Wednesday, July 26, 2017

Guest Post - Same Day Sentencing in Death Penalty Jurisprudence

(I am happy to host this Guest Post by Ms Nivedita Mukhija, an advocate practising in New Delhi)

235. Judgment of acquittal or conviction.(1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case.(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.

This provision is an explicit recognition of the idea that the relevant considerations for sentencing are different from that for conviction/acquittal, and thus, sentencing should be treated as a separate phase in a trial. It has assumed considerable significance in death penalty jurisprudence, where lower courts often downplay the importance of hearing, in detail, all aggravating and mitigating factors awarding the death penalty, erroneously assuming that these factors have already been sketched out during the trial. Bachan Singh v. State of Punjab [(1980) 2 SCC 684] called Section 235(2) as something enabling a “bifurcated trial”, wherein the accused submits evidence possibly without bearing on the crime, but which may still be linked to the “special reasons” to be provided while awarding a death penalty as per Section 354(3) of the CrPC

Conflicting Lines of Judicial Opinion
The question, however, is whether a separate phase implies that a different date be set for hearing on sentencing, or, whether sentencing can be conducted right after the determination of guilt has been concluded. There seem to be two lines of cases emanating from the Supreme Court. One states that Section 235(2) cannot be done justice to unless a different date is set, to afford ample time for the accused to prepare a case on sentencing. The second holds that Section 235(2) merely implies that the accused must be effectively heard, which does not require setting a different date for hearing. I argue here that sentencing should always be deferred to a later date in death penalty cases to grant an effective hearing to the accused. I also contend that if this has not been done, the appellate court should remand the case, as a fact-intensive exercise like sentencing should be done by a court of first instance, which also rightly extends the right to appeal against that decision to an accused. While doing so, the appellate court must ensure that the case is disposed off in a timely manner by the lower court to maintain judicial efficacy and reduce the suffering of the accused through further delays.

Set One: Mandatory Separation of Trial and Sentencing Phases

With respect to the first line of cases, the most prominent example is perhaps Allauddin Mian and Ors. v. State of Bihar [(1989) 3 SCC 5], where three judges of the Supreme Court recognised the importance of giving the accused an effective opportunity of placing all relevant mitigating factors, antecedents and background information, and other extenuating factors on record. The bench held in context of Section 235(2) that as “… a general rule the trial courts should after recording the conviction adjourn the matter to a future date ...”. It was believed that the accused must be allowed to absorb and overcome the shock of conviction before being heard on sentence. Since this was not done in that case, the Supreme Court went on to convert the death sentence into life imprisonment, finding insufficient material on sentencing to warrant awarding the death penalty. This decision was followed in Malkiat Singh v. State of Punjab [(1991) 4 SCC 341], where another three-judge bench noted that usually a failure to give sufficient time to adduce evidence on sentencing would lead to remanding the case. However, in that case, the Court held that given the long period of incarceration (it had now been six years since the accused was first convicted), it was more expedient to convert the death penalty into life imprisonment.

Set Two: Same Day Sentencing

The second line of cases is concerned more with hearing the accused sufficiently on sentence, and holds this can be done on the same day as well. On the point of remanding the case, these cases suggest that sentencing hearings need not involve remands. These views take their root in yet-another three judge bench decision in Dagdu v. State of Maharashtra [(1977) 3 SCC 68], wherein the Court held that a failure to be heard on sentence would not automatically entail a remand, and the appellate court could hear the accused on sentence at the later stage as well. The Court called remand the exception, in the interests of judicial efficacy.

A slew of recent decisions has come in support of same-day sentencing, to which I now return. In 2016, yet another three judge bench held in B. A. Umesh v. State of Karnataka [2016 (9) SCALE 600] that there was no mandate under Section 235(2) to fix a separate date for hearing on sentence, and the Court was required to determine whether an effective hearing was granted after looking the facts and circumstances of a given case instead. Merely because no separate date was fixed was no ground to allow the review petition, the Court held in the death penalty matter. The Court also noted that the parties had not objected to not being given a separate date of hearing in the lower courts, and since then several courts including the Supreme Court had heard the parties on the question of sentence in sufficient detail. This was reiterated by three judges in Vasanta Sampath Dupare v. State of Maharashtra [2017 (5) SCALE 724]. 

Neither B. A. Umesh nor Vasanta Sampath Dupare explain the inconsistencies arising by comparing their logic with the Allauddin Mian line of cases. Instead, they simply rely on Dagdu. Recently, in Mukesh and Ors. v. State of NCT of Delhi and Ors. [2017 (3) SCALE 356], the Court over-simplified the conundrum by stating that these decisions reflect two modes that can be afforded to the accused to present a case: either to remand it before the High Court, or be heard on sentence before the Supreme Court itself [the Court believed, in that case, that “regard being had to the nature of the case”, the second mode was preferable].

