Saturday, September 29, 2018

The Supreme Court and Criminal Investigations - Romila Thapar v. Union of India

Today, a Three Justices' Bench of the Supreme Court dismissed that writ petition filed by Professor Romila Thapar [Romila Thapar & Ors. v. Union of India & Ors., W.P. (Crl) No. 260 of 2018, decided on 28.09.2018]. Two members of the Bench found that there was nothing to show mala fide exercise of power by the investigating officers [Khanwilkar J., writing for himself and the Chief Justice], while Chandrachud J. dissented from this view. The interim relief of house arrest will last for another four weeks, during which time the arrested persons can seek appropriate remedies. This short post is not about the facts and the allegations involved, but rather, about the larger legal issues of setting up an SIT and the monitoring of criminal investigations by the Supreme Court. 

A month ago on 29.08.2018, a group of "eminent academics" led by Professor Thapar rushed to the Supreme Court in a "Public Interest Litigation" [PIL] seeking directions to ensure an independent investigation into a case being investigated by the Pune police. This is Case FIR No. 004 of 2018, registered at P.S. Vishram Bagh, Pune. The trigger behind the petition was the country-wide arrests of persons, who were notably critical of state policies on several issues, conducted by the Pune Police while investigating the case. As the Supreme Court ordered house arrest of the five arrested persons, they also joined the PIL, and the prayers were revised asking the Court to transfer the investigation to a "Special Investigation Team" [SIT] monitored by the Supreme Court. 

To someone unfamiliar with the Indian legal system, this will - and should - seem bewildering. Why is the highest constitutional court being asked to interfere with criminal investigations and direct how they should be conducted? Moreover, how is this happening in petitions not filed by the aggrieved persons? Nothing in the Constitution expressly permits either course, and such a scenario would be beyond the wildest dreams of the framers as well. Yet over the last three decades (almost), amidst great fanfare, the Supreme Court has arrogated to itself this unbridled power to stop and start criminal investigations. Local state police are taken off a case and it is either transferred to a central agency or an SIT, periodically reporting to the Court itself. Further, the broadening of locus standi rules has also happened during the same era, and a PIL for monitoring investigations is actually quite common. Two famous instances in recent memory where the investigations were monitored by the Court were the 2-G Scam and the Coal Block Allocation Scam cases.      

The Disagreement Over Mala Fides in the Decision
But there was to be no SIT in Romila Thapar. As I mentioned at the outset, the majority and dissent mainly diverged on whether the petition showed existence of mala fide in how the investigation had proceeded. Naturally, the point here was not that the Pune Police was legally incompetent to conduct the investigation, but that the manner in which it had proceeded showed elements of bias and bad faith. At Paragraph 26 of its opinion, the majority held that all that the accused persons could show was a lack of material against them, and procedural errors in their arrest and search. Such arguments did not satisfy a claim of mala fide investigation, and these issues were fit to be agitated before the proper courts. 

This conclusion seems quite unbelievable after reading the dissenting opinion. Out of the many things that it points to, one circumstance is clinching. Chandrachud J. notes how, hours after the first day of hearings in the Supreme Court, the police held media briefings sharing privileged material to suggest that the arrested persons were culpable, although the said material had not even been tested for its veracity [Paragraphs 22-24]. This is galling, for the police in India are not adversaries but agents tasked with unearthing the truth of the matter. After all, this is why the procedural law envisages a possibility of the police concluding that no case is made out against persons after investigations. If the police is holding media briefings on the first day, convinced about guilt, then what is the point of the investigation?

An Unfortunate Omission - The Right to Fair Investigations
This idea of bias in investigations, and pre-judging the matter, was something that the Supreme Court dealt with front and centre in another recent Three Justices' Bench decision in Mohan Lal v. State of Punjab [Crl. Appeal 1880 of 2011, decided on 17.08.2018]. There, the Court held an investigation cannot be conducted by the same officer who was also the informant in the case. There was no need to prove bias or mala fide: the circumstances were bad enough for the Court to assume bias and label any such investigation to be unfair. Even more significant was how the Court located this issue within Article 21 of the Constitution. It held that every individual had a right to a fair investigation, and that a biased or unfair investigation would contravene this right.

Mohan Lal is not mentioned even once throughout the decision in Romila Thapar, and it is very hard to understand how this point went missing through the hearings and the opinions. After all, here was a clear chance to develop this right to fair investigations under Article 21, and link it to the prevailing mess that is the SIT jurisprudence. The Court could have clarified, for instance, whether individuals had the right to raise an Article 21 challenge of this nature in a pre-trial setting - unlike Mohan Lal which was a post-conviction appeal. It is no doubt unfortunate that the opportunity went begging, but observers of the Supreme Court should be alarmed at how often this is happening. While the Court has expanded the scope of Article 21 over the last two months, the Court has not been savvy enough to apply its jurisprudential innovations and develop them further. As the dissent itself notes, there is no point to lofty constitutional rhetoric if it is not applied productively.   

Conclusion - Towards a Sounder SIT Jurisprudence?
The SIT jurisprudence emerged in an era where the Supreme Court ran roughshod over the separation of powers enshrined within the Constitution and paid lip-service to legal principle and procedural propriety in the pursuit of populist solutions to problems of governance and state capacity in India. Often, the solutions are not legally or procedurally sound, and the same goes for the SIT. I have said this before: The Supreme Court is horribly ill-equipped to monitor criminal investigations and the SIT makes no sense. That is a function of the local police and trial courts, because crime is local. Taking an investigation out of the regular course is not only an indictment of the local police, but also the Trial Courts, and High Court, who would otherwise have opportunities to review the progress and fairness of investigations. 

But since the Court has been granting prayers for creating an SIT and / or monitoring investigations, my principled opposition is not going to matter much. In that event, all one can ask for an attempt to help remove such cases from being purely fact-specific and having some clear basis for future courts to decide when should a request for creating an SIT or monitoring an investigation be allowed. In this regard, an admirable effort is made by the dissenting opinion in making sense of the earlier cases to try and cull out broad themes. This minimal level of consistency will help both litigants and the court by giving some much-needed certainty to the field, while reducing the politicisation of such requests. 

Thursday, September 27, 2018

Supreme Court Holds The "Legislative Packet" of Adultery Unconstitutional

Today, a Constitution Bench of the Indian Supreme Court delivered the judgment and opinions in Joseph Shine v. Union of India [W.P. (Crl.) No. 194 of 2017, decided on 27.09.2018]. A unanimous Court held that Sections 497 of the Indian Penal Code, 1860 [IPC] and 198(2) of the Criminal Procedure Code, 1973 [Cr.P.C.] are contrary to Articles 14, 15, and 21 of the Constitution and are therefore struck down. The Chief Justice wrote the opinion for himself and Khanwilkar, J., while the three remaining Justices [Nariman, Chandrachud, and Malhotra] each penned a separate opinion. This post discusses what has been held by the Supreme Court, focusing on its impact on the criminal law and criminal process in India [the non-discrimination aspects have already been discussed here].  

The Issue and the Broad Holding
During the course of arguments in Joseph Shine, I had discussed the issues on the Blog and need not repeat everything here. Suffice to say that Sections 497 IPC and 198(2) Cr.P.C. created a peculiar legal framework: punishing husbands for only certain kinds of marital infidelity, while expressly depriving the wife a right to institute prosecutions. There were multiple ways to grapple with the problems they posed, and the previous post suggested three such formulations: 
  • Type I: Is Section 497 IPC void because adultery shouldn't be a crime at all? 
  • Type II: Are Sections 497 IPC and 198(2) Cr.P.C. bad because they perpetuate unconstitutional gender-based discrimination? 
  • Type III: Is Section 497 IPC bad because it differentiates within adulterous relationships without any rational basis for that classification? 
I had argued that the previous challenges to adultery provisions had mostly been Type II cases. The entire Court in Joseph Shine considered this set of arguments and held for the Petitioners. All five Justices held that the adultery provisions were contrary to Articles 14 and 15 of the Constitution, being manifestly arbitrary and perpetuating gendered discrimination. The Court also unanimously held that the provisions were bad for being contrary to Article 21, as they deprived women of the dignity assured by that fundamental right. Each opinion heavily criticises the provisions for their treatment of women as chattel and endorsing an outmoded conception of patriarchy and marriage. The argument of relying on Article 15(3) of the Constitution to propose these provisions as "beneficial legislation" for women was, to put it bluntly, scoffed at and rejected.

But the hearings in Joseph Shine suggested some ambiguity in how far the Court was interested in also hearing a Type I challenge, i.e., arguments on whether adultery could be criminalised. This sense of confusion is visible to varying extents in the several opinions in Joseph Shine. Nariman, J. does not discuss the Type I challenge at all, while Chandrachud and Malhotra, JJ. hint at this in some parts but mainly stick to a Type II argument. On the other hand, the Mishra, C.J. and Khanwilkar, J. in the lead opinion discuss the Type I challenge fully, as I elaborate below.  

