (para 9).

The court then notes the second essential of Section 153A jurisprudence: the effect of the words must be to create or have a tendency to create public disturbance or disturbance of law and order or effect public tranquility. The court’s analysis of this is strikingly simple at its core, i.e., the effect cannot be judged based on subjective satisfaction of the judges or from the perspective of one community who might get enraged by it but rather by its impact on reasonable people who are significant in numbers (para 11).

Unlike the High Court, which perceived the effect of words through the perspective of the few and held that the possibility of stirring up their emotions could not be ruled out, the Supreme Court’s opinion recognised that the purpose of Section 153A IPC (and other hate speech laws) is not to impose the morality or opinion of those with most prominent voice over others (heckler’s veto) but rather to prevent speech which has no intrinsic value and affects constitutional morality at large from remaining in the public sphere.

The Supreme Court goes on to hold that by no stretch could the messages by the petitioner be interpreted to promote feelings of ill-will or hatred amongst communities and instead had the intrinsic value of a simple act of protest against government actions.

Thus, the Supreme Court goes on to partially overrule the High Court’s decision and quashes the FIR on the appellant on both sets of messages, holding it a gross abuse of process. The court, in the process, reaffirms that when dealing with claims of personal liberty and deciding the existence of prima facie claims –

• The gap between the prosecution’s case and the necessary ingredients cannot be bridged by inferences or speculation.
• When such a gap exists, the prosecution’s burden is not discharged, and personal liberty should not be restricted.

Conclusion

The judgment in Javed Hajam and the Supreme Court’s assessment of the prosecution’s case reaffirms what ought to be a basic principle when dealing with criminal statutes, Courts even at their most deferential should not shirk from their responsibility to ensure that the prosecution’s case fits the ingredients of the offence for which the accused is being charged for. The court’s assessment of the prosecution’s material against the accused demonstrated that such evidence must correspond, even at a prima facie view, to establish the necessary ingredients of the offence. If any such gap exists between the two, the court must intervene in favour of the accused and not fill the gap by stretching the material through mere inferences or speculative analysis.

Jail is Not the Rule - Restrictive Bail Conditions, After Independence (Part 1)

(This is the third post in a series on restrictive bail regimes)

The previous post considered restrictive bail regimes in India's pre-independence context. In the first of two posts, we travel through independent India's history to look at such regimes.

Partition and Post-War Scarcity

It appears that the earliest instance of a restrictive bail regime in post-independence India came a few months after independence, in the form of the East Punjab Armed Bandits (Arrest and Detention) Act 1947. This law was promulgated to replace an ordinance that had come in less than a month after August 15, 1947, and its provisions give a glimpse of the enormity of violence which was unleashed in the wake of partition in the Punjab region, and the kind of measures resorted to by the state to try and restore a semblance of normalcy. Section 3 thus conferred powers of arresting without warrant any member of an "armed band"; and where resistance was offered to arrest, it legalised using violence to the extent of causing death. Arrested persons were to be sent to 'Concentration Camps' as per Sections 4 and 5 - one can only imagine the treatment envisaged by the state which adopted this language even after the war had given this term such monstrous connotations. 

In this remarkable statute, what interests us is Section 9, which carried forward the legacy of Rule 130-A of the Defence of India Rules (which had been repealed by now) and prescribed that "no person accused of an offence made punishable by this act shall if in custody be released on bail" unless (a) the prosecution was given an opportunity to oppose bail, and (b) "where the prosecution opposes the application the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence".

Partition was not the only problem for a nascent Indian republic. A serious issue was post-war shortages in the economy which remained regulated through a complicated system of licenses and controls. The acuity of shortages in essential supplies was not helped by corrupt public servants, hoarders, and profiteers. Official sentiment against such undesirables was so severe that debates in India's Constituent Assembly (which functioned in a dual capacity till 1950) and even its Provisional Parliament contain speeches advocating the harshest measures to be deployed, including flogging in the public square. 

You can see where this is leading to. The fight to ensure essential supplies are secured was on a 'war-footing' for the country; an emergency requiring emergency legislation. It was with this mindset that, in 1950, the Provisional Parliament looked to amend the war-time Essential Supplies (Temporary Powers) Act 1946 to enhance its deterrent effect. Besides stiffening penalties and cutting corners in trials, what else did the Provisional Parliament do? Introduce a restrictive bail regime for certain specific crimes through Section 13-A of the Act.