Making the Case for 'Bifurcation of Trial' 
It is submitted that this second line of decisions disregards the ‘bifurcation-of-trial’ approach adopted by Bachan Singh. These decisions do not explain why the exercise of sentencing, which is governed by different considerations, and may involve new evidence and witnesses requiring different preparation altogether, should be undertaken on the same day. While many of these decisions rely on rhetoric of ensuring an accused has been granted ‘effective hearing’, the Courts must also recognise that adequate time to prepare on a different limb of a trial is a pre-requisite to effective hearing.

The recent decisions I highlighted are also problematic on another level: they imply that the failure of the lower court to hear effectively on sentencing is remedied when an appellate court hears the same. However, our judicial system clarifies that the lower Courts are the courts of evidence with such exercises being exceptional during appellate hearings. Thus, original evidence must as per rule first go through the lower Courts, which are better equipped to deal with the same. Further, under Article 131 and the Supreme Court Rules, 2013, original jurisdiction is only limited to civil suits between the union and the states, or inter se states. For a factually-intensive exercise such as sentencing, often requiring cross-examination, the Supreme Court is not the ideal place for a first (and often final) determination. (On this, see,

Another important reason to question the second approach is that an automatic bypass in such cases would deny an accused a right to appeal against the ruling in the sentencing stage before the Supreme Court (see This leads to there being no chance of re-appreciation of evidence on sentencing in case of an error in judicial reasoning. In a death penalty case, where the stakes involved in the sentencing process are highest, we must ensure that there is the protective layer of multiple levels of Courts having the option of hearing on sentence.

Conclusions and Some Ways Out of the Bind
Since B. A. Umesh states that same day sentencing was not an issue there because it was not raised before lower courts, defence lawyers should ensure that the need for a separate date for sentencing is adequately highlighted before the lower court itself. Defence lawyers can perhaps also use the caveat given in Malkiat Singh, and argue that prima facie errors in sentencing coupled with lengthy delay for someone on death row should result in converting those cases to life imprisonment, instead of conducting a mini-trial for sentencing yet again. The Supreme Court's current treatment of 'delay' as a factor requires more nuance but. Consider Yakub Abdul Razak Memon v. State of Maharashtra [(2013) 13 SCC 1], where the Court concluded that sentencing hearings must involve remand unless it is likely to cause delay. But, I ask, given the pervading backlog in case-disposal, when would remand not involve some delay? Moreover, the lack of nuance uses delay to take away a right of appeal at the cost of judicial efficacy. Bland arguments suggest delay only lengthens the suffering of those on death row. Of course delay is bad, but it does not entail cutting corners to arrive at the end. This trade-off is unconscionable. Thus, I conclude with suggesting it is time that the Supreme Court clarifies the inconsistency between the two lines of cases by stating the true scope and import of Section 235(2), and while doing so pays heed to the adverse effects of not remanding a case in a case where the judicial power to take a life is at stake.

Thursday, July 20, 2017

Supreme Court on Electronic Evidence - Sonu v. State of Haryana

On 18 July 2017, two judges of the Supreme Court dismissed three appeals [Crl. Appeal Nos. 1416 of 2013, 1652 of 2014, and 1653 of 2014] in the decision reported as Sonu @ Amar v. State of Haryana. The Appellants had been found guilty in 2010 of abduction and murder, and had been sentenced to life imprisonment which had been upheld by the High Court. One of the main grounds for these appeals was lack of any certification under Section 65-B of the Indian Evidence Act 1872 [Evidence Act] for electronic records that had been relied upon in evidence. This was the Call Detail Records [CDR] that the police had collected during investigation. Crucially, the Supreme Court has held in this pernicious decision that a CDR, without any Section 65-B certification, could be relied upon to support the conviction.   

Recap - 65-B, Anvar Basheer, and Certificates for Electronic Records
This Blog has discussed the law on electronic evidence in some detail, specifically the changes in law that were brought about by the decision in Anvar P.V. v. P.K. Basheer [(2014) 10 SCC 473], delivered by a bench of three judges. That decision held that for any electronic record of a secondary nature - such as the printed pages comprising a CDR - to be considered admissible in evidence, it must carry certification as prescribed by Section 65-B(4) of the Evidence Act. Therefore, since 2014, the issue of certification has been relevant for all pending cases - both trials and appeals. 

Many coffee table conversations discuss how India has a low conviction rate and people go scot-free on technical grounds. Now imagine if I told you, that serious offenders are winning appeals arguing that evidence in their trial (which concluded ten years ago) is inadmissible because of what the law says today because of what a case has held. Would you think that, well alright, rules of interpretation suggest that evidence laws will have retrospective application and so it is only fair? Or, will you baulk at the idea and decry it as a failure of justice? The odds of the latter are higher, and this led to different courts carving out bits from the ruling in Anvar. Most notably, it was done by a bench of two judges of the Delhi High Court in 2015 where they interpreted Anvar to mean that certificates need not be contemporaneous but can come in later, as long as a certificate came and was proper. Incidentally, that decision also dealt with CDRs and murder charges.

