Sunday, April 26, 2015

Reversing the Presumption of Innocence: Part I

It was one of those monikers we grew up with: one is innocent until proven guilty at trial. In coffee-table conversations I've found this principle frustrates as much as it reassures. "Why do we have to put those terrorists on trial when they've confessed to have done it" is a common refrain to the point that "Should the state be able to take away anyone's liberty at the drop of a hat?". If an outside observer was to look at the developments in our criminal law over the previous two decades, which one of these arguments do you think she'd find has more sway? 

Professor Ashworth wrote about four "threats" to this presumption in European Law some time ago. A similar study would not be untimely for India. Here, proceeding with that line of though and supplementing the previous post, I consider provisions restricting the grant of bail for particular offences. Part I looks at the provision under the Cr.P.C. and its ancestry. 

The Cr.P.C. and Non-Bailable Offences 
Offences in India are distinguished as being bailable or non-bailable. A person accused of the former has a right to be released on bail, while no such right exists where one is accused of the latter and it becomes a matter of discretion. Section 437 of the Cr.P.C. 1973 explains how this discretion is to be exercised, and 437(1) mandates no person "shall not be admitted to bail, if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life". The court is required to pre-judge the guilt or innocence of an accused at the initial stage itself. At least my counter-intuitive response to this phrase was that it is a reflection of the legislature taking away personal liberty in the name of social good. But I was surprised to find how similar clauses have existed for more than a century in the various Criminal Procedure Codes of India.

Section 156 of the Cr.P.C. 1861 stated that any person accused of a non-bailable offence "shall not be admitted to bail, if there appear reasonable grounds for believing that he has been guilty of the offence imputed to him.This Code was replaced in 1898, and Section 497 therein stated that one accused of a non-bailable offence "shall not be so released if there appear reasonable grounds for believing that he has been guilty of the offence of which he is accused." Section 497 of the 1898 Code was amended in 1923 to restrict the class of cases where bail was to be denied: from all non-bailable cases it was limited to those punishable with "death or transportation for life." The sentence of transportation for life was abolished, resulting in this part being replaced with "imprisonment for life", which is how the 1973 Code inherited the provision.

Context is key here. When the 1861 and 1898 Codes were drafted, the presumption of innocence did not carry any great importance. In fact, Section 212 of the 1861 Code, concerning bail in committal cases, required Magistrates to consider whether the evidence adduced at that stage either strengthened or weakened the "presumption of the guilt" of the accused. Though the presumption of innocence was identified as the golden thread running through English criminal law by the House of Lords Woolmington [1935 AC 462], commentators have shown how this was more rhetoric rather than a statement of fact [Lord Cooke, Turning Points of the Common Law, pp. 28-48].

Between that time and the drafting of our current Code, the presumption of innocence certainly became one of the hallmarks of common law criminal justice systems. But the retention of this clause seems to have ruffled no feathers at any time, considering the lack of any discussion on the point in the Law Commission's 36th and 41st Report [the latter led to the 1973 Cr.P.C.] and no constitutional challenges thereafter. This silent acceptance was used by the Supreme Court in Kartar Singh v. State of Punjab [(1994) 3 SCC 569] to justify the constitutional validity of Section 20(8) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 which carried the identical clause restricting grant of bail [Paragraph 349]. These special statutes carrying identical provisions shall be the focus of Part II of this Post.

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