A Dangerously Populist Practice?

A friend messaged that the DCW moved the Supreme Court in a last ditch attempt to stall the release of the juvenile involved in the Nirbhaya case [note: I refrain from calling him a convict or accused, because he is neither, and labels matter]. This was at 1 AM. I slept fearing the worst, but waking up to news reports indicating no stay had been granted while the matter was posted for hearing on Monday before the Vacation Bench. Hearings last night were concluded swiftly, but still did happen to some extent. Hark back to the execution of Yakub Memon and we had full-fledged hearings. This is dangerous trend, only further revealing how dangerously populist our criminal justice system is becoming. Lets start at the roots of the malaise. 

Understanding Penal Populism

In 1993, a 3 year old toddler was brutally murdered in Walton, Liverpool. His killers were two 10 year olds. Since Britain allowed trials for people aged 10 and above, these boys stood trial and were convicted. Immediately after the trial the Judge allowed the media to report on the case, and the boys' names were splashed across the world. They were to serve ten years in prison. Immediately, though, The Sun [a U.K. Tabloid] petitioned against it and it worked. The sentence was increased to 15 years, in a move roundly condemned as playing to gallery. It was overturned by the House of Lords, the highest court in England at the time. Contrast this with a similar incident in Norway, where two 6 year old boys beat up and killed a 5 year old girl. There was no release of details in the newspapers. No trial. There were formal proceedings determined to rehabilitate the children which decided that a change of setting would be best.  

David A. Green has a brilliantly informative book called 'When Children Kill Children', where I take this from. He attributes these starkly different responses primarily to (i) different political cultures, and (ii) different media cultures of the two countries. The U.K. has highly competitive politics, where every issue is treated by the Tory and Labour as a zero-sum game, Norway has more political outfits but no zero-sum game. Dialogue is more prominent in their approach. As for the Media, the U.K. again has a notoriously capitalist media with everyone fighting for readers and stories. Attention-grabbing headlines, innovative gimmicks, all of this is but an attempt to ensure support. The capitalist regime also ensures there are links between the politicians and the media: papers are known to have leanings, and politicians greatly benefit from the support bestowed on them. Norway does not have a capitalist setup, and there is one clear leader in the newspaper race. The support, if any, by the media for politicians is also of no great consequence. All of this impacts how elected representatives respond to crime. Crime is one of the most reported segments for newspapers everywhere. The large personal element of crime makes public opinion increasingly voluble, and easy and profitable to report. The large noise so created has to be responded to by the politicians, for this zero-sum game has important first-mover advantages. The decisions made in such an atmosphere for penal policies are primarily populist, and usually end up being the wrong ones as well.

Penal Populism in India

I will assert, and not seek to prove, that India is a populist democracy where decisions are swayed by populist tendencies more often than not. It is much closer to the English experience highlighted here than the one in Norway. The zero-sum game is played between the Ruling Party and the Opposition on every issue. Instances of a united front being put up are very, very rare indeed. The views on penal policy are treated no differently. Consider the Yakub Memon hanging: the Congress condemned the decision while the BJP stood by its views of no mercy for terrorists. The Finance Minister called Congress leaders irresponsible in their statements. Both sides were covered by different news outfits. When the Law Commission was making its recommendations on abolishing the death penalty, its conclusions were tempered due to populist stands taken by representatives of the Ruling Party [it recommended abolishing the death penalty for everything but terrorism related activity].

Nirbhaya was no different. The issue presented itself in the form of a horrific killing. Everyone likes a good crime in the news and it was heavily reported. Sexual offences were not always so heavily reported. But the public outcry following the media releases here in fact contributed to an increase in overall reporting of sexual offences by every outfit. This massive public outrage became easy fuel for politicians, who now adopted a universal position of condemnation but took different and seemingly irreconcilable positions on what to do. The debates raged on aggressively dealing with sexual offences, and juveniles committing offences. Their positions were supported by different news outfits, ensuring everyone had something to talk and shout loudly about, and make money from. Capitalism won, and continues to win, with every 9 PM news debate.

The Current (Actually Old) Debate

Between 2012 and 2015, little or no movement occurred outside of these verbal sparring battles. One slew of amendments was passed with clear hues of populist dementia (introduce the death sentence for an offence to make everyone think its serious now, while they've forgotten the problem really was enforcement). Juvenile policy was worse. In 2012, there was a movement to change the law making 16 year olds responsible. It was reviewed by the Law Commission and the Supreme Court. Both concluded that the shift was possible if there was some scientific data to support the theory that 16 year olds understood ideas of responsibility. Populism alone was rejected as a basis for legislation. What happened between the three years? You guessed it. There was one Bill introduced, no scientific study conducted, and in fact no verbal sparring also. Callous statements only began to emerge closer to the Day of Reckoning. Reports with dubious credibility surfaced with the media showing no remorse. The Ruling Party blamed the Opposition for stalling its reforms (cue, applause). For good effect, they brought in ISIS! Because terrorism and sex offenders are perhaps the only things that get our public opinion really moving. 

And then there is the Supreme Court. Perhaps the only real development between 2012 and 2015 was that the Supreme Court began to play to the gallery. Its always good to be looked upon as a White Knight in a bleak world (no, I will not use the line from Batman here), and the Supreme Court played its part publicly to great effect. The midnight hearings for Yakub Memon were yet another exercise in boosting that image, while showing the 24 Hour newscycle that the 12-5 AM segment could have new material. So as the clock struck midnight and brought upon us the end of the world, the politicians ran to the Supreme Court again. Hoping, I believe, that the great work they've done - of verbal sparring in the media, using victims, shouting, and not doing any real work - will be duly rewarded. It hasn't, yet, and I hope good sense prevails. The Supreme Court will do good to recall its earlier position of wanting clear data to effect legislative change. A reading of When Children Kill Children would be handy as a starting point. It would also do good to remind the media that the juvenile was never tried, and must not be called a rapist among other things. And finally, maybe it will stop entertaining petitions at midnight before it becomes the next in-thing. 

Delhi High Court on Section 65-B, Evidence Act

A Division Bench of the Delhi High Court recently delivered a decision with big implications for the application of Section 65-B of the Indian Evidence Act 1872. Kundan Singh v. State [Crl. Appeal No. 711/2014 decided on 24.11.2015] was an appeal against a murder conviction which involved appreciating electronic evidence. Black bags with bodies were recovered, and a chain of events was recreated using electronic evidence, among other things, which linked the Appellant with the crime. The Appellant contended the Call Detail Records (CDRs) were incorrectly relied upon by the Trial Court as 65-B certificate was not contemporaneous to creation of the material. This contention prompted a thorough discussion of Section 65-B, which leads to this post. 

Re-Understanding Section 65-B 

The relevant part of the decision begins from Paragraph 30. Here, after copying the provisions, the Court makes an important observation of the intertwined nature of reliability and admissibility stages in Indian evidence law, and places Section 22-A [a provision making admissions about contents of electronic records relevant] in the reliability domain. But this is not why I describe the judgment as 're-understanding' Section 65-B. This is because the Court adopted a novel approach by looking at clause (5) of 65-B before turning to the crucial clause (4). The Court looks at clause 5 because "the said Section is relevant for interpreting sub-sections (1), (2) and (3)." It considered 65-B(5)(a) as creating a difference between processes automatically feeding data to computers as opposed to processes which require human intervention. Given the nature of data involved in the Appeal was a CDR, this distinction played an important part in the Court's conclusions of allowing the evidence.