New Constitutional Limits on Substantive Criminal Law?
The substantive law issue posed by the adultery provisions arose largely out of Article 21, which the Supreme Court affirmed guaranteed a right to privacy. Thus, would criminalising adultery violate this constitutional right to privacy? As I mentioned above, barring Nariman, J., the rest of the Court did go into the substantive issue. Justice Malhotra discusses it at Paragraph 17 of her opinion, giving a general exposition of the principles of criminalisation: 
"In my view, criminal sanction may be justified where there is a public element in the wrong, such as offences against State security, and the like. These are public wrongs where the victim is not the individual, but the community as a whole. Adultery undoubtedly is a moral wrong qua the spouse and the family. The issue is whether there is a sufficient element of wrongfulness to society in general, in order to bring it within the ambit of criminal law? The element of public censure, visiting the delinquent with penal consequences, and overriding individual rights, would be justified only when the society is directly impacted by such conduct. In fact, a much stronger justification is required where an offence is punishable with imprisonment. The State must follow the minimalist approach in the criminalization of offences, keeping in view the respect for the autonomy of the individual to make his/her personal choices. The right to live with dignity includes the right not to be subjected to public censure and punishment by the State except where absolutely necessary. In order to determine what conduct requires State interference through criminal sanction, the State must consider whether the civil remedy will serve the purpose. Where a civil remedy for a wrongful act is sufficient, it may not warrant criminal sanction by the State."   
Chandrachud, J. discusses the issue in two paragraphs, making more pointed connections between the issues and Section 497 IPC: 
"... There is a fundamental reason which militates against criminalization of adultery. Its genesis lies in the fact that criminalizing an act is not a valid constitutional response to a sexual relationship outside the fold of marriage. Adultery in the course of a subsisting marital relationship may, and very often does question the commitment of the spouse to the relationship. In many cases, a sexual relationship of one of the spouses outside of the marriage may lead to the end of the marital relationship. But in other cases, such a relationship may not be the cause but the consequence of a pre-existing disruption of the marital tie. ... Just as all conduct which is not criminal may not necessarily be ethically just, all conduct which is inappropriate does not justify being elevated to a criminal wrongdoing." [Paragraph 60]
"... The legitimate aims of the state may, it must be recognized, extend to imposing penal sanctions for certain acts within the framework of marriage. Physical and emotional abuse and domestic violence are illustrations of the need for legislative intervention. The Indian state has legitimately intervened in other situations such as by enacting anti dowry legislation or by creating offences dealing with the harassment of women for dowry within a marital relationship. The reason why this constitutes a legitimate recourse to the sovereign authority of the state to criminalize conduct is because the acts which the state proscribes are deleterious to human dignity. ... Adultery as an offence does not fit that paradigm. In criminalizing certain acts, Section 497 has proceeded on a hypothesis which is deeply offensive to the dignity of women. It is grounded in paternalism, solicitous of patriarchal values and subjugates the woman to a position where the law disregards her sexuality. ..." [Paragraph 61] 
Note the problems. Malhotra, J. provides a useful exposition of the principles for criminalisation, and Chandrachud, J. adds to this with the specific problems created in the context of adultery. But neither of the opinions discusses how the analysis applies to criminalisation of adultery per se in India. While one wonders whether these Justices would have upheld a gender neutral formulation of the offence, it is clear that their opinions do not engage with the core substantive claim of whether adultery can be a crime. 

The same cannot be said for the opinion by Misra, C.J., and Khanwilkar, J.: 
"We have referred to the aforesaid theories and authorities to understand whether adultery that enters into the matrimonial realm should be treated as a criminal offence. There can be many a situation and we do not intend to get into the same. Suffice it to say, it is different from an offence committed under Section 498-A or any violation of the Protection of Women from Domestic Violence Act, 2005 or, for that matter, the protection conceived of under Section 125 of the Code of Criminal Procedure or Sections 306 or 304B or 494 IPC. These offences are meant to sub-serve various other purposes relating to a matrimonial relationship and extinction of life of a married woman during subsistence of marriage. Treating adultery an offence, we are disposed to think, would tantamount to the State entering into a real private realm. ... A situation may be conceived of where equality of status and the right to file a case may be conferred on the wife. In either situation, the whole scenario is extremely private. ... We may repeat at the cost of repetition that if it is treated as a crime, there would be immense intrusion into the extreme privacy of the matrimonial sphere. ..." [Paragraph 49, Emphasis supplied]
The highlighted parts make it clear that this opinion expressly engaged with the privacy issue posed by a criminalisation of adultery per se and not only its specific formulation under Section 497 IPC. It also offers a clear rule rather than expositional rhetoric for future courts and legislatures to apply: do not criminalise conduct which is purely within the "real private realm" or affects the "extreme privacy" of certain spheres. But since the content of these terms has been left unclear, it is anybody's guess on how this rule applied in future decisions. Except, perhaps, one specific area of the criminal law in India which might finally be struck down: the marital rape exception under Section 375 IPC.

Article 21 and the Marital Rape Exception 

The marital rape exception under Section 375 IPC, as the name suggests, deems non-consensual sex acts performed by a husband on his wife to be legal. The Delhi High Court had been hearing petitions on removing the exception even before today's decision in Joseph Shine, and the opinions should help the cause of those arguing for striking it down. Although the exception does not criminalise, at its heart is the same logic that has been declared unconstitutional by the Supreme Court: that the sexual autonomy and agency of a married woman is subservient to her husband's interests. Consider the following excerpts from Chandrachud, J.'s opinion, which could equally apply to marital rape as well:
"It proceeds on the subjection of the woman to the will of her husband. In doing so, Section 497 subordinates the woman to a position of inferiority thereby offending her dignity, which is the core of Article 21." [Paragraph 11]
"A woman's ‘purity’ and a man’s marital ‘entitlement’ to her exclusive sexual possession may be reflective of the antiquated social and sexual mores of the nineteenth century, but they cannot be recognized as being so today. It is not the “common morality” of the State at any time in history, but rather constitutional morality, which must guide the law."[Paragraph 25]
"Section 497 is thus founded on the notion that a woman by entering upon marriage loses, so to speak, her voice, autonomy and agency. Manifest arbitrariness is writ large on the provision." [Paragraph 32]
"The ability to make choices within marriage and on every aspect concerning it is a facet of human liberty and dignity which the Constitution protects. In depriving the woman of that ability and recognising it in the man alone, Section 497 fails to meet the essence of substantive equality in its application to marriage." [Paragraph 36]
"In criminalizing adultery, the legislature has imposed its imprimatur on the control by a man over the sexuality of his spouse. In doing that, the statutory provision fails to meet the touchstone of Article 21. Section 497 deprives a woman of her autonomy, dignity and privacy." [Paragraph 59]
Credit must be given to the Court for taking up the constitutional issue and pruning the statute books, a task long overdue. The crime of adultery is gone, and thanks to the controlling opinion in Joseph Shine, it should be gone for good. It joins the other anachronism in the bin - criminalising consensual sexual relations between homosexuals. Make no mistake, Joseph Shine has its flaws. This was the second case where the Supreme Court invoked the right to privacy under Article 21 to strike down a penal provision - after Navtej Johar - and still nobody really knows where that fundamental right begins or ends. By not referring to the decision in Navtej Johar (except Chandrachud, J.), and adding new terms such as "real private realm", the Supreme Court is making a mess of the nascent privacy jurisprudence. 

Ultimately, the Court had it easy in both Navtej Johar and Joseph Shine. Statistics suggest that both the underlying offences were dead letters and prosecutions were rare, and in the former the Union did not even defend the criminalisation. A more stern test of the liberal credentials of the Court is bound to come up where it is asked to practice what it preaches in a more contentious context. This, I suggest, is bound to be criminalisation of marital rape - an issue around which a different kind of lobbying exists. Predictions aside, legally the point should be straightforward: If constitutional morality is offended by legislative inequality between the spouses in their pursuit of sexual freedom outside marriage, the same yardstick must apply within the marriage itself. Any other conclusion is the worst kind of hypocrisy imaginable.

Sunday, September 16, 2018

A Closer Look at "State of Maharashtra v. Mahesh Tirki & Ors." - Part II

The previous post laid out the allegations against the defendants in State of Maharashtra v. Mahesh Tirki & Ors., and explained the nature of the offences that the defendants were charged with. In this post, I discuss how the prosecution proved its case, and flag certain issues with how the Court treated the evidence. The analysis is divided into examining the case against Accused Nos. 1 and 2, Mahesh Tirki and Pandu Parote, separately from the case against Accused Nos. 3, 4, and 6, i.e. Hem Mishra, Prashant Rahi, and Dr. G.N. Saibaba. I don't discuss the case against Accused No. 5 distinctly, as his case overlaps with both sets. I conclude suggesting that. beyond differences that reasonable persons might have over how the Court appreciated the evidence, the judgment offers a stark reminder of the inherent problems in the UAPA since its amendments in the last decade.

