Sunday, January 20, 2019

Update: Less Than a Year and Clouds Already Over the Mohan Lal Judgment

In August 2018, a Three Justices' Bench of the Indian Supreme Court decided Mohan Lal v. State of Punjab [Criminal Appeal 1880 of 2011, decided on August 17, 2018]. The case decided the issue of whether the police officer who was the informant in a case could continue as the investigating officer, and held that this was prohibited and any such continuation would make the subsequent trial invalid. The case was discussed in detail on the Blog and while I agreed that a resolution of the legal issue was required I disagreed with the approach. The reason for this was a perceived mismatch between the problem and solution.

The problem here was a possible bias in the investigating officer's mind, and the likelihood that this could taint the entire case and lead to an unjust conviction. If you agree that this is a problem and a likely one at that — which I argued it is — there are still different remedies that can be imagined to help address it. Primarily, courts can either engage in a factual appreciation to examine the claims of bias, or can engage in a thumb-rule kind of approach which says that all such cases call for remedial action. The remedy that the bench in Mohan Lal considered fit was the latter: it held that there was no need for factual determinations to determine the likelihood or appearance of bias. Instead, the very fact, of the informant officer continuing on with the investigation, was good enough to deem the proceedings as tainted. 

I argued that this wasn't the correct cure for the problems, for several reasons. On the one hand, the rule places an extra burden on the police which is already acknowledged as poorly resourced when it comes to officers who can take up investigations. I also argued that this gave the police perverse incentives to lie and fudge records to be compliant with the law and simply change the name of the officer on paper rather than actually invest and get more officers to conduct investigations. Then there was the perception issue: defendants would be seen as getting away on technicalities, even if the entire case was conducted immaculately. 

It appears that the last of these has now stung a different bench of the Supreme Court. On 17.01.2019, a two Justices' bench in Mukesh Singh v. State [an appeal in an NDPS case] cast doubts over the validity of Mohan Lal and said that the remedy was "too drastic". They have placed the case before another Three Justices' Bench. We cannot know when that bench will preside and hear the case, and till then Mohan Lal remains good law. But it is telling that a decision that was passed to resolve a legal issue has already attracted the dissatisfaction of other members of the Supreme Court. 

It will be very interesting to see how this prickly debate is settled. One hopes that whatever ultimate judicial treatment the issues get, they are better than the manner in which the aftermath of another problematic opinion in Girish Kumar Suneja was addressed by the Court in Asian Resurfacing.

Thursday, January 17, 2019

The Reference in Tofan Singh's case - What's at Stake?

In 2013, a Division bench passed the judgment in Tofan Singh v. State of Tamil Nadu [(2013) 16 SCC 31], an appeal against conviction for offences under the Narcotics, Drugs and Psychotropic Substances Act 1985 [NDPS Act]. While suspending the sentence of the appellant, the bench referred the case to the Chief Justice for constituting a bench of higher strength to resolve conflicts on two legal issues:

  1. Is the officer recording a statement under Section 67 of the NDPS Act a "police officer" for the purposes of Section 25 of the Indian Evidence Act 1872 [IEA]?
  2. Can the statement recorded under Section 67 of the NDPS Act be treated as a confession, even if the officer recording it is not treated as a police officer?

The case was recently listed before a three Justices' Bench and has been heard on four occasions this month, making a judgment likely in the near future. While the hearings have escaped media attention almost entirely, it does not take away from the fact that the issues being decided are very critical for not only cases under the NDPS Act but also criminal proceedings more generally. In this post, I lay out just what is at stake, and give my prediction for what the Three Justices' Bench might do. 

The Issues 

Section 67 allows an authorised officer to record statements of any person to determine if a crime under the NDPS Act has been committed. It includes questioning persons arrested on such suspicions as well, and these statements can be used in evidence. In permitting the use of statements recorded during investigations, Section 67 departs from regular Indian criminal procedure. This can be found in Chapter XII of the Criminal Procedure Code 1973 [Cr.P.C.], that details the powers and duties of police officers during investigations. Sections 161 and 162 of the Cr.P.C. do permit police to record statements, but do not permit their use at trial (except to contradict a witness). 

Though significant, this issue is not before the Court in Tofan Singh. Instead, the issues mentioned above stem from judicial interpretations of the phrase “police officer”: whether or not it includes officers from other services invested with similar powers. Why does it matter? Because confessional statements made to a "police officer" are inadmissible under Section 25 IEA, and if those officers are considered to be outside its scope, then the confessions recorded by these officers become admissible evidence. 

The lasting judicial answer to this question is found in the Constitution Bench decision in Badku Joti Savant [AIR 1966 SC 1746]. It gave a thumb-rule to decide the matter: if an officer can file a Final Report under Section 173(2) of the Cr.P.C. (commonly called a Chargesheet), then it is a “police officer”. This narrow reading has meant that the confessional statements made to officers under the Customs Act 1962 and the Prevention of Money Laundering Act 2002 [PMLA], among others, are all admissible. [For more on this controversy, see here.]   

Now, read the NDPS Act with this lens. Section 36-A says that a case will begin on a chargesheet or a complaint by an "authorised officer". So if we apply the thumb-rule, then since no chargesheet is being filed then these officers are not "police officers". But things are not so simple. The NDPS Act is different, because here, police and authorised officers have coequal powers to investigate, unlike the Customs Act or PMLA where the police have no role to play. Further, the statutory text has subtle differences. The NDPS Act, through Section 53, allows a Government to invest officers with powers equal to those of an Officer in-charge of a Police Station under the Cr.P.C. "for investigation" of offences. A similar provision is absent from the Customs Act or PMLA. Section 67 of the NDPS Act is also different from analogous provisions in the Customs Act (Section 108), and PMLA (Section 50); the latter require making statements under penalty of perjury, which is absent from the NDPS Act context.  