The legislative debates around this specific amendment had been discussed on the Blog earlier. The government accepted that the lineage of the amendment went back to the War, but argued that the issue presented a similar emergency. There were attempts to change the 'not guilty' framing, which placed the burden on an accused, with the old Criminal Procedure Code framing which required the prosecution to first demonstrate that there were reasonable grounds to believe a person was guilty. But these attempts were in vain, and Section 13A was added to the law without any modification.

What the earlier post on amendments to the Essential Supplies (Temporary Powers) Act 1946 did not consider was its history outside of the Provisional Parliament. This suggests that prior to amendments in the central law, there were already provincial statutes covering the same field which had introduced the Rule 130-A style restrictive bail regime, and extended it to any crime under these laws making it much more expansive than the central law introduced later. Furthermore, the proposal to insert a clause identical to Rule 130-A for the central law appears to have been refused initially. Instead, the government seems to have been happy with only adding the requirement for courts to ensure the prosecution was heard, while leaving out the problematic 'not guilty' clause. What prompted the change of heart in the few months leading up to the amendment bill being introduced in the floor of the house? I am sure the answer is in the archives, but I have not been able to locate it yet.

There are some judgments applying the restrictive bail regime found in provincial laws dealing with essential supplies, as well as the central amendment brought in 1950. In Rajulal v. State (1950), the Rajasthan High Court commended on the undesirable state of affairs created by the regime which allowed one party to exercise an undue influence over the course of bail proceedings. Similarly, in Abdul Shakoor (1951), the Rajasthan High Court confirmed that the restrictive bail regime of the central law was comparatively more limited in its reach than the prior state laws. The task of interpreting the central law fell to the Calcutta High Court in Badri Prosad (1951) where a lorry driver was arrested, having been found in possession of bags of rice without a permit. While he claimed lack of knowledge, both the magistrate and sessions court denied bail holding that the presence of rice meant there were no "reasonable grounds" to believe the applicant was not guilty of the offence.

Both Justices Mukharji and Mookerjee agreed that the applicant ought to be released on bail, but the seriousness of Section 13-A prompted them to write separate opinions. Mukharji J. stressed on the limited reach of the clause, and cautioned courts to ensure that allegations against an accused genuinely fit the contours of the specific offences to which the restrictive bail regime applied. In respect of the application of Section 13-A itself, Mukharji J. noted that there were similarities between the Section 13-A and Section 497 of the Code, but went on to observe that:

Here, however, a word of caution is necessary. It is time that there under Section 497, Criminal P. C., what prevents bail is the reasonable ground for believing that the accused is guilty. That in actual practice works more favourably to the accused in the sense that at the early stages, before the regular trial has started, it is easier for the Court without the full materials to say that there are no reasonable grounds for believing that he is guilty and thus admit him to bail. But in a case, however, under Section 13A, Essential Supplies Act, it is the converse and more difficult case of reasonable ground for believing that the applicant for bail is not guilty. It is difficult because in actual practice it is bound to be unfavourable to the applicant for bail in the sense that at the early stages, before the regular trial bas started, it will ordinarily be difficult and may in some cases be impossible for the Court to say without sufficient materials that there are reasonable grounds for believing that he is not guilty. But that is the handicap which the statute has imposed in this case. [Emphasis mine]

Mookerjee J. agreed, noting that Section 13-A was a "drastic departure from the Code and as it undoubtedly works to the prejudice of the accused its seriousness cannot be underrated."

How to proceed then in considering a bail application and deciding whether there were reasonable grounds to believe a person was not guilty? Here both Justices appealed to a judicial logic built upon care and "utmost circumspection" in handling the material which was scanty at best at this stage and geared to assist the case of the prosecution. And, crucially, both Justices were emphatic in their belief that this clause did not oust the presumption of innocence, and rejected arguments by the state that this presumption did not operate at the bail stage. This presumption, according to Mukharji J., was a factor for courts to consider while deciding bail applications and ignoring it would be an "entirely erroneous" approach at the stage of bail. Thus, even though the inquiry required a court to discern whether there were any reasonable grounds to believe a person was not guilty, this was undergirded by respecting the presumption of innocence. 

