Friday, July 22, 2016

No Consecutive Life Sentences in India

A Constitution Bench of the Supreme Court clarified a very important question in a reference made to it in the batch of appeals led by Muthuramalingam v. State [Crl. Appeal No. 231-33/2009 decided on 19.07.2016]. The question was whether courts order life sentences to run consecutively or must such terms always run concurrently? The unanimous answer is that two life terms must run concurrently. The issue arose because of contradictory decisions having been passed by benches of lesser strength in the Supreme Court. The clarification was necessary and welcome. Such sentences are obviously contrary to the idea of reformation through sentencing and must not be part of a system like India's which professes to support those values.

The reasoning and analysis do not hit the mark, though, and it appears too simplistic especially when the same logic is repeated in the decision itself. For the Constitution Bench, the simple reason behind this conclusion is that it is absurd for a convict to be serving a sentence after he has already died, for life terms in India mean prison terms that run for the natural life of a convict. The Court relies on Section 427(2) of the Cr.P.C. to point out how the code mandates that those serving life sentences, if sentenced to another life term, shall serve the two sentences concurrently.

Last time I checked, the United States, Canada, and South Africa (to name prominent commonwealth jurisdictions) allow for a back-to-back life sentence. So there may be some reason behind the decision to allow such judicial discretion. Could the five judges, perhaps, have delved deeper into issues of sentencing theory and the symbolic value of multiple life terms? In an era where the role of the victim has been heightened in the criminal process the Court could have considered the symbolic importance of the convict serving different sentences for the injury suffered by the different victims. A perusal of the decisions mentioned in Muthuramalingam where sentences post life terms were given earlier show how courts were sensitive to the nature of the crime - acknowledging the communicative aspect of the sentence. It is an argument that does carry weight. But, the decision never gets past beyond the absurdity of a convict being sentenced to a sentence after his life is over. 

In India we don't have a conventional parole system as might be seen in the west. Convicts may seek a remission, but they don't become entitled to an early release after a certain period of time. They can seek a release in the middle of their prison term for a limited period, and this process is called 'furlough' and 'parole'. Furlough is a potentially longer release for it allows convicts a limited time out of prison each year. So, given that we have these rules, what about furlough then? A convict serving concurrent life terms in Delhi needs to have served three years to be entitled to some release on furlough [the Delhi rules are accessible here]. This calculation would double if sentences were imposed consecutively, making it at least six years for a double life term. Isn't that an interest that the court ought to have considered? This argument is also often used in the United States, and the Court could have benefitted sentencing theory in India by engaging with the argument. 

Unfortunately, then, while the decision is excellent in the end-result achieved, the means leave much to desire. Sentencing theory in India is possibly the least critically examined branch of the criminal law at every level. This decision only serves to reinforce that observation.

Tuesday, July 19, 2016

'Crimes Against Women' in India

The National Criminal Records Bureau in India maintains a separate chapter on 'Crime against Women' in its annual report, publishing statistics for crimes that are "specifically against women". It shows us that not only does the Indian Penal Code contain various female-specific crimes, but that it is supplemented by various other statutes creating offences with only female victims. These are only union laws, mind. 'Crime against Women' today has become a sad caricature unfortunately. Various outfits represent most of these laws as nothing but mechanisms at the hands of scheming wives to oppress a husband and his family members. I do not wish to enter that debate here, but would only say that such a view ignores the obviously empowering ends achieved by such legislation in a country with largely paternalistic social mores [See this recent piece by Flavia Agnes on the debate]. I am concerned with a different problem: legislative excess. I argue that there are significant overlaps between the many offences created under the variety of statutes at the federal level. This is undesirable, for it effectively criminalises the same acts with different labels and ultimately clogs the courts with different cases seeking similar reliefs. A more efficient setup is attainable and could go a long way in resolving what have become systemic problems in this area of law.