The Case Against The Couriers
The prosecution alleged that Accused Nos. 1 and 2 were in contact with naxals in Gadchiroli forest area, and had helped them on 3-4 times before the incident in August 2013. The evidence to prove all of this largely consisted of the recoveries made from their personal searches and their confessions under Section 164 Cr.P.C. The searches produced platform tickets for May 2013 from both persons, one of the earlier occasions when they had acted as couriers. Accused No. 2 had a newspaper and an umbrella, which were items used as part of an underground code amongst naxals. Accused No. 1 had pamphlets of Maoist literature, proving he was involved. All of this was backed up in narrative form by their confessions. The defence argued that the search memo had been overwritten, that the witness to search had acted as a witness for P.S. Aheri on multiple occasions, that the arrest was tainted as despite the Bus Stand having many people around, the police chose not to involve any independent witness. The arrest was assailed as suspicious for other reasons too. First, the newspapers were dated 19th & 20th August, rather than the 22nd. While the police found platform tickets from three months ago, it did not find bus tickets for a journey that would've been made that day. Lastly, the defence urged that the Court draw an adverse inference against the prosecution, for despite having called for the Call Detail Records of these Accused persons they had not been filed in Court, probably because those documents confirmed that the story was not as per the prosecution case. Lastly, the confessions were challenged as being made under duress and police torture [Paras 23-106, 141-45].

The Court admitted the evidence over all of the defence objections. The central justification offered was that such procedural lapses could not be fatal to the case if the evidence was otherwise reliable, while the torture allegations were rejected [Paras 107-130, 161-183]. In this, the Court did nothing remarkable, as several decisions have held so, and an appellate court may yet conclude that the Court was not right in this approach. But more problematic for me was how the Court drew its conclusions from the evidence that it so accepted. I'll only raise two points. 

First, the Court was convinced about the newspaper and umbrella being a secret code argument (something that implicates Accused Nos. 3, 4 and 5 as well). But what's the basis for that? The Court said this is "confirmed" by a document that the police recovered three weeks later during the search of Accused No. 6's house [Para 100, Pg. 90 of Ex. 267]. Surely the Court must base this on something that the police had before the arrest itself? What's more, a look at the document shows that it is an investigative journalism piece, freely available online, dating back to 2006, i.e. more than seven years before the arrests. The journalist suggests that for her, this code had been suggested. How does that lead to the conclusion that anyone holding an umbrella and a newspaper is communicating with members of banned organisations? Would a covert, banned terrorist organisation still follow the same methods? Is this proving the fact "beyond reasonable doubt"? Second, the Court was convinced that the Accused rendered help to the naxals on 3-4 occasions and this was a factor towards finding their guilt. But, while accepting their confessions (allegedly made under duress), the Court all too quickly excludes the part where they said the naxals beat them and forced them to help. Why does the Court exclude this? Because it thinks they are lying as they have helped naxals before, and if they were really beaten they would have gone to the police. Really? It strikes me as naive to expect that, when dealing with "terrorists" who have killed many police officers, as the Court itself reminds us.

The Paraplegic "Think Tank" and His Associates 
The conspiracy with which the defendants were charged was not imagined as a co-equal one. Instead, at its hub was Accused No. 6 - the paraplegic "think tank" running the show from Delhi. It was alleged that that both Accused Nos. 3 and 4 had travelled to Gadchiroli / Chichgad at his instance. He had given both of them documents to deliver to underground naxals in the forest area. The allegations were proved almost entirely from the materials seized from the house search of Accused No. 6 and upon arrest of Accused Nos. 3 and 4.

Accused no. 6 was placed at the heart of the conspiracy through several letters, photographs, and video-clips. He was shown to be a ranking member of the Revolutionary Democratic Front [RDF], a "front organisation" of the CPI (Maoist). Further, he was alleged to be a member of the CPI (Maoist) as well, conducting its international operations and writing letters under the pseudonym of "Prakash". The prosecution led many papers / clips to show that the RDF and CPI (Maoist) were both committed to an agenda of violent revolution, and that Accused No. 6 was actively involved in these efforts. The links with the other accused were drawn mainly through photographs of them attending events where government policy was criticised, some of these under the RDF banner, as well as their Call Detail Records [CDR]. These showed that the co-accused had been in contact with each other during the months before September 2013, and that on 18.08.2013 all of them were in the Delhi University area [Paras 397-502]. For the Court, the value of CDR evidence was enhanced by the defendants choosing to deny that they had ever known each other or had been in contact, when given a chance to explain these incriminating circumstances under Section 313 Cr.P.C. [Para 563].

Again, I will not dwell on the admissibility objections that were raised, suffice to note that they were several [Paras 191-198, 297-300, 315-317, among others], and almost all of them were rejected [the Court accepted that the screenshots of Hem Mishra's Facebook account were inadmissible, Paras 581-91]. Instead, the focus is on the conclusions that the Court drew from the evidence.

First, take the pseudonyms. For the Court, the claim of Accused No. 6 being "Prakash" seemed to shine through a couple of the letters referring to his "handicapness"[Paras 497, 500]. But that's not all. The Court was equally convinced that Accused No. 6 was "Prakash" because one document said Prakash said the latter hadn't finished some work because his computer hard-disk crashed. And, since one of the external hard-disks seized from Accused No. 6 was also not working, this proved he was Prakash [Paras 339, 345]. Is this proof, or is the judgment not fully reflecting what was argued? The Court later agrees that "Chetan" is another pseudonym for the same Accused, a name in the documents seized from Accused No. 3, and thus crucial in linking the two accused. What's the basis? This 2013 document of the CPI (Maoist) said that "Chetan" had responsibilities for West Bengal, Kerala and Delhi, which were areas that Accused No. 6 was handling with other persons as per a May 2007 letter of the RDF [Paras 770-771]. What about the interregnum? Are RDF and CPI (Maoist) not separate at all? What about questioning the other RDF members whose names are present to find out more? Lastly, there is an alias issue for Accused No. 4 as well, as the Court accepted that he was also one "Mahesh" as found in CPI (Maoist) letters. The basis? A charge-sheet that was filed against him in another Court that listed Mahesh as an alias [Para 784]. The Court didn't rely on the judgment, and nowhere are we told about what happened in that case. Instead, the Court relied on the charge-sheet, a document only constituting police allegations, which by definition is not evidence. Surely there must be some stricter test for identifying aliases and pseudonyms, to prevent a case where any alias can be foisted on persons as per the convenience of the police case based on paltry evidence.     

Second, consider the kinds of material being used to prove membership. Take the case of Accused No. 6. Besides the letters under pseudonyms, and the RDF material, the prosecution relied upon a lot of other evidence, which the Court unquestionably accepted as incriminatory. This included: (i) some interviews by Accused No. 6 to news agencies detailing the history of the communist movement in India [Paras 453, 456, 480], (ii) attending public meetings critical of government policy and seeking release of political prisoners, involving hundreds of people [Paras 452, 457], (iii) being part of a team of persons - including Justice BD Sachar and Prashant Bhushan - seeking to mediate between the government and the CPI (Maoist) [Para 463], (iv) letters about teachers organisations in Delhi University, and (v) having electronic copies of any pamphlets, statements, videos, that might be found freely circulating online [E.g., Paras 471, 479, 488, 541]. Nowhere does the Court specify if it considered all of this to be incriminatory because it already found Accused No. 6 to be a member. Rather, it seems that the Court considered all of this as proof of membership and, perhaps, proof that a person is associated / professing association / supporting a banned terrorist organisation such as the CPI (Maoist). If attending public meetings critical of government policy constitutes association or membership, in a meeting not held by the banned organisation, then these are dark times indeed. Such an uncritical acceptance of the allegations casts a chilling effect that resonates much beyond the walls of the Gadchiroli Sessions Court.   

Conclusions - The Unconstitutional Lightness in Proving Terrorism?
There is no doubt that the constitutional courts of India have held that procedural lapses shouldn't come in the way substantial matters. There is also no doubt that the same courts have held, that the more serious the allegations, more sternly must the prosecution case be tested. The trial and judgment in State of Maharashtra v. Mahesh Tirki & Ors. show that only one of these precepts was followed by the Court, as almost all the procedural lapses were explained away together with a benign scrutiny of the prosecution case. The consequences of such a position, as I mentioned above, are drastic. 