Why was a referral was required in Tofan Singh? In that case, the Division Bench indicated that the authorised officers recording the statement under Section 67 should be “police officers”, and use of any confessional statements recorded by them should be hit by Section 25 IEA. The problem was that two prior decisions by Division Benches had held otherwise: Raj Kumar Karwal [AIR 1991 SC 45] held that the powers under Section 53 NDPS Act are insufficient to make the officer a “police officer”, and Kanhaiyalal [(2008) 4 SCC 668] relied on this view to allow confessions recorded under Section 67 into evidence. Thus, the controversy had to be placed before a bench of higher strength.

The Possibilities in Referral

It is critical that the referral is before a Three Justices’ Bench. This means that the thumb rule of how to identify a “police officer” cannot be re-examined in the Tofan Singh hearings, as that was the gift of a Five Justices’ Bench. Unless, of course, the present bench finds a novel route out of that quandary. This means that the hearings in Tofan Singh should play out within the limited context of the NDPS Act, leaving similar powers invested under the Customs Act, PMLA etc untouched. 

How might the hearings turn out? I have not been able to attend court, nor have I come across live tweets, but I would wager that if the Bench is inclined to retain the existing position then it would want to diminish the statutory differences and locate the NDPS within the existing law. Whereas, if it is inclined to change the law, it will focus on the subtle differences flagged above that make the NDPS Act regime unique. I would argue that the latter option the better choice. Both legally, and also because it fits in with a trend over the past two decades of heightened procedural protection for NDPS Act cases. 

The points of difference — that Section 53 NDPS Act invokes a police officer, and Section 67 does not require sworn statements — are not trivial, and the earlier cases that ignored them not very well reasoned. Raj Kumar Karwal held that Section 53 was insufficient because of Section 36-A requiring that the authorised officer prosecute cases via a complaint. Kanhaiyalal simply extended this to Section 67 as well. This approach is not certainly one way to read Section 53 and Section 36-A of the NDPS Act together, but it is incorrect.

Looking only at the complaint or chargesheet to identify the procedure is far too narrow an approach. Instead, what must be looked at is the entire process from the start to finish. This highlights how the NDPS Act is different from the Customs Act or PMLA: there, a prosecution is not the only inevitable outcome and imagine resolving cases through administrative proceedings. For this reason, those sets of procedures are not termed investigations. On the other hand, Section 53 clearly confers powers for "investigating" cases. Looking only at the statutory label given to the end-product of this process will mean privileging form over substance.  

These arguments carry much more bite in the NDPS context because of the other fundamental point of difference: none of the other laws confer powers on both the police and other agencies. Thus, here the arbitrariness is manifest within the same statutory framework. How can investigations led by one agency end up with more evidence and less procedural protections for accused persons than another, for prosecuting the same crime. It should amount to violating Article 14, given that the NDPS Act has no process for separating the kinds of cases that are investigated by police officers or other officers.       
Which brings me to the final point, of a visible trend for heightened judicial protection to accused persons in NDPS Act cases. Unlike regular Indian criminal procedure, here, the judiciary has held that violations from procedural norms carry serious consequences for the prosecution. Two instances stand out: evidence obtained contrary to statutory norms under Section 50 is inadmissible, and investigation by the same officer who lodged the case can vitiate trial. Allowing confessional statements to be rendered admissible under Section 67 would create a strange tension within the legal framework, and belittle the other safeguards that the judiciary has fought hard to create and protect. 

The hearings in Tofan Singh should conclude within the month of January 2019, making a judgment likely before the retirement of Sikri, J., who was the author of the decision that started this process. It is possible that the Three Justices' Bench upholds the position prior to Tofan Singh entirely and says that confessions under Section 67 shall remain admissible, or try and carve out some exceptions to the general norms laid down by the Constitution Bench in Badku Joti Savant to perhaps exclude the use of confessional statements recorded under Section 67. I have suggested that the latter course is more likely, and like everyone else, await to find out how the issues are ultimately resolved by the Bench. 

Saturday, December 29, 2018

Hiding in Plain Sight: The Relevance of Character Evidence in Indian Criminal Law

Can our past behaviour serve as a guide for predicting future conduct? The intuitive answer, is yes. Cutting-edge behavioural science research adds substance to this intuition and demonstrates that there are identifiable links between our past and future choices, helping policymakers to design better systems for ease of living (and companies to make more money through better advertising). This notion of prediction is at work almost everywhere, but not in the law of crimes and evidence in most Common Law countries. Instead, here we find that the law has strict rules that greatly limit the ability to rely on this link for prosecuting crime. Indian law is no exception: Sections 14, 15, 52-55 of the Indian Evidence Act 1872 [IEA] show that evidence of a defendant’s bad character is not generally relevant to prove that she was guilty of the offence in question. 

The Shift from Character to Responsibility in Criminal Law
In Making the Modern Criminal Law, Professor Farmer argues it was not always like this, and until the mid-19th Century it was routine for evidence of bad character to be the basis for court decisions. Things took a turn between 1870-1920 due to a multitude of factors, and the relevance of character was slowly replaced by a focus on responsibility in criminal trials. Two factors were arguably more important than others. 

First, responsibility came to fore as it became impossible for juries to arrive at judgments of character with any certainty for it to be used as a basis to render judgments. A fixed local context in a village meant everyone was well-known and judgments of character had resonance. But industrialisation gradually uprooted this idea of a fixed local context, and meant that the law had to look away from character for criminal trials to keep running. 

Second, the question "Why criminal law?" began getting different answers in this period. Till now, criminal law was seen as the tool to help ruling classes exclude certain undesirable types of persons from regular society. In this period between 1870-1920, this determinism in criminal types gradually lost out (as did the notion of ruling classes) and new opportunities were seen in the signalling effect of criminal law. Subjecting persons to censure and sanctions for what they intentionally or knowingly did, as opposed to who they were or what they did accidentally, was seen as a better way to send the message to persons on what kind of conduct was acceptable to maintain a desirable civic order.

