Justice Must Not Only Be Done ....

[caveat: this post can fall in the rant domain unlike the usual content on this blog]

I must admit, I have not always fairly appreciated the contribution made by the Indian Supreme Court to our legal system. Its not without reason that a general sentiment prevails in country that the Court remains a white knight amidst the prevailing corruption. The problem is, and pardon the recurring rhetoric, we forget that with great power came great responsibility. The bigger problem actually is, that we forget appearances are often deceptive. What appearances? The appearance of the judiciary having more power than it possesses. The Court has taken up the role of investigator, judge and executioner. What it has stopped doing over time, is providing steady and coherent adjudication of legal issues. The multitude of voices emerging from the Court usually lends itself to a noisy cacophony contributing to the chaos. That's not all. This hyper-activism is corroding our democratic process. A graph would plot well how increased judicial activism correlates with decreased public participation in democratic processes. Maybe that's why Justice Frankfurter advised Sir B.N. Rau against investing the judiciary with power to set aside laws made by an elected legislature. He believed in a democracy, that must remain the prerogative of the electorate, and not the decision of an un-elected judiciary. 

Yesterday, the Court had donned its executioner hat, and in fine form. After what has been labelled as an "unprecedented day" in its history, it confirmed the death sentence for yet another human being, who was hanged to death merely hours later. Imagine, dying because you managed to convince only 1 rather than 2 other human beings that you deserve to live. We condemned the white men who sent Indians to the gallows. It seems like our condemnation was only with the choice of executioner. Mr Seervai observed the same in context of our retention of the ordinance powers with the executive. In any case, the curious case of death by judgment is the procedure seemingly invented over time by the Supreme Court. Its procedure which the Court itself seems only too happy to ignore. Take this latest episode from the start:

a. The TADA Court issued a 'suo motu' death warrant on 30.04.2015 without giving the accused any opportunity to defend himself. The execution was fixed for 30.07.2015, a decision conveyed to the convict only on 13.07.2015. As opposed to the guaranteed 90 day period for alternate remedies to death row convicts [Shabnam v. Union (WP Crl. 89/2015)], the convict here had only 17 days, for no fault of his own.

b. This interpretation of procedural laws was held by Justice Misra as not being retrospective, thereby setting aside this objection. Its rather settled though, that retrospective operation doesn't concern procedural rules. Just look at how many appeals are getting affected by the recent re-interpretation of Section 65-B of the Indian Evidence Act.

c. Suddenly there is an objection with the second mercy petition, where it is often seen that multiple clemency petitions are preferred by convicts when new grounds emerge. Short shrift was given to the new grounds here - schizophrenia - despite the recent concern shown by the Court to such cases in Shatrugan Chauhan & Ors. v. Union [WP Crl. (55/2013)].

d. The aforementioned case also held that 14 days must pass between rejection of the mercy petition and the execution, for the prisoner to "mentally prepare himself". Justice Misra observed the delay in filing the fresh mercy petition meant staying the execution would be a travesty of justice. So we mean that although someone is certainly being executed, it would be a travesty to postpone that death for a few more days?

e. Given these new grounds, it still took less than half a day (record time in fact) to reject the mercy plea. If any important decision is taken by the executive within hours, would it not normally become suspect for lack of due application of mind? Was there a fair consideration of the fresh grounds? 

In hindsight, it appears that the only reason the Court was convened at 3 AM was to ensure no changes were required of the Nagpur execution. Take a moment and go back to the narration of events which you'll find splashed across the news. Forget about the sensationalism. Take a look at that supposedly neutral chimera called the law as it stands today on the issue of executing another person. Just ask yourself: was justice done, and was it seen to have been done if viewed from the eyes of an outside observer? Any law student will tell you that justice must not only be done, but be seen to be done, and I don't think the answer is an easy one here. Our Court is Supreme but not infallible. Days like this are painful, and costly, reminders of this harsh reality.