But a large part of the court's approach stems from the problems in the UAPA itself. I only highlight three issues from the verdict here. First, is the issue with the RDF being a "front organisation". The convictions under Sections 20, 38 and 39 are partially based on this conclusion. But nowhere does the UAPA define a "front", and nor was it explained in the Gazette Notification by which the relevant entry concerning the CPI (Maiost) was made in the First Schedule. Is this a reasonable restriction on Article 19(1)(c)? Or is this undefined phrase an unconstitutional delegation of powers on low level executive officers? Second, is the overlap between Sections 20, and Sections 38 and 39 of UAPA. What different levels of proof are needed for these three offences? Can a person be convicted for being a "member" of a banned organisation and being a person who supports, associates, or professes association with that same organisation? Third, and finally, should there not be a clearer line between an "unlawful activity" and a "terrorist act"? Here, the defendants were convicted under both, for committing / advocating unlawful activity (Section 13) and conspiring to commit terrorist acts (Section 18), for the same underlying conduct. Would that not be barred under Section 71 of the Indian Penal Code 1860? Or, if a Court has doubts about the specific offence, wouldn't Section 72 of the Penal Code apply to only attract the offence with the least punishment?

Vague legislation is bad. Vagueness in criminal legislation is unconstitutional. Vagueness in criminal legislation imposing sentences of life and death is reflective of utter disregard for the constitutional protection of life and personal liberty secured for all persons in India. That is where the UAPA stands. The inherent vagueness and over-broad nature of the statute was worsened by clunky amendments in the 2000s, and has been further aggravated by the recent entries into the First Schedule listing banned organisations. At a time when the Supreme Court is lapping adulation for having reaffirmed the constitutional commitment to protection of minorities, the judgment in Mahesh Tirki serves as a reminder that a lot still needs to be done to protect the most vulnerable minority of them all: persons accused offences against the state.  

Saturday, September 15, 2018

A Closer Look at "State of Maharashtra v. Mahesh Tirki & Ors." - Part I

On March 7, 2017, the Court of the Ld. Sessions Judge Gadchiroli, passed the judgment and order on sentence in State of Maharashtra v. Mahesh Tirki & Ors. [Session Case No. 13 of 2014, and 130 of 2015]. The essence of the 837-page long document is that the Court convicted Mahesh Tirki, Pandu Narote, Hem Mishra, Prashant Rahi, Vijay Tirki, and Dr. G.N. Saibaba, for offences punishable under Sections 13, 18, 20, 38, and 39 of the Unlawful Activities (Prevention) Act, 1967 [UAPA] read with Section 120-B of the Indian Penal Code, 1860 [IPC]. Except Vijay Tirki, whose highest sentence was a 10 year prison term, all the other defendants were sentenced to life imprisonment. News reports suggest that some of those convicts have preferred appeals. 

Considering recent developments, where the Maharashtra police has been in the news for conducting pan-India investigations into Maoist activity, I tried to search for any analysis of the 2017 decision which had similar overtones. Despite that case generating much attention, I only found one article by Susan Abraham in the Economic and Political Weekly discussing the verdict. These posts are largely an attempt to fill that gap. This initial post lays out the broad contours of the allegations and explains the offences involved. The next post discusses how the prosecution proved its case, and points out some issues with the conclusions arrived at by the Court.  

The Investigation  
According to the prosecution case, Asst. Police Inspector Atul Shantaram Awhad [PW-6] at P.S. Aheri, received "secret information" that Accused Nos. 1 and 2 - Mahesh Tirki and Pandu Narote - were working for banned organisations as couriers, providing information to underground naxalites and taking them to places of safety [Para 5]. On 22.08.2013, around 6 PM, the officer went with staff to Aheri Bus Stand and saw the two accused. Around 6:15 PM, they were joined by another person and "started talking with each other suspiciously". The officers made their move, making "enquiry" with the persons who gave evasive answers. Because of this, PW-6 arrested them and took them to P.S. Aheri [Para 6]. Personal searches revealed Accused Nos. 1 and 2 revealed had a platform ticket dated 29.05.2013 for Ballarshah Railway Station, a cellphone, and several identity papers. Accused No. 2 had an umbrella and a newspaper (dated 20.08.2013). Accused No. 1 also had papers allegedly concerning CPI (Maoist) and Revolutionary Democratic Front [RDF]. The third arrested person was Hem Mishra, Accused No. 3, and his search yielded a newspaper (dated 19.08.2013), a camera, a memory-disk, and a railway ticket from Delhi to Ballarshah dated 19.08.2013.

Based on this, an FIR was registered at P.S. Aheri, under Sections 13, 18, 20, 38, 39 of the UAPA, read with 120-B of the IPC, and the investigating was handed over to Deputy S.P. Suhas Bawche, PW-11 [Para 7]. Interrogation of Accused Nos. 1 and 2 disclosed that they went to the Bus Stand to meet Accused No. 3 and take him to Murewada Forest under instructions from one "naxal lady DVC Narmadakka". Accused No. 3 disclosed that he had been given a memory card for Narmadakka by a person in Delhi who "who was [an] active member of banned organisation[s] CPI Maoist and RDF". He also "expressed his desire" to show police his Facebook account (done on 26.08.2013). Accused No. 3 also divulged details about the involvement of one Prashant Rahi, Accused No. 4, and based on this Rahi was apprehended at Chichgad on 01.09.2013 together with Vijay Tirki, Accused No.5. Both were searched on arrest in the presence of witnesses. Both had a copy of "Dainik Bhaskar" and a cellphone. Accused No. 4 also had "eight papers relating to naxal literature along with type written papers of under-trial prisoner Maoist leader Narayan Sanyal" [Paras 8-9]. They were brought to P.S. Aheri early next morning and searched again. 

The investigation revealed that Accused No. 5 was acting under instructions from one Ramdar, and was to take Accused No. 4 to meet senior Maoist cadre in the forest area. Subsequent interrogation revealed that the person in Delhi mentioned by Accused No. 3 was Dr. G.N. Saibaba, and so DSP Suhas Bawche applied to the Judicial Magistrate First Class, Aheri, for a search warrant on 04.09.2013. He got the warrant on 07.09.2013, left for Delhi on 09.09.2013, and on 12.09.2013 he searched the house with the help of P.S. Maurice Nagar. [Paras 10, 13]. Accused No. 6 and his wife were at home and present throughout the search, which revealed numerous electronic devices, books, magazines, and other articles [Para 14]. After a "thorough study of seized devices and documents", which involved sending them to the Central Forensic Science Laboratory in Mumbai, DSP Bawche sought to arrest Accused No. 6 but couldn't due to protest by "members of banned organisation". He got an arrest warrant on 26.02.2014 and arrested Accused No. 6 on 09.05.2014 who was then remanded to custody [Paras 16-17]. 

The Alleged Offences 
It was alleged that the accused persons committed offences punishable under Sections 13, 18, 20, 38 and 39 of the UAPA, read with Section 120-B of the IPC (the conspiracy offence). I've extracted the essential content of the UAPA offences below:  
  1. Section 13 UAPA has three sub-clauses. Section 13(1) punishes anyone who takes part in, or "advocates, abets, advises or incites" commission of any "unlawful activity" with a maximum of 7 years in prison. Section 13(2) punishes persons assisting "in any way", unlawful activity of an organisation after it has been declared unlawful under Section 3 UAPA. This carries a 5 year maximum sentence.     
  2. Section 18 UAPA punishes anyone who "conspires or attempts to commit, or advocates, abets, advises or incites, directly or knowingly facilitates" the commission of "terrorist acts" or any acts preparatory to their commission. It carries a 5 year mandatory minimum sentence, the highest sentence being life imprisonment. 
  3. Section 20 UAPA punishes being a member of a "terrorist gang or terrorist organisation which is involved in a terrorist act", with a maximum sentence of life in prison. 
  4. Section 38 UAPA punishes someone "associated, or professes to be associated" with a terrorist organisation, "with intention to further its activities". It carries a maximum ten year sentence. 
  5. Section 39 UAPA punishes giving "support" to terrorist organisations, support here going beyond financial assistance to encompass a range of acts done with the intention of furthering the activity of the organisation. It carries a maximum ten year sentence. 
The UAPA, enacted in 1967, originally dealt only with "unlawful activity". By enacting the Terrorist and Disruptive Activities (Prevention) Act in 1985, and the Prevention of Terrorism Act in 2002, Parliament left no doubt in suggesting the UAPA didn't cover acts of terrorism. But by 2004, both had been repealed. To prevent a potential vacuum, the terrorism offences in those statutes were grafted onto the UAPA. Thus, today the UAPA deals with two qualitatively different kinds of criminal acts - "unlawful activity" and "terrorist acts". The former is defined in Section 2(1)(o) and is concerned with acts adversely affecting India's sovereignty and territorial integrity. The latter, defined under Section 15(1), has a more complex definition. It specifies certain kinds of acts (involving violence or a show of violence), but only if these are done with the intent of affecting the unity, integrity, security, sovereignty and economic security of India, or, with intent to strike terror.