Changes to the General Law

Living as we are at a time when the existing criminal codes are due to be replaced, there has been a fair bit of commentary around previous efforts at bringing reform, or lack thereof. In this regard, the received wisdom is that there was hardly any change in administration of criminal law during the early years of independent India, and proposals were consolidated and pushed through with the introduction of a new Criminal Procedure Code in 1973. 

Research suggests that this view is quite incorrect and the 1950s were, in fact, as dynamic an era as any in respect of conceiving and considering amendments to administration of criminal law in India. As early as 1951, the central government began consultations on revamping the criminal process, and introduced a draft bill in 1953. This bill, which was finally passed by both houses in 1955, towers above both the 1973 Code as well as the 2023 Sanhita, in terms of the kinds of changes it introduced to the process. While a much longer study is required to fully appreciate the place of these efforts and their impact on the law, for now let us focus on what it did for the bail process. 

There are three sets of changes relevant here; the first two pertain to the bail clauses, and the third to the overall administration of criminal law. First, it is interesting to note that the central government refused proposals to make bail stricter, raised by some states such as Uttar Pradesh. The U.P. government had sought to amend the general law on bail and take it back to something like the pre 1923 position, i.e. depriving magistrates of the discretion to grant bail for certain offences where reasonable grounds for inquiring into guilt could be shown. The proposal was rejected as being too restrictive on matters of liberty, as it meant that no bail would be granted during investigations. Second, in consonance with the belief that bail needed to be made more liberal, what the 1955 Act did was to introduce sub-clause (3A) in Section 497, which made bail a matter of right even for non-bailable offences, where trials before magistrates could not be completed within six weeks after having begun. It was the first time that a 'default' bail logic would find its way into the statute.

Third, is the changes in matters of administration of the law. In a bid to speed up the trial, two critical shifts were made. The committal process was radically altered: taking it away outright for many prior kinds of cases, and shortening it where it was retained by, for instance, taking away the right of cross-examination of witnesses. Recognising that this would leave accused persons short-changed, the 1955 Act introduced a parallel change mandating that the copies of the chargesheet, along with copies of statements of witnesses and documents relied upon by the police, were to be supplied free of cost to an accused person even before trial began. 

Members of Parliament who were lawyers could not contemplate doing away with committal. They argued that framing of charge had to be conducted without any proper evidence but only on the basis of the chargesheet and unsigned statements recorded by the police which were notorious for their unreliability and legally barred from being treated as evidence. In other words, charge had to be framed based only on the police version, that too upon inadmissible police statements. Not much attention was paid to the potential impact these changes would have on how bail applications are considered. The gradual easing-out of committal meant that the unreliable and inadmissible police statements would now dominate how courts would decide whether reasonable grounds to believe guilt existed or not, further worsening the position of an accused and enhancing the power of the police in ensuring bail is rejected.  

Turmoil, and War Again    

The end of the 1950s witnessed great turmoil across various parts of country, and India was at war with China at the start of the next decade. The turmoil in Punjab over the Punjabi Suba movement saw the state government invoke various measures to curb the agitation, which included an amendment (following an ordinance) in 1960 which introduced the restrictive bail regime for certain kinds of crimes. When the War came, the central government re-introduced the Defence of India Act — now the Defence of India Act 1962 — with its Rules. This time, the restrictive bail regime was there from the start, in the form of Rule 155 which copied verbatim the text of Rule 130-A of the Rules from the pre-independence war regime.

It did not take long for bail petitions to reach the High Courts under the 1962 Rules. I only flag two such cases here, which reflect the broader theme prevailing across the decisions of this time. In Govindankutty (1963), the Kerala High Court was dealing with the bail application of a publisher accused of printing a report prejudicial to the war effort. Rule 155 was invoked by the prosecutor to justify opposing bail. Dealing with the clause, the High Court observed that:

It is stated that this Rule is quite unreasonable and repugnant to the elementary notions of Criminal Jurisprudence that a person is presumed to be innocent until it is proved that he is guilty. Neither the Act nor the Rules indicate any attempt to depart from these well-settled principles. Rule 155 merely indicates that where a person is accused of an offence under the Rules the court may not liberate him on bail pending the trial, except when it has reasonable grounds to believe that he is innocent. When the court comes to decide the case, it must acquit the accused if the prosecution has failed to establish the charge. Whether unreasonable or not laws lawfully made have to be given effect to by courts. It must be remembered that many provisions which would appear very harsh or unreasonable in peace time may be justified by necessities of war [Emphasis mine].