498A IPC vs. Domestic Violence Act vs. Dowry Prohibition Act
Historically, we had the Dowry Prohibition Act come in force in 1961, followed by the insertion of Section 498-A in the IPC in 1983, and lastly the Protection of Women from Domestic Violence Act [DV Act] came in 2005. The statutes/amendments were passed in differing legislative climates; the latter two being passed in an India of post-Congress domination. What all these laws ended up doing is treading over the same ground with different ploughs. The 1961 Act criminalised giving and/or demanding dowry. This was subsumed within the definition of 'cruelty' afforded by Section 498-A ("harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security ..."). All of this was then subsumed under the wide umbrella of the DV Act in 2005. This took in dowry demands as well as all forms of 'cruelty' under Section 498-A as forming grounds of either physical or economic violence. The DV Act does not simply label the violence as an 'offence' but uses it to confer rights on the aggrieved woman who may then seek physical and/or economic protection. The DV Act mechanism has been lauded for providing quick reliefs. But, nonetheless, it propels litigation between the same parties under both the traditional criminal justice system for prosecuting Dowry and IPC offences, as well as under the DV Act for seeking immediate economic reliefs. The tendency of courts to hear matters together also dents the initial momentum gathered in the DV Act case.

Before moving on, a short comment is warranted on Section 498-A IPC. The provision is unhappily worded and literally invites abuse. By defining 'cruelty' as any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury (whether mental or physical), the legislature imported traditionally civil grounds for damages into a criminal provision. The text itself seems to suggest that causation is not an element of consideration - X caused Y is not an inquiry, but X did Y which caused Z to feel A might be.  This, together with the largely subjective understanding of the actus reus requirements gravely diminishes the certainty with which courts might apply the provision. All in all, this furthers its potential use as a tool of oppression and, in a way, justifies the bad publicity it garners.

IPC Trafficking vs. Immoral Trafficking 
The issues here are less straightforward as compared to the matrimonial offences. Reading provisions on 'Trafficking' in the IPC - Sections 370-373 - together with the provisions of the Immoral Traffic (Prevention) Act 1956 [ITP Act] throws up similar troubles. The latter statute is completely unique insofar as it criminalises living off the earnings of prostitution and running of brothels. But the parts on trafficking in the ITP Act curiously fail to reference the IPC provisions that were existing from the start. The ITP Act ignores how the IPC defines 'trafficking' in Section 370. The IPC offences of selling and buying minors for prostitution are not referred to, but the statute creates new offences on substantially similar grounds. None of the provisions refer to Section 366 IPC, the offence of kidnapping a woman to inter alia seduce her to illicit intercourse. This is curious since seducing persons to illicit intercourse is perhaps the crux of the ITP Act.

Obscenity vs. Indecent Representation of Women
The offence under Section 292 IPC criminalising publication of obscene material has been there from the start. In 1951 it was supplemented by the Indecent Representation of Women (Prohibition) Act. The legislation defines 'indecent representation' of women in broad strokes [Gautam Bhatia in his recent book offers a scathing criticism of this] to mean the "depiction in any manner of the figure of a woman, her form or body or any part thereof in such a way as to have the effect of being indecent, or derogatory to, or denigrating, women, or is likely to deprave, corrupt or injure the public morality or morals." 

It is safe to say that the first part of the definition is akin to the saying that beauty (read indecency, derogatory and denigrating) lies in the eyes of the beholder. Logically, it also subsumes all women to be one class and imagines a set of possible acts that offend them collectively. The second part pushes this idea further on a more general level. It incorporates elements from Section 292 IPC - the requirements of depraving and corrupting influences - and adds these elements with the notoriously problematic idea of 'public morality or morals'. As Bhatia argues at one place, restraining free speech on the ground of public morality does not have the sanction of Article 19(2), rendering this provision without any constitutional protection. Speaking from the perspective of criminal theory, it is quite inexplicable to blatantly impose the public morality upon autonomous individuals through the tool of the criminal law. The offence can be criticised in any number of ways - constitutionally unsound, no foundation in criminal theory, supporting gender stereotypes - but here I'll refocus the lens to the context of this post. The offence could easily be reduced to a sub-clause in Section 292 and save persons from having to fear additional prosecution. This is important, as the Indecent Representation of Women Act allows for employees of publishing houses to be held vicariously liable (without them having the mens rea to commit an offence). This stretches the potential net of liability much wider than the IPC, which does not have a vicarious liability provision.

The various special laws designed to address 'Crime Against Women' seem to be uniformly afflicted by problems of bad drafting and a lack of clear purpose. In attempting to differentiate the special law from the general IPC offences, the legislature creates new terms without defining them appropriately. This promotes vexatious litigation, or litigation that would otherwise not have been attempted but for the vagaries in the law. The overly moralistic tenor of the statutes seeking to safeguard the interests of women render their application more difficult from the criminal trial perspective and increases the possibility of bad decisions at any stage of the proceedings. This promotes the perversity with which the regime is then viewed in the public [where the possible offenders (men) significantly outnumber the victims (women)]. Moreover, in the case of matrimonial offences the overlaps bring about multiple litigation between the same parties and increases administrative costs for the system. All of this clogs the docket and reduces the judicial time possibly allocated to deciding each dispute.