Allegations Based on Conduct
This focus on violent conduct is one way to try and understand the different scope of "unlawful activity" and "terrorist act", suggesting that even when there is violence, only the most serious cases will be defined as a "terrorist act". The problem, though, is that one needn't be accused of actually committing a terrorist act. The scope of liability is stretched far beyond that under Section 18 UAPA. This covers a conspiracy to commit terrorist acts, or attempts and participatory conduct such as abetment, incitement, and knowing facilitation. It also punishes conspiring, attempting, abetting, inciting, and knowingly facilitating, acts preparatory to the commission of terrorist acts. Crucially, the provision does not differentiate between the two in terms of sentence: everything carries a mandatory minimum 5 years and a possible life sentence. Theoretically, this allows the prosecution to stretch the scope of liability as per its imagination. The only thing stopping such flights of fancy from resulting in serious oppression is active judicial scrutiny, which throughout the world historically, has not always been most apparent in matters of national security.

Allegations Based on Membership / Association / Support
The other offences being discussed are similar insofar as they depend on having some connections with an organisation, either an "unlawful organisation" or a "terrorist organisation" as the case may be. The Central Government has powers to ban such organisations under the Act. For our discussion, what matters is that in 2009 the Central Government amended the First Schedule to the UAPA to add "Communist Party of India (Maoist), all its formations and front organisations" in the list of "terrorist organisations". Note, that while some organisations such as SIMI and ULFA have been declared as both, Terrorist Organisations and Unlawful Organisations, the CPI was not banned as an "Unlawful Organisation". Note, also, that the term "front organisation" is not defined in the UAPA itself. Having clarified this, what is the conduct being dealt with in Sections 20, 38 and 39? Membership, association, and support are not statutorily defined and the provisions have no illustrations. How their content is determined, again, is at the mercy of police imagination. What is clear, though, is that the UAPA imagines that support, professing association, and actual association, all imply a certain distance from the organisation itself. This is why, in Sections 38 and 39, there is a need to separately show that a person intended to further the organisation's activities by her acts, and those provisions carry a relatively lighter sentence. Membership, though, assumes shared intent with the organisation, and so doesn't ask for intent to be separately established and carries a life sentence reflecting the seriousness of this proximity. Now, in cases of terrorist acts and conspiracies, where direct evidence is unlikely, it is obvious that drawing these fine distinctions between support, professing association, association, and membership is a very difficult task. The UAPA makes matters worse as it provides no safeguards by way of evidentiary rules that would help judges decide what evidence is sufficient to label someone as a member of a terrorist organisation, as opposed to a supporter or associate, with the possibility of a life sentence. Nor does it clarify whether a member can also be convicted for the lesser offence of being associate or professing to be one.

Charges and the Trial 
The formal order on charge is not part of the 837 page long judgment. Instead, at different places, this lengthy extract can be found summarising the prosecution allegations:
On or before 12.09.2013 the accused hatched criminal conspiracy to wage war against the Government of India and to collect people with the intention of waging war against the Government of India, to overawe by means of criminal force the Government of Maharashtra and the Government of India, to shake and reduce the faith of the common citizen in its democratic Government by large scale violence destruction of lives and property and thereby destabilise the system of Government established by law, to organise the spread of secessionist and rebellious thoughts by holding covert and secret meetings, to collect money in India for the said conspiracy, to continue unlawful acts of the CPI (Maoist) and Revolutionary Democratic Front (its frontal organisation), to continue activities of Terrorist Gang, banned terrorist organisation, to conspire advocate incite abet and knowingly facilitate the commission of terrorist act and unlawful activities by violence / other unlawful means, to take part or commit or advocate, abet or incite the commission of unlawful activities, being the member of banned terrorist gang. (emphasis mine) [Para 2. Para 936 carries the same text with the date as 12.09.2009]
Despite the omnibus nature of this paragraph, note that (i) "preparatory" is absent, suggesting that the conspiracy allegation was for committing terrorist acts and not something preparatory; (ii) the words "associate / profess to associate" are also absent. "Support" is also absent, but there is a mention of organising meetings. Besides these possible omissions, there is some doubt about the inchoate offence alleged: what did they do, out of "conspire advocate incite abet and knowingly facilitate"? The repeated reference to "conspiracy" suggests it might be the allegation. And, finally, note that the RDF has been specifically labelled as a "front organisation", relying on the language in relevant entry from the First Schedule of the UAPA banning the CPI (Maoist).

The prosecution proved these allegations by leading 23 witnesses and many documents, photographs, video-clips in evidence. The defence chose to lead no evidence. How did the Court conclude that the case was proved beyond reasonable doubt? I discuss that in the next post. 

Monday, September 10, 2018

Guest Post: Understanding Section 377 in the Afterglow of Navtej Singh Johar v. Union of India

(I am happy to host a Guest Post by Vanshaj Jain. A slightly modified version of this post first appeared on the Indian Constitutional Law and Philosophy Blog)

That consensual sex between adults lies beyond  Section 377 of the Indian Penal Code 1860 [IPC] is now certain, per Navtej Singh Johar. What remains within the confines of that provision, however, is perilously unclear. To understand the conceptual imprecision that lies at the heart of this decision, it is necessary to understand how the normative content of Section 377 has changed since its ignominious birth. 

Sections 375 and 377 of the IPC were originally intended to cover two mutually exclusive categories of sexual acts. While Section 375 covered “sexual intercourse”, Section 377 infamously covered “carnal intercourse against the order of nature”. Though these terms were left intentionally imprecise, over time their meaning became conceptually dependant on each other. In Khanu v. Emperor, sexual intercourse was considered intercourse ‘in the order of nature’ with “the possibility of conception of human beings” and carnal intercourse against the order of nature was understood to cover all non-procreative sexual acts. Similarly, in Lohana Vasantlal Devchand, the content of Section 377 was defined in opposition to Section 375 by describing carnal intercourse against the order of nature as “an imitative act of sexual intercourse”. This bifurcation of sexual acts was cemented by the Supreme Court in Sakshi v. Union of India, where ‘sexual intercourse’ was restricted to penile-vaginal penetration, while all residual forms of intercourse (including “penile-oral penetration, penile-anal penetration, finger-vagina, finger-anal penetration and object-vaginal penetration”) were considered carnal intercourse against the order of nature. Thus defined, the relationship between the two provisions could be conceived as follows: 

However, the 2013 Criminal Law (Amendment) Act put an end to the watertight separation between these provisions. Section 375 was altered to include acts that earlier fell only within the domain of Section 377, including oral sex, anal sex and penetration by objects. Coupled with these changes, the provision ceased to describe the actus reus of rape as ‘sexual intercourse’. In fact, the marital rape exception to Section 375 which earlier covered only ‘sexual intercourse’ was specifically amended to except “sexual intercourse or sexual acts”. As Sekhri and Mukhopadhyay argue, this ended the binary separation of Sections 375 and 377, under ‘sexual intercourse’ and ‘carnal intercourse against the order of nature’. Indeed, it would be strange if the Amendment Act continued to restrict Section 375 to ‘sexual intercourse’ alone since it was based on the Justice Verma Committee Report, which expressly recommended removing Section 377 and abolishing the underlying division. Consequently, following the 2013 Amendment, the relationship between the provisions could be conceived of as follows: 

The Confusions Over Legislative Intent

It is this change in the conceptual interdependence of Sections 375 and 377 IPC that the Court seems to gloss over in Navtej Singh Johar. The judgment and opinions erroneously presume that Section 375 is still restricted only to ‘sexual intercourse’ and thus has no potential overlap with the actus reus of Section 377. Per Chandrachud J., for instance, the 2013 Amendment shifts non-traditional male-on-female sexual acts [now covered in amended Section 375(a)-(d)] from the category of ‘carnal intercourse against the order of nature’ to that of ‘sexual intercourse’. He reasons that: 

“…if ‘sexual intercourse’ now includes many acts which were covered under Section 377, those acts are clearly not ‘against the order of nature’ anymore. They are, in fact, part of the changed meaning of sexual intercourse itself. This means that much of Section 377 has not only been rendered redundant but that the very word ‘unnatural’ cannot have the meaning that was attributed to it before the 2013 amendment…[m]any of these acts which would have been within the purview of Section 377, stand excluded from criminal liability when they take place in the course of consensual heterosexual contact. Parliament has ruled against them being regarded against the ‘order of nature’, in the context of Section 375. Yet those acts continue to be subject to criminal liability, if two adult men or women were to engage in consensual sexual contact.” 