The parallels in language used here with the Madras High Court's opinion addressing the legality of the Defence of India Rules in 1942 in Bhuvaraha Iyengar (discussed in the last post) are striking. 

The High Court in Govindankutty noted that the validity of the rule had not been challenged. Seven months later, the same bench (Govinda Menon J.) dealt with such a challenge to Rule 155 in Hermen D'Cruz (1963). The High Court dismissed the challenge, relying on similar dismissals by High Courts to challenges against the validity of Rule 130-A raised during the Second World War, such as Bhuvaraha Iyengar. It was as if nothing had changed with the passing of the Constitution and India becoming independent. Much like the Madras High Court before it had done, the Kerala High Court now noted that since "grave charges" were levelled in the FIR and the chargesheet, it was "impossible for any court to be satisfied that there are reasonable grounds that the petitioner is not guilty of the contravention of the rules."

Summing Up

War, followed by a tragedy that was nothing short of a war, and then a war again. These were contexts in which a restrictive bail regime was prescribed which circumscribed not just powers of magistrates to grant bail, but also sessions courts and the High Courts. Besides the social and political context surrounding these statutory clauses, attention must also be paid to their catchment area. Even the Defence of India Acts did not introduce a catch-all clause that made the restrictive bail regime applicable to all crimes. Instead, the idea was to pick and choose the kinds of offences justifying these harsh measures. When it came to circumstances akin to war in the eyes of the legislature — essential supplies and the Punjab agitations — the catchment area of the restrictive regime was even narrower, and applied to crimes which had a prima facie element to them which gave the accused at least some chance to be able to discharge the onerous burden placed upon him. Thus, being caught with goods without a license was a situation which the accused could very well explain. This was unlike the wartime measures which imposed restrictions on bail for conduct such as publishing 'prejudicial reports', proving which relied a great deal on the subjective satisfaction of wartime censors and the courts as to the contents of materials.

The next post will turn to statutory developments from the 1970s and thereafter, bringing us to the most recent avatars of the restrictive bail regimes.

Jail is Not the Rule — A History of Restrictive Bail Regimes Pre-Independence

 (This is the second post in a series discussing restrictive bail regimes)

This post looks at restrictive bail provisions through Indian legal history, drawing the line at India's independence. The next post will look at post-independence history. A similar exercise was attempted several years ago on the Blog, and a gradual increase in digitisation has meant that even within this short span of a decade, one can try to offer a more nuanced and textured presentation of the issues involved here. However, since this post is, again, based on publicly available material, it may have missed out on some facets, and readers are advised to keep that caveat in mind. 

Restrictive Bail Provisions and the Criminal Procedure Codes pre Independence

If we look at bail provisions in the Criminal Procedure Codes of 1882 and 1898 (prior to 1923) in terms of non-bailable offences, it would appear that bail really was the exception for the colonial regime when it came to magistrate courts [the gradual changes to the regime are captured in this paper]. Section 497(1) in the 1898 Code (common in material aspects with the 1882 Code) stated that a person brought before magistrate's court after arrest "shall" not be released on bail if "there appear reasonable grounds for believing that he has been guilty of the offence of which he is accused". This was different from situations where during investigation / inquiry / trial the material only showed "sufficient grounds for further inquiry into his guilt" [Section 497(2)]. Such restrictions were absent when it came to courts of session and the High Court, upon whom Section 498 of the Code conferred an unfettered power to grant bail. 

Significant amendments were made to the 1898 Code in 1923. One such amendment was to Section 497(1) which changed the restriction upon magistrates in granting bail only for offences punishable with death or with transportation for life as opposed to all kinds of non-bailable offences. Thus, the policy towards bail was greatly liberalised, but it was felt that some fetters ought to be remain on how magistrate's exercised their discretion. After all, some members called the magistrates 'stupid' and 'weak' during the course of the legislative debates surrounding the 1923 amendments [discussed here at pp. 61-63]. Importantly, this test in Section 497(1) of the 1898 Code was retained in the 1973 Code as well, under Section 437(1).