Article 20(3) and Persons Accused

Compelling persons to incriminate themselves is forbidden in most common law countries, usually by means of a guaranteeing rights against self-incrimination in a constitution or other basic text. In India, we have Article 20(3), guaranteeing that "no person accused of an offence shall be compelled to be a witness against himself". Scan through any textbook on constitutional law in India, and there will be praise for this necessary right that prevents police oppression and forced confessions. But is the right under Article 20(3) really that useful? Note, I am not debating the merits of a right against self-incrimination itself (a very vibrant debate), but of Article 20(3) in particular.

The History behind the Text

Article 20(3) in the Constitution of India 1950 featured as Draft Article 14 during the debates in the Constituent Assembly. This was different though from the initial draft article prepared by the Fundamental Rights Subcommittee which was sent to the Advisory Committee. The first draft had only two sub-clauses and the second one read "No person shall be tried for the same offence more than once nor be compelled in any criminal case to be a witness against himself." The inspiration from the self-incrimination clause in the Fifth Amendment to the United States' Constitution is apparent. The Amendment reads: "no person ... shall be compelled in any criminal case to be a witness against himself".

When the clause went to the Drafting Committee, it was decided to split up the clause for clarity. There were also changes in the language, and the text became no person accused of any offence. The reasons behind the same were not entirely clear from the current materials available to me [primarily, The Making of India's Constitution by B. Shiva Rao]. Considering the Assembly Debates, we don't get much clarity on the issue either. The common refrain in the Assembly was the similarity of rights with protections available under the ordinary criminal laws of the country at the time. The possibility of statutory protections being amended is what seems to have provided the rationale behind creating Article 20. But the debates are unhelpful for drawing any further inferences [contrary to what a Division Bench of the Bombay High Court held in Ramachandra Ram Reddy v. State of Maharashtra, 2004 Bom CR(Cri) 657].

Who is an Accused?

If the right under Article 20(3) is only available to an accused, we must then ask who is such an accused? Running through the CrPC, the first mention of a person as an accused is in Section 167. This concerns remand to custody during investigation. So is arrest the key? But, what about the other provisions under the Evidence Act which protect accused persons from statements they make to the police. Would arrest not allow the police to extract statements rather easily then? Is a unified standard even possible?

Sidestepping the issue of a uniform standard/definition, let us address how the Supreme Court has understood the term for the purposes of Article 20(3). When the Court took up this issue for the first time [M.P. Sharma v. Satish Chandra, AIR 1954 SC 300], it was in a case where the question was whether the protection is restricted to the goings-on of a courtroom. The Court rejected such a narrow reading and said the protection "is available therefore to a person against whom a formal accusation relating to the commission of an offence has been leveled which in the normal course may result in prosecution."

Faced with a question on the statutory questioning of persons by customs officials, two decades later two Constitution Benches of the Supreme Court held that such questioning would not contravene Article 20(3) [RC Mehta v. State of West Bengal AIR 1970 SC 940; Ilias v. Collector of Customs, AIR 1970 SC 1065]. How? Because these persons were not yet accused but mere suspects. Being an accused required a formal accusation which was understood to mean an FIR or a similar official complaint. Though some doubts were raised over this reading by Justice Krishna Iyer [Nandini Satpathy v. P.L. Dani, AIR 1978 SC 1025], they were laid to rest by Poolpandi v. Superintendent, Central Excise [AIR 1992 SC 1795]. 

Repercussions

Its interesting how the Supreme Court turned a functional test doctrinal. Article 20(3) was given an expansive reading at first blush. Although it is enticing to argue that this was because the Court was committed to protecting fundamental liberties, remember this is just three years after the decision in A.K. Gopalan v. State of Madras [AIR 1950 SC 27]. A stronger argument is that the Sharma Court simply went with a purposive reading of the text and the general understanding of the right. Fifteen years later, Customs and Excise have become issues of national importance and it would be quite difficult to enforce laws having crucial evidence excluded by Article 20(3).