After this we move to 65-B(4), and here again the Court goes ahead and re-writes the text of Section 65-B by authoritatively stating that "the certificate under sub-section (4) to Section 65B must state the following [emphasis supplied]." We find at Paragraph 38 the judges giving us four clearly laid out conditions inexactly mirroring those in Anvar. The gap widens further as the question of the certificate being issued simultaneously with production of the computer-output is taken up. The Division Bench found no such requirement in Anvar, which said "such a certificate must accompany the electronic record ... pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence." Determining this issue obviously turns on how one views the words 'produced in evidence'. The Division Bench understood 'production' to mean producing the electronic record for it to be marked in evidence, and not its mere filing in court as part of the record. So what this means is that the police don't need 65-B certificates when they file emails in a charge-sheet, but need to provide 65-B certificates when those emails are to be exhibited before court for them to be considered evidence. Therefore, certificates can also be produced while exercising powers under Sections 311 and 319, Cr.P.C. The only point where the Division Bench adopted Anvar was in its conclusion that the procedure under Sections 65-A and 65-B is special and should solely govern production of such material as evidence.

Separating Admissibility from Reliability
A part of the decision also considers the hearsay rule in the context of electronically generated material. The fact that CDRs were in question made the court distinguish between electronic records automatically created and those requiring human intervention (a distinction conveniently read into the statute as I observed above). If, then, someone not involved in the creation of that record comes to depose about it, would their testimony be hit by the hearsay rule? To answer this, the Court highlights the importance of making an assertion while considering hearsay objections. It is one thing to say that I heard X say Y murdered him. But me stating the CDR adduced is created from a bug-free device does not have the same bearing. Hearsay questions the authenticity of the evidence - the authenticity of a CDR really doesn't depend on what the manager says but on the computer processes. As Section 65-B raises questions of the accuracy of these processes, the Court cleverly uses this as a segue way to drive home the point that 65-B remains an issue of admissibility, not reliability. It stresses how compliance with Section 65-B is not the end of the picture; the reliability of the same is yet to be determined.

What to Make of this?
For one thing, it would be remarkable if this decision is not taken up to the Supreme Court given the stakes involved. As for the Court and its analysis, there appears a repetition of old faults. There is again a disregard for the statute. The interpretation of 65-B(5) seems clearly wrong to me, as the clause makes no allusion to differences between data automatically gathered and data fed by humans. Rather, it speaks of data being entered either directly into the computer or by way of another device (say a pen-drive), "with or without human intervention". This error may prove costly, as this difference of automatic vs. man-made data is pivotal to the conclusions arrived at. Here again I find no critical examination of whether 65-A and B exclude the other provisions altogether. One can perhaps wave this aside by virtue of Anvar controlling the field. It would have helped, though, if the Court followed the same ideas on what a 65-B certificate needs.

The Division Bench also disagreed with the idea that Anvar prescribed contemporaneous certificates although that understanding seemed most closely attuned to the judgment. I consider this disagreement, together with the general discussion on admissibility vs. reliability, very valuable and an attempt to steer the law back on course. The fact that Section 65-B was introduced to ease the process of introducing computer output as evidence seemed not lost on the Court, which sought to leave more touchy questions for the reliability stage. The treatment of CDRs and other data produced by automated processes as a separate class is in tune with the general aim of easing the use of such evidence in trials. [One may look at observations made by the UK Law Commission in 1993 on Hearsay in Civil Proceedings, where it considered the English equivalent of Section 65-B.] Perhaps most laudable is the attempt on part of the judges to reaffirm the lines drawn between separate phases of evidence during trial in a context [electronic evidence] where it seems those lines were drawn on sand. The hearsay discussion was important only for this purpose, and one hopes the Supreme Court soon adopts this position for it to get further legitimacy.

Special Offences Part III - Curbing Appellate Jurisdiction

I was recently made aware of a peculiar feature of offences under the Prevention of Corruption Act, 1988. An order framing charge and refusing to discharge an accused, I was informed, could not be challenged by way of a revision under Section 397 Cr.P.C. The reason behind this lay in Section 19(3)(c) of the 1988 Act, and the Supreme Court's decision in V.C. Shukla v. State (through CBI) [1980 (Supp) SCC 92]. Today, this has been supplemented by High Court decisions [see e.g. Anur Kumar Jain v. CBI, (2011) 178 DLT 501 (DB)] holding that no revision against such orders on charge can be filed by an accused - you either move the High Court under Section 482, Cr.P.C. or the Supreme Court under Article 136. 

V.C. Shukla v. Delhi Administration 

Since this decision is the basis of the law today, it makes sense to start here. Before that, a little word on the actors in this case. Both Vidya Charan Shukla and Sanjay Gandhi had been convicted by a Sessions Court in Delhi for alleged offences committed by them/at their behest in the Emergency. They moved the Delhi High Court by filing appeals against their conviction. In the meanwhile, the Special Courts Act, 1979 was passed by operation of which their appeals were transferred to the Supreme Court. They subsequently also challenged the legality of the Special Courts Act. Cynics would argue that the chances of the Supreme Court striking down legislation introduced to do deal with Emergency cases by those seemingly at the helm of those atrocities was minimal, to say the least. All I would say is that the political nature of the decision cannot be ignored.  

The issue I am concerned with appears in another appeal filed only by V.C. Shukla, challenging the order framing charges against him. He preferred an appeal under Section 11 of the Special Courts Act. Sub-clause (1) of which read "notwithstanding anything contained in the Code, an appeal shall lie as of right from any judgment, sentence or order, not being interlocutory order, of a Special Court to the Supreme Court on both facts and law." Sub-clause (2) read "except as aforesaid, no appeal or revision shall lie to any court from any judgment, sentence or order of a Special Court." The State naturally challenged this appeal on a preliminary basis, arguing that an order framing charge was interlocutory. Three separate opinions were delivered, and the Court by a majority of 3-1 agreed with the State. By and large, the reasons for this were that (a) the Object of the Special Courts Act was to speed up the trial, and (b) the fact that Section 397(2) Cr.P.C. already excluded revisions against interlocutory orders meant that the scope of 'interlocutory order' for the 1979 Act had to be different and in tune with its larger object of speedy trials. An order on charge, though 'a matter of moment', did not finally decide the trial and was therefore interlocutory. 

Importing V.C. Shukla to Other Laws

Today, a vast majority of special offences place restrictions on the scope of appellate and revisional jurisdiction. These restrictions can be found, for instance, in (i) Section 19, Prevention of Corruption Act 1988, (ii) Section 47, Prevention of Money Laundering Act 2002, (iii) Section 12, Maharashtra Control of Organised Crime Act 1999, (iv) Section 19 of the erstwhile Terrorist and Disruptive Activities (Prevention) Act 1988, (v) Section 21 of the National Investigation Agency Act 2008. Cases on the interpretation of these provisions either dismiss challenges by simply invoking the authority of the decision in V.C. Shukla, or liken the circumstances of the special offence to the logic of that case to justify the restrictions on appellate/revisional jurisdiction. 

