Monday, June 18, 2018

Guest Post: Day Fines: Re-shaping India’s Broken Criminal Justice System

The Proof of Guilt is happy to have a guest post by Mr. Nishant Gokhale, a recent LLM graduate of the Harvard Law School

By most accounts, India’s criminal process is broken. Criminal courts are plagued by issues of delay and pendency, highly inconsistent legal representation, and outcomes which often result in longwinded appeals and revisions. While attention is focused on some of these issues sporadically, little is discussed or known about the system’s financial health. This post sheds some more light on this aspect, providing a brief background into how the court system is financed, before moving to discuss the concept of “day fines” as an additional tool to help the system run better. 

Who pays for our courts? 
Currently, states contribute at varying levels with the central government investing a majority of funds every year in the budget. It might not surprise you to learn that the judicial budget accounts for little more than 1% of India’s GDP, with much of it being spent on salaries of the judiciary and staff. Budgeting practises have been criticised for being formulaic, and for providing only incremental increases from past outlays, which leave little or no room for developing capacity or implementing new programs. The few other times that judicial budgets are spoken of, it has been in context of the ease of doing business, which does not take into account the chronic underfunding of criminal courts. While the Supreme Court in a 2012 Report had indicated that the financial burdens of operating courts should be shared between the centre and states equally, it remains an open debate. Chronic underfunding undermines nearly every action of the judiciary, and it is urgently necessary to examine new solutions to old problems. 

Fines in India 
One often overlooked approach involves “fines”. Every criminal court in the country has the power to impose a fine, where provided by law, once guilt has been proven or admitted by the offender. Fines have been around since at least 1100 AD in Europe and developed to reduce the dependence on private vengeance to punish criminality. 

How fines in India work in actuality remains a matter of conjecture as no information exists about it. Going by the Indian Penal Code, 1860 (“IPC”) alone, fines are capped at meagre amounts. While one problem is that fine amounts have not been revised to correspond with changing times, that is only the tip of the iceberg. Courts have the unenviable task of dealing with offenders across a wide spectrum of socio-economic means. For economically weak offenders, a higher fine amount would mean a substantial burden or even diverting expenses from basic necessities such as basic nutrition and health. For wealthy offenders, the low fine amounts constitute little more than a slap on the wrist. Increasing the fine amounts marginally would do little. This may explain why there has been little done to revise the monetary values of fines in the IPC which has resulted in this unhappy average. An alternative that some parts of the world have experimented with to deal with this problem is the concept of “day fines”, to which I turn to next. 

What are Day Fines? 
Day fines are a monetary criminal penalty imposed using a two-step procedure which take into account severity of the offence and the offender’s means. The first step involves assigning “day units” to a particular offence. Day units are determined based on how severe the criminal law considers a particular offence. Criminal law routinely grades offences based on severity. For example, rash driving resulting in the loss of life is considered more severe than drunken driving resulting in no actual harm to life or property. Day-unit determinations are divorced from the means available to the defendant. Means are considered in the second step called “day-value” determination. The day-value is determined after accounting for their assets, and liabilities and setting aside a reasonable allowance for their dependants and essential expenses such as nutrition and healthcare. 

The actual amount of day fine is a determined by multiplying day-units and day-value. So while the day-units for an offence of rash driving resulting in loss of life would be the same for rich and poor defendants (say for example 200 day units), the actual amount payable as fine would depend on the means available to the defendant. Using day fines would therefore result in the same relative burden on all offenders. 

Where are day fines used? 

Finland adopted a day fine system in 1921 following post-war fluctuations in the value of its currency. Today, around 60% of sanctions imposed by the Finnish criminal justice system uses day fines. Day units can vary between 1 to 120 units but can extend to 240 units for multiple offences. Germany (then West Germany) adopted day fines in the 1970s and continues to have one of the most nuanced system of day fines today. An estimated 82% of all offences in Germany are dealt with using day fines. In 2010, 94.5% of traffic offences, 86.8% of those sentenced to fraud and embezzlement, 73.3% of property crime offences attracted a day fine. Day units vary between 5 to 360 but day values have been capped between €1 to €30,000. Only 5% of the total number of cases in Germany resulted in actual imprisonment. 

Nearly all countries who had adopted this system continue to follow it till today and this has dramatically reduced incarceration rates. Notably however, the United Kingdom introduced “unit-fines” in 1991 only to repeal them in 1993. Partly responsible for the repeal were magistrates who felt that the system did not account for habitual offenders and public sentiment which felt that the middle class faced a heavy burden of fines while the poor got off lightly. Australia and Canada have unsuccessfully tried to introduce legislation to bring in day fines with a view to reduce incarceration rates. The United States abandoned day fines after some pilot projects as the system was found to be complicated and perhaps would also face resistance from vested interests such as private prison corporations. Some countries like the Netherlands, Norway, Italy, and Iceland have also steadfastly refused to implement day fines and continue with ordinary fines. Their preferred tools are suspended sentences and community service instead of incarceration. 

Implementing Day Fines in India 
Day fines are a concept to which little thought has been given in India. Undeniably, prisons are overcrowded and disproportionately represent religious minorities and socio-economically vulnerable castes and tribal groups. It is however unclear how much of this is due to fines. The IPC provides some safeguards on imposing fines such as monetary caps on fines for some offences and stringent limits for imprisonment for non-payment of fines. Where no upper monetary caps are specified, the IPC does not gives courts discretion to impose fines which are “unlimited” but not “excessive”. While specific fine amounts would require to be done away with in the text of the IPC, several underlying actions would need to be done before pressing day fines into service. 

Firstly, it would need to be clarified that offenders committing the same offences can be charged different amounts. The day units would be the same based on the offence, but what would vary is the day value. Individualised sentencing is a value that the courts recognise in Indian criminal law. For the determinants of day value, some guidance can be taken from the affidavits of income required by the Delhi High Court in matrimonial cases, in motor vehicle accident cases and also mitigating circumstances used in death penalty cases. It would also be important to gradually expand the use of day fines to cases involving corporations as they may require rules and factors other than those applicable to natural persons. In the event that offenders refuse to submit information, contempt of court proceedings can be ordered or the court itself can make an estimation. For determining day-units, a clear severity based grading of offences requires to be done at the legislative level, either by central or state governments. 

Secondly, it must be remembered that day fines are only a means to use criminal justice tools more efficiently and partly subsidise costs, not a way to entirely fund the system. Day fines operate only after guilt-determination and not as a means to ensure compliance with court orders. The United States has shifted the burden of criminal justice debt in the form of penal fines and costs as well as administrative surcharges, user fees, even charges for transport from court to prison to defendants. This was done to provide a “painless” way to protect the tax-payer while also modernising the criminal justice system. It has resulted in untold hardship with indigent defendants being trapped in the criminal justice system’s endless cycle of being incarcerated for failure to pay thereby further impairing their ability to earn pay off the debt. The existence of social security, state healthcare and employment guarantee programs used in Finland and some other countries have generally been found to be more useful in crime-reduction than day fines itself. Therefore effective social welfare programs need to be rolled out along with modifying the system of fines. 