Sonu v. Haryana - A Clear Misstep
The Supreme Court had unequivocally upheld Anvar. Until now, when a bench of lesser strength in Sonu v. State of Haryana went ahead and relied exactly upon these concerns to deny the Appellants from raising the issue of the CDR not carrying a certificate under Section 65-B. The problem with the decision is simple. It is concerned by application of Anvar to pending appeals but at the same time it acknowledges that nowhere did the three judges in Anvar expressly say the ruling would only apply prospectively. The judges in Sonu go so far as to recommend that a proper bench ought to consider this in the future. But then, despite knowing that their hands are tied, the two judges proceeded to dismiss the appeals by refusing to apply the law in Anvar

The bench attempts to obfuscate this by engaging with a technical issue of how inadmissibility of evidence ought to be taken up during the appeals stage. There is a discussion about whether a CDR is a document inherently inadmissible in evidence, which the Court says it is not. The issue of certification for electronic records under Section 65-B is termed as an issue of the 'mode of proof', a procedural tic that the Appellants were required to flag during the trial itself, which they did not. Too bad, the Court says, and holds that they could not be permitted to do so now, when the final appeals were being heard. 

Who are we fooling here? The three judges in Anvar in no uncertain terms held that the certification under Section 65-B went to the heart of the matter and prescribed it as the only mode of proof for such materials. Without a certificate this evidence was rendered inherently inadmissible. To conclude otherwise is a glaring error. In thinking that the Appellants chose not to raise this issue during trial, the judges here make another obvious misstep. The grounds for the Section 65-B admissibility issue here only arose were going to the Supreme Court, because Anvar changed the law in 2014. 

Conclusion - Two Wrongs Don't Make a Right
The presence of that last part in Sonu v. Haryana where the Court calls for prospectively applying the decision in Anvar shows that the judges were aware of the problem and are concerned. Do I think that the decision in Anvar ought to have been made prospectively applicable in 2014? Yes. This Blog in 2014 had termed the application of Anvar to pending cases as unfair. But neither Parliament, nor the Supreme Court itself, decided to intervene and change this position. Today, by prejudicing Appellants for simply making the mistake of relying upon the position of the law that the Supreme Court gave us, only compounds the error. Not only immediately for the Appellants in Sonu, but for all the other pending trials and appeals across the country that will now certainly be affected and delayed because of these observations. The future does not look bright.

Friday, July 14, 2017

Exclusion of Jurisdiction and the decision in Girish Kumar Suneja

On 13 July 2017, a three-judges bench of the Supreme Court dismissed the petitions clubbed together with Girish Kumar Suneja v. CBI [SLP (Crl.) 9503 of 2016, hereafter Suneja]. The preliminary issue raised in these petitions was a challenge to the Supreme Court's order dated 25.07.2014, whereby aggrieved persons were confined to only approaching the Supreme Court with a "prayer for stay or impeding the progress in the investigation / trial", and jurisdiction of High Courts was thus excluded. This Blog, on an earlier occasion, had considered the Petitioners' case and argued that the impugned order of 25.07.2014 was bad, and readers may refer to that post for a recap. Here, I argue that the decision in Suneja does not offer any convincing justification for why the Court disagreed.

Excluding Jurisdiction: Missing the Forest for the Trees
In Suneja, the Court takes up three key arguments assailing the exclusion of jurisdiction caused by the order of 25.07.2014 and its effects - (1) Curtailment of the High Court's power to entertain petitions under Sections 397 and 482 Cr.P.C; (2) Exclusion of writ jurisdiction under Articles 226 and 227 of the Constitution; and (3) A violation of Article 14 caused by treating the 'coal-block allocation scam' cases under this special procedure. On all three counts, it disagreed with the Petitioners' claims. On closer examination, one can see how the Court does so not by engaging with the argument, but by avoiding it altogether.

Sections 397 and 482 Cr.P.C.
On the first issue of curtailing statutory powers of entertaining revision petitions [Section 397 Cr.P.C.] and quashing petitions [Section 482 Cr.P.C.], the Court reminds us that these are not rights, such as appeals, but entitlements. A High Court may refuse to entertain these petitions. This characterisation was never in doubt - the issue, was whether it was unconstitutional to deprive the High Court of even this ability to entertain such petitions. For this, the Court turns to the legislative history of Section 397(2) Cr.P.C. [which prevents revision petitions for challenging interlocutory orders] to elaborate that the scope of revision jurisdiction was restricted to prevent delay. But the Court does not conclude that the present petitions fall within this category, which renders these observations obiter. Perhaps proceeding with that assumption, the Court moves on to consider the scope of inherent jurisdiction under Section 482 Cr.P.C. Again, it talks of a 'rarest of rare' level for quashing petitions being entertained, implying that the issue must be very serious to warrant intervention. Still, no answers are offered to explain what warrants an exclusion of this jurisdiction altogether. One may then assume that the Court implies the exclusion was illegal, which is why it considers the tests for considering whether the present cases could have triggered an exercise of jurisdiction under these provisions. 

