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.