Questions and a Different Explanation

V.C. Shukla and subsequent cases did restrict one way to challenge orders on charge, but made clear that they did not completely close down the possibility of challenging such orders. Today, petitions continue to be filed before High Courts under Section 482, Cr.P.C. which makes one question the efficacy of the argument restricting revisional jurisdiction to curb challenges to such orders. The majority didn't adequately consider that the changes to revisional jurisdiction in the Cr.P.C. (barring revisions against interlocutory orders) were also made to speedily dispose cases. Despite this, the Supreme Court repeatedly had found fit to not curb its scope to simply exclude everything barring final orders. The Court insufficiently explained why this further restriction was justified for special offences but not the Cr.P.C. itself [all that is said is that the Code deals with so many offences that it should be broader]. Further, none of these decisions consider whether any differences exist between appellate and revisional jurisdiction. While appeals are statutory rights, what about revisions? What if V.C. Shukla had filed a revision instead of an appeal? 

Finally, what if the Court got it all wrong in V.C. Shukla to start with? Consider this for a moment. The Special Courts Act, along with the other statutes mentioned above, create a completely separate procedure for trial of offences. Special Courts/Judges/Tribunals are set up, and their procedure is then delineated. In the Special Courts Act 1979, the 'Special Court' consisted of sitting High Court judges, which meant any supervisory jurisdiction would be to the Supreme Court. Since this procedure was present nowhere under existing law, the Act created it through Section 11. However, as every little detail of trial could not be defined the Act imported provisions of the Cr.P.C. in case of any gaps.The Supreme Court reasoned that the Legislature would not simply have been restating the provisions of the Cr.P.C. on revision while inserting them in the Special Courts Act, requiring one meaning to be different. But incorporating the Cr.P.C. might have been exactly what the Legislature was doing [this is nicely explained in A.R. Antulay v. R.S. Nayak, (1984) 2 SCC 500]. It could not simply apply the provisions of the Cr.P.C. on revisions and appeals as the trial here was conducted at the level of the High Court. Therefore, it did so with necessary tweaks. After all, what would be more speedy than ensuring the judges continue to follow well-established procedures?

Comments would be lovely. 

Proving a Point - Electronic Evidence

I was recently reading the decision of the Supreme Court in Shamsher Singh v. State of Haryana [Crl. Appeal No. 1525/2015 decided on 24.11.2015]. The scope of the appeal was quite narrow: the Appellant had challenged lower court orders dismissing his Application for exhibiting a CD in defence evidence. The CD reportedly contained recorded conversations revealing exculpatory material. 

The Court, unanimously, reversed these orders and directed that the Application be allowed for the CD to be exhibited as evidence and sent to FSL for analysis. In arriving at this conclusion, the Court referred to Section 294 of the Cr.P.C., as well as Section 3 of the Evidence Act. The Court made it clear that defence evidence was very much admissible. But it is the Court's interpretation of the latter part - on how to treat the CD - that is of specific interest.

In the recent four-part series on  Electronic Evidence, I argued that the Supreme Court has expressed great fears of tampering in electronic evidence (specially tape-recorded conversations), and imposed these fears on the law while being unfaithful to the clear, unambiguous text of statute. I mentioned how the Court continues to use decisions such as Ram Singh v. Col. Ram Singh [1985 (Supp) SCC 611], a decision laying down tests of admissibility for such evidence, despite Section 65-B having radically altered the law afterwards.

Something similar seems to have happened in Shamsher Singh. The Court was considering whether to admit a conversation recorded on a CD Rom into evidence. This material was clearly secondary electronic evidence which would attract Section 65-B to first be 'deemed' to be a document, and then rendered admissible. These items are 'electronic records' first and foremost, and Section 65-B creates this deeming fiction to insert them into the scheme of the Evidence Act, 1872. However, there is no mention of Section 65-B or the idea of a certificate. The Court merrily assumes that the CD Rom is a document - ignoring the scheme created by Section 65-B and the Information Technology Act, 2000.   

The Supreme Court relied solely on two decisions - R.M. Malkani  v. State of Maharashtra [(1973) 1 SCC 471] and Ziyauddin Barhanuddin Bukhari v. Brijmohan Ramdass Mehra & Ors. [(1976) 2 SCC 17]. Both of these (one of which was discussed in detail here on this blog) laid down conditions for admissibility of tape-recorded evidence at a time when the Evidence Act was rather silent on how to deal with these items (easy tampering being a concern). Subsequently, the legislature inserted statutory requirements by way of Sections 65-A and 65-B to address those issues. But as we see here in Shamsher Singh, the Court continues to rely upon judicial tests admittedly stricter, to the extent it completely ignores statutes  


NOTE: Shamsher Singh is a rather bad decision though I think. Because the Court does not even mention Anvar v. Basheer [(2014) 10 SCC 473], where three judges re-wrote Sections 65-A and 65-B in the spirit of earlier judicial tests to make the law stricter for addressing tampering concerns. The decision in Shamsher Singh to admit the CD Rom would have been affected by this single fact of whether a certificate was produced and was contemporaneous. 

Call for Papers - NLSIU Indian Journal of Law & Technology

Call for Papers: NLSIU’s Indian Journal of Law & Technology: Submit by January 31^st, 2016

About the Journal:

The Indian Journal of Law and Technology (IJLT) is a student-edited, peer-reviewed, completely open access law journal published annually by the National Law School of India University, Bangalore. The IJLT is the first and only law journal in India devoted exclusively to the study of the interface between law and technology.

The journal carries scholarship in the areas of intellectual property rights, internet governance, information communication technologies, access to medicines, privacy rights, digital freedoms, openness, telecommunications policy, media law, innovation etc. along with focusing on perspectives on contemporary issues involving the intersection of law, technology, industry and policy.

The previous issues of the IJLT have featured scholarly writings by renowned authors such as William Patry, Justice Michael Kirby, Yochai Benkler, Jonathan Zittrain, Donald S. Chisum, Justice S. Muralidhar, Benjamin Edelman, Gavin Sutter, Raymond T. Nimmer, John Frow, Christoph Antons, Lawrence Liang and Shamnad Basheer.

The Journal is also now indexed on research databases such as WestLaw, HeinOnline, the Legal Information Institute of India and Manupatra. Following the policy of open access, all the articles from previous issues are available on our website: http://ijlt.in/index.php/archives2/

IJLT is now accepting submissions under the following categories:

1.      Articles (5000-12000 words).

2.      Essays (3000-5000 words).

3.      Case Notes, Legislative Comments, Book/Article Reviews (2000-6000 words).

The above limits are exclusive of footnotes. Substantive footnoting is allowed.

Guidelines:

1.   All submissions must be accompanied by a cover letter stating the name(s) of the authors, their institution/affiliation, the title of the submission and contact details.

2.      An abstract (not more than 250 words) must be submitted.

3.      Co-authorship (up to a maximum of 3 authors) is permitted.

4.      The body of the paper shall be in Times New Roman, font size 12, 1.5 line spacing. Footnotes should be in Times New Roman, size 10 single line spacing.

5.      Kindly follow Bluebook (19^th edition) style of citation.

Format of Submission:

Please send in your submissions in MS/Open Word (*.doc OR *.docx OR *.odt), along with the following information:

• Full Name of the Author
• Contact Details of the Author

Deadline: All submissions must be made on or before 11:59 p.m., January 31, 2016. Please send original, unpublished papers to both ijlt.edit@gmail.com and ijltedit@nls.ac.in

Please feel free to browse our website (www.ijlt.in).