In doing so, the Court makes notable errors in law. For instance, in considering the interplay between revision and quashing the Court notes that "it is quite clear that the prohibition in Section 397 Cr.P.C. [of not proceeding against interlocutory orders] will govern Section 482 Cr.P.C. We endorse this view." This means that for Court, Section 397 applies to all final and intermediate orders, while Section 482 applies to interlocutory orders. Such a reading ignores the notwithstanding that comes at the start of Section 482, which has led the Supreme Court to conclude on several occasions that the scope of Section 482 remains untrammelled by the terms of Section 397 - most recently clarified by another bench of three judges in Prabhu Chawla [Crl. Appeal No. 844 of 2016, decided on 05.09.2016]. Remember, all this is irrelevant, because the present cases actually involved a question of why recourse to this jurisdiction could be barred. The Court only engages with that issue in its terse refusal to consider the decision in Antulay [(1988) 2 SCC 602]. Antulay was a decision by seven judges, but it is distinguished because the facts were different and it involved a trial before the High Court itself, and the impugned provision therein - Section 9 of the Criminal Law Amendment Act 1952 - in turn used the 1898 Cr.P.C. The facts, though different, led the seven judges in Antulay to consider why any court's jurisdiction could not be ousted, which would nonetheless be relevant here. That the bench in Suneja even raises the second point about the Cr.P.C. is simply shocking, since the allegations in Antulay concerned a period after 1973 and by which time the 1952 Act was being read with the new Cr.P.C. [as required by Section 8 of the General Clauses Act 1897].  

We are then left without any answers for the actual issue. For some reason the Court continues to miss the forest for the trees, and refuses to tell us why recourse to revision and quashing was made impermissible in the present batch of cases. It painfully continues to develop on the obiter by considering whether the batch of petitions met the standard of seriousness for interference under Section 482 Cr.P.C., and concludes that "challenge to orders of this non-substantive nature that can be agitated in a regular appeal is nothing but an abuse of the process of the Court." The observation is entirely misplaced. The Petitioners raised issues of law, arguing that certain findings suffer from impropriety - express grounds for interference under Section 397. But if recourse to that provision is barred, then what? Should recourse to Section 482 still remain impermissible? The Court ignores the peculiarity in the present set of facts, which have come about by its own hand. 

Article 226 and 227 of the Constitution
The conclusions on Article 226 and 227 also proceed on an assumption that the issues raised in the batch of petitions are 'trifling' and therefore would not warrant interference under writ jurisdiction. With due apologies for sounding repetitive, the bench again fails to explain how this jurisdiction can be ousted entirely. In fact, here, the bench expressly says "there can be no doubt that the jurisdiction of a High Court under Articles 226 and 227 cannot be curtailed, yet extraordinary situations may arise where it may be advisable for a High Court to decline to interfere." This volte-face is completed at the end of this part of the decision, where the bench says that "there is nothing extraordinary if the High Court ought not to interfere and leave it to this Court to take a decision in the matter in larger public interest". But this is not what has happened in the present case! In unequivocal terms, the High Court was barred from entertaining petitions. The Supreme Court is now attempting to portray the scenario as a willing refusal by High Court's to entertain cases, when it is actually an exclusion of jurisdiction by the Supreme Court itself. It is fair to say that nobody is fooled. 

Article 14 and Judicial Legislation
The argument under Article 14 in Suneja was twofold - the 'coal block' cases do not constitute an identifiable class, and even if they do this differentiation must be created through statute. The Court, expectedly, whips up the rhetoric to justify why the cases are an identifiable class in themselves. But the decision does not engage at all with the more pressing issue of how such classes can be created. It says that "the order passed by this Court does not amount to legislation in the classical mould but according special treatment to a class of cases for good and clear reason and in larger public interest as well as in the interest of the accused." There are obvious legal issues in judicially created classes for perpetrating discrimination. Judicial orders are imprecise, are creations of un-elected persons thus unrepresentative of the democratic process, and finally cannot be subjected to a challenge under Part III leaving no recourse for those aggrieved. The Supreme Court attempts to conveniently sidestep all of this by resorting to verbiage. Since nobody really knows what the 'classical mould' of legislation is, this is doublespeak for "the Supreme Court can do whatever it wants" - a highlight of the Court's White-Knight tendency in this arena of economic offences [previously discussed here].

Public Interest and the Rights of Accused Persons
There are three other heads of argument that are considered in Suneja - (1) violation of Article 21 by the procedure created by the impugned order, which is not established by 'law'; (2) illegal use of Article 142 of the Constitution to curtail both Statutory and Fundamental Rights of the Petitioners, and; (3) Illegally preventing a stay of proceedings. Rather than consider each of these in turn, it is easier to attack the common thread underlying these strands - the idea that public interest is a satisfactory justification to proscribe rights of accused persons. With great vigour the bench notes that "it is now time for all of us including courts to balance the right of an accused person vis-a-vis the rights and interests of individual victims of a crime and society. Very often, public interest is lost sight of while dealing with an accused person and the rights of accused persons are given far greater importance than societal interests and more often than not greater importance than the rights of individual victims. ... It is not as if the appellants have been denuded of their rights. It is only that their rights have been placed in the proper perspective and they have been enabled to exercise their rights before another forum." 