Old commentaries on the 1898 Code (see p. 1474 here and p. 1183 here) suggest that the legal position prior to 1923 was that bail ought not to be granted by magistrates in non-bailable cases, and that while such restrictions were absent in provisions pertaining to superior courts it did not mean that this was treated as a license to grant bail liberally. The changes in 1923 were acknowledged by the commentators as having liberalised the bail regime and having been interpreted by courts to that effect as well. However, it was a mistake to think that the 1923 amendments had liberalised the regime to such an extent that the merits of the accusations were now altogether irrelevant.

What is important for us here is the discussion on how to construe the test laid down by Section 497(1) which required magistrates to ask whether "there appear reasonable grounds for believing that he has been guilty of the offence of which he is accused". There are two perspectives from which this restriction ought to be considered: first, how did courts read the letter of the law, and second, how was it applied in practice. The old commentaries referred to above offer some insight as to the first aspect, confirming that 'reasonable grounds' was a judicial determination based on the available material which was highly fact-specific. The second aspect, of how courts then applied this vague test, therefore turned on the practice of criminal law at the time. To appreciate this requires some elucidation as it is quite different from how things are done today when it comes to the investigations generally, and specifically the prosecution of serious crime that is punishable with death or transportation for life (today, life imprisonment). 

In respect of investigations, police were notorious for not maintaining proper records of statements of witnesses recorded during investigations under Section 161 of the Code. Legally, there was no clear obligation on police to record statements separately within the case diary, and there was absolutely no obligation akin to Sections 173(5) or 207 of the 1973 Code to supply a copy of the police report and all statements of witnesses to the accused upon completing the investigation. The only obligation to supply copies of witnesses arose when the accused wished to cross-examine the witness who took the stand where a witness claimed to have made a prior statement and was now deposing contrary to it. 

How would courts deal with framing of charge or appreciating any aspect of the case pre-trial you might wonder, considering how ubiquitous the Section 161 statements are for these issues in the administration of criminal law today. Well, the answer lies in the committal process [see Section 206 of the 1898 Code]. It was not the unsigned, unsworn testimony of the witness which determined issues such as charge and the sufficiency of material prior to trial proper, as it is today. Instead, the committal hearings before the magistrate required the prosecution to examine, on oath, the witnesses that it sought to rely upon to establish its case. The accused had a right to cross-examine these witnesses as well. To help imagine this process, consider what happens today in proceedings instituted upon a complaint in warrant triable cases under the 1973 Code. There are no Section 161 statements in such cases, and the prosecution must examine its witnesses on oath prior to framing charge, with the accused having a right to cross-examine these witnesses as well.

What this trip down memory lane shows us is that while the test as it was under Section 497(1) of the 1898 Code may have been carried forward by the 1973 Code as well in Section 437(1), but the material which formed the basis for applying the test was fundamentally different when it came to applying the test within the 1898 Code's context. Sworn testimony of witnesses who were available from cross-examination was replaced with unsigned, unsworn statements recorded by police officers which the law itself declares ought not to be used as substantive evidence. I will return to this point later on in the series, but it is so significant and rarely raised that it merits being flagged at the outset itself. 

Restrictive Bail Provisions and Special Laws

The previous part referred to the classification drawn by Section 497(1) and (2) of the 1898 Code. The former (at least till 1923) restricted the power of magistrates to grant bail where reasonable grounds existed to support a belief that the accused was guilty, while the latter permitted bail if the material was only enough to suggest further grounds for inquiry into guilt. 

Keeping this in mind, perhaps the first proper restrictive bail regime we encounter was under the Criminal Law Amendment Act of 1908, one of the harshest statutory measures crafted by the colonial regime to punish revolutionaries at the time. Amongst its provisions was a clause, Section 12, which stated that a person shall not be released on bail "if there appear sufficient grounds for further inquiry into the guilt of such person." The reference to Section 497 helps appreciate the draconian nature of this threshold. Having 'sufficient grounds for further inquiry' was nothing but a polite way of allowing bail rejections where the police averred that they had a case. These parts of the 1908 were repealed in 1922, while the remaining parts of it pertaining to declaring certain associations as unlawful and proceeding against them remain in force even to this day.