This misconception is repeated in the opinions of the other judges, compelling them to believe that the 2013 Amendment implied that consensual non-traditional male-on-female sex is legal because it displaces such acts from Sections 377 to 375, the latter having a consent requirement. As is argued above, the language of amended Section 375 betrays that this cannot be its effect; instead such acts remain within the meaning of ‘carnal intercourse against the order of nature’ but are to be covered by both Sections 377 and 375 (under the phrase “sexual acts” added by the amendment). 

Further, to add to the confusion, the judges seem to ascribe the intention of decriminalising all consensual sex between a man and a woman to the 2013 Amendment. Per Nariman J., for instance: 

“the legislature has amended one portion of the law in 2013, making it clear that consensual sex, as described in the amended provision, between two consenting adults, one a man and one a woman, would not be liable for prosecution” 

The basis for this conclusion is never made clear in the opinions in Navtej Singh Johar, and cannot be located within the text of the 2013 Amendment Act or the Justice Verma Committee Report. Indeed, it is absurd to reason that merely because the actus reus of one provision (here: Section 375) is expanded but made contingent on a consent requirement, the implication it carries is that the same act cannot be penalised under any other provision (here: Section 377), even if it falls within its definitional parameters. This seems patently incorrect. 

What Remains of 'Carnal Intercourse against the Order of Nature'? 

The second concern with the manner in which the decision addresses Section 377 relates to the phrase ‘carnal intercourse against the order of nature’. The judgment and concurring opinions indicate that this phrase lacks clear content: 

“In the contemporary world where even marriage is now not equated to procreation of children, the question that would arise is whether homosexuality and carnal intercourse between consenting adults of opposite sex can be tagged as ‘against the order of nature‘. It is the freedom of choice of two consenting adults to perform sex for procreation or otherwise and if their choice is that of the latter, it cannot be said to be against the order of nature.” [CJI] 
“At the very outset, we must understand the problem with the usage of the term ‘order of nature’. What is ‘natural’ and what is ‘unnatural’? And who decides the categorization into these two ostensibly distinct and water-tight compartments? The simple question which we need to ask ourselves is whether liberty and equality can be made to depend on such vagueness of expression and indeterminacy of content…[i]f it is difficult to locate any intelligible differentia between indeterminate terms such as ‘natural’ and ‘unnatural’, then it is even more problematic to say that a classification between individuals who supposedly engage in ‘natural’ intercourse and those who engage in ‘carnal intercourse against the order of nature’ can be legally valid” [Chandrachud J.] 
“…the phrase “carnal intercourse against the order of nature” in Section 377 as a determining principle in a penal provision, is too open-ended” [Malhotra J.] 

While the reasoning is unimpeachable, the judges don’t seem to fully appreciate its consequence. The phrase ‘carnal intercourse against the order of nature’ forms the crux of Section 377; it is the actus reus on which the crime is based. If its content is unclear, as the judges rightly point out, only two consequences can follow: either the Court provides a clear guiding principle to determine the content of this phrase for future use or it strikes down the entire provision for vagueness. Troublingly, the Court does neither. Instead, the Court reformulates the content of Section 377 as follows: 

“However, if anyone, by which we mean both a man and a woman, engages in any kind of sexual activity with an animal, the said aspect of Section 377 is constitutional and it shall remain a penal offence under Section 377 IPC. Any act of the description covered under 
Section 377 IPC done between two individuals without the consent of any one of them would invite penal liability under Section 377 IPC.” [CJI] 

The phrase “act of the description covered under Section 377” could, reasonably, only refer to ‘carnal intercourse against the order of nature’. Yet, by virtue of the pronouncements highlighted above, this phrase no longer carries any positive content, since the Court has, in no uncertain terms, departed from the tests laid down in Khanu and Lohana Devchand, without providing a new test of their own. This renders the residual content of Section 377 uncertain. It could, potentially, be conceived of in three possible ways: 

Option A is the only one consistent with the Court’s statements on the unintelligibility of ‘carnal intercourse against the order of nature’. By undermining this phrase, it is conceivable that the Court wishes to put the divide between ‘sexual intercourse’ and ‘carnal intercourse against the order of nature’ to rest once and for all. Consequently, Section 377 could be used to cover all non-consensual acts of sex (in addition to bestiality and paedophilia) that are not already covered by Section 375. This could raise the interesting possibility that marital rape and female-on-male rape are now subject to penal liability.

Option B indicates that Sections 375 and 377 are not watertight categories; the former criminalises non-consensual male-on-female sexual intercourse and carnal intercourse (“sexual acts”), the latter covers all remaining forms of non-consensual carnal intercourse. While this option best reflects the text of the 2013 Criminal Law (Amendment) Act, it isn’t consistent with the court’s reasoning on the 375-377 relationship. Option C allows for the two provisions to retain their independent character, the former applying only to ‘sexual intercourse’ while the latter covers only ‘carnal intercourse’, and best reflects the court’s description of their interaction. However, given the Court’s twin reasoning, first, on the unintelligibility of ‘carnal intercourse against the order of nature’ and its clear dicta that non-traditional forms of sex are not ‘unnatural’, and second, that the 2013 Amendment Act shifted non-traditional forms of sex from ‘carnal intercourse’ to ‘sexual intercourse’, it is possible that under both, Options B and C, Section 377 could no longer be used to cover non-traditional intercourse when done non-consensually, rendering the provision redundant (outside the context of bestiality and paedophilia). This would also have the bizarre outcome that even though male-on-male rape was criminalised earlier under Section 377, it won't be anymore (due to the gendered nature of Section 375’s text). However, if the phrase ‘carnal intercourse’ does have any residual content, this would again raise the possibility, under Option B, of trying marital rape and female-on-male rape (when it entails such carnal intercourse) under Section 377. 

In conclusion, the normative content of Section 377 still remains uncertain, as it was before Navtej Singh Johar. In all likelihood, it will require further clarification. What is clear, however, is the irresponsible manner in which this judgement addresses the conceptual boundaries of a criminal law provision whose content it was called upon to decide.

Saturday, August 18, 2018

Impartiality in Investigations - The Three Justices' Decision in Mohan Lal v. Punjab

Yesterday, a Three Justices' Bench of the Supreme Court delivered its decision in Mohan Lal v. State of Punjab [Criminal Appeal 1880 of 2011, decided on August 17, 2018]. The Appellant successfully challenged his conviction and sentence - 10 years in prison + Rs. 1,00,000 fine -  under Section 18 of the Narcotics Drugs and Psychotropic Substances Act, 1985 [NDPS Act]. This post discusses the judgment. Readers who've already read the case can skip consideration of the facts and an overview of the judgment and directly jump to the critique.

The Facts and Arguments
The facts take us back to 1997, when on 03.02.1997 Sub-Inspector Chand Singh of Balianwali Police Station lodged an FIR. In it, he stated that while on patrol together with Darshan Singh (Sarpanch), and Asst. Sub-Inspector Balwant Singh, they saw the Appellant Mohan Lal and seized him. Having doubts, they called a gazetted officer in whose presence Mohan Lal was searched, "leading to recovery of 4 kg of opium in a bag carried by him." A "consent memo" was drawn and signed by the Sarpanch Darshan Singh and S-I Chand Singh, and the seized opium separated into two samples (20 gms and 3.98 kgs). A "rukka" was handed over to AS-I Balwant Singh who then returned to the police station to register the FIR. An investigation was conducted, which ended in a Final Report being filed under Section 173 Cr.P.C., and ultimately led to Mohan Singh's conviction.

Counsel for the Appellant raised a multitude of grounds as per the judgment. He argued that evidence was insufficient; both the Sarpanch and AS-I Balwant Singh were not examined as witnesses. The chain of custody for the seized opium was dubious, as it was never deposited in the official police storage facility (Malkhana). Further, there was an unexplained delay of 9 days in sending the sample for chemical analysis. On top of which counsel relied on decisions in Bhagwan Singh v. Rajasthan [(1976) 1 SCC 15], Megha Singh v. State of Haryana [(1996) 11 SCC 709] and State v. Rajangam [(2010) 15 SCC 369] to argue that "the investigation was fundamentally flawed" as S-I Chand Singh could not have been the investigating officer after being the informant. Counsel for Punjab responded that the evidentiary lapses were inconsequential as those witnesses were relevant for facts already proved sufficiently. Further, she relied upon the NDPS Act casting the burden of innocence on an accused, under Sections 36 and 54, to argue that this had not been discharged. Lastly, she cited State of Punjab v. Baldev Singh [(1999) 6 SCC 172], Bhaskar Ramappa v. Karnataka [(2009) 11 SCC 690], and Surender v. Haryana [(2016) 4 SCC 617] to argue that the police investigation is not flawed or illegal merely because the informant continued as investigating officer.

