Tuesday, March 20, 2018

The Shifting Judicial Sands on Accused's Right to Rely on Exculpatory Material at the Stage of Discharge

(I am happy to host a guest post co-authored by Mr. Bharat Chugh, Managing Associate, & Mr. Vibhor Jain, Associate, at Luthra & Luthra Law Offices, New Delhi. A modified version of this post first appeared on Mondaq)

A preliminary hearing in a criminal trial is one of great importance, and the right to seek a discharge (threshold dismissal) is an extremely valuable right that the Criminal Justice System guarantees to the Accused. This allows a court to sift out meritless cases at the very threshold, and throw them out. However, the scope of scrutiny at that stage, and the material that the court can look into to make that decision, are extremely limited. It has been held in a number of cases by the Supreme Court that a court cannot look beyond the material that the Prosecution chooses to rely on, to decide whether to discharge the accused, or take the matter to trial. Practice has shown that this often leads to the Prosecution relying solely only on ‘self-serving’ and ‘incriminating’ material, and suppression / withholding of exculpatory evidence that can potentially disprove the case against the accused at that stage itself. 

This has been the consistent position over the last few decades. However, the recent judgment of the Supreme Court in Nitya Dharmananda v. Gopal Sheelum Reddy [(2018) 2 SCC 93 (Nitya)] has once again reignited the debate on the vexed question of an accused's right to rely on material other than the police report, to make out a case for discharge. To set the context for the discussion, in Nitya, a Division Bench of the Supreme Court held: 

…it is clear that while ordinarily the Court has to proceed on the basis of material produced with the charge-sheet for dealing with the issue of charge but if the court is satisfied that there is material of sterling quality which has been withheld by the investigator/prosecutor, the court is not debarred from summoning or relying upon the same even if such document is not a part of the charge-sheet. It does not mean that the defence has a right to invoke Section 91 CrPC dehors the satisfaction of the court, at the stage of charge. 

The above observations, particularly their consistency with judicial precedent, as also their desirability for the administration of criminal justice and due process, are the subject of this post. With that anchor in mind, let us begin at the beginning, with the first principles governing the judicial evaluation at the time of discharge. 

What Materials does a Court see during Arguments on Charge?

The provisions in the Criminal Procedure Code 1973 [Cr.P.C.] relating to the framing of charge against an accused are broadly Sections 227, 239, and 245, depending on the nature of the offence that one is looking at. (See, here, for an earlier discussion of these provisions on the Blog)These provisions show that a court can discharge an accused if, on a perusal of the Police Report and documents sent along with it, the court concludes that the charge is groundless. Therefore, the statute mandates the court to use only the Police Report as the input material, and not evaluate any other evidence, in order to arrive at a decision on framing the charge. With that being the case, the next question is what all does this Police Report contain? Is it required to contain evidence favourable to the accused, or should it be confined to material that the prosecution seeks to rely on? What about the statements of those witnesses examined by the Investigating Officer, who have gone on to support the defence case? The answer lies in Section 173(5) of the CrPC, requires the police to forward only those materials which "the prosecution proposes to rely upon" and "statements ... of all those persons whom the prosecution proposes to examine as its witnesses". So, the material sent to court with the Police Report contains all documents and witness statements which the prosecution proposes to rely upon and examine. One can see how this can easily be used by the prosecution in a self-serving manner. The Investigating Officer is, therefore, not mandated by law to forward to the Court, as part of his Police Report, material which might be favourable to the defence. But can the Court, on its own, look at material presented by the accused? Or, can the accused invoke the powers of a court under Section 91 of the Cr.P.C., to bring to the court’s attention documents etc. which are exculpatory in nature, but have not been made part of the Police Report? Having either of these rights would render the accused better equipped to demonstrate the charge to be ‘groundless’, on the face of it, without having to go through a trial. We examine both these claims in reverse order. 

Debendra  Nath Padhi and Excluding Materials from an Accused 

With regards to Section 91, a bare reading of that provision does not suggest anything that prohibits its use at the stage of discharge. So how do we read this together with the limits placed through the provisions on discharge which said the court cannot look at anything beyond the Police Report? The task of harmonising these two provisions was taken up by the Supreme Court in State of Orissa v. Debendra Nath Padhi [(2005) 1 SCC 568 (Padhi)]. In Padhi, a Three-Judge Bench of the Supreme Court held that defence material cannot be advanced during arguments on charge as the defence of the Accused is irrelevant at this stage, and a court can only rely upon the record as submitted by the police with the charge sheet. The decision further held that ordinarily, there would be no right of the accused to seek production of a document under Section 91 of the CrPC at the stage of framing of charge. The decision was in sync with the statutory scheme and also in the interests of avoiding a ‘trial within a trial’, to reduce delays in our already overburdened criminal courts. The Supreme Court in Padhi specifically noted that Section 227 Cr.P.C. had been introduced with the specific purpose of dispensing with the lengthy committal process which involved making an inquiry (which included examination of witnesses), that protracted proceedings and made the criminal justice process slower. 

With respect to the words “hearing the submissions of the accused” in the discharge context, the Court held that this did not mean an opportunity is granted to an accused to file material; the submissions have to be confined to “record of the case”, i.e. material produced by the police. It held that “record of the case” in Section 227 Cr.P.C. was to be understood in light of Section 209(c) Cr.P.C., which provides that in a case exclusively triable by a Sessions Judge, the Magistrate shall send to the Sessions Court “the record of the case and the documents and articles, if any, which are to be produced in evidence”. Reading the two provisions together, the Court found that “No provision in the Code grants to the accused any right to file any material or document at the stage of framing of charge. That right is granted only at the stage of the trial.” Therefore, the legal position effectively was that the judge could look only at the Police Report while deciding whether to discharge or proceed to trial. This made obtaining a discharge a herculean task for any defence lawyer, and reduced, rather unfortunately, most discharge hearings/proceedings to mere foregone conclusions and exercises in futility. It deprived the accused of an important due process right; the right to demonstrate the falsity of the prosecution case, without going through the rigmarole of a long-drawn trial. This is unfortunate, since elsewhere, preliminary hearings are much more effective and meaningful. For instance, in US, the defence gets to cross-examine Prosecution witnesses at the stage of discharge (called a “preliminary hearing”) with a view to demonstrate that there is no probable cause to take the Accused to trial. 