Sir James Fitzjames Stephen was a prominent part of the intellectual movement that supported these changes to the Common Law of crimes. He was also the main draftsman of the Indian Evidence Act of 1872, which explains why the statute adopted some of these ideas rather early. In the years since, Indian law has not moved away from these precepts. Much like the rest of the Common Law world, evidence of bad character continues to be generally irrelevant towards proving guilt or innocence in India, but it can become relevant in certain exceptional cases specified by statutes. Today it is difficult to find many people disagreeing with the idea that nobody should be sent to prison only based on the bad reputation they harbour, for what if it might happen to you? 

Note, that the above discussion is about proving guilt or innocence through character evidence. If we find proof of guilt on completing trial, character evidence comes right back into the spotlight when courts are deciding punishment. Prior convictions can mean higher punishments, and having none can entitle a defendant to probation instead of jail time. This shifting of focus from the offence back to the offender at this stage is standard practice, especially so in a system like India, where trial judges have vast discretion at the sentencing stage and can award sentences anywhere between zero and the prescribed maximum. 

The Hidden Salience of Character Evidence Today
On paper, this is perhaps the end of the matter when it comes to evidence of bad character, but in practice it is not so. Consider a phenomenon that has been demonstrated in India, in context of the limits placed on use of character evidence to question the credibility of victims testifying in rape trials [Proviso to Section 146, IEA]. The rule was designed to curb decision-making based on ideal stereotypes of rape victims: it can’t be rape since the victim had an active sex life, etc.

In his book, Professor Satish demonstrates that, in practice, the rule only displaced such inquiries about a victim’s character from the guilt-determination phase to the sentencing phase. His empirical study demonstrated that sentences were higher in cases where the victims fit the stereotype of vulnerability, as against cases where they did not. Admittedly, the text of the rule does not bar the judge from considering the evidence of a victim’s character at the sentencing phase. But surely this indirectly perpetuates the same stereotypes that the rule was intended to eliminate.

This example nicely illustrates the hidden salience of character evidence today. Although the last century saw limits being placed on the relevance of character for questions of guilt or innocence, it is becoming increasingly apparent that notions of character — who you are — are still very pertinent in how criminal law is administered. While the example above was about victims’ interests, the same issue also exists when we consider the position of defendants: character evidence plays a big role in how persons are targeted as suspects and defendants in the criminal process. 

The argument is simple: None of the changes introduced to restrict the use of character evidence puts a handbrake on how crimes were investigated. To understand this better, imagine criminal law as a funnelling exercise. It is impossible to discover all instances of crime. Out of reported instances, it is again impossible to prosecute each of them for want of resources. Enforcement of law has a necessary selectiveness; an exercise of discretion by the police decides which cases merit the use of precious government resources.

How does the police exercise this discretion? They do so by employing a strategy of “rounding up the usual suspects”, i.e., on the basis of the very notions of bad character that the law has deemed improper for use at the trial. As a result, across the world, the data on persons arrested and prosecuted for crime appears skewed. Persons who are poor or from minority and / or immigrant groups are far more likely to be targeted by the police as suspects while choosing which cases to prosecute. In India, this has been witnessed in the disproportionate numbers of Muslim men being arrested in custody.

Character Evidence and Prosecuting Terror 
A lack of effective checks on the discretion of law enforcement agents is at the heart of the hidden salience of character evidence in the criminal law today. This is true for India as well. There is no set of rules or standards that guides which offences are classed as cognizable (offences allowing arrests without judicial warrants) leading to an unprincipled growth in cognizable crimes over time. A wide array of cognizable crimes gives legal sanction to the police for pretextual arrests and prosecutions and an opportunity to enforce character-based prejudices rather than the pursuit of genuine threats or suspects.

Broadly defined criminal laws also give wide, unchecked discretion to the police. These can be very deceptive as they often have a mental element like “knowledge” or “intention” clearly set out, as if the lawmakers are telling us that this is a proper crime and not a regulatory offence that criminalises without any need of showing culpability. But once we move past this, it is quite common to find a broad definition of the conduct that is being criminalised. Since the police cannot be expected to prove existence of the culpable mental element when they initiate the criminal process by arrest, effectively, through broadly defined criminal laws the law confers a license on the police to arrest anyone they desire. 

To see this in play, imagine a statute that makes it a crime to knowingly offer financial support to an organisation banned by the government. Now, imagine another law that makes it a crime to “associate” with a banned organisation with an “intention to further its activities”. Remember that the police will normally initiate the process based on observable conduct and not the mental element that accompanied it. Keeping this is mind, it is evident that the first example offers a degree of clarity: the criminal conduct is specified, and consequently helps confine the compass of suspicion for the police to justify arrest and investigation. The second is like clay putty in a child’s hands, as permitting police to arrest for suspected “associations” means, according to the dictionary, they can arrest for suspicions of any connection between two entities. 

These are not imaginary crimes but part of India’s main anti-terror statute, the Unlawful Activities Prevention Act 1967 (UAPA) [Sections 40 and 38, respectively]. Another example of an offence that has a clearly stated mental element, coupled with a broad range of conduct that can trigger the crime is Section 15 of the UAPA. This provision criminalises "Terrorist Acts" by first specifying the mental state, but then expands the range of proscribed conduct to include damage to any property. What this translates to is a vast ocean of unregulated discretion with the police to target persons who “look like” trouble, or are “anti-national types”, or “urban maoists” through the UAPA without any hard proof of conduct that justifies the kind of fear that the label of terrorism generates. 

