Sunday, December 20, 2015

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.

Monday, December 14, 2015

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. 

Friday, December 4, 2015

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.