Departures from Padhi 

In Padhi, the Supreme Court envisaged a very limited evaluation at the stage of charge, which also led to there being practically no remedy in case an Investigating Officer, in flagrant disregard of ‘due process’, ‘duty of fair disclosure’ and principles of fair investigation, suppressed or withheld exculpatory material. However, subsequently, somewhat discordant notes have been struck on this issue by smaller Two-Judge Benches of the Supreme Court, firstly in Rukmini Narvekar v. Vijaya Satardekar [(2008) 14 SCC 1], and recently, in Nitya

In Rukmini Narvekar, the accused challenged the issue of process by seeking quashing of proceedings before the High Court under Section 482 Cr.P.C. The High Court allowed the petition by relying on evidence recorded in a separate civil proceeding where the complainant was plaintiff. The question before the Supreme Court was whether defence material could have been relied upon by the High Court. Justice Markandey Katju embarked upon an analysis of Padhi and observed: that 

Thus in our opinion, while it is true that ordinarily defence material cannot be looked into by the court while framing of the charge in view of D.N. Padhi case [(2005) 1 SCC 568], there may be some very rare and exceptional cases where some defence material when shown to the trial court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in such very rare cases the defence material can be looked into by the court at the time of framing of the charges or taking cognizance. In our opinion, therefore, it cannot be said as an absolute proposition that under no circumstances can the court look into the material produced by the defence at the time of framing of the charges, though this should be done in very rare cases i.e. where the defence produces some material which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted. 

Though of great practical utility, this decision was decried to be of tenuous legality since the Court appeared to have misemployed a standard laid down in context of inherent powers of the High Court, and proceeded to incorrectly conflate it with the powers of a court while framing a charge, which was not warranted by Padhi. Though there seems to be no intelligible differentia between the two cases; and there is no justifiable reason why the High Court, acting exercising powers, can examine documents of unimpeachable character of exculpatory nature and the Trial Court cannot. Be that as it may, unless the Supreme Court equates the two, the law of the land remained thus: the High Court exercising wide inherent powers can rely upon documents or material advanced by defence / accused of unimpeachable or sterling quality in proceedings under Section 482 Cr.P.C. The same, however, was not so with a judge framing charge, in respect of which, guidelines have been laid down in the form of the explicit text of the relevant Cr.P.C. provisions, reaffirmed by the Court in Padhi. This was noticed in Rukmini Narvekar itself, by Justice Altamas Kabir, who in his concurring opinion hinted at having held a diametrically opposite view from Justice Katju’s opinion. Rukmini Narvekar, therefore, is not a good authority for the proposition that defence material can be taken into consideration at the stage of deciding the question of charge. Since this was also not the issue before the Court in that case, its value as precedent for this proposition is rather suspect. 

Nitya: A Possible Reconciliation, and a Progressive One 

Which brings us to Nitya, which, in our opinion, stands on somewhat better legal ground. In this case, a Bench of Justices U. U. Lalit and Adarsh Kumar Goel was faced with the question as to whether an accused, before framing of charge, can file an application under Section 91 Cr.P.C., to summon materials collected during investigation, but not made a part of the Police Report. In this case, the said material (statements of witnesses unfavourable to the prosecution) was available with the police, but had not been included in the Police Report. The High Court allowed the petition and directed the trial court to summon the witness statements available with the police (and also directed the Trial Court to look into the case diary to examine availability of other material sought by the accused) [Gopal Sheelum Reddy v. State of Karnataka, 2016 SCC OnLine Kar 8449]. The Supreme Court set aside the High Court’s judgment in appeal, holding that there was no right of accused under Section 91 Cr.P.C. to summon material. However, the Court held that in the interest of a fair trial, the court in its discretion may summon such material as has been withheld by the police and not made part of the charge sheet, if it is of “sterling quality” and has a “crucial bearing” on framing of charge (the extract was provided at the start of this post). A possible reconciliation of Padhi and Nitya could be the usage of the word “ordinarily” in the relevant passage of Padhi which laid down that an application under Section 91 Cr.P.C. cannot ordinarily be used by the accused to summon material. The new dictum of there being (1) material withheld by police/Prosecution, (2) said material being of sterling quality, and (3) said material having crucial bearing on framing of charge, can then, indeed, be sourced to the law laid down by the larger bench in Padhi allowing for such an observation, by saying Section 91  Cr.P.C. cannot ordinarily be used by an accused for this purpose. What would be the ‘extraordinary’ event in which Section 91 Cr.P.C. can so be used? The three conditions enumerated in Nitya

Though Nitya’s compatibility with older judgments may be debatable, and there may be two views on that, but we firmly believe the judgment must be lauded for recognising that the imperatives of fair trial demand that the accused (who, unlike the prosecution, does not have the wherewithal to privately investigate and collect evidence) should be provided exculpatory material collected by the Investigating Officer during investigation, and allow him to rely on this while arguing for a discharge. Absent strong disclosure requirements and discovery proceedings written into the Cr.P.C. itself, this judicial intervention was long due, and would go a long way in making discharge proceedings more effective. Of course, this, by itself, would not allow us to achieve the same levels of fair play that, for instance, the US system allows. Major statutory overhauling would be required to introduce a right to cross-examine (at least the material witnesses) at the stage of discharge, and to introduce defence witnesses. However, the enormity of changes required and difficulties in implementation should not detain us from aspiring-for what would definitely be a fairer system. We feel that the justification assigned for not implementing such a system on account of courts being overburdened may not a good enough justification to cut short valuable due process guarantees. A need for pragmatism, understandable as it may be, must not take away from what the law ought to be. Until such statutory changes which guarantee that benchmark of fairness, this decision does make the process a bit more fair and objective.