Is this why an overwhelmingly large number of prosecutions under the UAPA not bring convictions? Perhaps. But the problem is that the trial stage, where an improper and possibly a character based prosecution can be screened out after being tested for proof and reasonable doubt, comes after an excruciatingly long wait in UAPA cases. Trials under the UAPA involve a long waiting period that is usually spent by defendants in custody, since the UAPA adopts a much harsher set of rules for granting bail and also allows for longer pre-trial custody during investigations [Section 43-D, UAPA]. Thus, even though the rule of law mandates that individuals must not be targeted and tried simply because of who they are, the prosecution of anti-terror crimes in India actively perpetuates these consequences.

Criminal trials counteract the intuitive notion that our past acts can serve as a predictor of future conduct. But it would be a mistake to assume that the rules of criminal trials spread consistently throughout the legal system. A cursory look confirms that character evidence remains relevant in the stages of sentencing with express legal support. But a closer look reveals the existence of a hidden salience of character evidence, often working to undermine the very goals that the exclusion of such evidence at trials was designed to achieve. 

Ending this haphazard nature of regulation for character evidence will certainly help to bring any legal system in alignment with its professed aims. Thus, if Indian legislators really do think that the evidence of character is useful for determining guilt or innocence, then they should effect such changes. The limited legislative engagement with these issues in recent decades suggests that India’s professed values support the opposite conclusion, however, which then means that steps must be taken to reduce the role character evidence plays through the criminal process.

An obvious point of reform would be placing stricter checks on the enforcement of laws by police by arrests. It is something that the Indian Supreme Court has supported, albeit in a haphazard manner itself through cases like Joginder Kumar, DK Basu and Arnesh Kumar, and so is arguably a point of intervention that can gather broad consensus. But this will take time, and in that time, hundreds of persons will remain in custody awaiting a trial in their cases, having been prosecuted under vague offences such as the UAPA. 

Perhaps the first point of intervention, then, is to reform the process of pre-trial custody in this context. Given the high probability of character-based prosecutions which do not withstand the test of "beyond reasonable doubt", should the law stick to a process which not only allows for upto six-months of custodial detention during an investigation, but also makes it virtually impossible to grant bail till conclusion of the case? If the trial cannot follow in a conviction, we must ensure that the process is not a proxy for the same punishment.

Tuesday, December 25, 2018

Guest Post: Arrests Under the Infamous ‘No Vakil, No Appeal, No Daleel’ Law

(I am happy to host a guest post by Ms. Aasavri Rai, a final year student of the B.A. LL.B. (Hons.) Program at National Law University Delhi)

The National Security Act, or as it is (un)popularly called the "no vakil, no appeal, no daleel" law, became effective from 27th December 1980, pursuant to a National Security Ordinance which was introduced by the then Prime Minister Indira Gandhi. The Ordinance promulgated on 23rd September 1980 was originally meant to "deal with black marketeers, smugglers and anti-social elements, and not to end civil liberties". Even in this brief period of three months, over 730 arrests (excluding figures from Punjab and North-East) were made under the Ordinance. These arrests did not target a single smuggler or black-marketeer; instead, well-known political activists and trade unionists were hauled up by the government. One such name was that of trade unionist AK Roy, whose writ petition, along with others, was heard by a Constitution Bench of the Supreme Court in 1981. 

This disturbing trend has been exacerbated through the years, as the NSA has been used freely with little regard to the original purpose of this preventive detention legislation. The Act is employed as a weapon to stifle political dissent. Uttar Pradesh has seen glaring misuse of the statute with over 160 arrests being reported in January 2018. The arrest and re-arrest of a journalist who criticised the Prime Minister in a social media post, a Krishak Mukti Sangram Samiti leader’s re-arrest ahead of Amit Shah’s visit, and Bhim Army chief’s arrest under the Act, a day after acceptance of his bail petition, are other disturbing instances of the misuse of the Act. 

The exceedingly broad and open-ended grounds of detention have resulted in a widespread misuse of the Act. In this post, it is argued that the grounds for detention under Section 3 are vague, disjunctive and thereby have a low threshold, and are determined as per the subjective determination of the detaining authority, which is shielded from judicial review. 

Vagueness under Section 3 of the NSA
What are the grounds detailed under Section 3 of the NSA? Section 3(1)(a) of the Act tells us that orders for preventive detention can be issued in respect of any person, to prevent them from "acting in any manner prejudicial" to (i) the defence of India, (ii) India's relations with foreign powers, or (iii) India's security. Foreigners can also be subjected to preventive detention to regulate their continued presence in India or towards making arrangements for their expulsion [Section 3(1)(b)]. 

These were new grounds, and at least hypothetically speaking, limited. But the same cannot be said for the next set of grounds that follow in Section 3(2): preventive detention orders are possible to safeguard the (i) security of the State, (ii) maintenance of public order, or (iii) maintenance of supplies and services essential to the community. These were the grounds on which both central and state preventive detention legislation had been operating in the three decades of India's history as a republic. 

The challenge in AK Roy was to both sets of grounds, where petitioners argued that these were vague. It harked back to the customary international law principle of legality, that seeks to curb uncertainty and arbitrariness in law through vague and imprecise definitions. The Supreme Court agreed that the problem of vagueness is grave, but found that there was no problem in this case. Not because it gave us a concrete interpretation, but instead, as the controlling opinion noted, "formulation of definitions cannot be a panacea to the evil of vagueness and uncertainty". In doing so, it relied on the existing judicial engagement with Section 3(2) style grounds where the Supreme Court had consistently held that the vagueness was necessary. 

I argue that this was incorrect. While there was an extensive body of law on preventive detention, an uncritical application of the same was uncalled for. Largely because there was a watershed moment in this time: the re-insertion of due process requirements through the Bank Nationalisation and Maneka Gandhi decisions. These decisions supported an argument against vagueness and uncertainty in a much broader fashion than the pre-existing position. However, while the Court in AK Roy did not fail to cite Maneka Gandhi, it was incorrect in thinking that the decision did not prevent reliance on the pre-existing case law. 