Perhaps it was the presence of the 1908 Act that did not necessitate further restrictions upon the bail regime during the First World War. Its repeal in 1922, coupled with the liberalising influence of the 1923 amendments, meant that when the Second World War reached the subcontinent, the colonial regime was without comparable legislation to curb the grant of bail. When the War came to India, the government responded with the Defence of India Act 1939 and rules made thereunder, which allowed for a truncated trial for many crimes that had any bearing on the war effort. Still, in 1939 itself, this war-based procedural regime did not have a dedicated restrictive bail regime. That came in February of 1941 with the introduction of Rule 130A which read as under (p. 192 here):

Notwithstanding anything contained in the Code of Criminal Procedure, 1898, no reason accused or convicted of a contravention of these Rules shall, if in custody, be released on bail or on his own bond, unless — 

(a) the prosecution has been given an opportunity to oppose the application for such release, and

(b) where the prosecution opposes the application and the contravention is of any such provision of these Rules as the Central Government or the Provincial Government may by notified order specify in this behalf, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such contravention.

The archives suggest that the proposal emanated from provincial governments which were troubled by how quickly bails were granted by courts without adequately hearing the prosecution. They do not offer much by way of discussion on the specific test that was added in clause (b). Is this because the test was no different from the existing regime under the 1898 Code? I would caution against such a reading, because Rule 130A inserted a rather different set of restrictions.

First, Rule 130A applied to all courts, which was a significant departure from the existing position that did not fetter the discretion of sessions courts and the High Courts to grant bail no matter what the allegations were. Second, Rule 130A now vested great power with the government, by placing a premium on its decision to oppose the plea for bail. If the prosecution did not oppose bail, then the additional restrictions would never come into play. Third, the test itself was worded differently than Section 497(1) which cast different obligations on the players. Section 497 of the Code was read as placing the onus upon the prosecution asking it to furnish material to show reasonable grounds existed to believe a person was guilty, whereas Rule 130A placed asked the accused to establish reasonable grounds to believe that he was not guilty. The former resembles the burdens at trial - if the prosecution did not establish its case first, the accused would not have any case to answer. The latter invited the court to assume the truth / veracity of what the prosecution brought forth, and burdened the accused to demonstrate the grounds within this material which supported his innocence.

The validity of the provision was challenged in re V. Bhuvaraha Iyengar [AIR 1942 Mad 221], where it was argued that the clause departs from the "fundamental principle" that a person is presumed innocent until proven guilty. The Madras High Court rejected the contention, stating that the impugned Rule did no such thing but only indicated "that where a person is accused of an offence under the rules the Court may not liberate him on bail pending the trial, except when it has reasonable ground to believe that he is innocent. When the Court comes to decide the case, it must acquit the accused if the prosecution has failed to establish the charge." That is a non-reasoned answer if there ever was one. The Court also rejected the bail request, noting that "grave charges are alleged against the petitioner by a responsible police officer and a the stage at which the applications for bail were made it was impossible for the magistrate or the sessions judge to be satisfied that there were reasonable grounds for believing that the petitioner was not guilty of a contravention of the rules, and that is the position now." 

The above extract gives us a glimpse of what Rule 130A was meant to achieve: a practical annulling of bail prior to the cross-examination of key witnesses at trial for the offences which were designated as being important to the war effort. In an already truncated legal procedure the court would never be faced with a situation where grave charges were not levelled by responsible officers with some material to support their claims, except for the most egregious of false cases. A court would presumably only be able to develop reasonable grounds to believe that the person was not guilty during a trial due to cross-examination of witnesses as at trial the burden still lay upon the prosecution to prove guilt as held by the Madras High Court.

Next Post 

This post has surveyed the historical position in the general law and the special law on matters of bail, drawing the line at 1947. We saw how the general position on bail changed from being a very restrictive one — at least in respect of magistrate courts — to a more liberal one during the inter-war period. The onset of the Second World War brought with it a new set of restrictive measures and introduced Rule 130A in the Defence of India Rules. In the next post, we will see how the memories of this wartime measure would continue to echo all through the history of the constitutional republic of independent India.