Friday, March 2, 2018

The 2-G Spectrum Case

(This post first appeared on the Global Anticorruption Blog) 

It all started in May 2009 with a report filed by an NGO, Telecom Watchdog, with India’s Central Vigilance Commission. The NGO claimed that there were gross irregularities, likely due to corruption, in the allocation of licenses to operators for the 2nd Generation mobile communication standard spectrum (2G spectrum for short). By October 2009, India’s premier investigating agency, the Central Bureau of Investigation (CBI), had opened an investigation into the allegations, and in November 2010, the Comptroller and Auditor General of India estimated the losses to the government from the alleged misconduct at a whopping US$29 billion. Indian media called it the “biggest scam in the history of Independent India.” Time Magazine put it just behind Watergate as the second worst case of abusing executive power.

Petitions were filed in the Supreme Court of India pressing for cancelling the allocation and making sure that those behind the corruption would be held responsible. In 2012, the Supreme Court obliged, canceling all 122 licenses and imposing huge fines. The Court declared that the then-Minister for Communications and Information Technology, A. Raja, had used an inappropriate allocation procedure (first-come-first-served rather than an auction) to “favour some of the applicants … at the cost of the exchequer.” In an unprecedented move, the Court also ordered the creation of a “Special Court” to try the cases, and modified regular criminal procedure by curbing intermediate challenges, in order to ensure a speedy trial. The first case was instituted against the former Minister, senior bureaucrats, and prominent businessmen for conspiring to rig the allocation process and cheat the government of revenue.

On December 21, 2017, the Special Court announced its verdict—and it was not what many had expected: The Special Court acquitted all the accused, declaring that “a huge scam was seen by everyone when there was none,” and that “some people created [the perception of] a scam by artfully arranging a few selected facts and exaggerating things beyond recognition to astronomical levels.” The Court also found that, notwithstanding the earlier 2010 report (which others had already suggested was methodologically problematic), the actual losses to the government were marginal at most.

Many commentators were stunned and dismayed by the Special Court’s decision, denouncing it as “shocking” and “flawed.” But after reading the Special Court’s decision, I find myself in agreement with the Special Court’s reasoning. While it’s impossible, in a short blog post, to wade through the merits of the Special Court’s analysis for each of its conclusions, here I want highlight some of the most important arguments in support of the Special Court’s controversial decision.
  • First, it’s worth addressing the apparent conflict between the Special Court’s ruling and the 2012 Supreme Court decision. The latter had quite clearly ruled that wrongdoing had occurred. But it’s a mistake to say that these two decisions are at loggerheads, for two reasons: For one thing, in 2012 the Supreme Court was dealing with an omnibus petition that put the allocation of 2G spectrum under a cloud and only sought initiation of prosecutions. At that stage, all one needs are grounds for suspicion of wrongdoing (something akin to probable cause). In fact, even the Special Court thought the material presented in to the Supreme Court had created a valid basis for suspicion, as it emphasised in a lengthy order refusing to discharge the cases back in 2012. But suspicion is not proof, and it was only after a careful examination of the evidence that the Special Court came to the conclusion that there was no proof beyond a reasonable doubt to convict the accused persons. Rather than condemn the Special Court’s decision, we should laud the Special Court for confirming that a trial court can function independently in spite of the strong preliminary observations made by the Supreme Court.
  • Second, the Special Court’s verdict strongly suggests that the controversial government decisions were mistakenly depicted as corrupt, when in fact the controversy was due to the inefficiency and opacity of the bureaucracy. A review of the official records led the Court to conclude that the decisions allegedly initiated and pushed through by the disgraced Minister had hardly ever been taken by him alone. Other officials, who ended up as key prosecution witnesses, were fully involved in the decision-making process. The record revealed these officials were passive and happy to pass the buck rather than take responsibility at the appropriate time. Further, the Court also faulted badly-drafted government policies, and found that bidders had not acted wrongfully in exploiting gaps that the government had created. Remarkably, the prosecution could not prove that the accused companies were ineligible under the policy governing the spectrum allocation process, despite strong suspicions of this being the case, because none of the government’s witnesses could testify that the relevant words in the policy carried a definite meaning.
  • Finally, the Special Court’s decision strongly suggests that the investigators and prosecutors simply botched the case. Some vital records were never collected or produced. For instance, no records of any kind were presented to show the Minister and private persons were meeting very frequently at the Minister’s office, which was a key government allegation in connection with the conspiracy charges. Even more problematic was how witnesses were examined, both by the investigators pre-trial and by prosecutors in court. As the Special Court emphasised (and illustrated with a helpful chart), although the investigation began in 2009, the CBI did not examine the most important witnesses until 2011 or 2012, in some instances doing so merely a few days before filing the dossier in court. Star witnesses often gave deposition testimony that contradicted the official record, which led the Court to reject their testimony as unreliable. The Special Court also lamented the failure of the prosecution to lay proper evidentiary foundations for its main arguments, noting that “arguments alone do not prove a case … For proof, legally admissible evidence is required.”

Once the dust settles, it is highly likely that an appeal will be filed, as acquittals can be challenged under Indian law. Overturning acquittals in appeals carries a tougher standard than challenging convictions, and it will be interesting to see how the government chooses to attack the Special Court verdict. One suspects that the speed of governmental action over the case might hinge on the upcoming national elections in 2019, as the verdict is bound to become an election issue. While ordinarily appeals continue slowly through the Indian judicial system, the government could push for a speedier resolution, and these special circumstances might yet see more twists in the 2G spectrum saga.