The Court in AK Roy had an alternate path. Even if it was committed to saving the NSA - to avoid the wrath of the same Government that brought about the Emergency - it could have faithfully applied the stricter standards of judicial review that Bank Nationalisation and Maneka Gandhi offered and then built upon the existing law, where through decisions such as Romesh Thappar, Brijbhushan v State of Delhi, and Ram Manohar Lohia, the Court had in fact given guidance on how to interpret vague terms like public order. Instead, the Supreme Court went into full deference mode, and did not even attempt to venture into possible interpretations of the array of grounds provided under Section 3 NSA. 

This wide discretion in interpretation of the grounds for detention has led to an alarming increase in the instances of arrests in recent times. In Uttar Pradesh, 81 people were preventively detained after violence broke out in Kasganj, pursuant to which the DGP quoted that the NSA will be invoked against "criminals (emphasis mine) for vitiating the atmosphere". After 51 people were arrested for cheating on an exam, UP CM Yogi Adityanath directed the investigating agencies to slap NSA provisions, to ensure "transparent and corruption free" examinations. Arrests have also been made for brawls during neighbourhood cricket matches, allegedly carrying beef, and uploading videos on Facebook criticising the Prime Minister. Children of multiple detenus have faced ostracisation at their school, for their fathers being ‘criminals’. 

By no means is the vagueness of grounds under Section 3 the sole reason for calling the NSA a draconian law. Other notable features include the disjunctive requirement of satisfying the grounds, i.e., an order passed on many grounds can't be set aside unless all of the grounds are found to be bad. Together with this is the principle that courts cannot question the subjective satisfaction of executive officers who passed detention orders. But it should be clear that the vagueness issue greatly enhances the problematic nature of these other features. After all, it is the core of the NSA, and if the core is rotten, all else follows.

Preventive detention laws have found a place in the Indian legal system since the colonial era. Unsurprisingly, these legislations continue to be used to curb individual liberty and stifle dissent. The consequences of such statutes have historically proven to be dangerously repressive. The same can be witnessed at present where even trivial disturbances are being accorded the status of national security concerns. The idea behind preventive detention statutes is to detain people based on their previous conduct and the apprehension that they might engage in similar conduct in the future. The recent barrage of cases under the NSA has been against people with no previous history of misconduct. The cherry on the cake is the branding of the detenus as ‘criminals’, with the presumption of innocence being conveniently done away with. 

These instances also highlight the disturbing trend of the NSA being used as a tool to keep certain people behind bars. If criminal cases are pending against the accused and the accused is granted bail, almost immediately NSA charges are slapped to send her away again. In most such cases, the order of extension of the detention is arbitrary and the grounds are not conveyed to the detenu and her family members. Even though Section 13 of the Act provides for a twelve-month period, as noted in AK Roy, such a time duration is the maximum period of detention possible, and the detaining authorities are at the liberty to modify the order of detention and reduce the term. However, such a reduction of the period of detention is rarely ever witnessed in practice. The majority of these cases also reek of the biased and discriminatory policies of the administration, as most of the detenus are Muslims, people belonging to the Scheduled Castes, or the poor. While the Court had the ability to do away with the draconian provisions of the Act in AK Roy, it comfortably expressed its inability to derogate from the Constitutional provisions and expressed regret for doing the same. Though the Court does throw in certain observations to pacify the citizens, even these minimum possible protections aren’t being provided to the detenus.

Saturday, December 22, 2018

The Long Road Towards Ensuring Effective Legal Assistance - Article Update

This past week, the Delhi High Court partly reversed the verdict of a trial court and convicted Mr. Sajjan Kumar for murder and other offences, sentencing him to life in prison. The judgment has been in the spotlight for many reasons - the political stature of Mr. Kumar, the failures of legal systems to stand up to such political figures, and the revisiting of the horrific events of 1984. However, one thing that caught my eye at the start of the judgment itself was the stellar defence team that Mr. Kumar has had throughout his proceedings. I thought to myself, "man, that must have cost a fortune".

Now, this is very obvious; we all know that good lawyers cost money and so naturally rich people can get better legal services. It should also be obvious that this inequality of financial means can help perpetuate an inequality based on calculated discrimination. Since the State has an interest in having high conviction rates, it is incentivised bring more prosecutions against indigent persons unable to afford lawyers. Even if the perverse incentive is removed, most prison systems around the world do confirm that their criminal law perpetuates inequality of outcomes. Prisons have many more indigent than rich people, not because the rich are saints but because a legal defence costs money.  

If a system is bothered by this then it tries to bridge the gap by providing free legal assistance to those who can't afford lawyers. The Indian legal system falls in this category. After the Supreme Court took the lead to recognise free legal aid as a fundamental right in the late 1970s, the federal government took steps to install a legislative framework which finally got going in the mid 1990s. But while all of this work was happening to ensure access to counsel, very little was asked about the quality of the free legal assistance being rendered. In fact, very little was asked about the quality of legal assistance in general

Thus, most people are understandably unaware that Indian law has organically grown to recognise a legally enforceable right to effective assistance of counsel for criminal defendants. Such a right is an invaluable tool in India's systemic commitment towards ensuring that the quality of justice received by both rich and poor persons does not markedly differ. It is a reminder that the mere presence of a lawyer is insufficient, and even counterproductive, for every person deserves a vigorous defence.   

Unaware about it myself, I did some modest research on the issue and the paper can be accessed on SSRN. What I found was rather troubling. It would seem that the lack of attention paid to the issue of quality control in legal aid has meant that rather than being used to harness this transformative potential and move towards a more equal justice, the right to effective legal assistance currently achieves little more than to redress the most glaring of errors. For instance, reversing trial court judgments where the lawyers are asked to finally argue a capital case on the date of appointment. Or lawyers do not appear throughout the trial proceedings. Since such errors could be remedied through other existing rights, it means that the right to effective legal assistance ends up being little more than a fig-leaf.     