Lastly, given that this is a system which is different from the measures adopted thus far, it would be useful to try using it on a pilot basis. Judges, court staff and parties in the criminal system would need to be familiar with it so that it is not overwhelm them or get misapplied. It could initially be limited to a few courts (geographically) or types of offences (traffic offences or offences punishable by 1 year or less of imprisonment). It is important to safeguard against the possibility that defendants plead guilty to offences for which day fines only to expeditiously conclude criminal proceedings. 

While several substantive, comparative and procedural law issues need to be ironed out before day fines are implemented in India, it may rejuvenate the largely dormant provisions related to fines and help in bringing about meaningful criminal justice reform. 

(During his LL.M., Nishant worked with the Criminal Justice Policy Program at Harvard Law School on the issues of criminal justice debt in the United States, including on day fines. The views expressed in this post are personal and do not represent the views of the Criminal Justice Policy Program or Harvard Law School) 

Useful References (on file with the author): 
  • Elena Kantorowicz-Reznichenko, "Day Fines: Should the Rich Pay More?", 11 Rev. Law Econ., No. 3, pg. 481–501 (2015) 
  • Sally T. Hillsman; Judith A. Greene, "Tailoring Criminal Fines to the Financial Means of the Offender", 72 Judicature 38, (1988). 
  • Joe Pinsker, Finland, "Home of the $103,000 Speeding Ticket", The Atlantic (12th Mar. 2015), available at https://www.theatlantic.com/business/archive/2015/03/finland-home-of-the-103000-speeding-ticket/387484/ (last visited 17th Jun. 2018). 
  • Hans-Jorg Albrecht, "Countries in Transition: Effects of Political, Social and Economic Change on Crime and Criminal Justice - Sanctions and their Implementation Special Issue on the 21st Criminological Research Conference", 7 Eur. J. Crime Crim. L. & Crim Just. 448 (1999).
  • Tapio Lappi-Seppala, "Criminology, Crime and Criminal Justice in Finland", 9 Eur. J. Criminology 206 (2012).

Friday, June 8, 2018

The Fugitive Economic Offenders Ordinance: Gearing Up for Challenge?

It has been over a month since the Fugitive Economic Offenders Ordinance [FEO] was passed by the Indian President. In what is rather common fashion, the Ordinance was passed without the necessary rules having been prepared, and this past month has slowly seen the Government get its act together and notify those rules that make the wheels of the Ordinance turn (see here, and here). The stage is nearly set for the first set of cases to be brought under this Ordinance, which one expects would be against Nirav Modi and Vijay Mallya, the two bogeymen used to pilot the law through in the first place. What this also means, hopefully, is that the legal defence teams for both Mr. Modi and Mr. Mallya will bring up what many commentators including myself (mostly before the Ordinance, for instance see here, here, here, and here) have imagined as the expected legal challenge to the constitutionality of that Ordinance. In eager anticipation of that legal challenge, which I sincerely hope does take place for a Court to clarify the issues, this post highlights what are perhaps the weakest parts of the Ordinance legally. It then moves beyond these previously argued points to point out a serious change brought about by the Ordinance in how its invested law enforcement agents with seriously broad powers to investigate routine offences.

The Mechanics of the FEO Ordinance
Bear with me, as I quickly run through what the FEO Ordinance does, before moving to what many have considered as its potential pitfalls if a legal challenge comes before court. The FEO Ordinance is a measure passed by the Government to "deter" alleged fraudsters from hastily fleeing the jurisdiction of Indian law enforcement agencies, which stalls any potential criminal proceedings against these persons. Who is an FEO? It is a person against whom a warrant has been issued, and who either left India to evade it, or if outside India, remained outside to evade arrest [Section 2(f)]. The Government admittedly had the examples of Mr. Modi and Mr. Mallya in mind, and so it has made the Ordinance applicable to persons who might already be FEOs before the Ordinance came in force [Section 3].  

How does the FEO Ordinance work? It can be used by Officers of the Enforcement Directorate [ED] in cases where they allege a person is an FEO and that sums more than Rs. 100 Crores were involved [Section 2(m)]. Based on these ED allegations, the Ordinance allows the Government to confiscate the property of an FEO at the initial stage itself. To triggers this process, an application consisting of these allegations (why is she an FEO, where is she, what property is sought) must be filed by the ED [Section 4]. The Court then issues a notice the alleged FEO, and any other persons with interest in the property, to appear and answer the allegations. The persons must have at least six weeks to appear, but this calculated from the date of issuing notice and not its receipt. Effectively, it will be lesser, as the Government has up to two weeks to get that notice served [Section 10]. If the person comes herself then proceedings under the Ordinance terminate. If, she appears through counsel, then the Court can give up to a week to file a reply. But if she does neither, and the Court is satisfied that notice was properly served, then it will hear the merits of the Government application [Section 11]. If the Court finds is convinced of the Government claim, then it will declare the person an FEO, and pass orders for confiscation [Section 12]. Thus, it should be clear that the ED can't get "immediate confiscation" as some news reports wrongly suggest."

Previously Argued Pitfalls
Confiscation of assets is not new under Indian laws. But confiscation at the pre-trial stage, with such rapidity and only on the basis of initial allegations levelled by an admittedly biased investigating agency, is definitely new. Thus, it has been argued that the Ordinance procedures could be challenged as unreasonable under Article 21 of the Constitution. Most commentators argue that a prominent issue with the Ordinance lies in the variety of drastic measures it seeks to impose on a person declared an FEO. Specifically, Section 14 of the Ordinance has been attacked. This allows any court to disallow the FEO herself or entities in which the FEO holds a key managerial position to advance or defend any civil claims. The provision is dangerously overbroad: any civil claims includes property disputes, matrimonial claims, company disputes, writ petitions, and a host of other potential claims. Certainly, the FEO Ordinance cannot take away the right of a person to seek writ remedies, or approach the Supreme Court under Article 136? Beyond Section 14, it has been argued that a problem lies in the Ordinance failing to explain what happens if a person successfully appeals against an FEO declaration under Section 17. Will the Government have to return confiscated property? Will it have to make monetary refunds for property where it has already been sold? The failure to elucidate any of this raises a question of whether the deprivation of personal assets, part of my right to life under Article 21, is being done via procedure established by law. This is not inconsequential, for while the Supreme Court has upheld pre-trial confiscation of property for a State Law in Odisha and Bihar (wrongly, in my view), both those statutes had provided compensation in case of a successful appeal.