Wednesday, February 7, 2018

Vignettes - Man Mohan Das and the Supreme Court of India

(This post first appeared on the Law and Other Things Blog)

On March 12, 1968, Justice Amar Nath Grover had completed a month of being on the Indian Supreme Court. His appointment was one of the last acts of K.N. Wanchoo as Chief Justice, who was himself replaced by M.C. Hidayatullah on February 25, 1968. In a tradition continued till today, the newest judge sits together with the Chief Justice and another judge, to ease her in. In this case that other judge was Justice Vaidialingam (on the court since 1966). The bustling hallways of the Supreme Court had seen great controversy in the past few years with an escalating ‘battle’ between the Court and Parliament over the scope of the latter’s power to amend the constitution itself. 

But none of this was in the air on Wednesday, March 13 1968, and the justices were not announcing any decision of comparable importance as Golak Nath. When Man Mohan Das entered the Chief’s Court at around 2:30 PM, the Chief Justice was sitting in the middle, flanked by Justice Grover on his left and Justice Vaidialingam on his right, and was delivering an opinion in a criminal appeal filed by the State of Gujarat (it was State v Chinubhai, a prohibition case). Engrossed in their business, nobody paid attention to Das, in regular clothes and not lawyer’s robe, who entered the courtroom and strode purposefully towards the bench. It must have taken a few seconds for him to cover those twenty odd yards that separate the entry doors from the bench where the judges sit. Before anyone knew it, Man Mohan Das was standing atop the dais and facing the judges. He had a knife in hand, and had now moved from the dais to the judges’ table.

Since the Supreme Court’s security back then did not involve thorough checks and keeping all our biographic data, precious little is known about Man Mohan Das (or Mono Mohan Das, depending on the news report you read). The news reports and the sparse material suggest this much was deduced by the police. Das was probably born in Murshidabad, West Bengal; he was also probably not poor, having been to England to see a doctor regarding issues about mental ‘fitness’, and having otherwise travelled across several parts of India as well. Das reportedly bore some ‘grudges’ against the West Bengal Government, but he was no political activist. 

For some reason though, he certainly harbored a peculiar dislike towards courts. Das had shattered a tubelight in a courtroom of the Bombay High Court while it was in session, and for this he was sent to prison for a year in July, 1967. Evidently, he escaped, and travelled to Delhi. He was probably working at a tea stall on one of Delhi’s two prominent railway stations before this incident. Nothing showed Das had any personal connection to either of the three judges, or Chinubhai (who won his appeal, incidentally). And yet, on March 13, 1968, he climbed the famous steps of the Indian Supreme Court, entered the court, climbed the dais despite the court staff being there and brandished a Rampuri knife before the Chief Justice of India. 

We all know that nobody died in that courtroom on March 13, 1968. That was largely due to Chief Justice Hidayatullah. Appointed to the bench nearly a decade before and as the youngest ever Supreme Court justice, the Chief Justice had gained respect in his time on the Court. In his work on the Supreme Court, Professor Gadbois Jr. comments that Hidayatullah did not get any favors from the Indira Gandhi government after retirement because of his “reputation as a judge to stand up to the government”. He was fearless, never more so than when he faced Man Mohan Das standing before him on the dais. 

The Chief Justice first hurled an inkstand at Das and, in the time he gained, he quickly used the ungainly seat-cushion of his chair as a shield to successfully ward off the blow that came. Das then tried knifing Justice Vaidialingam but missed. As Das was about to strike Justice Grover, the Chief grabbed the assailant’s arm and prevented him from striking a clean blow. In the ensuing scuffle, Justice Grover got a gash on his scalp while Das fell from his table to the ground, where he was finally overpowered by the throng of lawyers and staff members that had probably been transfixed in horror watching the scene before them. Justice Grover was rushed to Willingdon Hospital (since renamed as Ram Manohar Lohia Hospital) near Delhi’s central post office by Justice Vaidialingam and the Chief Justice, “his clothes stained with blood and ink.” Remarkably, court proceedings were not halted for the day – after a brief interruption of about forty minutes, the judges returned to their duties. 

The incident was heavily reported at the time and called for an urgent mentioning in parliament, giving the meagre opposition some fodder to attack the government. The Home Minister made a statement the next day and attempted to defend the vociferous attack made against his government on the supposedly dismal state of security services for the Supreme Court. In the middle of this heated debate, various members took a moment to record the ‘deep sense of appreciation’ towards the Chief Justice. Not only for his courage, but also for his reportedly refusing to make any comments to the media to ensure “the assailant should have a proper and fair trial.” 

What happened to that assailant, Man Mohan Das? He was arrested and taken into custody, probably kept in the guard room where one member (A.D. Mani) reported to having seen him wearing ‘rags’. Das was produced before a Magistrate the next day and remanded to police custody. He would continue to remain in police custody for another two weeks after which his name disappears from records. Why did he do this? Was he really mentally ‘unfit’ as the police seemed to have assumed? Were they merely operating on stereotypes? Was he beaten whilst in custody? Was he ever given that fair trial that the Chief Justice desired for him? We may never know, because barring scattered references in parliament, news reports, and some judges’ biographies, there is seemingly no mention of this shocking event in the history of the Indian Supreme Court.


1. George Gadbois Jr., Judges of the Supreme Court of India, pp. 85, 88, 128, 136 (2011).
2. O. Chinnappa Reddy, Humpty Dumpty with Alice in the Wonderland of Law, p. 23 (2011). 
3. Government of India, Rajya Sabha Debates, pp. 4593-94, 4636-44 (Mar. 13, 1968); pp. 4714-23 (Mar. 14, 1968).
4. ‘Das Remanded Again’, The Times of India, p. 7 (Mar. 26, 1968).
5. ‘Das Remanded to Police Custody’, The Times of India, p. 6 (Mar. 24, 1968).
6. ‘Motive for Das’s Crime Not Established’, The Times of India, p. 7 (Mar. 16, 1968).
7. ‘Das is Remanded to Custody’, The Times of India, p. 1 (Mar. 15, 1968).
8. ‘Judge Stabbed in Supreme Court: Assailant Stated to be Bombay Ex-Convict: Heroic Rescue by Chief Justice’, The Times of India, pp. 1, 9 (Mar. 14, 1968).