While the Court merely makes a cursory reference to Shahid Balwa [(2014) 2 SCC 687], the same issue reared its head on that occasion. Here, again, it uses the arguments of the Petitioners against them in observing that in pressing for a stay of proceedings it seems that the conclusion of the trial is not an objective for them. These are serious cases of corruption, the Court notes, and so a stay order cannot be given for the asking. Such logic is fit for the pulpit, not for the Supreme Court. At the most basic level, the bench ignores the practical realities that plague the judiciary. The present petitions were filed sometime around winter 2016, and have been decided in July 2017. For whatever it is worth, the Petitioners did allege severe illegalities in the trial, and by refusing to consider the issue of stay at the earliest the Court allowed a potentially illegal trial to continue for six months. Within that time most of the evidence has been completed in two sets of petitions [Y. Harish Chandra Prasad v. CBI (Crl. Appeal No. 1145 of 2017) and P. Trivikrama Prasad v. CBI (Crl. Appeal No. 1153-54 of 2017]. How is that fair, and how is that a correct utilisation of judicial time? At a deeper level, the Court is effectively denouncing a class of persons from seeking an enforcement of their fundamental rights for no better reason in law than because it thinks it is against public interest. It does not realise that such rhetoric ultimately trickles down to trial courts, where an accused is then painted as guilty simply for choosing to remain silent [a fundamental right] and is thus subjected to lengthy pre-trial detention.

On all counts, Suneja is a bad decision. We get no further answers to why is it fair to exclude the High Court as a forum for jurisdiction beyond the bench re-iterating that this is in public interest. For this, it could have merely expressed agreement with the previous decision of Shahid Balwa and saved time. When the bench does try to engage with the legal issues, it fails to grasp what was at stake and flounders. Ultimately, the decision may result only in compounding uncertainty by using previously unheard of tests and expressions to explain what is, essentially, another instance of abusing the vast discretion vested with the unelected judges of our Supreme Court. 

(Disclaimer: The Author was engaged as a part of the team arguing for the Petitioners in Crl. Appeal No. 1145 of 2017)

Tuesday, July 4, 2017

Coercive Investigations - New Limits?

This Blog has been on its annual vacation hiatus, and in that time precious little seems to have been going on in the realm of criminal law and evidence in India. One proposed change that was floated in this time was the Fugitive Economic Offenders Bill 2017. The Finance Ministry released a draft for comments in May and it is likely that some version of the Bill will be presented for consideration in the upcoming session of the Indian parliament. If passed, the law would empower authorities to seize and confiscate the properties of persons involved in financial crimes of large value (this is pegged in the Draft Bill at 100 Crore Rupees or above). 

This forfeiture of properties will trigger if one does not appear before investigative authorities within a specified time period after warrants / summons have been issued seeking her cooperation. So, effectively, it authorises an additional method of coercing the persons who will potentially become 'Accused' to cooperate with investigations. This post covers some ground on exploring the limits of this strategy. Like most issues having a policy element, I am afraid the contours of the post and the argument will remain hazy, and request the reader to bear with this constraint.

Criminal Law, Coercion, and the Accused
Historically, it was not unnatural for criminal justice to follow a policy of "punish now, prove later". Confessions carried an unrivalled evidentiary quality, and also signified spiritual repentance, and thus it was quite regular to subject the Accused to physical pain to this end. Foucault does not discuss coercion by forfeiture of property in  Discipline and Punish, but considering the historical analysis by Professor Levy in License to Steal, it seems forfeiture through Deodands was not used for this aim.

The 19th Century reformation of penal systems across Europe resulted in redrawing the ideas of the acceptable limits of coercion that persons could be subjected to in the criminal process. In large measure, this was because from the Accused became a subject and participant in the process from merely being the object upon which responsibility for an incident was fastened. Physical pain did not magically disappear, of course, but it became possible to question the validity of evidence secured through these means since an Accused also had rights and some legal representation (although it would take more time for an Accused to be allowed to depose as a witness). 

Through the 19th Century, then, we find different jurisdictions draw several limits at the involvement of an Accused person based on the idea of the Accused as a willing participant in the process (but, as Foucault suggests, the wrongfulness of using pain to prove guilt was not eliminated but regulated through the codification exercises). History then lends us fresh perspective for reading the criminal procedure and evidence codes of today. Think of the Accused as being at the heart of a process, as an individual with full-bodied rights in society. The criminal process then regulates how those rights are chipped off to serve the interests of law enforcement. Perusing the Indian codes, one basic conclusion would seem that the law does not wish to support the logic that lets punishment precede guilt. Indeed, the codes make it prohibitive to force the Accused to prove anything beyond un-contestable evidence of a comparable nature such as bodily samples. 

I argue that this shift in focus, from the Accused being an object to a subject and participant affirming the legality of the criminal process, is what explains the law continuing to invest maximum coercive power for ensuring the presence of an Accused. While the law can pass judgment on fugitives and find them guilty, the absence of a subject naturally places the legitimacy of the process under doubt. It denies society the chance to express opprobrium and subject an individual to sanction, which remains (theoretically at least) the most important feature of the criminal process. Ensuring that an accused is present, therefore, is of paramount importance. This is why the law authorises pre-trial detention in such cases, a measure of the highest severity reserved for those found guilty at the end of trial. Which is why it also authorises forfeiture of property, which is what we move to next.