Why does this happen? I do not think this is because India has adopted standards from American law in this context, as has been suggested. In fact, a close reading of the cases shows that India has not done so, and the legal doctrine remains quite unclear. But despite all this, what is clear through the law is that defendants bear the burden to prove that their lawyer gave ineffective assistance. How do they prove this? Documents, which ultimately means the trial court papers, which are not focused on what lawyers did during trial but instead on giving a summary of what transpired. The only place where the lawyers appear is in marking their presence and the recording of evidence, which explains why these stages have attracted judicial attention in cases about effective assistance.    

Why is that a problem? Because far too much is excluded from review. Effective legal assistance is about more than just coming to court and examining witnesses. It is about ensuring that the client inputs are heard, that the client is kept informed about the case, that a defence strategy is chalked out, and a consistent and plausible defence is taken at trial. For instance, you cannot deny the prosecution case throughout trial and suddenly change tack and admit the incriminating facts at arguments unless you have good reasons. But those reasons and all these aspects, more generally, remain hidden if we only consult the trial court papers. 

The Indian setting creates other problems. It is widely acknowledged that Indian criminal procedure is very complex and difficult for laypersons to manoeuvre without lawyers. Since lawyers speak for defendants and create an active part in making the trial court record, it is very difficult for them to check if there has been no impropriety and that the record faithfully represents what happened. Not only because of the unfamiliarity with court, but also because when defendants start asking those questions they run a risk of antagonising the lawyer itself.  

Further, since trials take years to conclude in India, effective legal assistance involves questions about what lawyers do during the interim. Was a bail application filed and what grounds were taken? Did the lawyer contest adverse findings in superior courts? If we evaluate effective assistance based on trial performance alone, the whole point of the exercise is potentially rendered redundant. 

This truncation in scope of what comes under the scanner while considering questions about effective legal assistance is bad in itself, but it also carries significant downstream consequences. If the basic premise of the right to effective legal assistance being critical for indigent defendants is sound, then a system where indigent defendants repeatedly fail in their claims except for the worst kinds of error ends up normalising lower standards of legal assistance, and also reducing client expectations.  

What can be done? The answer is not merely a question of better tools or regulating the litigation on effective assistance when it does arise. But instead, the groundwork has to be laid much earlier, by providing everyone clarity on what is meant by effective assistance. Ultimately, all stakeholders — the Government, Judiciary, and Bar Council of India (statutory regulator for the legal profession) — must sit together to help fill the massive gaps one is confronted with when talking about minimum standards of what lawyers are required to do, and what clients can expect. Unless all stakeholders take a long hard look at the status of the right to effective legal assistance in India, that idea will itself end up cementing the very injustice that it was designed to eradicate.     

Monday, December 10, 2018

Diluting the Right to Silence: A Postscript

For those who missed it, Sregurupriya made a powerful critique of the recent Supreme Court decision in Prahlad v. State of Rajasthan [Crl. Appeal 1794-96 of 2017, decided on 14.11.2018], where a three Justices' bench upheld a murder conviction because the defendant failed to convincingly explain the incriminating circumstances in the case. Sregurupriya argued that the decision gravely dilutes the right to silence, constitutionally guaranteed to defendants under Article 20(3) which protects against compelled self-incrimination. In this short postscript, I offer two, very loosely related, points. First, I question the continued relevance of the statutory provision that allows for this judicial questioning of the defendant - Section 313 of the Criminal Procedure Code [Cr.P.C.] 1973. Second, I suggest that the right to silence was already extremely diluted in India, with the need for a relook starting much before the 313 stage which was the focus in Prahlad.

Do We Still Need Section 313 Cr.P.C.?
Let me make a brief detour to recount the ordinary trial procedure for offences punishable with more than two years imprisonment. After the court frames charges, the prosecution is asked to furnish its evidence wherein witnesses are called and documents / materials are exhibited. Once the prosecution has closed its case, we enter the Section 313 Cr.P.C. phase - where the judge, with the help of prosecutor and defence counsel, poses questions to the defendant who is required to answer them, even if only to tell the court "I do not remember" or "I do not know". 

This seems decidedly wrong. What about the defendant's constitutional right to silence, and all the rhetoric about the presumption of innocence with the prosecution shouldering the burden of proof? Section 313 Cr.P.C. is, purportedly, intended to support all of this by giving an opportunity to the defendant to explain the incriminating facts without swearing on oath. It is nothing more than actualising the great principle of giving the person a right to be heard - audi alteram partem [See, pages 45-46 of the 154th Law Commission Report (Vol. 1)]. Since the law treats the Section 313 Cr.P.C. statement as evidence, it means the court can rely on this explanation as well. As Prahlad illustrated, that reliance is clearly not restricted to acquittals alone.

The contradiction at the heart of this justification should be obvious: Why do courts need to call on explanations from defendants if they are presumed to be innocent until guilt is established beyond reasonable doubt, especially since defendants can take the stand and give the evidence themselves? There, I think, lies an important truth: Section 313 Cr.P.C. has been around from times when defendants had no right to give evidence. A verbatim provision was present as Section 342 in the 1898 Cr.P.C., and under that Code defendants had no right to testify up till the mid 1950s. In that setting, something like a 313 statement made sense as defendants had no other recourse to address potentially bogus theories of the prosecution. Once we confer upon defendants the right to speak at trial, the formerly benevolent provision begins to assume a more sinister role. 