A Challenge to the Broad Powers of Enforcement - Routinising Exceptionalism
In the existing commentary on the FEO, both while it was a pending Bill and the present Ordinance, little has been said about what it allows the Government to do beyond confiscating property. By this I mean the powers of survey, search, seizure, etc. [Sections 7-9] that have been conferred on ED officers. These are extremely broad powers. Survey powers allow them to enter any establishment and legally compel proprietors or employees to furnish documents and other materials, and even take their statements. Search and seizure, though common to law, requires court sanction unless there is grave exigency. Not anymore, as Section 8 authorises ED officers to conduct warrantless searches of places without any need for exigency. Section 9 similarly allows searches of persons, obviously not the FEO, for finding evidence. 

Now, these powers are not unknown to Indian laws. Nearly identical provisions are present in the Prevention of Money Laundering Act 2002 [Sections 16-18], and are definitely the source for the FEO Ordinance. Similar powers of search are also under the Unlawful Activities Prevention Act 1967 [Section 43A]. But, at the cost of sounding obvious I must say this, Money Laundering is one of the most serious offences out there today, and the UAPA deals with terrorism. Money laundering carries links with terrorism, and nation states argue that it offers one of the most serious threats to economic stability. We can all disagree about this assessment (I certainly do), but that is the line that India and other nations have taken. Is the FEO Ordinance only dealing with Money Laundering? No! It isn't! While allegations of Money Laundering offences can trigger the FEO, it is also a mechanism for dealing with many more standard offences when the allegations involve sums of over Rs 200 Crores. So, one finds that Cheque Bouncing Offences are part of the Schedule, as are nearly all the property-related offences of the Indian Penal Code, 1860. So, the ED can bust your house without a warrant for high-value cheque bouncing or cheating cases. You might say that wait, these are huge sums involved. Rs. 200 Crores is not chump change, and these are persons fleeing the country. I agree. But are there really these sums involved, and do we really have absconders? No. Remember, the FEO Ordinance powers can be used based purely on the untested allegations of the ED. Moreover, the law contains the vague language, that the ED officers can use these powers on the suspicion that a person may be an FEO. So there is no objective basis to be certain of how fairly these powers are used. 

To give some context, go look at the Narcotics, Drugs and Psychotropic Substances Act 1985, one of the more draconian statutes that we have at our disposal. Even that law does not permit a warrantless search and seizure except in cases of exigency. Thus, what the Government has done, is to confer perhaps the most serious and rights-limiting style of enforcement powers our legal system has, to deal with cases of cheque bouncing. It offers a drastic instance of routinising exceptional powers that the law confers under the guise of fear-mongering and scare politics. Sure, you can go challenge the unannounced raid and deprivation of your property in Court later. But the damage is already done by then, and is certainly done by the time you might get a hearing in the slow Indian criminal justice system. 

Conclusion: A Serious Problem Needing Judicial Attention
The FEO Ordinance must come up before a Court. The problems that have been highlighted in terms of its consequential provisions are serious and, in some cases, seemingly unconstitutional. That the Government went ahead with these provisions despite persistent adverse commentary makes one wonder just what it thinks is a legal justification behind them? But far more troubling is this resort to exceptional enforcement powers in dubious fashion. Why does the Government need terrorism-level enforcement powers to deal with loan defaulters, cheque bouncing, cheating, and bank fraud cases? No mention of this aspect was found in the Ordinance, the Bill, or the Parliamentary Debates on the Bill, and that should concern us. This cannot become the new normal that we slowly slide towards. In any potential legal challenge, a court will have the chance to arrest that slide, and it must. 

Wednesday, May 16, 2018

Sheila Sebastian v. R. Jawaharaj - A Postscript

This week, the Blog hosted a guest post by Sregurupriya critiquing the recent Indian Supreme Court decision in Sheila Sebastian [Crl Appeal 359-60 of 2010]. It is an interesting decision, which could be quite important or yet another citation, and here I join the debate that Sregurupriya started.  

Factual Recap
Jawaharaj and Miss X (a cousin of the Scotland Yard Enigma) went to Narayanan Pillai to get a Power of Attorney [PoA] made in 1997. A PoA is a legal document that effectively says that Person B has been authorised to perform certain legal acts / duties, on behalf of Person A. Here, the PoA was authorising Jawaharaj to perform certain acts for Miss X. On the document, Miss X signed off as one Doris Victor - who she was not - and once the PoA was made it was registered with the authorities. It meant that Jawaharaj could perform various legal acts in the name of Doris Victor, including selling her property. Which is exactly what he tried to do soon after, by entering into a Mortgage Deed with Rajapandi for Rs. 50,000/-. We don't know how, but soon the real Doris Victor got to know about this and an FIR dated 14.03.1998 was registered on her complaint. After the police finished investigation, it filed a Charge-Sheet against both Jawaharaj [A-1], and Rajapandi [A-2] for having cheated Doris Victor. The creation and use of the PoA to transfer her property was punishable under Sections 420, 423, and 424, of the Indian Penal Code 1860 [IPC]. Our imposter Miss X could not be found, so other offences of cheating by impersonation were presumably not added. The Court of the Magistrate where the case went for trial added offences of forgery punishable under Section 465 IPC. Ultimately, both accused were only convicted of the forgery offence and not for cheating Doris Victor. An appeal was filed with the Sessions Court, which upheld convictions. This was then reversed by the High Court, and the victim approached the Supreme Court appealing that decision acquitting both accused.

Procedural Doubt and Stray Observations?  
The victim filed an SLP before the Supreme Court and it was first taken up in August 2008. That is before the Criminal Procedure Code gave victims a right to appeal against acquittals (recently the subject of some discussion on the Blog). Does that mean the Court was allowing such appeals in the guise of an SLP even though no statutory right to appeal existed? The SLP was converted into an appeal in 2010, but does that take away this initial hurdle? I will hopefully explore that question more generally in subsequent posts.  

I gave the lengthy factual background because it matters for appreciating, and critiquing, observations that the Two Justices' Bench made in Sheila Sebastian about the investigation and prosecution. At Paragraph 28, the Court had this to say: 

"[This case] is a classic example of poor prosecution and shabby investigation which resulted in the acquittal of the accused. The Investigating Officer is expected to be diligent while discharging his duties. ... The Investigating Officer has not even taken bare minimum care to find out the whereabouts of the imposter who executed the PoA."

It is not unusual to find cases fall apart at trial (More than 50% of trials end in acquittal as per the last NCRB data release), so these observations would not be out of character. Except, it doesn't seem that the case here suffered because of lapses by the investigation. I haven't been able to trace the High Court decision, but recall that the police never foisted a forgery charge. It did not allege that there was a forgery. Instead, it foisted Section 423, that the PoA contained false statements "relating to the consideration for such transfer ... or relating to the person or persons for whose use or benefit it is really intended to operate", which it did. So, if the police never made a forgery case, why is it being blamed for it falling apart?

Strict Interpretation and Section 464 IPC
Which brings me to the forgery allegations that were the focus of Sregurupriya's post. She critiqued the Court's move to differentiate causing a false document to be made from making a false document (Paragraph 25) which justified the acquittals because neither Jawaharaj nor Rajapandi made a false document as under Section 464 IPC. The Court held that such a reading was the only one warranted by a "strict interpretation" of the provision - a rule that requires a Court to read ambiguities in a penal statute in the light most favourable to the accused.