The Fugitive Economic Offenders Bill - A Step Too Far?
All of what I have argued above supports the logic behind the draft Fugitive Economic Offenders Bill 2017 that was circulated. The current system in the Criminal Procedure Code 1973 ups the ante against persons wilfully avoiding the course of law by anointing them 'Proclaimed Offenders' and attaching their property [Sections 82, 83 Cr.P.C.]. Property serves as a substitute for the person, and the inability to deal in property is sought to coerce fugitives from participating in the criminal process. Unfortunately, the Proclaimed Offender process is far too time-consuming to be of any material benefit, where proclamations tend to take at least a year and then there is the added difficulty of enforcing the attachment order. Therefore, a Bill seeking to hasten this process for ensuring the presence of persons would certainly have rule of law benefits.

But at what cost? This is where the cracks appear in the Government proposals. The Draft Bill does not stop at attaching properties - i.e. preventing persons from dealing with them till they appear. It authorises confiscation - not appearing means your property can and will be sold - which will happen at the end of six weeks. And confiscation not only of properties that one allegedly acquired from fraudulent activities, but any property located in India. Can the Government utilise the rule of law logic to justify these drastic means? There are no simple answers, of course. Especially given what we are told about the role of certain individuals and companies in the current banking crisis that has gripped the country. My position is that this Bill is, nonetheless, beyond the acceptable limits of coercion in criminal investigations. The link drawn between the allegations and nature of properties seized and confiscated certainly suggests a harking back to "punish now, prove later" regime that had been condemned. Remember that this is the investigation stage - the judge has little basis to second-guess what the police represent as their case and nor are judges expected to second-guess too much at this stage. Moreover, placing such importance on the Accused during investigations seems to ignore the movement of law in the direction of decreasing this importance for proving guilt. After all, even if a person was to be apprehended using this process, the law clothes her with enough protection to remain silent throughout custody placing the value addition to the government case at nearly nothing.

It is not that there are no alternatives. The Government could perhaps initiate civil in rem actions the properties themselves and then forfeit them, a common (and controversial) practice in the US. It could also, perhaps, speed up the trial itself and then forfeit the assets if it secures a conviction. Or it could do nothing and resort to the very broad (and hyper-active) PMLA regime which could cover most of these situations already. Each of these alternatives would, in fact, be more effective than the current proposal which would achieve little more than good publicity and public catharsis at seeing the big-bad affluent person being in the clutches of law. 

Friday, June 9, 2017

Errantry - Moot Problem on White Collar Crime

A couple of months ago, I took some time out and drafted a moot problem based mainly on white-collar crime. The questions are derived from issues that are yet to be decided finally by the Supreme Court. Now that the organisers have given me the go-ahead, I'm sharing it here for those interested. Comments on the possible arguments would be welcome!

Wednesday, May 31, 2017

The Law Commission of India Report on Bail - Some Concerns

The Law Commission of India [Commission] has released its 268th Report titled "Amendments to the Criminal Procedure Code, 1973 - Provisions Relating to Bail". The Report has been in the pipeline for over a year and has provided a draft Criminal Law (Amendment) Bill 2017 focusing on making changes to the provisions on arrest and bail throughout the Criminal Procedure Code, 1973 [Cr.P.C.]. However, the minutes of meetings and consultations between the contributors are not available. Chapter Eleven contains recommendations covering thirteen broad areas. I briefly summarise these below:

1. Arrest: Amend Section 50 Cr.P.C. to require police officers inform arrested persons of the reasons for arrest in a language she understands.

2. Statutory Bail and Remand: Courts should not authorise remand to custody routinely and examine the case diary [Section 172 Cr.P.C.] thoroughly. Judges must not accept blanket statements that remand is necessary as "accused may be able to give further information". They must enforce the rule that Supplementary Chargesheets [Section 173(8) Cr.P.C.] are filed only to add information subsequently available, to prevent delays. Specific suggestions are made in respect of Sections 167 and 309 Cr.P.C. [the two provisions authorising remand as per the Commission, which is, in fact, incorrect as it ignores Section 209 Cr.P.C.]. For Section 309, amendments are suggested to require judges ascribing reasons for denying bail during trial. Section 167 is sought to be amended for excluding the period an accused spends outside the actual custody of the police from calculations.

3. Conditions for Bail: Bail conditions must consider the socio-economic position of the person and must not be unduly onerous. Courts are encouraged to look beyond financial considerations to enforce appearance. The Report says "bail must be granted subject to the least restrictive conditions to ensure the appearance of the person accused of an offence and the safety of the community", and emphasises that pre-trial detention is exceptional.

4. Modifying Classifications of Bailable and Non-Bailable Offences: Recommendations that there should be correlation between the term of imprisonment and classification of offence [see here for a discussion on the Blog about this issue].

5. Anticipatory Bail: Recommends the proviso to Section 438 Cr.P.C. be retained [contrary to Report No. 203 of the Commission]. Suggests a more careful approach towards granting anticipatory bail, and that it must be made available for a limited period of time, with every order of grant or rejection being accompanied by reasons.