Contact:

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Special Offences - the Corruption Act and Cognizance

A feature common to many special offences created by statutes in India is the requirement to obtain sanction to prosecute the offender before proceeding to trial. Sanction in context of public servants means permission to prosecute them given by their superiors in office. The prosecution presents them a request for sanction outlining the allegations, and the sanctioning authority applies its mind to grant or deny sanction. Conventionally, this is seen as a step to prevent frivolous cases, and allows the executive to remain the best judge of how to handle issues. For if sanction is refused, no trial would follow. The Prevention of Corruption Act, 1988 contains such a requirement in Section 19.

This post considers the following questions: is sanction to prosecute mandatory to proceed against public servants on corruption charges? Is there a need for fresh sanction in case the allegations take a different colour during trial? If the allegations consist of corruption charges as well as other statutory offences which have independent sanction clauses, would multiple sanctions be needed? What is the effect of not obtaining sanction?

Is sanction really mandatory?
If you wish to proceed under the Prevention of Corruption Act, the answer is yes. Section 19 makes it clear that "no court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant" without there being prior sanction. The absolute nature of this requirement was repeatedly criticised because it allowed for further corruption, in that a department could shield one of its own by refusing sanction. To combat this, the provision was amended in 2014 in light of the Lokpal and Lokayuktas Act, 2013. This subsequent statute allows for a prosecution despite absence of sanction, if it is launched by the Lokpal/Lokayukta Office as the case may be.

Fresh Sanction if charges altered?
Some background to criminal procedure would help understand this better. Today, upon completing the investigation the prosecuting agency [CBI in most corruption cases] files what is conventionally called a chargesheet. This proposes that the accused be charged and tried for the specified offences, or that no offences are made out. The judge after hearing arguments on charge decides whether or not the accused should be charged with any offence and may then proceed to trial. The judge may frame charges for offences other than those proposed by the prosecution.

When we have a need for obtaining sanction before a court can take cognizance, this means that the prosecution must obtain that sanction before filing of the Chargesheet. Otherwise the judge would be barred from taking cognizance of the allegations itself. This sanction would naturally be relating to particular allegations made in the Chargesheet - a permission that a prosecution may be allowed against the specified accused for the specified offences. As the judge can differ from this view of the prosecution and frame different charges to those proposed, would that mean the prosecution would first need fresh sanction for the new offences before the actual charge can be framed?

Logically, the answer should be in the affirmative. The sanctioning authority applies its mind to whatever allegations are placed before it by the prosecution. If new allegations are brought forth, it would only be proper for the authority to re-evaluate its stance as well. I say this also because the contrary position could lead to great indiscretion at the hands of miscreant prosecutors. Cases might be brought under the relatively open ended Section 11 [receiving favour generally] or the attempts clause in Section 15, only for the prosecution to later argue its differently and seek the more meaty charges for offences under Sections 7 and 13. As I write, I am currently looking for decisions on this issue, and comments would be welcome.

Dual/Multiple Sanctions?
An example would help here as well. Consider a situation where a private citizen is accused of bribing the public servant. The prosecution decides to charge them together for conspiring to commit offences under the Corruption Act, and independently charge the public servant. Entering into a conspiracy is a separate offence punishable under Section 120-B the IPC, where to prosecute public servants prior sanction is needed under Section 197, Cr.P.C. Would we need sanction under both, if the public servant was to be tried for entering a conspiracy to indulge in his corrupt activities? 

Here's where it gets interesting. Section 197 Cr.P.C. differs remarkably from Section 19 of the Corruption Act. Section 19 applies without discrimination to each case to take cognizance of offences under the Corruption Act. Sanction under Section 197 is only required if the alleged offence was committed "in the discharge or purported discharge of his official duty" [it would take an entire post to discuss the meaning of this phrase]. The scope of Section 197 is wider in one sense though: it applies to retired officers, which Section 19 does not. Given these differences between the two sanction provisions, it seems plausible to argue that they serve different purposes. The Supreme Court has indicated this view has merit [see e.g., Romesh Lal Jain v. Naginder Singh Rana, (2006) 1 SCC 294].

But go back to Section 3 of the Act and you find Special Judges competent to try any offence under the Act as well as any conspiracy/attempt/abetment relating to the offences.  So would we still need separate sanctions in our fact situation, of trying a conspiracy to commit offences? In Romesh Lal Jain the Court wasn't dealing with a charge of conspiracy, so that decision would not apply here. Conspiracy charges were involved in Neera Yadav v. CBI [Allahabad High Court (Full Bench) Decided on 25.01.2006], where this issue was specifically considered. The Full Bench held no separate sanction under the Cr.P.C. would be needed to prosecute the public servant. What is left unclear then, is whether this view holds good only where 120-B is the only IPC offence, or where there is a composite conspiracy to commit other IPC offences along with those under the Corruption Act. The issue hasn't been specifically considered by the Apex Court, mostly because of an increasingly rigid view of the official duty test under Section 197, Cr.P.C.*

What if there is no sanction?
The answer is not a straight one. It depends on many factors: was there no sanction throughout trial, or just a delay in obtaining it? When was the challenge of sanction raised by the accused? It does appear by looking to Section 19(3) of the Act that the Legislature sought to minimise the influence lack of sanction might have on the trial. Very recently, the Supreme Court considered the result of no sanction in Nanjappa v. State of Karnataka [Crl. Appeal No. 1867/2012 decided on 24.07.2015]. The conclusions arrived at by the two judges indicate that the importance of sanction can be seen from a two-tiered perspective. Tier 1 being the trial before the Special Judge, and Tier 2 being the Appellate/Revisional Court hearings. No sanction before cognizance at Tier 1 means the Court is not one of competent jurisdiction and the trial is bad in law. What's more, this argument can be raised at any time during trial, even final arguments. It is good grounds for discharge as well. At Tier 2 though, the importance is markedly reduced, as seen from the restrictions in Section 19(3).**

Conclusion
Sanction is a crucial issue in corruption cases, and this post tried to raise some interesting issues in the field that are currently being considered by courts across the country. Next time, continuing with Section 19, we specifically look at Section 19(3)(c) of the Act.

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* Judges have repeatedly observed that it could never be part of an officers duty to commit offences under the IPC therefore sanction under Section 197 Cr.P.C. would not be needed. This, I think, puts the cart before the horse. By assuming that the officer committed the offence while considering the point of sanction the court unconsciously (or very consciously) precludes itself from ever concluding that the act was in the course of duty. The Court also ignores the use of 'purported' in the provision.

** In Nanjappa, the Trial Court acquitted the accused on merits, despite also observing the lack of sanction. The High Court overturned the decision considering the merits, and on sanction observed that the argument ought to have been raised at the outset. The Apex Court reversed the decision purely on the sanction issue in a Criminal Appeal. This is seemingly in clear violation of 19(3)(a): "no finding, sentence or order passed by a special judge shall be reversed or altered by a court in appeal, confirmation or revision ...". The decision therefore impliedly suggests that the Supreme Court is not a Court of Appeal for purposes of Section 19. 

Special Offences - The Prevention of Corruption Act (Part I)

Today if one opens the newspaper, corruption seems to rank right up there with bodily offences in terms of crime that newspapers sell to the public. The Central Bureau of Investigation seemingly unearths one new conspiracy every day of public servants robbing the public of tax-payer monies. Debates rage over how effective our laws are to deal with this 'menace'. In all this, very little space is devoted to actually explaining what exactly this apparently inept law is all about. Over the next few posts, I hope to fill that space by (hopefully) providing some basic understanding of the Prevention of Corruption Act, 1988. Readers might find an earlier guest post on the blog discussing the CBI useful while reading these posts.