First, a point that was left out in the earlier post. The Court considered Explanation 2 to Section 464 IPC material for the case. This explanation talks about creating a false document in the name of a fictitious or dead person, for someone to believe that it was made by a real person. But, we know that Doris Victor was a real person who was very much alive at the time the documents were created. So how would that explanation be of any relevance? Miss X was pretending to be Doris Victor, which is not the same thing (See Section 416 IPC). Is the Court now telling us that impersonating a real person for making a document amounts to creating it in the name of a non-existent person? 

Moving on to buttress the critique made in the post. The Court packs its reasoning in two paragraphs - 25 and 26 - and it is difficult to untangle the many strands. But once we do so, some logical flaws clearly emerge. In Paragraph 25 the Court holds that "a charge of forgery cannot be imposed on a person who is not the maker of the same", but that does not tell us anything besides repeating what Section 463 already says: forgery requires making a false document. The peculiar problem seems to come from Section 464 which explains what is "making" a false document: it says that a person "makes a false document" by making it! No wonder we are stuck in an endless loop. What Sheila Sebastian tells us is that putting your signatures on documents you know to be false that you helped create and then executing them is not making a false document. If that isn't, then what is? And, to echo Sregurupriya, what happened to the other ways of making false documents: signing, sealing or executing them?

Conclusion
Sheila Sebastian makes some additions to the law on forgery as it exists. Sregurupriya's post, and this short postscript, argue that these additions are far from desirable. The truncated reasoning behind the conclusions leaves many questions begging. That, in the long run, is a recipe for chaos across as trial courts across the country will now have to grapple with understanding when can an accused person sign and execute a false document, but still not make it

Monday, May 14, 2018

Sheila Sebastian v. R Jawaharaj: Strict Interpretation or Retroactive Law making?

(I am pleased to host a Guest Post by Ms. Sregurupriya Ayappan, a Third Year Student at NLSIU Bangalore

Recently, in Sheila Sebastian v. R. Jawaharaj, a Two-Justices’ Bench of the Indian Supreme Court, having “strictly interpreted” the provisions defining forgery in the Indian Penal Code 1860 [IPC], concluded that “for constituting an offence under Section 464 it is imperative that a false document is made and the accused person is the maker of the same, otherwise the accused person is not liable for the offence of forgery” (Para 25). In this post, I argue that (a) the Court has adopted a colloquial interpretation of “making a false document” rather than strictly interpreting Section 464 IPC and has done away with certain ingredients of the offence present in the provision and, (b) it has improperly applied the precedents it has relied upon. 

Strict Interpretation of the Provision 

The facts of the case, simply put, are this. Accused No. 1, with the help of someone impersonating as a certain Doris Victor (now deceased), obtained a Power of Attorney [PoA] in his name. By virtue of this PoA, he then executed a mortgage deed in favour of the Accused No. 2. This mortgage deed was signed by the A-1 (Para 10). Further, he had also affixed his signature on the original PoA after receiving it (Para 13). So, the crux of the matter was whether the actions of the A-1 would amount to making a false document as defined in Section 464 IPC. Specifically, the “First” part of that provision which says that: 

A person is said to make a false document or false electronic record— First —Who dishonestly or fraudulently—
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any [electronic signature] on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the [electronic signature],
with the intention of causing it to be believed that such document or part of document, electronic record or [electronic signature] was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; 

The Court observed that “there is no finding recorded by the trial Court that the respondents have made any false document or part of the document/record to execute mortgage deed under the guise of that ‘false document’” (Para 26). I disagree, for a strict interpretation of the provision makes it apparent that execution of the mortgage deed in itself amounts to forgery. 

There are several reasons supporting such a reading. First, A-1 acted “dishonestly”. Section 24 IPC defines “dishonestly” as something which causes wrongful loss or wrongful gain to someone. The act of executing the mortgage deed would indeed cause wrongful loss to the real owner of the property and wrongful gain to the accused persons thereby meeting the ingredients of Section 24 IPC. Section 25 IPC defines “fraudulently” as something that is done with the intent to defraud. The word “defraud” is not defined in the statute. In Vimla (Dr.) v. Delhi Admin (AIR 1963 SC 1572), the expression “defraud” was broken into two elements: deceit and injury to the person deceived. While the accused has clearly committed deceit by making the concerned authorities issue the PoA, it cannot be said that the injury is caused to the persons deceived. However, since, Section 464 IPC states dishonestly or fraudulently, it would suffice that one of these can be shown. 

Second, A-1 signed the PoA. He also signed and executed the mortgage deed. Third, he signed and executed the deed with the intention of causing it to be believed that it was done so by the authority of the late Doris Victor by whose authority he knows it was not executed by virtue of not having a genuine PoA. Finally, although illustrations are not binding on the interpretation of the operational part of the provision, it is helpful to look at Illustration (b) while deciding the scope of “making a false document”: 

(b) A writes the word “accepted” on a piece of paper and signs it with Z 's name, in order that B may afterwards write on the paper a bill of exchange drawn by B upon Z, and negotiate the bill as though it had been accepted by Z. A is guilty of forgery; and if B, knowing the fact, draws the bill upon the paper pursuant to A 's intention, B is also guilty of forgery. 

Here, despite B not having affixed his signature or modified any portion of the bill of exchange can be held guilty of forgery if he goes ahead and executes the bill with the knowledge of A’s intention. It seems that when the Court states that the accused cannot “be held as makers of the forged documents. It is the imposter who can be said to have made the false document by committing forgery,” it interpreted “making a false document” as it is in common parlance and not as per the statutorily laid down definition in Section 464 IPC resulting in a distinction between “making” and “causing to be made” that is not envisaged by the provision. 

Improper Application of Precedents 

The Court relies on four judgements in its interpretation of Section 464 IPC. It is my contention that these precedents are either not relevant to the case at hand, and if they are, do not help the court in arriving at its decision. 

In Dickins v. Gill, (1896) 2 QB 310, the issue before the Queen’s Bench was the interpretation of the phrase “lawful excuse.” Here, a person had ordered a fictitious die to be made, the possession of which was prohibited by law, and had taken the defence of lawful excuse because it was innocent use. The Supreme Court has, without context, relied on a statement of Justice Collins, who while distinguishing between possession and making, stated “it is therefore necessary to introduce the word 'knowingly' in that case, whereas it is not necessary in the case of ‘making,’ which in itself involves a conscious act on the part of the person who does it.” He did not make a distinction between “make” and “cause to be made”. Ironically, in this case, the person concerned had caused a fictitious stamp to be made although the analysis is restricted to whether or not subsequent possession was with lawful excuse. 