Tuesday, January 23, 2018

India Needs to Rethink how we Prosecute Crime

In December 2017, the special court appointed to hear the 2-G Spectrum cases delivered a verdict - each of the defendants was acquitted. Not because of some arcane technicality, but because the court examined the evidence, and at the end of a nearly 1600 page long decision said that where the world was being asked to see a huge scandal, there was none. Little has been said about the verdicts: I doubt many people except criminal lawyers are ever going to actually finish 1600 pages, and then, the entire episode seems like it happened so long ago making it not very newsworthy. In the few days immediately after the verdict though some websites were carrying excerpts out of the decision which contained a stinging rebuke to the manner in which the prosecution was conducted (I am referring to paragraphs 1810-1812 for those interested). The court lamented the disjointed stand put up by those in the government's corner; the Special Public Prosecutor appointed by the Supreme Court, the Senior Public Prosecutor who normally works in court, and the CBI Inspector who had handled the case.

This raises an important question, albeit indirectly: how do the prosecutors and investigators work together in the Indian criminal justice system and whether this is the best way to run things? Speaking to those outside the court system, I found it interesting that not many people knew how things worked to begin with, which gave this post some purpose.

Prosecutors and investigators do not normally work together. Investigations are usually entirely in the hands of the police and once a chargesheet is filed in court, the prosecutor comes in the picture and functions as the voice of the government's case. The police takes a backseat and moves on to the next case while the prosecutor takes charge, and the investigating police officer comes whenever possible to give help. Who are these prosecutors? They have been described as a' limb of the judicial process' and are appointed by government either from a cadre of officers (like most of Indian bureaucracies) or in consultation with the local judiciary, with different states having their own rules for selection etc. Most of this procedure came in with the 2006 amendments to the Cr.P.C. Since the average lifespan of most criminal cases is beyond two years, it is rare for prosecutors to continue with the case from start to finish because administrative transfers happen much more frequently. For instance, while I am personally unaware of the 2-G scam cases, I do know that the prosecutor changed in the ongoing Commonwealth Games cases. This means they have relatively little skin in the game. If we are thinking about comparative examples then Indian prosecutors would seem much closer to prosecutors in civil law systems as against those in common law countries. And extremely far from American prosecutors: to call them apples and oranges would be understating the differences.

Was this strict separation between police and prosecutor always the case? No. In fact, at the time of independence, prosecutors fell under the control of the police rather than the local government or judiciary. While I am unaware of qualitative contributions made by prosecutors during investigations, it is likely that there was still greater synergy in how cases were investigated and prosecuted. But the problems seem to have outweighed the benefits. The Law Commission since the 14th Report onwards is considered to have consistently argued that the police and prosecutor should be separate, and the current legal regime reflects how the Law Commission's ideas have been accepted by successive governments (I say considered, because there is some variance between what the 14th Report says and what the 197th Report thinks it says). Has this helped the Indian criminal process? I would argue that it hasn't and, in fact, is bad for the system. Time and again we get high-profile examples like the 2-G scam which show us that if the police had a keener eye for what might be evidence in a case then the outcome might have been different. Or if the prosecutor knew the facts then she could have presented them better. But we don't need high-profile examples like the 2-G scam to tell us that the system is messed up: the data is right there. Since the 1990s, the police have been filing cases far more regularly than the system can handle them. This reflects that the incentives of police do not include what happens to cases once they reach court. Should that be so? Not at all. Enough studies have shown that if persons know their cases will languish in courts for years, the deterrent effect of sending anyone to prison takes a bit hit. So, one of the key goals of having criminal prosecutions gets defeated.

Indian politicians bemoan low conviction rates (hovering around 50% for IPC offences), and cases like the Arushi murder trial help whipping up sentiment against the supposedly primitive ways of the police. But as the numbers show, blame should also be apportioned to how cases are prosecuted in courts. Prosecutors in the district courts often function on extremely meagre resources, having no office but only a space reserved inside the courtroom they are appointed to serve, and ordinarily handle a complex docket that has upwards of thirty matters, consisting of bail hearings, arguments for arraignments, recording evidence, and final arguments on guilt or innocence. They are often not paid on time as well. The previous lines are describing New Delhi, the capital, so one can only imagine the situation in non-metro cities. Where prosecutors are able to compete effectively in cases where clients cannot afford to put up a good case, the mismatch in cases like the 2-G scam becomes painful to watch. While those defendants may win, there are still casualties in the system, because then we find judges try and make up the handicap by diluting the presumption of innocence and ask defendants to do more than they need to for establishing reasonable doubt. Or they want more from the defence lawyers simply because they get used to the low standards of contribution from prosecutors because of the systemic problems I described. Whatever be the case, the process suffers.

For years India has been gaining infamy for a tediously slow judicial system. If anything, data suggests that things won't change by simply having more judges and more courts as we might be led to believe. This is a complex problem, and has many parts that need to be addressed. Reforming how we prosecute crime needs to become one of these parts, and urgently.

(This post was amended on January 28, 2018 to correct references to the 14th Report of the LCI)

Monday, December 18, 2017

Article Update - Plea Bargaining in India

I have been working away on a short essay on plea bargaining in India which is now up on SSRN. Crudely put, 'plea bargaining' refers to a method where the accused pleads guilty to the crime, and this voluntary plea brings certain benefits in the form of a lenient sentence or conviction for offences that are less serious than the ones initially brought. In the paper, I explore why plea bargaining has become the dominant method of resolving criminal cases and then explain the Indian process. I try and explain the Indian criminal process to present it in contrast with the American model, and argue that the main reason why plea bargaining has failed to take-off in India (currently, less than 0.05% of all cases under the penal code are resolved by plea bargaining as per NCRB data) is the badly designed model that we have. The paper does not address the argument of whether plea bargaining is a good or bad process, but I think my biases become evident through the paper.