Who can Investigate/try Offences?
Section 17 restricts the scope of officers competent to investigate offences under the Act without prior permission from a Metropolitan Magistrate/Judicial Magistrate First Class. A Police Officer in Bombay, Calcutta, Madras Ahmedabad and other metropolitan area notified under the Criminal Procedure Code, 1973 [Cr.P.C.] must be the Assistant Commissioner of Police or an officer of higher rank. Elsewhere, that officer must be the Deputy Superintendent of Police or higher rank. In case its the CBI, the investigating officer can be an Inspector of Police or anyone of higher rank.

Similarly, for trial of offences the Act creates a 'Special Judge'; a Sessions Judge/Assistant Sessions Judge/Additional Sessions Judge appointed by the Central Government or State Government by notification [Section 3]. Importantly, though these are Sessions level officers, Section 5 prescribes that the case shall follow procedure for trial of warrant cases by Magistrates. Offences punishable under the Act can only be tried by these judges [Section 4(1)]. However, this does not mean that these judges can only try Corruption Act offences - Section 4(3) enables them to prosecute all other offences with which the accused is charged at the same trial [This was recently in issue before the Supreme Court in Essar Teleholdings Ltd. v. CBI (decided on 29.09.2015)].

Who can be Prosecuted? 
The Prevention of Corruption Act creates offences under Sections 7 to 15 (including inchoate crimes such as attempts). Every offence is not capable of being committed by any person. Certain offences can only be committed by public servants, and others by everybody else. Sections 7, 10, 11, and 13 begin with "whoever, being a public servant", or "a public servant is said to commit the offence". As against this, we have Sections 8, 9 and 12, which begin simply with "whoever". There is no overlap either, as the content of Sections 8, 9, 10 and 12 clearly shows the two sets are mutually exclusive.

There are two things of note here. One, is that the restriction of offences to only public servants can be misleading.This does not mean the act is really narrow in scope. 'Public servant' is defined under Section 2(c) of the Act, and is a very expansive definition as can be seen simply from Section 2(c)(viii): "any person who holds an office by virtue of which he is authorised or required to perform any public duty.". ['Public duty' is again expansively defined under Section 2(b) as "a duty in the discharge of which the State, the public or the community at large has an interest]. So, say a private hospital is found overcharging patients in times of medical emergencies such as swine flu. Could that not lead to corruption charges against concerned officials?

Two, these offences by definition exclude certain people participating in the corruption process from being prosecuted. The corrupt officer giving favours is roped in [Sections 7, 10, 11 and 13], and so is the middle man [Sections 8 and 9]. But the bribe-giver remains untouched by the scheme of offences, and is in fact protected from prosecution upon becoming a witness [Section 24]. These persons can at best be roped in via an additional abetment or conspiracy charge, but cannot be prosecuted directly under the Corruption Act. This creates unnecessary problems for the prosecution as more facts must be proved to secure convictions.*

Second we have corporations, and the issue of organised corruption. The massive fines imposed on Alstom last week show how rampant corporate-sponsored corruption really is. Today, corporations are prosecuted under the Prevention of Corruption Act much like individuals, i.e. by making them co-conspirators. But to establish presence of a guilty mind the corporation would be imputed with the acts/omissions of someone in the company. This makes the prosecution job rather hard, and its not like alternative models of corporate criminal liability don't exist [see, The Corporate Homicide and Manslaughter Act, 2007]. Prosecuting that person for being a person of authority is not possible today because the Corruption Act doesn't have the statutory provisions allowing it. Given the kind of influence corporations have on business and investment, not having a statutory basis to make them accountable seems a pretty big loophole. Conspiracy theorists might suggest that the very fact of statutes not addressing this problem is the product of corruption driven by these corporations. The Prevention of Corruption (Amendment) Bill 2013 considered introducing offences which adequately curb the bribe-givers; both individual and corporate. Their viability was considered by the Law Commission recently in its 254th Report. The Bill has not been passed.

The Trial and Evidence
Before proceeding to trial, there must be a sanction to prosecute as required by Section 19. I won't dwell too much on sanction here, as the issue will be treated exclusively later on. Sanction under this Act is required before taking cognizance of offences. A sanction order is therefore usually filed with the chargesheet. One would assume, therefore, that if the Judge finds that further offences of the Corruption Act are made out in a chargesheet than the ones mentioned, he would have to defer prosecution till requisite sanction is received.

This sanction is mandatory for prosecuting currently serving officers for any offence under this Act: there is no additional test of the act being done in the course of duty etc. Interesting issues of dual sanction arise in context of cases where a person is charged with offences under the IPC as well as the Corruption Act. If the Special Judge can prosecute all offences for which the person accused is jointly charged at the same trial, should not sanction under Section 19 suffice? Or is sanction under Section 197, Cr.P.C. required due to the different legal standards employed by that provision and Section 19? Several decisions of the Supreme Court have dealt with this. We'll look at these later.

At the trial itself, the existence of a reverse-onus clause in Section 20 makes things interesting. It requires the prosecution to establish the fact of accepting/obtaining illegal gratification to trigger a presumption that the same was done with a view to commit offences under Sections 7 or 13, as the case may be. As the section specifically uses the words "proved" when referring to what is required of the prosecution to shift the burden, it can be reasonably assumed that the prosecution must satisfy the court beyond reasonable doubt on its part.

Subsequent Post(s)
The idea behind this introductory post was to serve as a Corruption Act 101, to build on and discuss more technical issues later .The next post will address the issue of sanction, before moving on to the final post in this series on the Prevention of Corruption Act that compares the two principal offences under Section 7 and Section 13.

*{This extension to cover private via abetment charges is partly statutory: Section 12 only prosecutes abetment of offences committed under Sections 7 and 11. Abetting Section 13 offences came through from the Supreme Court's decision in Nallammal [(1999) 6 SCC 559]. The Court held the general IPC provisions on abetment [Section 107-119 IPC] would apply even for offences under Section 13.}

Electronic Evidence - Part 4

[this post looks longer than it is due to multiple extracts, please do read till the end]

Tape-recorded evidence hogged the spotlight for the past few weeks on this blog. I looked at how the Supreme Court dealt with the admissibility of such evidence, and argued that the Court adopted an incorrect approach. That approach possibly stemmed from a belief that the Evidence Act provided insufficient protection against the easily-manipulable electronic evidence. Crucially, then, Parliament amended the statute to insert Sections 65-A and 65-B. This concluding post now looks at how the Supreme Court approached electronic evidence in the wake of this legislative reform in the field.

The (Much-Needed?) Amendments - 65-A & 65-B

The Information Technology Act, 2000 introduced the concept of an 'electronic record', and amended the Evidence Act by way of its Second Schedule. The amendments did not expand the definition of a document to include 'electronic record' but inserted a separate explanation in Section 3 of the Act. Sections 65-A and 65-B were inserted after Section 65, and though lengthy, it is necessary to extract parts of both here with some emphasis supplied:

Section 65-A: The contents of electronic records may be proved in accordance with the provisions of section 65B

Section 65-B: 

(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible. 

(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely :-

(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;

(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and

(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

.....

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, -

(a) identifying the electronic record containing the statement and describing the manner in which it was produced; 

(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;

(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, 

and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

Parliament seems to have been greatly influenced by the U.K. Civil Evidence Act, 1968 owing to the similarities between Section 5 of that Act [which has since been repealed] and our Section 65-B. Reading the text, what seems clear is that concerns over accuracy had been statutorily redressed. Only if accuracy conditions in Section 65-B(2) were satisfied would the 'computer output' [such as tape-recordings] be considered a document, and be admitted as evidence. 