As Sregurupriya illustrated in her post, Supreme Court decisions have repeatedly told trial courts to not use the Section 313 Cr.P.C. statement to fill gaps in the prosecution case, nor to draw adverse inferences against the defendant based on answers in that statement. What does that tell us? It shows that despite persistent reminders from the highest Court, trial court judges can't help but act like human beings: It's only natural to expect an innocent person to explain away circumstances and those guilty to remain quiet. Which is why scholars have also persistently reminded us that the entire idea of a right to silence is counterintuitive to most people. To put it bluntly, you can't tell judges that they can make defendants answer their questions and then expect the same judges to be selective in their appreciation of the responses. Section 313 Cr.P.C., thus, will always hinder the right to silence, if not in law then in practice. Maybe it's time to reconsider its utility.

Whither the Right to Silence?
News reported that India's Central Bureau of Investigation [CBI], the premier investigating agency [recently discussed here], successfully petitioned the trial court to extend the pretrial custodial remand of Christian Michel - at the centre of a big financial conspiracy case. The reason? Because of his "non-cooperation" and his "evasive answers" in the interrogation. For those unfamiliar with the Indian criminal process, it might take two seconds to digest this: in a system purportedly conferring a constitutional right to silence, how can pretrial custody be extended for "non-cooperation" with police investigations? And yet, that is the reality, common for defendants across the spectrum. 

Having experienced this reality first-hand for some time now, the decision in Prahlad did not come as a surprise to me. Even on the matter of judicial policy and precedent, Prahlad is only the newest page in a long, long chapter of Supreme Court decisions that have positively denuded the right to silence of any substance. Allow me to demonstrate this with a simple example. Imagine that the Delhi Police lodge a First Information Report alleging that Person X stole a car, thus committed theft and arrest her. Also imagine that a Customs Officer arrests Person Y on allegations of smuggling gold into India. Today, Person Y will have no right to silence till the start of trial. Replace the customs offence with any offence which is not investigated by the police and you get the same result, despite being arrested. Why? Because of the Supreme Court's consistent position to require a "formal" accusation, the absence of which is sufficient to ignore all substance — a position that I have strongly criticised earlier [see here, here, and here].

If the stakeholders in the Indian criminal process really do wish to honour the right to silence, then a lot of the existing law must be reconsidered. Section 313 and statements at trial will come much later in that process, which first requires taking a long hard look at how investigations are conducted. This is not something radical — India has been crying out for "scientific" investigations since the mid-1950s. But with each passing year, as decisions like Prahlad are rendered which further diminish the scope of a right to silence, the guarantee of Article 20(3) might well be rendered an ignoble epitaph for our transformative Constitution itself.  

Sunday, December 9, 2018

Diluting the Right to Silence? The Supreme Court's Decision in Prahlad v Rajasthan

(I am delighted to present a guest post by Ms. Sregurupriya Ayappan, a Fourth Year student of the B.A. LL.B. (Hons.) program at NLSIU, Bangalore)

Recently, a three Justices’ bench of the Supreme Court rendered its decision in Prahlad v. State of Rajasthan [2018 SCC OnLine SC 2548] that could potentially be a dangerous precedent for the years to come. The facts, simply put, were this: The accused was alleged to have raped and murdered an eight-year old girl child. The child was last seen with him as he purchased sweets for her from a shop, shortly after which she went missing and her corpse was found next morning. The Trial Court convicted the accused for offences under Section 302 of the Indian Penal Code [IPC] and Section 4 of the Protection of Children from Sexual Offences Act 2012 [POCSO]; a verdict confirmed by the High Court, an appeal against which ended up before the Supreme Court. 

Lack of Evidence and a Specious Leap in Reasoning 
The evidence was purely circumstantial and the prosecution could establish little beyond the fact that the accused had, at some point on the same day the child went missing, taken her to a shop and bought her sweets [Para 5]. The medical examination revealed 5 injuries which, the medical expert stated on cross-examination, were “simple in nature and they are likely to be caused by falling.” [Para 11]. 

Based on this, the Supreme Court acquitted the accused of the POCSO charges as it found no “reliable material” to conclude otherwise [Para 11]. At the same time though, the Court found “ample material” against the accused to sustain a conviction for murder. What was this ample material? It was not anything that the prosecution offered as evidence. Instead, the Court found support in a different source – the statement of an accused tendered without oath under Section 313 of the Criminal Procedure Code 1973 [Cr.P.C.]: 

“No explanation is forthcoming from the statement of the accused under Section 313 Cr.P.C. as to when he parted the company of the victim. Also, no explanation is there as to what happened after getting the chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, leads to an adverse inference against the accused.” [Para 9, emphasis mine] 

In this post, I posit that this treatment by the Court of the statement under Section 313 Cr.P.C. has effectively equated silence of the accused to guilt and is problematic on several grounds. 

What is Section 313 Cr.P.C.? 
According to the legislative scheme of the provision, the accused can be examined at any stage of a trial or inquiry. All the incriminating material gathered against him are shown and he is given an opportunity to provide explanations and put forth his defence. Crucially, the accused is not put on oath at any point during this examination. He shall also not be liable to punishment for refusing to answer or even providing false answers. The answers may then be produced as evidence of record by either prosecution or defence and may be taken into consideration. In other words, the statute itself expressly provides for the right of accused to remain silent. Nowhere does it state that the accused is “expected to come out with an explanation”, as the Court in Prahlad required. [Para 9] 

Judicial Bolstering of Section 313 
Courts too have interpreted Section 313 Cr.P.C. in line with the legislative intent and have even strengthened the rights of the accused under this provision. They have clarified that the statement under Section 313 Cr.P.C. is not substantive evidence and is merely an aid for the Court to examine the evidence on record. It can neither be made the sole basis for conviction, nor can it be used to complete the missing links in the prosecution’s evidence. [Raj Kumar Singh v. State of Rajasthan, (2013) 5 SCC 722, Para 36] It has also beneficially interpreted it to observe that a court is bound to examine whether the defence, if any, put forth by the accused is a plausible narrative given the evidence on record. [M. Abbas v. State of Kerala, (2001) 10 SCC 103, Para 10] Further, courts have also read in the ‘rule against adverse influences’ and stated that no adverse inferences can be drawn from the silence of the accused in the examination under this provision. This has in fact been considered conjunctively with Article 20(3) of the Indian Constitution and is, hence, a facet of the fundamental right against self-incrimination. [Selvi v. State of Karnataka, (2010) 7 SCC 263, Paras 84, 126] This position has been reiterated time and again in a catena of cases. It is then evident that if even the answers of accused cannot be used as evidence against him, it is inconceivable that the silence of the accused, when he is constitutionally and statutorily guaranteed that rights, can be relied on to concoct a narrative that convicts him. 