The paper is consciously written in a way to make it accessible to anyone and not only lawyers. It is accessible here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3085659

Comments would be lovely. 

Saturday, November 25, 2017

Bail Provisions of Section 45 PMLA Struck Down - Some Hits and Misses

Two days ago, a Two Judges' Bench of the Indian Supreme Court decided a batch of writ petitions led by Writ Petition (Crl) No. 67 of 2017 titled Nikesh Tarachand Shah v. Union of India & Anr. [Nikesh Shah] in which it struck down the parts of Section 45 of the Prevention of Money Laundering Act 2002 [PMLA] which concerned the grant of bail. The Court held that these parts violated Articles 14 and 21 of the Constitution - guaranteeing a right to equality, and protection against deprivation of the right to life and personal liberty by a procedure not established by law. The effect of this judgment is that bail petitions earlier subject to a stringent standard under Section 45 PMLA will now be tested on the less taxing standards of Sections 439 and 437 of the Criminal Procedure Code 1973 [Cr.P.C.]. This post has four parts - (i) explaining how money laundering and the PMLA work (which I'd urge you to skim through even if you're a lawyer, because at times the judgment reflects some lack of knowledge on the Court's part), (ii) charting out how the Court did what it did, (iii) showing where the Court goes wrong, and finally (iv) what this judgment might mean for the many other statutes with similar clauses that have not been examined by the Court yet. 

What is the PMLA, What are the Schedules, and What does Section 45 do?
The PMLA is India's answer to its global commitment to tackle money laundering, which (at the cost of oversimplification) means representing assets obtained through illegal acts as untainted. In line with global standards, the PMLA covers all kinds of conduct connected with this process of representing black as white (doing, aiding, abetting, attempting etc), as long as one knowingly did so [Sections 3 and 4]. The PMLA not only makes this is an offence but also triggers connected civil actions of attaching and confiscating the tainted assets themselves [Sections 5-8]. 

Notice how the entire idea of money laundering is linked to some underlying illegal act which results in generating some proceeds - cash or kind. While some countries don't require that illegal act to be a crime, India does, and the PMLA calls it a 'Scheduled Offence' [Section 2(y)] i.e. offences that are part of the Schedules to the PMLA. There are three Schedules - A, B, and C - and Schedule A contains the bulk of offences and Schedule C is basically the same thing applied in a transnational context. Schedule B contains only one offence - Section 132 of the Customs Act 1962 which criminalises making false declarations before customs officers. Importantly, when the underlying offence is one from Schedule B, the PMLA will only apply if the allegations involve a value of at least one crore rupees. There is no such minimum monetary limit for cases with Schedule A offences. It wasn't always like this, and the history behind these Schedules became quite important in Nikesh Shah which requires me to discuss it here.

When the PMLA came into force in 2005, Schedule A only had two paragraphs carrying offences punishable under the Indian Penal Code 1860 [IPC] for waging war against India and nine offences from the Narcotics, Drugs and Psychotropic Substances Act 1985 [NDPS Act]. Schedule B contained the bulk of offences, along with a lower minimum threshold of thirty lakhs for the value of allegations. Then around 2010 India wanted to join the Financial Action Task Force [FATF] as a member. The FATF is a global body created by the G-8 for money laundering and membership is a big deal [India is the only South Asian member state till today]. When the FATF conducted its evaluation of Indian money laundering laws, it heavily criticised the monetary limit for the cases in Schedule B [paragraph 167 of the linked report]. The logic was that the limit would allow money laundering to escape under the radar as people would just deal in smaller tranches over a slightly elongated period of time. So the FATF recommended the limit be abolished [paragraph 175]. The government sought to do this by simply moving all Schedule B offences to Schedule A, which was done through the 2013 Amendment, leaving Schedule B empty for the time being.

In all this moving around offences, nobody thought fit to look at what impact it would have on the rest of the PMLA - specifically, on Section 45 which spoke about bail. Since the money laundering offence was tied to the Scheduled Offence, Section 45(1) looked at that underlying offence and this decided how difficult it would be to get bail. If it was a Schedule A offence with a sentence of more than three years, the law placed two additional conditions for getting bail: (i) the public prosecutor had to be given a chance to oppose bail, and if the prosecutor chose to oppose bail, then (ii) the court had to satisfy itself that the defendant was "not guilty of such offence" and was not likely to commit any offence on bail, and the burden fell on the defendant to satisfy the court. For all other Schedule A offences, and all Schedule B offences, the regular bail clauses from the Cr.P.C. continued to apply. You can see how the 2013 amendments to the Schedules completely changed the look of Section 45 - the exceptional process became the norm. This new normal was under challenge before the Supreme Court in Nikesh Shah.

SC on Section 45 - Violates Articles 14 and 21
Petitioners argued that the constitutional protections of Articles 14 and 21 were violated by Section 45 PMLA, and the Court agreed to both contentions. Rather than address arguments first and then move to the Court's appreciation, I discuss both together for brevity.