So, the Court goes ahead and creates this backdoor for allowing evidence. The customs officers can sit you down in a room, ask you all about your possibly shady transactions and you cannot claim this to be self-incriminatory. Why? Because this is all before the moment when the officers use all that evidence to file their complaint to make you an accused. With this logic being extended to other laws, including NDPS cases, serious doubt looms on how worthwhile the protection under Article 20(3) really is. 

Section 511 and Attempting the Impossible

Can I murder someone by firing at her using an unloaded gun? Certainly not. But would that action still count as an attempt to murder someone? Similarly, my firing at a block of wood thinking its my rival cannot lead to my conviction for murder. However, would it not still count as an attempt to murder her? And finally, my smuggling drugs in my suitcase would certainly be an offence. But would my smuggling of tea leaves, thinking they were drugs, be an attempt to smuggle contraband? Any consistent account of the law on attempts has to provide answers to these situations, for they occur more commonly than one might think. Does the Indian Penal Code [IPC] provide us with any answers to liability for such seemingly impossible attempts? Continuing from the last post, nothing but the text of the Act will be considered here.

Section 511 and the Illustrations

If you pick up the IPC and read Section 511, you might ask why am I writing this post. Section 511, recall, is the general provision criminalising attempts to commit offences under the Code. Like many provisions in the IPC this also contains illustrations to help explain the application of the text. Given the amount of interpretive scope possible, a few more (and diverse) illustrations would have helped. For instance, how about an illustration to help determine whether actually any act would help foist liability for attempts? What we have are two illustrations that try and address rather similar situations:

a. A makes an attempt to steal some jewels by breaking open a box, and finds after so opening the box, that there is no jewel in it. He has done an act towards the commission of theft, and therefore is guilty under this section.

b. A makes an attempt to pick the pocket of Z by thrusting his hand into Z’s pocket. A fails in the attempt in consequence of Z’s having nothing in his pocket. A is guilty under this section.

Impossible attempts clearly covered right? Not really.

Unresolved Issues Galore
If you recall the set of examples at the start of this post and place them in these illustrations, do you think each of them would involve liability? It might help to consider the following points

1. The illustrations follow the syntax of the section and reveal the difficulties involved with such a formula. A "makes an attempt" to commit an offence [theft/assault], and "does any act [breaks box/thrusts hand] towards commission of such attempt." The illustration infers the act that was towards the picking of said pocket. But how can we infer the particular mental element involved by only considering just a set of acts/omissions? Especially when these might connote several offences: assault/theft/criminal force in this case.

2. The illustration assumes an act/omission can be described in one way only. But that need not be the case. The scenario is considered from the viewpoint of A. But what if we adopted the viewpoint of an objective observer. So, A is not just thrusting his hand into a pocket, but A is thrusting his hand into an empty pocket. Does the law on attempts always adopt one of the two standpoints?  

3. Both situations involve accused persons who did everything in their capacity to commit the offence involved. Failure was only due to existence of circumstances beyond their knowledge and control. The illustration makes it appear A did not know of the box and the pocket being empty. Does that mean only those supposedly impossible attempts are offences where failure is occasioned due to circumstances external to the accused?

Did I manage to instill reasonable doubt?

Conclusion
Consider the following examples:

A makes an attempt to murder Z by firing a gun. A fails in the attempt in consequence of the gun being a replica with blank cartridges. 

A makes an attempt to poison Z by administering a foul mixture. A fails in the attempt in consequence of the mixture not being poisonous. 

Would A be guilty of an attempt under Section 511? Its very difficult to answer. The amount of trickery involved with a section as broad as Section 511 couldn't possibly be dealt with in two illustrations. I've tried to show that in fact, because of the inference heavy interpretation that these suggest, the illustrations themselves raise several issues. Today, simply looking at the text, its surely impossible to explain them all.