There are easy answers to this problem. A relook of the statutes would prompt amendments and a narrowing down of their obtusely wide scopes. The area of physical and economic violence against women could be consolidated into a general code and taken out of the IPC altogether. The emphasis on immediate reliefs (akin to the DV Act) should be at the heart of that imagine code. A similar point can be made about the trafficking offences. A more drastic solution is required for the last of my categories: there is no place for the Indecent Representation of Women Act and it must be repealed. The legislature must reconsider its overall approach to addressing crimes against women. Inflating the statute book with new offences only makes it unwieldy and difficult to implement. A leaner code would be more helpful to all stakeholders in the system.

[Special thanks to Mansi Binjrajka for her valuable feedback on an initial draft of this post]

Friday, July 15, 2016

Rash, Negligent, or Reckless - Some Thoughts

I've spent the last few days pondering over a few provisions in the IPC - the set of offences based on 'rash or negligent' acts (Sections 279, 304-A, 336, 337, and 338 IPC), together with those on culpable homicide and murder (Sections 299 and 300). The purpose behind these repeated readings was trying to understand, primarily, how the IPC criminalises different kinds of homicide. Is there a tidy division between acts causing death which amount to culpable homicide (viz. Sections 299 and 300) and those that do not? What is the standard of fault required for acts to be 'rash or negligent'? Is the absence of 'recklessness' as a term describing the culpable mental state, or mens rea, of the accused a material fact to further our understanding? Some thoughts follow

299-300 vs. 304-A and Line-Drawing Exercises

Section 304-A was not part of the IPC as it was enacted in 1860. But it was part of the first few amendments brought about in 1870. An offence of causing death due to negligence was Section 304 of the initial 1838 draft of the Penal Code prepared by the Law Commissioners; so it could be that the amendment was an exercise in damage limitation. Upon comparing the two, we find important differences though. I’ve reproduced the texts of the two provisions below: 
  • Section 304 of the 1838 Draft read "whoever causes the death of any person by any act or any illegal omission, which act or omission was so rash or negligent as to indicate a want of due regard for human life, shall be punished with imprisonment ... which may extend to two years ...
  • Section 304-A, as inserted in 1870 and continues till date, reads "whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment ... which may extend to two years ..."
Section 304 of the 1838 Draft placed a barometer to measure the ‘rash or negligent act’: whether it "indicate[d] a want of due regard for human life". This makes the offence similar to, say, Section 279 IPC, which also labels driving ‘rash or negligent’ if it endangers. This barometer was omitted from Section 304-A, leaving great discretion in determining how an act would be deemed sufficiently ‘rash or negligent’ to attract criminality. 

In my opinion, the change was undesirable and, as time has proven, propagated unnecessary confusion over the standard required to attach criminality for offences under Section 304-A. This change further confused the distinction that could be drawn between the offences of culpable homicide (and, by extension, murder) between death caused by rash or negligent acts. 140 years hence, it remains difficult to argue with certainty whether an act is merely negligent, or rash, or possibly demonstrating reckless knowledge – all three situations attract different punishment. Not only this, the peculiar phrasing of Section 304-A creates other problems. By framing the actus requirement as "doing any rash or negligent act not amounting to culpable homicide", Section 304-A suggests that there may be rash or negligent acts that amount to culpable homicide. This is problematic, for Section 299 in explaining culpable homicide is clarifying that mere negligence or rashness is insufficient to satisfy the requirements of the offence. But reading the two provisions together, the argument is certainly plausible, especially since there is no express prohibition contained in either Section 299 or Section 300. 

Counterpoint – Limiting Objective Liability 
Now, all this criticism could be seen in a totally different light. Section 304 of the 1838 Draft provided an objective barometer to judge the rashness or negligence of acts. Removing it, the drafters of the Code could possibly be seen as removing wholly objective liability for homicide. To put it simply – criminality for homicide cannot be based on a ‘reasonable man’ test. It must be subjective, linked to the mens rea of the actor. This argument nicely dovetails with the phrasing of Section 304-A: given that both ‘rash’ and ‘negligent’ are used, surely different meanings apply to the terms. So, the argument goes, only ‘negligence’ refers to the objective ‘reasonable man’ based liability. To claim that an act was ‘rash’, it must be proved that the actor was heedless as to the dangerous consequences, despite having considered the risks. 