Article 14
The Petitioners argued that linking the stringent bail clauses to offences in Schedule A that carried at least a three year maximum sentence was creating several irrational and arbitrary classifications which the Court encapsulated through examples [Paragraphs 24-27, and 35]. The Court found no basis to differentiate the harsh treatment meted out under Section 45 from the following hypothetical cases which according to the Court did not attract Section 45:
  • When there is only the PMLA charge as the trial for the Scheduled offence was complete;
  • When the PMLA allegation is based on a Schedule B offence;
  • When the PMLA allegation is based on a Schedule A offence carrying a maximum sentence below three years;
  • When a person is tried for a Part A offence with at least a three year term (versus a joint trial where the same person is tried together with the person with PMLA charges);
  • When the person is released on Anticipatory Bail under Section 438 Cr.P.C. for allegations of the Scheduled Offence, before the PMLA charge was brought in. 
The Court was of the view that the seriousness of money laundering cases depended on the amount of money involved [Paragraphs 29-30]. Since Schedule A had no monetary limits, the Court concluded that the likelihood of being granted bail was being significantly affected under Section 45 by factors that had nothing to do with allegations of money laundering [Paragraphs 26-27]. When the Attorney General attempted to defend the scheme by painting the classification as a punishment-based one, the Court easily rebuffed his argument. First, the Court suggested there was no such scheme, but noted that even then, the idea should have something to do with the object of the PMLA. The Court showed how Schedule A had many offences that didn't seem related to money laundering [taking particular objection in Paragraph 34 to offences under the National Biodiversity Act being there], leaving out others that might have more rational connections to money laundering such as counterfeiting currency [Paragraphs 29-30]. The Court also adversely commented on how Schedule A had lumped different NDPS offences together, at the cost of ignoring how the parent Act treated those offences differently [Paragraph 32-33].

The Court noted also that Section 45 of the PMLA was different from other laws that carried similar requirements such as Section 20(8) of the Terrorism and Disruptive Activities (Prevention) Act 1987 [TADA]. The 'such offence' in TADA required a court to be satisfied that the defendant was not guilty of the TADA offence in question before granting bail. But in the PMLA, 'such' offence referred to the Scheduled Offence instead of the PMLA offence. So, the restrictions imposed by Section 45 PMLA were held to have no connection to the objects of the PMLA itself and thus the rational classification, if any, violated Article 14 [Paragraph 28].

Article 21
The Petitioners argued that requiring defendants to satisfy the court that they were not guilty of 'such' offence violated Article 21 by reversing the presumption of innocence and required the defendant to disclose her defence at the outset of the case. In the judgment the Court doesn't really address Article 21 independently - instead the Court suggest that because the provision violates Article 14 it cannot be 'procedure established by law' and therefore violated Article 21. Towards the end of the decision the Court begins discussing the argument though. It labels Section 45 a "drastic provision which turns on its head the presumption of innocence which is fundamental to a person accused of any offence." [Paragraph 38]. In the same paragraph it goes on to observe that "before application of a section which makes drastic inroads into the fundamental right of personal liberty guaranteed by Article 21 of the Constitution of India, we must be doubly sure that such provision furthers a compelling state interest for tackling serious crime. Absent any such compelling state interest, the indiscriminate application of section 45 will certainly violate Article 21 of the Constitution. Provisions akin to section 45 have only been upheld on the ground that there is a compelling state interest in tackling crimes of an extremely heinous nature."  

Hits and Misses
There are two questions that were at stake here: (i) did any part of Section 45 offend the Constitution, and if so, (ii) did the Court have no other option but to strike down the provision. Reading the decision, it seems like the Court felt there was so much wrong in the PMLA scheme it decided to throw the kitchen sink at one point rather than explain the issues. The Court answered both affirmatively but never explained to us whether any argument dispositive, or does every case need this sort of broad argumentation to succeed.

Classification and Article 14 first. After reading the legislative history behind the 2013 amendments and the FATF argument, do you think that the Court is right in concluding that higher the monetary allegations, more serious the PMLA case? I'm not so sure. Nor do I think there is much to be gained by placing emphasis (like the Court does) on how Schedule B today has a higher limit than the initial thirty lakhs to suggest that this is in fact the case. It is far more plausible that the one crore limit was placed keeping in mind the underlying offence (false declarations to customs officials in an enquiry) and the concerns of the export industry, which is already subject to Schedule A through Section 135 of the Customs Act 1962 (evading customs duty). Rather than attempt at answering what might be the basis for such a classification for the PMLA (and indirectly giving hints to the government on what might pass muster), the Court would have done well by restricting itself to answering whether the present classification between (i) PMLA allegations based on a type of Schedule A offences versus (ii) all other PMLA cases was intelligible and connected to the objects of the PMLA. As there was enough to show that the original intent (if any) behind Section 45 had not kept apace with the subsequent amendments to the Schedules in 2013, the Court could strike down this classification. But did that require striking down the whole clause?

This brings us to the other part of what did that classification achieve. If it sought to serve as a filter for PMLA cases when it came to administering a strict bail clause, we are left with no filter. Does that mean no PMLA case is serious enough to warrant an application of the clause, or will the clause apply to every PMLA case? Deciding this would need the Court to decide whether clauses such as Section 45 that required a court to find defendants 'not guilty' at the bail stage were constitutional. Rather than directly address this, the Court turned to how the text of Section 45 was flawed, as it referred back to the Scheduled Offence on deciding bail petitions. Since the scheduled classification had been struck down, there was nothing to refer to, and so the clause had to go. While there is little to fault this approach, I remain unconvinced that the Court had no option but to strike down the clause because of the text. The Court has performed far greater feats of legislative reconstruction than being asked to read 'such offence' in Section 45 PMLA as referring to the PMLA allegations rather than only the Scheduled Offence. After all, it stands to reason that a bail provision in the PMLA would want a PMLA special court to consider the PMLA allegations. In fact, many High Court decisions show this is how they were doing it. Heck, this is how the Court itself was doing it in Rohit Tandon at the start of November [Paragraphs 21-23 of the link]. I think this course was adopted as it helped secure two objectives. Not only did this take care of the PMLA clause which this bench of the Court clearly did not like much, it also helped to protect other statutes with similar clauses which the Court held met a 'compelling state interest' test.