Interpreting Sections 65-A and 65-B - The Text

This is an interesting set of provisions when looked at together, and in the larger scheme of the Evidence Act itself. It is difficult to argue that after insertion of this legislative packet, one could still turn to Section 65 for introducing Secondary Evidence from electronic records in evidence. Those arguing for this might rely on the 'may' in Section 65-A. I think there is a different explanation for that. Section 65-A was designed to mirror Section 61. The operative phrase does not mean there are other ways to prove the contents, but that well one may not prove them as equally as one may.

Section 61: The contents of documents may be proved either by primary or by secondary evidence
Section 65-A: The contents of electronic records may be proved in accordance with the provisions of section 65B [emphasis supplied]

Section 65-B primarily (a) lays down statutory conditions to be satisfied to deem computer output as documents, and (b) provides an alternative to method to examining witnesses for the purpose of satisfying these conditions. Reading Section 65-B(4) - which talks about the certificate - its apparent that the certificate idea was brought in to quicken the admissibility process when outputs came from large computer systems (imagine email printouts). You need not examine a witness to satisfy all four conditions in Section 65-B(2), and can instead adduce a certificate by "a person occupying a responsible official position in relation to the operation of the relevant device" for "any of the following things" described in the section.

Anvar and a Fearful (and Bizarre) Reading of the Text
What did Court do in Anvar? Many things, in fact. First, it overruled State of NCT (Delhi) v. Navjot Sandhu [(2005) 11 SCC 600] to the extent it allowed recourse to Sections 63 and 65 for introducing Secondary Evidence of the electronic variety. Anvar places section 65-B as the exclusive method. Second, the Court held that Section 65-B won't be attracted where Primary Evidence of electronic records exists. Third, the Court held that Section 65-B only allowed for evidence by certificate, and this is where things get bizarre. The Court held:

Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied: (a) There must be a certificate which identifies the electronic record containing the statement; 
(b) The certificate must describe the manner in which the electronic record was produced; 
(c) The certificate must furnish the particulars of the device involved in the production of that record; (d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and 
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.

If we scroll up, and read the text of Section 65-B(4), its clear that the Court engaged in some serious re-drafting here. The statute requires a certificate to do "any of the following things" listed in Section 65-B(4), which the Court somehow makes "all of the following". The Court also inexplicably misread the provision to make certificates mandatory. A plain reading of Section 65-B(4) shows the certificate was an alternative method for exhibiting the evidence, as against the normal manner of examining witnesses.

The Third conclusion is rather bizarre. It might be that the Court had an incorrect copy of the text. Funnily enough this has happened before and accounted for sustaining an incorrect position of law for nearly two decades [see Sheoratan Agarwal v. State of M.P., AIR 1984 SC 1824 and Aneeta Hada v. M/s Godfather Travels and Tours Pvt. Ltd., (2012) 5 SCC 661]. Given how the Court managed to correctly extract the provision earlier on in the judgment, one can't be so hopeful. The Court clearly thought certificates were mandatory, and I argue the genesis of this incorrect view is found in Navjot Sandhu itself. There, the Court resorted to Sections 63 and 65 because there was no certificate filed under Section 65-B(4) but witnesses were examined. Revealing, thus, the mistaken view that Section 65-B could not operate without the certificate.

While Navjot Sandhu and Anvar both hold certificates mandatory, the latter comes at this conclusion driven by the institutional fear of electronic evidence catered by the Supreme Court. Tampering of such evidence remains at the forefront, and this persuades the Court to require certificates must be contemporaneous as well. The provision is further re-drafted, becoming a product of the judicial fear seeping through the text. The paragraph where the Court discusses the certificate is enlightening:

Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice. [emphasis supplied]

Any doubts over what this means are removed later, when it is held that such evidence "shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document [emphasis supplied]". 

Conclusion
Right at the start of these posts, I wrote about the Evidence Act incorporating a sense of balance in its mixing admissibility and reliability to ensure the best evidence is used to arrive at decisions. The strictness of the best evidence rule was not too harsh so as to exclude great amounts of material, and not too relaxed either. The history of how electronic evidence has been treated, first judicially then statutorily, suggests a greater stringency in the conditions due to the seemingly unique problems of duplication and tampering. But the concoction of judicial fear and statutory conditions in Anvar has swung the pendulum too far in the idealist pursuit of best evidence. The Indian position thus stands and marked contrast to how most common law countries consider such evidence today - our English inspirations have long since abandoned the certificate idea altogether. A failure to make the ruling prospectively applicable has made its effect even more drastic - courts are today excluding computer outputs in trials and appeals pending before Anvar for absence of contemporaneous certificates, causing in no uncertain terms a travesty of justice. 

Electronic Evidence - Part 3

The treatment of electronic evidence in India has been the subject on this blog for the past few posts. This has been done by chronologically discussing the cases involving questions on the admissibility of tape-recorded evidence. From having no tests in the beginning, the Supreme Court by the 1980s had begun to impose strict admissibility requirements for such evidence. This was, in my opinion, largely driven by the reliance judges placed on the English decision in R v. Maqsud Ali. Frequent invocation of the requirements imposed by the Court of Appeals in that case to judge electronic evidence lend credibility to the view that the same tests now applied to India. This was put beyond doubt by the Court in Ram Singh v. Col. Ram Singh [1985 (Supp) SCC 611].

Ram Singh and Tying Loose Ends

Another election dispute, another judgment on tape-recorded evidence. But here, all three judges gave separate opinions in what was a 2-1 split. The majority formed by Fazal Ali and Mukharji JJ., held the tape-recorded statements were inadmissible, whereas Vardarajan J. disagreed. 

Right at the outset of his discussing the evidence, Fazal Ali J. observes: 

Thus, so far as this Court is concerned the conditions for admissibility of a tape recorded statement may be stated as follows:

(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strick proof to determine whether or not it was really the voice of the speaker.

(2) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence - direct or circumstantial. 

(3) Every possibility of tampering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of con text and, therefore, inadmissible.

(4) The statement must be relevant according to the rules of Evidence Act

(5) The recorded cassette must be carefully sealed and kept in safe or official custody. 

(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances.

This observation notably expanded on the course plotted earlier. To lend greater authority to his observation, the judge referred (again) to Maqsud Ali, and also to American opinion on the issue. He discarded the evidence as, although relevant, it failed the other conditions of reliability in his six-fold test. Interestingly, Mukharji, J. in his separate, concurring opinion discussed Maqsud Ali to observe that the court there held "there cannot, however, be any question of laying down any exhaustive set of rules by which the admissibility of such evidence should be judged." The dissent did not provide a rival six-fold test, but merely stated that "tape-recorded evidence is admissible provided that the originality and the authenticity of the tape are free from doubt." The dissent, thus, simply found the facts sufficient to establish all that the majority also wanted to admit the electronic evidence.

Infidelity to the Text

The six-fold test conceived by Fazal Ali, J. appeared an easy device for courts to employ in dealing with electronic evidence at large. The three judges in Ram Singh extensively considered arguments on admissibility of Secondary Evidence, i.e. tape-recorded evidence in this case. Yet, the three separate judgments are astonishing for their failure to even mention Section 65 of the Evidence Act, the basic provision governing the admissibility of Secondary Evidence. In fact, there is no discussion about the nature of the evidence at all. Rather than turn to the text of the governing law, the Supreme Court repeatedly referred to, and relied upon, authorities from the UK and USA. 