6. Bail in Economic Offences: Economic offences are "crimes which imperil the nation's security and governance" and a stricter approach is recommended while deciding the issue of custody here. The Report says "all forms of economic offences which include tax evasion, customs offences or bank fraud" should be dealt with strictly and amendments are suggested to make bail harder.

7. Special Laws: The Commission suggests that courts must prevent release of persons on bail in special laws on 'technicalities' - with the NDPS and terrorism related offences highlighted. 

8. Modification of Sections 436 and 436-A Cr.P.C.: Recommends amendments to unambiguously reflect that bail is a matter of right which must be communicated to arrested persons. A fresh scheme is suggested for Section 436-A to decide release of persons suffering lengthy pre-trial detention.

9. Centralised Database and Electronic Tagging: Considers the database necessary to confirm criminal antecedents but posits caution about the introduction of Electronically Monitored Bail. 

10. Public Prosecutor and Victims: Victims must be given an opportunity of being heard at the stage of bail itself and be informed when release on bail is imminent. 'Treatment of Victims' should be a principle governing bail decisions, and a 'Victim Impact Assessment Report' may be called for where offences are of a particularly grave of heinous nature. The Commission also recommends adopting the check-list model of the UK Crown Prosecution Service.

11. Risk Assessment: Risk-assessment is a technique to help determine the least intrusive method of policing and investigating offences, maintaining a balance between individual liberty and and community safety. Principles governing these decisions are suggested by the Commission.

12. Exceptions: Absolute restrictions on grant of bail are uncalled for, suggesting grant of bail where grave circumstances exist - for instance, the arrested person suffering from life-threatening disease for which custodial treatment is impossible.

13. Prison Infrastructure: Recommendation to overhaul the "crumbling prison infrastructure and system". One suggestion is to release the under-trials that currently crowd these prisons, subject, of course, to a proper evaluation of relevant factors.

The Report is a curious creature reflecting a myriad set of concerns, and ultimately does little more than scratch the surface of an extremely problematic area in the Indian criminal process. I make two sets of comments, then; first addressing the Report and what it says, moving on to all that it misses. 

The Report and Amendment Bill
The dissonance between recommendations in Chapter Eleven of the Report and the draft Amendment Bill annexed is striking. A paragraph is spent recommending amendments to Section 309 Cr.P.C. and yet no provisions reflect this in the annexed Bill. The recommended amendments to Section 50 Cr.P.C. do not find a mention anywhere, nor do the suggestions about allowing a victim to contest grant of bail and incorporating a requirement for 'Victim Impact Assessment' Reports. The Bill suggests heightened scrutiny for granting bail in 'economic offences' without ever explaining the term. It would seem as if the Bill was never discussed between the members and consultants. Having access to the minutes of the Commission would have helped ascertain this better.

Airbrushing Issues
The recommendations do not reflect an eye on how issues of arrest and custody are being decided in the district courts, which are the sites of these battles. For instance, recommending 'reasons' of arrest be communicated under Section 50 Cr.P.C. doesn't tell us how that happens. Does it entail handing over a copy of the FIR? Must a formal application be filed for securing these reasons? [In Delhi at least, I have seen applications being required for supplying a copy of the FIR under Section 50 Cr.P.C.]. In situations of arrest and detention, the balance must tilt in favour of bright line rules over vague standards which can be clearly enforced without debate, and the Commission does not follow this principle with any consistency. 

Similarly, when it comes to statutory bail and Section 167 Cr.P.C., the Commission tells us about the problem of detaining undertrials and yet the only amendment is towards strengthening the rigours of custody. Having noted the lack of quality legal assistance [or any legal assistance], the Commission does not touch upon the problems caused by requiring detained persons file an application to secure statutory bail. Considering the increased scrutiny the Commission demands of courts, this would have been an obvious method to help enforce compliance with the provision. Instead, the focus remains on monetary requirements and other conditions.

Finally, a word on the 'economic offences' ghost that continues to haunt the present government. The suggestions are in line with the consistent rhetoric that tells us that 'economic offences' are akin to the plague in terms of their ability to harness devastation for the security of the Indian republic. While that rhetoric helps hammer propaganda, it does not work with the law, especially when it comes to depriving persons of their liberty. 'Economic Offences' is a horribly vague term, spanning potentially the entire gamut of offences having anything to do with a wrongful deprivation of property. Surely trespass on house property doesn't threaten our borders the same way financing terrorism does? 

Missing the Forest?
The Report not only misses small, technical issues, that are currently affecting the process of bail, but it also misses huge problem areas that one would consider a body like the Commission to be uniquely able to address. One technical issue was discussed in great detail on this blog before through a series of posts - that of reversing burdens during bail hearings (see here, for the first post in this series). This is a problem endemic to 'Special Laws', where all the Report has to offer is a rebuke to courts for releasing persons on technicalities. Similarly, no mention is made about the issue of an accused having a right to access materials upon which a remand request is made before courts. while the CBI continues to deny even copies of applications seeking a remand to custody. Another technical issue is that of remands to custody between stages of completed investigations and taking cognizance - where the latter is contingent on grant of sanction for instance. With the continuous din of criticism on delays in securing prosecutorial sanction for public servants, and the general opprobrium that the government projects towards corruption, one would have thought this issue merited some debate.