Undoing ‘Trite’ Law and the Rights of Accused in a Single Blow 
As we can see, the object of the examination under Section 313 Cr.P.C. is to benefit the accused by providing him an opportunity to defend himself. He has the right to remain silent and the only way in which the provision can be used against the accused is if he has made a statement supporting the prosecution which the court may then use as aid while appreciating the evidence. The Court in Prahlad, however, has: (i) abridged the fundamental right to remain silence and reversed the burden of proof, (ii) overlooked the important fact that the accused is not put on oath when he is subjected to inquiry under this provision and (iii) finally, has exacerbated the divide between those who can and cannot afford good counsel. 

Firstly, under Indian law, the accused has a right to silence and can remain silent through the entire process and furnish no evidence of his own. It is the duty of the prosecution to discharge the burden of proving that the accused is guilty beyond reasonable doubt. The prosecution must “stand or fall on its own legs and cannot derive any strength from the weakness of the defence.” [Sharad Birdhi Chand Sarda v. State Of Maharashtra, (1984) SCC 4 116] This is provided for in Section 101 of the Indian Evidence Act, 1872 [IEA]. Mere silence cannot shift the onus upon the accused even under Section 106, IEA unless the prosecution has first established a case against him. If not, the benefit of doubt must be given to the accused due to the presumption of innocence which works in favour. By drawing adverse inferences from the silence during the examination under Section 313 Cr.P.C., the Court in Prahlad has decreased the scope of the right against self-discrimination and is effectively asking the accused to prove his innocence. 

Secondly, the statement under Section 313 Cr.P.C. is taken without administration of oath to the accused. Oath is an integral element for the statement to be relied on as evidence since it puts the maker of the statement on notice that s/he can be prosecuted for perjury. This increases the reliability of the evidence considerably whereas in this provision, the inverse is true given the statutory leeway to lie. Further, the accused is not subject to cross-examination for the statement made under Section 313 Cr.P.C.. This effectively means that two out of the three safeguards, the last being demeanor, which the Court can rely upon to ascertain the truth is absent in the case of a Section 313 Cr.P.C. statement. It is for this reason that the Supreme Court has itself observed that this statement “cannot be treated as evidence within the meaning of Section 3 of the Evidence Act, as the accused cannot be cross-examined with reference to such statement.” [Sujit Biswas v. State of Assam, (2013) 12 SCC 406, Para 12] 

Lastly, how advantageously the accused uses the opportunity afforded to him in Section 313 Cr.P.C. and what statements he makes to point out his innocence depends on whether he has access to effective counsel. Given the large number of cases in which accused with poor means have to rely on disinterested and negligent legal aid lawyers, more often than not, they squander away this right – either by remaining silent where they have a cogent alternative explanation for the evidence on record, or by making incriminatory statements when they should have exercised this right to silence. It is then incumbent upon the Court to beneficially interpret Section 313 Cr.P.C. so that the accused is ensured a fair trial instead of using it as a tool to implicate the potentially innocent. 

Reena Hazarika and the Precedent Problem 
In stark contrast to the disappointing decision in Prahlad, a two Justices’ bench of the Court in Reena Hazarika v. State of Assam [2018 SCC OnLine SC 2281] interpreted Section 313 Cr.P.C. in consonance with the precedents and legislative intent I discussed above. In this case, a woman was had allegedly murdered her husband and the evidence of record, entirely circumstantial, only established the presence of the accused with the deceased the night he died. The Court relied on the statement of the accused under Section 313 Cr.P.C. which presented a plausible alternative and explained her presence with the deceased to acquit her. The Court reiterated that Section 313 Cr.P.C. enshrined the constitutional right to fair trial under Article 21. It was faithful to the text of the provision as it reiterated that the accused could put forth a defence under Section 313 Cr.P.C. at any stage of the trial, even after the prosecution evidence is closed. It went on to state that if the defence of the accused is not considered at all by the Court, then the conviction itself stands vitiated. [Para 16] 

Unfortunately, Reena Hazarika and the many cases before which have safeguarded the rights of the accused are rendered by smaller benches and could stand overruled by Prahlad. Even Selvi, also by a 3 Justices’ bench, does not come to our rescue given the lack of judicial clarity regarding what would be considered precedent when there are conflicting decisions rendered by co-equal benches (discussed here). 

As we can see, the ramifications that this decision could potentially have given its interpretation of Section 313 Cr.P.C. are grave. Not only has Prahlad transferred the burden of proof from the prosecution to the accused and violated the principle of presumption of innocence, but it has gone against the text of the provision concerned itself and abridged the right against self-incrimination under Article 20(3) of the Constitution. 

It bodes ill that Prahlad may not be considered per incuriam and could be the law binding on all courts as stipulated by Article 141 of the Constitution. What is even more ominous is that this trend of doing away with the ‘rule against adverse inferences’ in the Supreme Court seems likely to continue with Justice Lokur recently making remarks similar to the reasoning in Prahlad in a matter reserved for judgment. This could result in yet another 3 Justices’ bench decision affirming the dilution of the right against self-incrimination under Section 313 Cr.P.C.