Further Section 464 IPC defines what “making a false document” is and this includes within its fold making, signing, sealing and executing a document. It is extremely curious, that despite the statute specifying the scope of making, the Supreme Court concluded that “an offence of forgery cannot lie against a person who has not created it or signed it” (Para 20, emphasis mine). What is the reason for doing away with other ingredients, namely, sealing and executing, from the construction of making? And what is the scope of the term “create” which finds no place in the provision? 

The Supreme Court also relied on Md. Ibrahim and Ors. v. State of Bihar and Anr., (2009) 8 SCC 751, (Two Justices' Bench) and inferred from it that “mere execution of a sale deed by claiming that property being sold was executant's property, did not amount to commission of offences punishable under Sections 467 and 471, IPC even if title of property did not vest in the executant" (Para 22, emphasis mine). The Court in the present case also cited excerpts from Ibrahim which differentiate between execution generally and execution by “impersonating” or “falsely claiming to be authorised or empowered” (Para 23). Significantly, the material facts of Ibrahim were completely different from the case at hand. Ibrahim had a person with a bona fide belief that he had a claim to the property which he sought to convey. Hence, in that case, the ingredients “fraudulently” and “dishonestly” in Section 464 IPC were not satisfied. In fact, the excerpted construction of the provision in Ibrahim goes against the inferences drawn by the Court in the present case. In Ibrahim, the Court stated that, “a person is said to have made a false document, if (i) he made or executed a document claiming to be someone else or authorised by someone else” (Para 11, emphasis mine). Here, the accused person clearly executed a mortgage deed claiming to be authorised by the deceased Doris Victor. Hence, according to this interpretation, he has indeed made a false document. 

In Mir Naqvi Askari v. CBI (2009) 15 SCC 643, bank officials were said to have abused their position and committed various offences to give undue pecuniary advantage to some persons. One of the charges was forgery of valuable security and hence, the Court interpreted the "First" clause of Section 464 IPC to mean “the document has been falsified with the intention of causing it to be believed that such document has been made by a person, by whom the person falsifying the document knows that it was not made.” The term “falsified” here encompasses all the ingredients of Section 464 excerpted above, and "natural inferences" must not be drawn from the word. Rather, one must go back to the provision. 

In Sheila Sebastian, the Supreme Court endorsed the High Court's reliance on Guru Bipin Singh v. Chongtham Manihar Singh & Anr, 1996 (11) SCC 622, which used Explanation 2 to Section 464 IPC to reason that for forgery, the making of a false document is essential (Paras 5, 25). In that case, the issue was whether an author had forged the writing of a prominent historical figure. There was no contention by either side that the accused author had either made, signed, sealed or executed the writings of the historical figure. Rather, he claimed that already existing writings were by the concerned figure. The facts materially differ from those in Sheila Sebastian. Here, the accused did in fact sign the PoA and sign and execute the mortgage deed relying on the authority which the PoA did not in fact confer since it was not genuine. Further, strictly speaking, Explanation 2 has no relevance whatsoever in the present case. At the time the spurious PoA was drawn, Doris Victor was alive. Hence, the document was not made with the intention that it be believed it was made during the lifetime of the person. Neither was Doris Victor a fictitious person. It is also quite puzzling that the Court relies on this Explanation to arrive at the foregone conclusion that Section 464 IPC is a prerequisite for constructing the offence under Section 463 IPC. Hence, there does not seem to be a “plethora of cases which held that making of a document is different than causing it to be made” and if there are, they have not been referred to by the Court. 

Conclusion 

Strict interpretation of penal statutes is one of the core principles of criminal law. The reason for this is two-fold. If the court gives statutes a wider meaning, it would amount to retroactive law making and it would be unfair to convict a person on such a construction of the offence without fair warning. It also helps the courts beneficially interpret the statute in favour of the accused by adopting a narrow construction given the severe sanctions that follow conviction. However, in no way can this empower the courts to indulge in retroactive law making of another kind where they dilute the legislative intent and do away with entire ingredients of the statutory provision in order to benefit the accused. Strict interpretation, after all, demands utmost faithfulness to the statutory text which the Court seems to have lacked in this case.

Thursday, May 10, 2018

De-Facto Complainants, Further Investigations, and The Curious Reference in Jagdish Patni v Nikita Patni

A few days ago, a Two-Justices' Bench of the Supreme Court passed what seemed an innocuous order referring the petition in Jagdish Patni v Nikita Patni & Ors [SLP (Crl) 3806/2018)] to a bench of higher-strength. This was because the Justices thought that an earlier Supreme Court decision - Reeta Nag  [(2009) 9 SCC 129, Two Justices' Bench] - might need re-consideration. In this post, I briefly cover that earlier decision and the problem that the Supreme Court alluded to. I argue that there is, frankly, no problem at all, and the petition should have been dismissed for more reasons than one. 

Further Investigations and De-Facto Complainants: What is the Law?
When police investigate a case under the Criminal Procedure Code, 1973 [Cr.P.C.], the investigation ends with a Final Report under Section 173. When this suggests allegations have enough basis to be tried in court, this Report is colloquially called a Charge-Sheet. But that is not the end of the matter. Section 173(8) Cr.P.C. makes it clear that even after filing of a Report, "further investigation" into the allegations can take place. And police file subsequent reports detailing what that further investigation revealed. As always, problems emerge when we probe further for details. What all can come within "further" investigation - can the same documents / witnesses be considered again? Are there no limits to this power of continuing investigations? Must the police file an application, or can the Magistrate herself direct further investigation? What about the victim / informant? Here, I am only concerned with two of these themes and their intersections: till when can a police do "further" investigations, and how can this be triggered. For a discussion on the scope of what can happen in further investigations, I'd encourage reading Vinay Tyagi v. Irshad Ali [(2013) 5 SCC 762].

The Supreme Court has clarified that further investigations can happen at any stage before judgment, and that triggering such investigations is not an exclusive power with the police. A magistrate on her own, or on an application by an aggrieved party, can also direct the police to further investigate a case. But, importantly, there is no right to further investigations: it is another area where the court has to exercise discretion, and it considers different considerations in deciding whether granting that permission makes sense. Basically, the more advanced a case gets, the more difficult it is to go back and investigate. This makes ample sense, as revisiting a case causes more delays in what is already a slow system of justice. 

The Court has made the time-element relevant in another sense: once the case crosses certain stages, a magistrate, and the aggrieved person, lose their ability to trigger a hearing for considering further investigations. The Court has held that a magistrate loses the right to trigger further investigations after taking cognizance. So, after deciding that there is enough material warranting the case proceed to trial, the magistrate on her own cannot turn back the clock and seek further investigations. For an aggrieved party, the starting-line is not as clear. But one point of no return was clearly identified in Reeta Nag by the Court. There, it held that an aggrieved person cannot seek further investigation once charges have been framed. After this stage, the only way left to trigger this process was if the police approach a court. 