This brings me to one last bit about Article 21 and the Eighth Amendment of the U.S. Constitution. The Court cites a previous decision in Rajesh Kumar v. State (NCT) of Delhi [(2011) 13 SCC 706] for the proposition that Article 21 of the Indian Constitution has incorporated the Eighth Amendment and its protection against excessive bail [Paragraphs 13, 19 of Nikesh Shah]. The Court also cites two American decisions [Paragraph 37] on bail for good measure. This is, unfortunately, wrong. Rajesh Kumar cited previous precedent in Sunil Batra to suggest that even though India did not have the Eighth Amendment or the 'Due Process' clause, the consequences were the same to prevent cruel and unusual punishment. Not only did both those decisions not mention the excessive bail clause, the references to the cruel and unusual punishment clause itself are highly contentious as an earlier bench of the Supreme Court had held it couldn't be pressed in India, and that decision continues to be cited

The slapdash manner in which the PMLA Schedules were amended in 2013 to appease the FATF had already caused some High Courts to address this issue of Section 45. The closest it came to striking down the clause was the Punjab & Haryana High Court's decision in Gorav Kathuria v. Union of India & Anr. where it held the bail provisions would not apply retrospectively to offences previously in Schedule B [Paragraphs 43-45 of Nikesh Shah]. When the Court declined to hear an appeal against the High Court order in Kathuria I thought that it had indirectly affirmed the validity of Section 45. The judgment in Nikesh Shah comes as a surprise, and marks the first occasion when the Court has looked at any part of the PMLA through a constitutional lens. There are other parts that are equally problematic - the asset forfeiture scheme and the compulsion on witnesses to make truthful declarations, for instance - that litigants may take to the Court being encouraged by this judgment.

As for the future impact of Nikesh Shah on other statutes that carry the same 'drastic provision', the stage is set for some litigation on that front as well. The Supreme Court has only approved of the TADA and the MCOCA provisions in the past, leaving the many others open to scrutiny on this new test of whether the provision furthers a 'compelling state interest'. The Court never answered that for the PMLA context while deciding the petitions in Nikesh Shah. Do you think it might conclude that the PMLA does not meet the test? What about the other statutes? I've re-pasted my list of statutes containing the clauses below after accounting for the ones that are not relevant anymore. Comments, as always, are welcome.
  1. Section 437(1), Cr.P.C. (in cases of death and life imprisonment).
  2. Section 12AA (inserted in 1981), of the Essential Commodities Act, 1955.
  3. States of Punjab and Tripura inserted this provision as Section 439-A to the Cr.P.C. so applicable within their territory, in 1983 and 1993 respectively. This restricted bail to persons accused of certain offences, inter alia Section 121, 124-A IPC.
  4. Section 37 (amended in 1989) of the Narcotic Drugs and Psychotropic Substances Act 1985 [NDPS].
  5. Section 7A (inserted in 1994) of the Anti-Hijacking Act, 1982. 
  6. Section 6A (inserted in 1994) of the Suppression of Unlawful Acts against Safety of Civil Aviation Act 1982. 
  7. Section 8 of the Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act 2002.
  8. Section 51A (inserted in 2002) of the Wildlife Protection Act, 1972.
  9. Section 43D (inserted in 2008) of the Unlawful Activities Prevention Act, 1967 [UAPA] (nearly identical).
  10. Section 36AC (inserted in 2008) of the Drugs and Cosmetics Act, 1940.

Thursday, November 23, 2017

Flash - Supreme Court declares PMLA bail provisions unconstitutional

The Supreme Court has today held that Section 45 of the Prevention of Money Laundering Act, 2002, is unconstitutional. While the decision is not yet out here is an excerpt from the news:
A bench led by Justice Rohinton F Nariman struck down Section 45 in the PMLA to the extent that it refuses bail to the accused on the basis of twin conditions. 
The first condition says that no bail can be given without giving the public prosecutor an opportunity to oppose the bail plea. The second condition stipulated that the bail can be given only when the concerned court is prima facie satisfied that the accused is not guilty of the offence alleged against him. 
These two conditions made grant of bail virtually impossible in money laundering cases and the maxim tend to be shifted from “bail is rule and jail an exception” to “jail is rule and bail an exception”.
If the Supreme Court has really done as the news suggests, this is potentially a ground-breaking decision. This Blog had discussed in an earlier series of posts how such reverse-onus clauses in bail provisions are littered across various statutes. The Blog had also argued how their operation renders bail an illusion while drastically curbing the presumption of innocence (for those posts, see herehere, and here). More to follow once the judgment comes out. In the meanwhile, I've copied the list of statutes here that can potentially be affected:
  1. Section 437(1), Cr.P.C. (in cases of death and life imprisonment).
  2. Rule 184 of the erstwhile Defence of India Rules supplementing the Defence of India Act 1971. 
  3. Section 12AA (inserted in 1981), of the Essential Commodities Act, 1955.
  4. States of Punjab and Tripura inserted this provision as Section 439-A to the Cr.P.C. so applicable within their territory, in 1983 and 1993 respectively. This restricted bail to persons accused of certain offences, inter alia Section 121, 124-A IPC.
  5. Section 20(8) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 [TADA].
  6. Section 37 (amended in 1989) of the Narcotic Drugs and Psychotropic Substances Act 1985 [NDPS].
  7. Section 7A (inserted in 1994) of the Anti-Hijacking Act, 1982. 
  8. Section 6A (inserted in 1994) of the Suppression of Unlawful Acts against Safety of Civil Aviation Act 1982. 
  9. Section 21(4) of the Maharashtra Control of Organised Crime Act, 1999.
  10. Section 8 of the Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act 2002.
  11. Section 45 of the Prevention of Money Laundering Act, 2002.
  12. Section 51A (inserted in 2002) of the Wildlife Protection Act, 1972.
  13. Section 49(7) of the Prevention of Terrorism Act, 2002 (nearly identical). 
  14. Section 43D (inserted in 2008) of the Unlawful Activities Prevention Act, 1967 [UAPA] (nearly identical).
  15. Section 36AC (inserted in 2008) of the Drugs and Cosmetics Act, 1940.