The importation of foreign tests to the Indian legal system has been criticised often. There are unique challenges to each legal system and legislators and courts alike have been all too keen to ignore this and adopt 'best practices' to fill the gaps. The same issue arises here: the UK and India fundamentally differed in their evidence laws as the former had no statute! The Court of Appeal in Maqsud Ali was merely following common law traditions of developing law in the absence of statute. This did not apply to India because the Evidence Act squarely covered the field. There were no gaps here - having characterised the evidence as either Primary or Secondary, the Court was obligated to turn to the statute. If it considered statutory requirements too relaxed, it could recommend amendments (which finally happened in 2000). The admissibility-heavy criteria in Maqsud Ali might have appeared necessary because of the jury-trial in the UK. The judge ensured only the best and most accurate evidence reached the jury, which was solely qualified to determine its reliability. But where the judge himself determines the reliability, such entry-barriers don't have such a beneficial effect.

Conclusion

Surprisingly, the Ram Singh tests continue to be used by courts despite the amendment of the Evidence Act to specifically deal with electronic evidence [see, e.g., Tukaram Dighole v. Manikrao Shivaji Kokate (2010) 4 SCC 329]. This supports the argument I am advancing here: that the Supreme Court has been extremely unfaithful to the text of the statute, only to address its fears over the genuineness of electronic evidence. The most recent example of this, Anvar P.V. v. P.K. Basheer [(2014) 10 SCC 473], will be the focus of the last post in this series.

Electronic Evidence - Part 2

In the last post, I put across the idea that the Supreme Court has had a very big role to play in shaping how electronic evidence is treated in India. This influence, I argue, has in some instances led to departures from the statute to reinforce the Court's opinion of the proper state of affairs. Fears about the reliability of such evidence are seemingly underpinned by a desire to ensure the best evidence makes its way to court. But an overemphasis on these issues has led to disturbing a seemingly delicate balance that the Evidence Act maintains between admissibility of evidence and determining its reliability. Here, I develop this thought by showing the progression of law regarding, the admissibility of tape recorded statements. 

Before proceeding further, a fun fact about the cases to be discussed. These were either election disputes, or sting operations, where tape recorded statements were adduced in evidence against the accused. None of them were instances where the evidence was relied upon by the accused himself to put forward his defence. Given the (now declining) importance paid to the presumption of innocence in our criminal justice system, one wonders whether gradual introduction of increasingly strict admissibility rules might have been driven by this commonality across these seminal cases. 

Partap Singh and the Beginning

The first notable case was Partap Singh v. State of Punjab [(1964) 4 SCR 733]. The Appellant, a Civil Surgeon, had been found guilty of unlawfully accepting 16 Rupees and been placed under suspension. The High Court held against him in Article 226 proceedings, and the Appellant thus approached the Supreme Court. A 3-2 split held in favour of the Appellant. Now, the Appellant had heavily relied upon tape recorded statements to support his case, which the High Court refused to admit in evidence owing to fears of tampering. This approach was rejected by all five judges in the Supreme Court. Tellingly, the Majority observed that "There are few documents and possibly no piece of evidence which could not be tampered with, but that would certainly not be a ground on which Courts could reject evidence as inadmissible or refuse to consider it." Nowhere in the judgment does the Court lay down tests to consider the admissibility of these records. The Majority simply observed that: "Doubtless, if in any particular case there is a well-grounded suspicion, not even say proof, that a tape-recording has been tampered with, that would be a good ground for the Court to discount wholly its evidentiary value." Thereafter, it is stated that the State in this case had applied to the Court to create copies of the original records supplied by the Appellant to satisfy itself on the genuineness of the record. Eventually, the State did not deny the genuineness of the recordings.

Although Partap Singh did not lay down a test, there is a passage that seems to be the basis of the later forays of the Court. While noting that the State made its copies of the tapes, the Majority observed that this was done "to verify (a) whether the voice recorded was that of the person whose voice it professed to be; (b) whether there had been any interpolations or omissions; and (c) whether there had been any other tampering with the records."  A reading of the entire judgment leaves no doubt that this is not the Court laying down a test. It appears nothing more than a mere description of what the State would have done. Nonetheless, this position soon came to represent what the Court required to be done in such cases.

'Salim Pan Lao' and the Malkani Phone-Tapping
The concept of entrapping accused persons took a whole new leap with tape-recording technology. It was not long before someone challenged its use, and the Supreme Court specifically addressed this issue in Yusufalli Esmail Nagree v. State of Maharashtra [(1967) 3 SCR 720]. The Appellant had arranged to meet a public servant (here, a clerk) at his residence for paying a bribe. The clerk had already informed the Police, and so a trap was laid. When the Appellant produced the money to hand it to the clerk, he gave that signal 'Salim Pan Lao', and the Police came rushing into the room to catch the Appellant red-handed. The tape recordings were used as evidence to convict the Appellant, who thus took his challenge to their admissibility to the Supreme Court. The three judges cited Partap Singh along with R v. Maqsud Ali [(1965) 2 All ER 464] and held:

"If a statement is relevant, an accurate tape record of the statement is also relevant and admissible. The time and place and accuracy of the recording must be proved by a competent witness and the voices must be properly identified. One of the features of magnetic tape recording is the ability to erase and re-use the recording medium. Because of this facility of erasure and re-use, the evidence must be received with caution. The Court must be satisfied beyond reasonable doubt that the recording has not been tampered with."

The tampering fear is laid bare here. Because of this, from requiring no tests in Partap Singh, the judges in Yusufalli held that the recording's (i) time, (ii) place, and (iii) accuracy must be proved, and voices therein properly identified. Given that this was a criminal case, the Court clarified that all the above must be proved beyond reasonable doubt. Still, the judgment is unclear on whether these observations concerned the admissibility of tape recordings, or merely indicated factors that would affect their reliability. An equally important development here was the reliance placed on the English decision of Maqsud Ali, something I will return to later.

V.V. Giri and the Presidential Election
Apart from trap cases, tape recordings were quite common evidence in election disputes. In N. Rama Reddy v. V.V. Giri [1970 (2) SCC 340], the Court was concerned not purely with the admissibility question, but whether tape recorded statements could be admitted during cross-examination of witnesses to contradict them. The case was sensational as it concerned the Presidential Elections for the country. The Petitioner had sought to confront witnesses using their earlier tape recorded statements and so the Court was required to interpret Sections 146 and 155 of the Evidence Act. After observing the decisions of the U.K. and India, the Constitution Bench here found no difficulty in concluding that such evidence was admissible even for purposes of cross-examining the witness. For reasons best known to the judges, they went no further in discussing the admissibility requirement than by citing various decisions of the High Courts and Supreme Court of India, along with other decisions from English Courts. It remains unclear, therefore, whether the Constitution Bench favoured the view in Partap Singh or that of Yusufalli.