Again, this makes sense. It is clear under the Cr.P.C. that there are other avenues that allow a court to arraign other defendants or bring in new evidence once the trial has begun, either on its own or on an application by an aggrieved party. Under Section 319, Cr.P.C., a court has broad powers to arraign new defendants it finds sufficient grounds. Equally broad powers are vested in a court to take in fresh evidence after the start of a case under Section 311.  

The Petition in Jagdish Patni and the (Mis)Perceived Legal Issue
Prakash Patni died on 27.05.2013. His father, Jagdish Patni, lodged a complaint with the police which resulted in registration of a First Information Report. The subsequent police investigation concluded his death was a suicide, and alleged that three defendants - his wife, mother-in-law, and a maternal aunt - abetted his suicide and recommended a case under Sections 306 read with 34, IPC. After cognizance was taken, Jagdish Patni moved an application on 16.06.2015 for "further investigation", at at time when the court was hearing arguments on charge. On 27.07.2015, the court rejected the plea for discharge by the defendants. Then, on 12.10.2015, the court passed an order dismissing the application for further investigation. This was challenged before the High Court, which affirmed the order and relied on Reeta Nag to do so. Challenging that order, Jagdish Patni came to the Supreme Court. And on May 7, a Bench comprising of Justices Chelameshwar and Kaul were of the view that relying upon Reeta Nag was a problem. The daily order notes: 

"The High Court dismissed the case of the petitioner by the impugned order relying on a judgment of this Court reported in Reeta Nag (citation omitted) wherein it was held that the criminal court is not competent to direct further investigation at the instance of de-facto complainant. Further, that judgment is rendered on the basis of the law as it existed prior to the judgment. By an amendment Act V of 2009 which came into force on 31st December 2009, a right of appeal is created in favour of a victim against order of acquittal under the proviso of Section 372 Cr.P.C. In light of the above-mentioned amendment, the scheme of Section 173 CrPC, in our view, requires a further examination." 

In my view, the Court gets it wrong here on multiple levels. First, Reeta Nag did not say this at all, as I have discussed above. De-facto complainants continue to have a right to seek further investigations, as long as it is before arguments on charge. In fact, this position was clarified in 2017 by the Court in Amrutbhai Patel [(2017) 4 SCC 177] nine years after the victim-rights amendment was passed, and curiously that decision is not cited by the Court. Moreover, assuming that the Court knew of this, and wanted to remove this limitation on the right of de-facto complainants, one struggles to see a connection between granting victims a right of appeal against acquittals and a right to seek further investigation after cognizance has been taken. Victims already had a panoply of rights, including the right to seek further investigations, but did not have a right to appeal. This was the lacunae being filled, but instead, the Court has put the cart before the horse in the extracted order. 

But the biggest reasons are pragmatic. Nobody needs reminding of how serious the problem of delays is. This is apparent in Jagdish Patni itself, as the FIR was registered in 2013, and according to the case status website charges have not even been framed yet. As I have argued previously, a large part of the reason for this is the Supreme Court itself. How? Because the Supreme Court, over the years, has repeatedly transformed routine administrative stages into full-blown hearings, purportedly in the interests of justice. This has led to a strange reality where the Court itself creates avenues for more delays, and then criticises that the system for delay. Sensibly, previous decisions created some limits on the right of aggrieved parties to seek further investigations. There was no marginal benefit gained at the cost of the additional delays this step invited. After all, the benefits accruing by this process were already being conferred by existing provisions, i.e. Sections 319 and 311. By reversing this, the Court would only drive another nail in the coffin of our tedious criminal process. 

Conclusions
Having seen how a SLP is heard, I would not find it unthinkable that the nuances of a legal issue evade a Bench of Supreme Court that is pressed for time. But the Court was not hearing the petition in Jagdish Patni for the first time on May 7; it was a week after it had first taken up the case as notice was issued on May 1. In that week, surely the able support of judicial clerks would have seen this obvious point that I raise. There are two reasons then, why this petition moved forward. The first reason is that, well, somehow owing to the burdens of work this legal point did elude everybody. The second is that the Justices knew of it but wanted to change the legal position. I only hope it is not the latter possibility.  

Thursday, May 3, 2018

The NCRB Data and Delays in the Criminal Process

The National Crime Records Bureau (NCRB) Crime in India publications have been around since 1953, providing us with statistical information about various aspects of (as the name suggests) crime in India. Today we might have other sources coming up, the NCRB data is an exclusive source for earlier decades. This makes it an invaluable site of research, and an amazing way to kill time without feeling guilty about procrastination.

Before going further, I must strike the obligatory note of caution that any causation arguments on NCRB data require. The NCRB data is notorious for being misrepresentative. So it might well be that the gaps between pending and completed trials were massive even before 1961, and that better data collection over the years meant that the NCRB finally came around to painting a more accurate picture of what's happening on the ground.

Taking this pinch of salt, we can talk about what the data perhaps points to. I noticed some interesting statistical points relating to ratio of pending criminal trials to those that are completed in a year for offences under the Indian Penal Code, 1860 (IPC). There are separate figures for cases under special and local laws which I do not discuss. Also note, that this is data for trials, not appeals or revision petitions on points of law. The numbers in the table below are given as approximations, sourced from the 2012 Crime in India Report (Figure 4.2):

1961: Completed Trials: 2.5 Lakhs. Pending Trials: 8 Lakhs.
1971: Completed Trials: 3 Lakhs. Pending Trials: 9.5 Lakhs.
1981: Completed Trials: 5 Lakhs. Pending Trials: 21 Lakhs.
1991: Completed Trials: 6.5 Lakhs. Pending Trials: 39.5 Lakhs.
2001: Completed Trials: 9 Lakhs. Pending Trials: 62 Lakhs.
2011: Completed Trials: 12 Lakhs. Pending Trials: 89 Lakhs.

This is, frankly, astonishing. Between 1961 and 2011, the total number of completed trials saw a 380% increase. As against this, the total number of pending trials in that same period saw a near 1000% increase. So from the gap being just about 5.5 lakh trials in 1961, by 2011, it was over 70 lakh trials by 2011. The decade between 1991 and 2001 is the most remarkable in some aspects. The completed trials numbers registered a 38% increase. But the number of pending cases increased by around 57% (the only time that this happened during that fifty-year period). The most recent figures from the 2016 Report don't have the same tables. But the 2015 Report did, and completed trials were approx. 13 lakhs while completed ones were over 1 crore.

It is clear, then, that the rate at which the pending trials have been rising continues to greatly outstrip the rate at which cases are disposed. As against this, how have the police fared during the fifty-year period? Data from 1962 is not available (the report speaks of appendices at page 23 which aren't currently hosted online), but we have data for 1972-2012 on investigations completed by police. For 1972, police boasted an 82% completion rate for IPC offences. This was 81% for 1982, 78% for 1992, 79% for 2002, and 74% for 2012 (again, figures are rounded-off to the nearest whole number). 