The Decision in Mohan Lal
Justice Sinha delivered the judgment for the bench. Having heard the arguments, he noted that 

The primary question for our consideration in the present appeal is, whether in a criminal prosecution, it will be in consonance with the principles of justice, fair play and a fair investigation, if the informant and the investigating officer were to be the same person. In such a case, is it necessary for the accused to demonstrate prejudice, especially under laws such as NDPS Act, carrying a reverse burden of proof.

The judgment doesn't jump right to this "primary question" but deals first with other arguments first. Justice Sinha zeroes in on the many gaps in the prosecution case: (i) an illiterate person (Darshan Singh) has signed the consent memo, (ii) the seized narcotics were never sent to the Malkhana (the illegality of which he elaborates on further), (iii) non-examination of key witnesses, and (iv) delay in sending samples for analysis. None of these lapses were explained by the prosecution. For Justice Sinha, all these appear to be the result of that "primary question". He notes that: "had the investigator been different from the complainant, the issues for consideration may have entirely been different."

In Paragraphs 10, 11 and 12, the judgment seems to return to the "primary question", and reminds us how harsh the NDPS Act is with its minimum 10 year prison term and reverse burden of innocence. It notes that a fair trial, "a constitutional guarantee" to an accused, "would be a hollow promise if the investigation in a NDPS case were not to be fair or raises serious questions about its fairness apparent on the face of the investigation." He notes that a fair investigation is imperative, and then gives us a hint on how he will answer the question he framed: 

If the investigation itself is unfair, to require the accused to demonstrate prejudice will be fraught with the danger vesting arbitrary powers in the police which may well lead to false implication also. Investigation in such a case would then become an empty formality and a farce. Such an interpretation therefore naturally has to be avoided. [Paragraph 12]
In the circumstances, if an informant police official in a criminal prosecution, especially when carrying a reverse burden of proof, makes the allegations, is himself asked to investigate, serious doubts will naturally arise with regard to his fairness and impartiality. It is not necessary that bias must actually be proved. It would be illogical to presume and contrary to normal human conduct, that he would himself at the end of the investigation submit a closure report to conclude false implication with all its attendant consequences for the complainant himself. The result of the investigation would therefore be a foregone conclusion. [Paragraph 14] 
After sharing with us excerpts from the decisions cited by counsel, and others given by the Supreme Court and other High Courts, the judgment suggests the prior cases are contradictory. Megha Singh and other cases cited by the Appellant seem to conclude that an investigation carried out by the same officer who was the informant is illegal, while others such as Bhaskar Ramappa hold that this alone is not enough and the Appellant must show bias. This lasting controversy is resolved in Paragraph 25 of Mohan Lal for clarifying the law as the present situation "may not only lead to a possible abuse of powers, but more importantly will leave the police, the accused, the lawyer and the courts in a state of uncertainty and confusion which has to be avoided." The answer is as follows:

It is therefore held that a fair investigation, which is but the very foundation of fair trial, necessary postulates that the informant and the investigator must not be the same person. Justice must not only be done, but must appear to be done also. Any possibility of bias or a predetermined conclusion has to be excluded. This requirement is all the more imperative in laws carrying a reverse burden of proof.

Some Points of Critique
It is with some regret that I have to critique a judgment that confers more rights on accused persons in the Indian criminal process, especially because I will certainly be trying my best to use it to further that cause. But it must be said that for a decision resolving a controversy, Mohan Lal contains nearly no legal reasoning and instead is built almost entirely upon assertions, to create a rule that might well be useless. In no order of importance, I have listed out the points of critique below.

First, was deciding the appeal on a constitutional issue necessary here? It is a standard legal rule that the court avoids broad constitutional arguments if a case can be decided on narrower grounds. Here, the judgment engages with the many fundamental flaws in the prosecution case. Perhaps most notable was the police failure in securing the custody of seized narcotics. In a narcotics case, Mohan Lal did show that the police illegally kept custody of the drugs, that cast doubt on whether the eventual items sent for sampling were in fact what was seized from him. Isn't that enough grounds for acquittal? The judgment seems to think so. Moreover, it also thinks the other lapses are crucial. If so, why decide a constitutional issue?

Second, the Court notes in Paragraph 24 that "a fair investigation and fair trial guaranteed under Article 21" will be negated if the FIR is treated as gospel truth, and again in Paragraph 25 says that "fair investigation from the point of view of an accused (is) a guaranteed right under Article 21". But when and how did a "fair investigation" become part of Article 21? Although there are some earlier decisions of the Court where something to the effect of "fair investigation is implicit in Article 21" is said, I am not aware of any case where this was the central issue. In any event, none of those cases are cited. Thus, a Three Justices' Bench of the Court simply asserts that a fundamental rights exists. This lack of reasoning extends to why the Court thinks that the informant continuing as investigating officer is not a fair investigation. In arriving at this conclusion, the Court contradicts itself. On the one hand, it tells us that by definition the police is not partisan and must ferret out the truth. But on the other, it says that such cases carry a presumption of bias. Why? Is there an inherent distrust of the police? If so, why continue with the fiction of them working towards getting any truth at all?

Third, the Court held that the accused does not have to "demonstrate prejudice" from the informant and investigating officer being the same and that it is unnecessary that "bias be actually proved". But was an accused required to do so earlier? Not at all. In this regard, the Court's failure to fully engage with the decision in V. Jayapaul [(2004) 5 SCC 223] costs. The Court in Mohan Lal conveniently noted that the case dealt with corruption offences to move on, but Jayapaul is perhaps the only decision that really engages with the issue at hand and also explained the law on alleging "bias". It held that the accused must show a "real likelihood of bias", and that the mere fact of the informant and investigating officer being the same was not enough. By no means did this mean showing actual prejudice, as the Court in Mohan Lal seems to have thought.  Rather, it required an accused to show a Court that any reasonable person looking at the investigation might think the officer was biased towards a certain conclusion. At some level, even the Court in Mohan Lal engages in this reasoning where it notes that the many lapses in investigation would not have happened with a different officer. But rather than stick to this fact-specific rule, the Court chose an absolute rule that requires nothing further to be shown. [For more on the Indian position on "bias", see here].   

Fourth, the absolute rule neither helps the police nor the accused, and might be rarely used by courts. It is impractical for a police which has a limited number of officers on hand to fully implement such a mandate and will therefore try and find loopholes rather than actually conduct fairer investigations. The easiest being a fudging of the initial documentation upon arrest and seizure (which often already happens) to have that separation of officers. This means that the rule confers an empty promise on the accused person and in some ways might only worsen the present scenario as the police resort to illegal means to avoid the rigours of Mohan Lal. Given the absolutely awesome nature of the remedy - the prosecution is vitiated if the informant and investigating officer are the same - courts are bound to be hesitant in frequently throwing out cases on a technicality of this sort and so will possibly treat the accused' claims of fudged records with more suspect than otherwise warranted. 

Fifth, in Paragraph 15 of Mohan Lal, the Court notes that "the discussion in the present case may not be understood as confined to the requirements of a fair investigation under the NDPS Act only carrying a reverse burden of proof." But nearly every other aspect of the decision seems driven by the fact that this is an NDPS Act case with a reverse burden of proof:

  • Paragraph 5: " ... is it necessary for the accused to demonstrate prejudice, especially under laws such as NDPS Act, carrying a reverse burden of proof"; 
  • Paragraph 11: the fair investigation guarantee "would be a hollow promise if the investigation in a NDPS case were not to be fair ..."; 
  • Paragraph 14: "in the circumstances if an informant police official in a criminal prosecution, especially when carrying a reverse burden of proof ... serious doubts will naturally arise ...";
  • Paragraph 24: "The right of the accused to a fair investigation ... will stand negated ... with arbitrary and uncanalised powers vested with the police in matters relating to the NDPS Act and similar laws carrying a reverse burden of proof.";
  • Paragraph 25: (After giving the holding) "This requirement is all the more important in laws carrying a reverse burden of proof."       

Could this lead to further controversy later, with this rule being watered down to only these kinds of cases?

In 2015 [(2015) 3 SCC-J 24, "Investigations and Impartiality: Only Confusion Here Supreme"], I had argued that a higher bench of the Supreme Court must clarify the legal position on the consequences of the informant continuing as investigating officer in criminal investigations. The decision in Mohan Lal does exactly that. But as suggested above, there are some gaping holes with respect to how the Court arrived at its holding and the ultimate rule itself might not be very useful for accused persons as it might encourage deception by the police. 

This is not all that Mohan Lal does, though, which brings me to the good parts. Potentially the more lasting impact of this decision is not this elaboration on the right to fair investigations, but the remedy for its breach. 