Courts in India subscribed to this logic. From as early as the decision in Idu Beg v. Empress [1881 3 ILR All 776], ‘negligent’ is seen as involving inadvertence based liability, while ‘rash’ invokes the state of mind of the accused. Naturally, the existence of civil liability for such acts requires courts to extol the particularly grave nature of negligence/rashness displayed. But the underlying theme rarely wavers, right up to the recent decision of the Supreme Court in Sushil Ansal [(2014) 6 SCC 173]. Those familiar with common-law offences would find this concept of ‘rash’ displaying similarities with the notion of ‘recklessness’ as a fault requirement. Links could also be drawn to the criticism faced by so-called objective recklessness, and its ultimate upheaval in R v. G [(2003) UKHL 50]. 

Different Kinds of Recklessness
It still surprises me how conspicuous ‘recklessness’ is by its absence throughout penal statutes in India. The Motor Vehicles Act 1939 used to carry ‘reckless’ in the definition of ‘dangerous driving’. But this was omitted in the 1988 version of the Act. This naturally leads to some skepticism while reading judicial decisions which don’t stop at merely stating rash and reckless as literary synonyms, but go further and incorporate the use of ‘recklessness’ as a fault requirement. As seen from the many cases where common-law decisions are cited, Indian courts haven’t been fully perceptive to the different ways in which 'reckless' is used at the common-law in context of crime. 

A consequence-based offence (murder) is different from a conduct-based offence (endangerment), and reckless when used in context of these different kinds of offences, should mean different things. A person may be reckless as to the consequences of acts (e.g. the formulation in Idu Beg), or a person may simply act recklessly. If I fire a loaded gun while standing in front of a crowd of people, I am rightly said as being reckless as to the consequence of my act causing death. But when I drive dangerously, my act of driving rightly conditioned with the adverb of it being reckless. According to this understanding, Sections 279, 336, 337, and 338 don’t employ ‘rash’ as an adjective for the mens rea traditionally understood. It uses the term ‘rash’ to describe the act itself, and employs objective standards to help arrive at that description. Transposing this understanding to the offence of Section 304-A makes the problem apparent – the section is inherently contradictory. It criminalises conduct, but it makes that same conduct be treated differently on the basis of a resulting consequence. 

It is fascinating that although courts in India are yet to apply this logic, the Supreme Court has on multiple occasions favourably referred to the decisions of the House of Lords in Caldwell [(1982)  AC 341] and Lawrence [(1982) AC 510] in cases under Section 304-A [see e.g., Jacob Mathew v. State of Punjab, (2005) 6 SCC 1; Naresh Giri v. State of M.P., (2007), Kuldeep Singh v. State of H.P.,  (2008) 14 SCC 795]. Both decisions expanded the understanding of ‘recklessness’ to include an objective standard. This was primarily to exclude a possible defence, that an accused should not be held liable merely because the risk was not contemplated. I’ll step aside from the various criticisms levelled against the two English decisions here and also from the fact that the Supreme Court sadly ignored how both these decisions were no longer good law by the time they were relied upon. This fact is mentioned only to note how relying on them can be used to introduce a similar strand of relatively objective liability when considering the offence under Section 304-A by focusing on its basis of a conduct crime. 

I have tried to argue here that the basis of imposing liability under Section 304-A can be looked at a different way, which offers more coherence both doctrinally and practically. Interpreting 'rash' as not being a traditional mens rea term but an adverb conditioning behaviour helps the trial at large, and also upholds various principles grounding criminal liability - those of certainty, correspondence and fair labelling, to begin with. The Supreme Court has been erratic and unprincipled in looking abroad to derive meaning for 'rash or negligent' found in the IPC. A more thorough approach could expose the inherent faults of that logic applied by the House of Lords (as criticised by various commentators) to help inform Indian jurisprudence better. The ideas proposed here are drawn from various academic texts. But they had overlooked one nugget of history, and it was revelatory to find a deep resonance of this argument in the 1838 Draft of the IPC. Maybe, we need to go back to the start.