Not every completed investigation brings a trial, but several do, and I think this shows the first reason behind the inflating rate of pendency in our trial courts. While courts kept taking longer to finish trials, the police relentlessly finished investigations and filed new cases. This efficiency of one arm of the justice system (police) worsened the problems with the other (judiciary). And this makes sense. Police and courts are rather insulated from each other despite being parts of the same setup. Police officers finish one investigation and move on to the next, considering their job done with the filing of a charge-sheet. They have minimal skin in the game when it comes to the trial itself, and so they have no reason to stop filing their charge-sheets even if they knew that disposal rates are very low.

Looking at the data to discuss delays offers a better way to think about solutions. For instance, now we can safely assert that one reason for the courts becoming slower in disposing cases is that they just kept getting more cases to deal with. One way to deal with this is to increase the number of judges, and it is an issue often thrown up in the public discourse. But why don't we talk about the police, and whether they should be filing so many cases? We do talk about the police filing dubious cases in court - the Delhi High Court recently passed an order asking all cases to be reviewed by the legal section first. But this is casting doubt on merits. Rarely in India do we talk about another aspect: are all cases equally important and merit a criminal sanction? A criminal conviction is serious business, and as we know, engages scarce judicial resources. So should a review stage also look at whether a case really warrants a criminal sanction? Besides better use of resources, it could also help drive up conviction rates, and re-assert the potency of a criminal sanction which is arguably lost in India when conviction rates hover around 50% and it takes years to get a conviction in the first place.

Could there be any other reason why courts became slower with IPC cases? I suspect that the initial bump between 1971 and 1981 might have been caused by introduction of a new Criminal Procedure Code in 1973. It takes time to adapt to new procedures, even if the changes were minimal, and it is safe to argue that this would have contributed to delays. Besides this, the period is known to be a time where public services were not up to the mark (serving a justification for Mrs. Gandhi's Emergency).

But what about the decade between 1991 and 2001? I'm at a total loss on what might explain such a big jump in pendency rates during this period. There is no marked increase in the rate at which police investigations were being completed. My cursory reading of the reports did not show any specific offence being prosecuted a lot more, or of there being a new offence that came on the books. Maybe understanding what caused these changes could also help in stemming the tide for the future? 

Monday, April 23, 2018

The First and Final Tribunal: The Judge Loya Case and the Blurring of Judicial Functions

(This post, by Gautam Bhatia, first appeared on the Indian Constitutional Law and Philosophy Blog)

Judge Loya passed away on December 1, 2014, while presiding over the politically-charged Sohrabuddin Sheikh encounter case, ostensibly because of a heart attack. In November 2017, The Caravan magazine published two articles raising doubts about whether Judge Loya had died of natural causes. There was considerable furore, and after a series of events, which are not relevant for the purposes of this post, various petitions were filed before the Bombay High Court and the Supreme Court, asking that the death be investigated. A bench presided over by the Chief Justice of India pulled up all the petitions to itself, and delivered its judgment last Thursday, dismissing the petitions, rejecting the request for an enquiry, and holding that "in so far as the circumstances relating to the death of Judge Loya are concerned, all issues raised in that connection in the present case shall stand governed by the judgment delivered by this Court."

The tangled history of the Sohrabuddin trial (including how the Supreme Court dealt with some problematic aspects of it in its judgment), the Court's decision to transfer a pending petition of the Bombay High Court to itself, the unavoidable political backdrop of this case, and the circumstances surrounding Judge Loya's death itself, are all issues that have been debated elsewhere, and will continue to be debated. I do not intend to address any of them here. Nor do I intend to critique the substance of the Supreme Court's judgment from a criminal law perspective - that is, ask whether the Court applied the standards and burdens of proof that are normally applied at the stage at which a judicial officer decides whether or not to order an investigation. That too has been done elsewhere. However, what I do want to address is the Supreme Court's approach to this case, and the larger ramifications for its role as a constitutional court.

The relevant prayer before the Court was that an enquiry be ordered into the death of a judicial officer, that was, until now, believed to be natural. The petitioners argued that certain facts had come to light that raised a non-trivial possibility that the death was not of natural causes - and that this warranted an investigation. In response, the State of Maharashtra - which had conducted what it called a "discreet enquiry" after The Caravan articles came out - argued that there was nothing to suggest that the death was unnatural, and that whatever doubts had been raised by The Caravan's stories were susceptible of an entirely innocent explanation. The State of Maharashtra also obtained the "say" of four judicial officers who were with Judge Loya during his last hours and after his death, and who affirmed that there were no suspicious circumstances surrounding the death.

The evidence before the Supreme Court was entirely documentary in nature. On one side there were documents (articles, medical reports, etc.) highlighting a set of facts that cast doubt upon the nature of Judge Loya's death; and on the other side, there were other documents (the "discreet enquiry" report, contrary medical reports etc.) that sought to rebut or explain away these doubts. Now, the Supreme Court might have done the following: it could have taken a prima facie view of the petitioners' case, and found that the petitioners had failed to make out a threshold case for an investigation, and dismissed the Petitions. This approach would have involved the Court expressing no opinion on the cause of Judge Loya's death, but simply noting that the evidence on record was insufficient for it to draw any conclusions.

However, this is not what the Court did. Acting in its capacity as a constitutional court, and as the Supreme Court, it went far deeper, and into the quality of evidence before it, presented by both sides. It delivered a 114-page long judgment that went into great factual detail, drew almost-definitive conclusions about what had happened, effectively closed the case for all time, and did it all on the basis of its interpretation of the documents before it, untethered from the existing rules of evidence. The judgment, therefore, reads less like a verdict on a plea for an investigation, and more like a criminal appeal that results in an acquittal, but without the benefit of a trial court judgment where the first trier of fact has returned detailed findings about the evidence, which the appellate court is then reviewing. Alternatively, it reads like a trial court judgment that has been delivered without a trial. This, I submit, is a very uncomfortable halfway-house for the Court to find itself in: it seems to be performing both the functions of a trial court, but without the statutory framework that is meant to govern the trial court in determining the truth, and of a constitutional court, but ruling on issues that a constitutional court is neither equipped nor meant to rule on.

Indeed, the Court was hardly unaware of this. In paragraph 7, Justice Chandrachud noted that:

"In view of the nature of the issue which has been raised in the proceedings, we have permitted learned counsel appearing on behalf of the petitioners as well as the intervenors to rely upon such documentary material as would enable them to advance their submissions without being bound by technicalities of procedure."

However, the fact that the Court was excusing the petitioners and the interveners to advance documentary material "without being bound by technicalities of procedure" does not mean that the Court was absolved from ensuring that its findings were delivered within the framework of a procedure that is relevant to the nature of those findings. The most significant example of this occurred in the Court's treatment of the "Discreet enquiry", conducted by the State of Maharashtra, which recorded the "say" of the four judicial officers. The judicial officers broadly supported the State's view that there was no reason to believe that Judge Loya's death was unnatural. The question before the Court, then, was what evidentiary weight (if any) to accord to this.