Consolidating a Test: Malkani and Ziyauddin 
In R.M. Malkani v. State of Maharashtra [1973 (1) SCC 471], the Appellant (a Coroner) was demanding a bribe from a Doctor to give a favourable report. There were several conversations over the phone between the Appellant and witnesses conveying a demand and on how the bribe was to be paid. When the witnesses approached the Police, the telephone lines of a witness were tapped to record these incriminating calls between him and the Appellant. While the bribe was ultimately not paid, the Appellant was charged with an attempt to demand and accept illegal gratification. The Two judges in Malkani cited the previous decisions on the point mentioned above without engaging with their reasoning. No provision of the Evidence Act was mentioned either. Rather, at paragraph 23 of the SCC reported version we find the Court stating tests that tape recorded evidence must satisfy to be admissible in evidence: (i) the voices of speakers need identification, (ii) accuracy of the record is proved "by eliminating the possibility of erasing the tape record". The near-parity with Maqsud and Yusufalli is apparent. But now, the judges went further and clarified that these tests determined the admissibility of evidence, a question perhaps left open afterYusufalli.

Five judges in Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra [(1976) 2 SCC 17] were required to decide an election dispute which again involved reliance on tape recorded evidence. The High Court had admitted the evidence after having tested that (i) the voices of speakers were identified, (ii) there was no erasure and (iii) the conversation was relevant to the dispute. In upholding the High Court's decision to admit the evidence, the Constitution Bench stated that "these requirements were deduced by the High Court from R v. Maqsud Ali ...". Interestingly, the Court did not cite Malkani although the requirements of Maqsud had already been incorporated in India by that decision. Nor did the Bench provide provide any update/clarification on the tests laid down; they seemed content with status quo.

Conclusion
Between 1965 and 1975, three Constitution Bench decisions considered the admissibility of tape recorded statements, and said very different things. The gradual development of strict admissibility criteria for electronic evidence is clear, and it certainly seems driven by the fear of tampering this evidence. An underlying commonality missed out by commentators, however, is the heavy reliance on the English Court of Appeal decision in Maqsud. The Supreme Court imported those tests over the course of two decades. Next time, I try and argue how this was a mistake. I also discuss how the Court compounded this mistake: the decision in Ram Singh v. Col. Ram Singh [1985 (Supp) SCC 611]. 

Electronic Evidence - Part I

Its been a year since three judges of the Supreme Court of India decided Anvar P.V. vs. P.K. Basheer [(2014) 10 SCC 473, and Anvar henceforth] and changed our law governing electronic evidence. Surprisingly, remarkably little writing has emerged during this time on what is a hugely significant legal development. Most commentaries brush aside Section 65-B, and independent writing is yet to emerge In fact, there is very little appreciation of our treatment of electronic evidence at large. Through these posts, I try and adopt a bottom-up approach to the issues: starting from the basics to understand the issues and nuances governing the field. 

The Evidence Act and Some Basics

There are several ideas running through the Indian Evidence Act and their interplay is well illustrated upon reading the Introduction to the Indian Evidence Act by its author, Sir James Fitzjames Stephen. One such relationship is between relevance and admissibility. Relevance is of fact, but determines admissibility of evidence. Evidence is admissible, only if it concerns facts declared to be relevant under Chapter II of the Evidence Act [Section 5 IEA]. But this is merely a threshold, the purpose of which is to render the amount of evidence before the Court manageable. There are attendant concerns of the quality of the evidence that is advanced, the idea being that the best evidence must find its way to Court. The Evidence Act, accordingly, lays down stringent conditions on how facts may be proved to ensure that the best evidence is before Court [Chapter V IEA]. So if a document carries a signature, Section 67 needs the signatory to be examined for the document to be exhibited. The document then is labelled as "Exhibit PW1/A" (assuming this is the first prosecution witness). Parties would address the Court on the genuineness of the evidence at the stage of arguments.

Without meeting these conditions, evidence of relevant facts would still be inadmissible. Absent an author, the Court will not exhibit the document in evidence, and it would be labelled as "Mark A". No arguments are then needed about its reliability later on. So in our quest to have the best evidence, we end up asking questions about the reliability of evidence at the outset itself. Admissibility, therefore, actually reveals how the Evidence Act installs two systems of reliability - objective and subjective. The objective standards are something that every document must satisfy for it to be worthy of being evidence at a trial, and are therefore generic and not very onerous. Having cleared this, at trial the judge must then be subjectively satisfied about the genuineness of the document. Although our Exhibit PW1/A had a signatory, was the signature on the document actually his? Such questions which require greater application of judicial mind are thus reserved for trial. 

Documentary Evidence and The Primary-Secondary Dichotomy

When talking about best possible evidence, it is obvious that enforcing this to the hilt can lead to absurd situations where the court has no evidence to render judgment on facts. This leads to concessions, and that is what Chapter V of the Act is about when it explains the modes of proof or documentary evidence. At the heart of this is the dichotomy between Primary and Secondary evidence. Primary Evidence is the document itself [Section 62 IEA] while Secondary Evidence refers to copies that satisfy conditions under Section 63 IEA. Going back to the previous idea of two levels of reliability, we see that the Evidence Act reinforces its best evidence requirement by imposing more stringent entry-level barriers to the admissibility of Secondary Evidence. The fact that the document before court is a copy lends to a presumption of suspicion somewhat, which then must be adequately discarded at that first level itself.

Even in 1872, the Evidence Act did speak about documents created through mechanical processes. Section 62 considered the scenario where numerous copies are made by a uniform mechanical process - printing, lithography, photography. It did not consider the idea of a single document being derived from such mechanical processes. The definitions under Section 63 IEA were framed in such a manner as to achieve some balance between having sufficiently high entry-level barriers, and not too much evidence. Interestingly, the definition of Secondary Evidence was never amended to refer to more than 5 conditions. Even after the Evidence Act went digital and changed its idea of a document following the amendments in 2000, it was considered fit to leave Section 63 unchanged. Perhaps, this was because of the already inclusive definition of Section 63: "secondary evidence means and includes", but some clarity never hurt. The other question is when can Secondary Evidence be adduced, for which one must turn to Section 65 IEA. Seven situations were envisioned in 1872 and no more have been added since, despite this not being an inclusive list of circumstances.

Understanding and Inserting Electronic Evidence
A handwritten document consists of (a) paper/writing surface, (b) ink/writing substance, and (c) an author who put the ink on paper to draw certain symbols to create that document. When we have a photograph, the components increase - the interface between the human element and the end product is now a highly technical instrument. Human progress created more complex and sophisticated instruments, without everyone having to know how exactly they function to give us the end-product. Today you and I don't need to know how our phones works to use them. So, how far can we trust them? In the 143 year history of the Evidence Act, the Legislature has not really dealt with this question. There have been 24 amendments overall, with only 2 concerning electronic evidence. These were, in fact, consequential amendments made to the Evidence Act following the coming of the Information Technology Act, 2000.

The Legislature didn't address this, but that doesn't stop problems coming to the courts as more and more people begin to use electronic devices to deal with everyday life. Necessarily then, the courts are required to resolve issues arising from the use of these materials in legal transactions, from what is currently available on the text of the statute. This process is very fact-specific: courts would look to the text to answer problems arising from the particular kind of electronic evidence before it, and not generally ponder about issues from such evidence of facts. The process, as has been illustrated over the last 50 years and ever so brilliantly in Anvar, is fascinating. While dealing with electronic evidence, the Court greatly tilted the balance between the two levels of reliability created by the Evidence Act and made entry-level requirements extremely onerous. Extremely little was left for the judge to determine about the genuineness of the electronic evidence having admitted it. What is even more fascinating, is that the court repeatedly ignores the text of the statute to inform the law through its fears of the reliability of electronic evidence, be it Primary or Secondary. The next post will develop this point by looking at the law on tape-recorded evidence and emails and other Secondary Evidence requiring proof as per Section 65-B of the Evidence Act.