Seemingly unknowingly, the Court has opened a brand new gateway for defence-oriented litigation based on the result in Mohan Lal. In Paragraph 26 the Court held that "the prosecution was vitiated because of the infraction of the constitutional guarantee of a fair investigation." (emphasis mine). Thus the remedy for violating the right to a fair investigation under Article 21 is to throw out the prosecution. In the hands of inventive lawyers and willing courts, this remedy can be used to achieve some significant results to help transform criminal investigations. I say this, because the scope of "fair investigation" is quite broad. In Mohan Lal, the Court relied on its earlier decision in Babubhai v. Gujarat [(2010) 12 SCC 254], which said that "fair investigation" protects defendants against "any kind of mischief or harassment" by the police. This phrasing carries a much more robust meaning than merely imposing procedural limitations on who conducts investigations, to addressing the substance of what goes on during investigations as well to curb police brutality, illegal detention, and the forging of records that are a frequent cause for concern.  

Thursday, August 9, 2018

Delhi HC Decriminalises Begging - An Outlier or the Start of Nationwide Reform?

Within the first decade of India becoming a constitutional republic, the erstwhile State of Bombay passed the Bombay Prevention of Begging Act, 1959 ["anti-begging law"]. This was extended to the national capital in 1960 and has been operational since 1961. Nineteen other states and another Union Territory followed suit, either with their own versions of the law or by extending the Bombay Act as well. Yesterday, a Division Bench of the Delhi High Court decided a 2009 writ petition challenging the constitutionality of several parts of the anti-begging law [Harsh Mander & Anr. v. UOI & Ors., W.P. 10498/2009 decided on August 8, 2018. Hereafter, "Harsh Mander"]. Central to the petition was a challenge to several provisions of the law which criminalised begging. On her last day in office as Acting Chief Justice of the Delhi High Court, Justice Gita Mittal delivered a judgment holding that these 25 provisions criminalising begging were indeed, unconstitutional. 

The Crime of Begging and its Punishment
Before going forward, let's take note of what was being criminalised. Begging. The statute defined it as "having no means of subsistence and wandering about or remaining in any public place in such condition or manner as it makes likely that the person doing so exists by soliciting or receiving alms." It also defined it as "soliciting or receiving alms in a public place, whether or not under any pretence such as singing, dancing, fortune-telling, performance or offering any article for sale." [Section 2] What happened to those found begging? They were to be taken off the streets and the law required they be sent to detention centres. Section 6 of the Bombay Act declared that persons found begging for the first time be detained for at least one year in a Certified Institution, which could extend to three years. Second-time offenders faced a mandatory detention period of ten years, with a possible prison sentence. 

The state saw the main problem being addressed through the law as one of organised crime - rackets being run by rich people who forced people to beg for a living. The anti-begging laws were driven by a deterrence logic to put an end to these rackets. But, a look at the definition makes it apparent that it covered a very wide category of persons. It did not even need any specific act to invite criminality; dire poverty that was visible and witnessed in public places was enough. Thus, people were made criminals not because of what they did, but for showing the rest of us who they were. No matter: this is where the rehabilitative logic of the anti-begging law came in. Those who were deprived and forced to beg would be helped by the Certified Institutions. These Institutions were not prisons, but places offering vocational training to help make persons capable of providing for themselves without begging.

As with most laws, the main problems with the anti-begging law came in enforcement. The state did not attempt any systematic approach at solving the problem. Instead, the law became a convenient tool at the hands of law enforcement to clean up city spaces of people who "looked" poor, as had recently happened in Delhi before the Commonwealth Games in 2010. The people most often caught and brought before courts were rarely part of criminal gangs, but people forced to beg out of extreme poverty and lack of employment opportunities. Courts justifiably refused to institutionalise them by exercising pardon powers conferred by the statute [Section 5]. The Certified Institutions themselves had come to be mired in controversy over time. Social activists and researchers complained that detention centres were no better than prisons and had no functional vocational training facilities. The state disagreed, and instead complained that courts did not send convicted beggars to Certified Institutions to facilitate rehabilitation. Ultimately, in 50 years of being on the statute books in Delhi, neither the deterrent nor rehabilitative potential of anti-begging laws had been realised.

The Constitutional Case
The Delhi High Court decision of 2018 was not the first serious discussion on anti-begging laws in India. In an earlier paper, Usha Ramanathan documents significant parts of the advocacy against such legislation. She notes that Delhi was the site of serious debates on the validity and usefulness of this law in the 1980s, based on pioneering work done by a team at the Law Faculty of Delhi University. The team studied the operation of anti-begging laws to point out various problems in enforcement, arguing that it was doing much to harm rather than help the poor. Subsequently, a writ petition was filed in the Bombay High Court in 1992, challenging the constitutionality of the anti-begging law. A Committee was setup in pursuance of that petition, which conducted studied the law to recommend it be radically re-shaped, as those forced to beg "ought not to be treated as offenders of the law. They need a healing touch of the protective law, not the deterrence of criminal sanction."

In Delhi itself, in 2006 a single judge of the High Court mused about constitutional arguments while deciding a revision petition in Ram Lakhan [137 (2007) DLT 173]. Justice B.D. Ahmed came down heavily against the order of the lower court challenged before him where the Metropolitan Magistrate had described the beggar as "raising his front paws" rather than hands. Justice Ahmed also tempered the force of the anti-begging law but could not rule on its constitutionality in revision proceedings. This did not stop him from discussing the topic, though, and he noted how criminalisation of begging seemed contrary to the right to freedom of speech and expression guaranteed under Article 19(1), as well as a clear violation of the right to life safeguarded by Article 21. 

The Division Bench decision in Harsh Mander v UOI builds on these cues. It held the provisions criminalising begging contrary to Article 14 and Article 21 of the Constitution. It notes that failure to distinguish between voluntary and involuntary begging renders the classification arbitrary, the wide definition of begging made the law over-inclusive in scope, all of which made the provisions "manifestly arbitrary" and contrary to Article 14 [Paragraphs 14-19]. The Court then moves on to Article 21: detention of persons to "ascertain the cause of poverty" is held contrary to Article 21 [Paragraph 20]. This is followed by a long exposition of the "contours" of that right [Paragraphs 21-26], possibly to make the claim that as the state is responsible for alleviating poverty, criminalising it is not the right answer [Paragraphs 27-31]. Finally, it reiterates that legislation penalising persons "compelled" to beg is in the "teeth of Article 21" [Paragraph 33]. The Court also claimed another reason for reading down these provisions - the wastage of public funds as Certified Institutions were lying unused [Paragraph 39]. 

Notably, in striking down the several portions of the anti-begging law, the High Court faced no real opposition from the government - both the erstwhile Congress regime and the current Aam Aadmi Party government agreed that the law was outdated and could go. Perhaps this is responsible for the paltry reasoning on display in the judgment which could have just been a consent decree. I highlight two problems. First, the decision does not discuss Article 19(1) claim even though it was made before the Court. In doing so, does the Court indirectly support the idea of begging itself not being protected speech? By refusing to discuss the argument altogether, we are left to wonder. Second, there is much to be considered on the aspect imposing constitutional limits on criminalisation of conduct per se, as the Supreme Court had been considering recently in petitions challenging the validity of Sections 377 and 497 of the Indian Penal Code, 1860. As was discussed in context of the adultery hearings, the legal challenge can be solely based on arbitrary classifications, or can be about whether the underlying conduct should be criminal, and courts must be clear in how they treat these separate issues. The High Court does not provide this clarity, and its lack of analysis is even more problematic in light of the remarks made by the Court at the end, where it stated that a well-crafted legislation criminalising "specific types of forced beggary" and for curbing the "racket of forced begging" might survive constitutional scrutiny [Paragraphs 36, 46]. 

Compare this decision in Harsh Mander to the 2009 decision in Naz Foundation, where contested claims helped the Delhi High Court to fully explore various arguments, in a decision which continues to be celebrated for its visionary approach. Perhaps because there was no real contest at the bar, and the speed at which the verdict came (judgment reserved on August 7 and delivered on August 8), the decision in Harsh Mander does not scale the heights of Naz Foundation, and I highlighted how the High Court failed to fully discuss the legal issues at the heart of the case. Even so, the decision in Harsh Mander does share the truly awesome transformative potential that Naz Foundation also had. Since criminalisation of begging is done in 20 states, and the underlying legal provisions are either identical or nearly-identical to all of them, the Delhi High Court's decision in Harsh Mander is poised to either stand out like a sore thumb, or spark nationwide reform. I sincerely hope it is the second.

[updated on August 8, 2018 at 13:30 to add the reference to the earlier adultery post and mention the speed at which the decision in Harsh Mander came]