The big issue which I think the Commission fails to discuss was how pre-trial detention is actually seen as punishment in a system where eventual convictions are secured only after enormous delays. Vrinda Bhandari had written about this once (see her paper here). Her comments about pre-trial detention being punitive are quite accurate and one can visit district courts anywhere for a while to experience it. Prosecutors press for custody arguing retributive logic rather than the possibility of a person being a flight-risk. Victims cite their plight as reasons for denying bail. Judges encourage detention to be used as a bargaining chip to force an accused into plea-bargaining or extra-judicial agreements for quashing prosecutions. These are serious issues, and depending on where you stand are either huge problems or ingenious solutions that the criminal process has developed to address the burgeoning backlog. Yet, lamentably, there is not a whisper of this anywhere in the Report.

Conclusions - No Reform in Sight?
News coverage for the Report has hardly been forensic till now, but displays a degree of optimism. In the true spirit of this blog, I conclude this optimism is definitely misplaced. It would be misleading to label this Report as batting for 'reform'. It is, frankly, conservative, and only shifts to the front foot while facing run-of-the-mill deliveries. It would be unfortunate if the annexed Amendment Bill is tabled in the upcoming session of parliament without changes. It would be a tragedy if it becomes part of the statute books in its current form. 

Sunday, May 28, 2017

Snippet - PMLA Amendments Repealed? Not really - Updated

While working on the Prevention of Money Laundering Act 2002, I came across the omnibus Repeal and Amending Act of 2016 (part of the set of statutes available here). The acts specified in the First Schedule to the Repealing Act have been hereby repealed to the extent specified there. This Schedule, notably, states that the Prevention of Money Laundering (Amendment) Act 2012 [Act 2 of 2013] has been repealed in its entirety. You can access the Act here by searching on the page.

The 2012 amendments to the Money Laundering Act were substantial. These were India's efforts at accepting the Financial Action Task Force recommendations, soon after India was made a member of the Task Force in 2010

Below is a summary of the more important changes brought in by the 2012 Amendment Act:
  • It expanded the scope of the statute to cover beneficial owners, and placed positive obligations on various enterprises notorious for money laundering such as real estate agents and dealers in precious stones;
  • It expanded the money laundering offence under Section 3 from merely generating proceeds of crime and projecting them as untainted, to also cover the concealment, acquisition, use, or possession of proceeds of crime and their projection as untainted;
  • It allowed for a provisional attachment of property under Section 5 to happen even without a Chargesheet being filed for the Scheduled Offence;
  • It severed the connection between the trial for a Scheduled Offence and the attachment of property under Section 8. So, an acquittal for the Scheduled Offence did not automatically result in releasing attached properties anymore;
  • It imposed an advanced set of positive obligations on entities under Section 12 to proactively combat money laundering;
  • It created a mechanism for the retention of property seized or frozen during searches conducted under the Act by amending Sections 20 and 21;
  • It relaxed the strict reversal of the persuasive burden of proof and introduced a concept of rebuttable presumptions under Section 24 of the Act;
  • It allowed for a transfer of prosecutions for Scheduled Offences pending before other courts to the Special Court adjudicating the money laundering offence under Section 44;
  • It instituted additional penalties through Section 63 PMLA for non-compliance with notices to furnish information issued under Section 50 PMLA.
The validity of the amendments was subjected to an omnibus challenge in K. Sowbhagya v Union of India (decided on 28 January 2016), but the Karnataka High Court dismissed the petition in a lengthy decision. A few months later, we have the Repealing Act come in May, 2016, striking out the changes from the statute books. Why? None of the four Law Commission of India reports on repealing obsolete laws refer to the 2012 Amendment Act, and I have not found any discussion in the public domain elaborating upon this process (the Press Information Bureau merely carried this note).  The best I found was a draft for the Repealing and Amending Act 2014, where the 2005, 2009 and 2012 amendment acts were all mentioned. That doesn't explain much either.

From what I have been able to find out, then, with effect from 6 May 2016, none of those changes to the PMLA remain in force, and for all prosecutions instituted after this date, the legislation  must operate as it existed prior to the 2012 amendments. Given the magnitude that this possibility carries, I think I might be mistaken, and would definitely appreciate any assistance in this regard in discovering if something has been missed out.


A helpful friend pointed out Section 6-A of the General Clauses Act 1897, which as interpreted by the Indian Supreme Court in Jethanand Betab (AIR 1960 SC 89) suggests a Repealing and Amending Act merely prunes the statute book, and the effect of the amending act continues. Why only repeal the latest edition of the amending acts? I don't know. But this sure puts the controversy to rest!

(This post was updated on 28 May 2017 at 11 PM IST to add the post-script. Thanks to Nidhisha Phillip for pointing out where I was going wrong!)