Sunday, July 3, 2016

Look Out Circulars and Arresting Persons

Most people outside of criminal practice don't know what a Look Out Circular [LOC] is. The LOC came into the spotlight last year with the Priya Pillai decision of the Delhi High Court, where the Court quashed an LOC against the Petitioner who was prevented by the Government from flying abroad to participate in a conference due to her associations with Greenpeace. What escaped many was how the Court in Priya Pillai left an important constitutional question open regarding the use of LOCs. In this post, then, I first briefly elaborate on what exactly is the LOC, before moving on to discuss that question.

What is the LOC?
A LOC or Look Out Notice is pretty much as the name suggests - a circular/notice asking authorities to be on the look out for a particular individual. The CBI Manual says the LOC is used to "trace absconding criminals and also to prevent and monitor effectively the entry or exit of persons who may be required by law enforcement authorities." Practice shows that the LOC is commonly sought by investigating officers in cases where the accused is suspected of being abroad. Judicial decisions emerge when the said accused persons challenge the LOC, and here we most courts stating that the purpose behind the LOC is to secure the presence of a person, and thus the LOC is ordinarily quashed if the accused appears before court and ensures cooperation with investigation. Importantly, the LOC has no statutory basis at all. It is apparently the creature of notifications issued by the Ministry of Home Affairs, which are unavailable in the public domain. This instrument can only be issued by officers of a certain rank in the Central or State governments. 

Culling out legal precepts from this description is the next step. What emerges is that usually, the person in respect of whom an LOC is issued is already an accused, having a FIR in place, and not a mere suspect. It may of course be the case that the person is not even a suspect and is the subject of some surveillance, as in Priya Pillai. Placing the effects of the LOC in terms of the Cr.P.C. is also required while thinking of how persons are commonly arrested when there is such a LOC against them. In cases where there is an FIR, the LOC is furnishing the police officer with a reasonable apprehension for arrest under Section 41 Cr.P.C. Where there is no FIR, an arrest would be occurring to prevent commission of offences under Section 151 Cr.P.C.  

Priya Pillai and Constitutionality of the LOC
In Priya Pillai, the Petitioner was offloaded from a flight based on an LOC issued against her by the Intelligence Bureau. The Petitioner was categorised as an 'anti-national' element. The basis for this according to the Union of India was that the Petitioner's NGO credentials created a distinct possibility that the Petitioner would speak against the Indian government abroad and affect the ability of the nation to inter alia attract foreign investment. This exercise of executive action was struck down as being contrary to the rights guaranteed under Articles 19(1)(a) and 21 of the Constitution. 

The Petitioner in Priya Pillai did not challenge the very constitutionality of the LOC but addressed this point during arguments. It was argued that there was no enacted law to situate an LOC within. Thus, violation of Article 21 rights on the basis of an LOC could not be justified as it did not amount to process established by law. The Court was taken by the argument and expressed 'serious doubts'  over whether the MHA Office Memorandum on which LOCs are based could be 'law'. But the Court left this question open, noting how any effective answer would require an assessment of the LOC with other statutes such as the Cr.P.C. and the Passports Act. 

Weighing up the arguments, I find that the Court itself provided a reasonable one in support of the constitutionality of LOCs. The Court observed how Section 41 Cr.P.C. requires reasonable suspicion of commission of cognizable offences to arrest. The LOC could be seen as supplying the basis for this suspicion, which would mean the deprivation of liberty itself won't be susceptible to challenge as it would continue to result from actions under the Cr.P.C. Similarly, since Section 151 Cr.P.C. does not specify how the police must justify its preventive arrests. One can argue that relying on the LOC to exercise that power would still mean liberty was deprived by acting within the Cr.P.C. framework. Looked at from the perspective of the arrested individual, it is argued that the regular Cr.P.C. protections would apply. Thus, the arrest would require the person be furnished reasons as required under Section 50, allowing for disclosure of the grounds contained within the LOC if not the LOC itself. Normal rules of production before a Magistrate within 24 hours of arrest would apply here too in light of Section 50 Cr.P.C. and Article 22 of the Constitution, where the State would again have to explain why the arrest was needed.

Thus, while I am a staunch supporter of grounding all possible coercive processes to secure presence of individuals in statute, it appears quite plausible to safeguard the constitutional validity of such non-statutory mechanisms of relaying information which ultimately results in deprivation of liberty.