To contrast what the Court did (which I discuss below), let's imagine what would have happened had this been a normal criminal case pertaining to the death of Jude Loya. There are two possibilities.The Investigating Officer might have taken the statements of the four judicial officers as part of her initial investigation, and submitted them to the Magistrate along with the rest of the material. In the unlikely event that the Magistrate would have decided not to take cognisance of the case on the basis of these statements, and closed proceedings, it would still have been open to the kin of the accused to launch a private prosecution (they would also have had remedies if the police itself had sought a closure). This opportunity, however, has now been denied to them by the Supreme Court which stated that all issues are now closed. However, it is unlikely that the Magistrate would have closed the case, because the threshold for taking cognisance is a low one, and exculpatory evidence is normally left to be brought in at the stage of trial. This leads to the second situation: if, on the basis of the prima facie material produced by the Prosecution, a charge had been framed (again, a very low threshold), then the four judicial officers would have been witnesses for the defence, and their evidence would have come in at the stage of trial (after the Prosecution had completed its evidence). There would have been no "discreet enquiry" and no "say": rather, the four judicial officers would have been sworn in, their evidence taken, and then they would have been cross-examined by the Prosecution.

These are not simply "technicalities of procedure." They go to the heart of the adverserial legal system: being sworn in is important, because it exposes a witness to a charge of perjury if she is later found to have lied. And cross-examination is absolutely critical, because it is a fundamental postulate of the adverserial system that the truth - or an approximation of it - cannot be arrived at in the absence of each party's case being tested by its opponent. For this reason, courts across the common law world have held that even the word "evidence" has little meaning until it is put through the rigours of a cross-examination.

It is important to note that even though it is a constitutional court, where disputed factual questions are ordinarily not meant to be contested, the Supreme Court is vested with the power of conducting a cross-examination if, in its discretion, it believes that it is appropriate. And indeed, precisely this request was made by the counsel for the Petitioners, who asked that he be allowed to cross-examine the four judicial officers (paragraph 15). The Court record this submission, and then rejected it, noting that:

None of the persons whose cross-examination has been sought is a witness in the present proceedings. The court is essentially required to consider to whether a case has been made out on behalf of the petitioners (supported by the intervenors) for directing an inquiry into the circumstances leading to the death of Judge Loya. As part of this process, the court has to decide as to whether the inquiry which has been conducted by the state is vitiated and if circumstances have been brought to the notice of the court which cast a reasonable suspicion about the events leading upto the death of Judge Loya. (paragraph 63)

This, however, is circular: the whole point of the Petitioners was that the question of whether the "inquiry" was vitiated or not could not be decided without actually submitting the "evidence" of the judicial officers who participated in it to the rigours of cross-examination. Instead, what the Court did hold on the question of the "discreet inquiry" and the "say", was the following:

Each of the judges has spoken in detail of the facts and events which were within their personal knowledge. The statements contain matters of detail which would be known to those who were present with Judge Loya. They have a ring of truth. They had nothing to conceal nor an axe to grind. Three of the statements are dated 24 November 2017 while the fourth submitted by Judge Rathi is dated 23 November 2017 and contains an endorsement of receipt by the Commissioner on 24 November 2017. The fact that two of the judges were respectively at Pune and Baramati is absolutely no ground to cast doubt. The statements were submitted with dispatch. Reading them it is clear that they have been submitted without pre-meditation. The four judicial officers acted responsibly. There was no reason for them either to hasten or to cause a delay in submitting their versions of what they knew. Each of the four judges has acted with a sense of duty. This is how they would be expected to conduct themselves, in answering to a call of duty. (Paragraph 46)

The whole point, however, is that the adversarial legal system is founded on the postulate that whether a statement has "a ring of truth" is to be determined by putting its maker on oath and subjecting her to cross-examination. People often have things to conceal, and people are often motivated by greed, or fear, or a combination of both. Judges are not somehow exempted from being human in this regard (recall how it was noted, in the Constituent Assembly, that "judges have not got two horns; they are men like us"). The issue, of course, is not whether the judicial officers in this case had anything to conceal, but that nobody can come to a definitive conclusion about that without going through the processes that the legal system expressly envisages for exactly this purpose. Consequently, the Court could have done one of two things: disregarded the statements altogether while considering the question of whether there was an prima facie evidence to warrant an investigation - or, if it was not going to do so, then required them to be sworn in and allow a cross-examination. Instead, the Court passed a sweeping conclusion on the veracity of their statements purely by virtue of their position. 

In fact, the judgment, on this point, is particularly unsustainable, because it takes judges and invests them with superhuman qualities by virtue of their office, in a context in which that office has no relevance to the issues at stake. This is not a case where, for example, a judgment is being attacked on the basis that its author was motivated by financial considerations, and where it makes sense to say that our constitutional system requires us to presume judicial good faith (in the absence of clear, contrary evidence). Rather, this was a case where judicial officers effectively happened to be giving statements as "witnesses", in the common sense of the word. 

Instances abound in the judgment where the Court went into detailed factual appreciation of conflicting evidence, and came to definitive conclusions without making use of the criminal legal system's tools to address and resolve such conflicts. For the purposes of this post, one more example will suffice: Judge Loya's father and sister alleged that the then-Chief Justice of the Bombay High Court, Mohit Shah, had offered him a substantial bribe to return a favourable verdict. The Court rejected this by noting, inter alia, that it was "hearsay" (paragraph 60). But this is a classic example of having your Evidence Act and eating it too: the exclusion of hearsay evidence is a technical rule of evidence (subject to a series of exceptions that may even have applied in this case). The Court cannot take a janus-faced approach to the Evidence Act - discarding it in order to accord the highest probative value to a judicial officer's "say" in a "discreet inquiry", but following it by the book to discard statements made by the relatives of the deceased. What this results in, at the end of the day, is three judges' assessment of a set of documents, untethered and unbound by any rules that determine, or even guide, how that assessment ought to be made: the very antithesis of having a rule of law instead of a rule of men.

The broader point is this: for the last three decades, and predominantly in the Supreme Court, the rules and procedures that govern the appreciation of evidence have come to be viewed with skepticism, as though they are impediments to arriving at the truth, rather than facilitators of it. The primary driver of this approach has been public interest litigation, where the Court has increasingly relied upon affidavits to draw sweeping factual conclusions, brushing aside evidentiary concerns by noting that these proceedings are not really adverserial. What this has resulted in, in the year 2018, is a Supreme Court of Everything: of the Constitution, of legal issues, of factual disputes, of mixed questions of law and fact. It has become the Supreme Magistrate, the Supreme Investigating Officer, and the Supreme Additional Sessions Judge, the Court of First and Last Instance. In such a situation, there is an urgent need that the Court be even more careful of the evidentiary and procedural standards it applies, because when the same body acts as the first and the last tribunal, every error is compounded to a grievous degree. The Loya Judgment was an opportunity for the Court to begin its journey down that road. Unfortunately, it now remains a road not taken