Monday, August 29, 2016

In Re Sedition

The offence of sedition made headlines again last week. This time, a public statement had been made stating that Pakistan was not hell. Cue, pandemonium. A private complaint under Section 124-A of the IPC was filed against the maker of the statement [Ms. Ramya, an erstwhile MP]; demonstrations were carried out in Karnataka by certain political outfits, and various entities were demanding a retraction of the statement over the internet. This circus came shortly after Amnesty India had also been alleged to have sponsored seditious talks in Bengaluru. The uproar fizzed, as it always does, and there were the usual outraged television debates with news anchors telling us that the nation wanted to know how could a crime like sedition still exist. The public live-tweets and votes in favour of repeal outnumber those for retention of the offence. If only live-tweeting could replace parliament.

I find it very difficult to discuss the offence of sedition under Section 124-A of the IPC given the obviously political and policy-based tenors of the debate generated. The wanton criminalisation of speech and expression carried out by the provision has been subjected to intense analysis by my friend and colleague Mr. Gautam Bhatia in his book. All of that debate has a clear conclusion - if one considers free speech and expression as important democratic virtues, then offences criminalising these virtues are obvious problems. The value judgment of where to draw the line on free speech must, theoretically, be made by the democracy. By having failed to repeal the offence despite it being 2016 today, one can argue that our democracy wants the sedition offence.

If I was to look at Section 124-A IPC, I'd obviously agree with all that is said about it being a horrible infringement on free speech, for those are my virtues too. But, regardless of the political virtues we subscribe to, there are deep objective problems with the offence that cannot be ignored. It is criminally vague and espouses a standard that defies any logical and unbiased enforcement. But even more importantly, the offence is redundant and achieves nothing from a criminal law perspective. The purpose of any offence is to curb certain kinds of behaviour in society. Can the conduct curtailed by having an offence such as Section 124-A IPC be curtailed by other offences? Certainly, yes; acts that would be properly booked under sedition as per the interpretation of the Supreme Court would ultimately also be offences of Rioting etc under the IPC. 

So why have sedition as an offence? In a 1977 Report/Working Paper, the Law Commission for UK and Wales recommended that the offence of sedition not be part of a proposed criminal code. It noted that "Apart from the consideration that there is likely to be a sufficient range of other offences covering conduct amounting to sedition, we think that it is better in principle to rely on these ordinary statutory and common law offences than to have resort to an offence which has the implication that the conduct in question is 'political'." I argue that this is the very reason why sedition continues to be an offence in India - it provides a label that the conduct is political. In a country which wears its nationalism on its sleeve (or, on its plate, depending on where you are), it is necessary to have sanctions against the wrong kind of political. That's an answer, if the nation wants to know.

Balveer Singh vs. Rajasthan and Ad-Hoc Criminal Procedure

The Supreme Court has a problematic legacy of providing ad-hoc criminal procedure, divorced from the text of the rather meticulous Criminal Procedure Code 1973 [Cr.P.C.]. A new chapter in this legacy is the decision by a Division Bench in Balveer Singh & Anr. v. State of Rajasthan & Anr. [Crl. Appeal No. 253 of 2016, decided on 10.05.2016]. 

The facts are not exactly straightforward. The police investigated a woman's death and filed a charge-sheet alleging offences under Section 306 IPC [abetment of suicide] against her husband. The father of the deceased filed an application before the Magistrate seeking that cognizance of offences under Section 304-B [dowry death] and 498-A IPC [cruelty to wife] be taken against the deceased woman's husband and her in-laws. The Magistrate heard the complainant and proposed accused, and dismissed the application. The case was committed to the Sessions Court [Section 306 is only triable by a Court of Session]. The same application was filed before the Sessions Court, which allowed it and took cognizance of the additional offences. The aggrieved parties went to the High Court which directed the Sessions Court to decide the application afresh by hearing both sides. This led to the same conclusion, and the matter finally went to the Supreme Court which dismissed the appeal.

What is special about this decision? Three aspects are highlighted: 

1. The Interplay between Sections 190 and 193 Cr.P.C. 
The Supreme Court discussed the law on cognizance in respect of committal proceedings, i.e. the interplay between Sections 190 and 193 Cr.P.C. This meant engaging with a controversial recent Constitution Bench decision in Dharam Pal v. State of Haryana [(2014) 3 SCC 306]. The Court in Balveer Singh reiterated the basic truths such as cognizance is taken of offences and not offenders, is only taken once, and a Magistrate can take cognizance of offences exclusively triable by a Sessions Court. So, logically, if a Magistrate takes cognizance in these cases, then a Sessions Court will not be taking cognizance again. But how to decide whether or not the Magistrate took cognizance? This required an analysis of the process of committal.

2. 'Active' vs. 'Passive' Roles of the Magistrate at Committal
Sessions Courts cannot take cognizance of offences as courts of original jurisdiction under Section 193 Cr.P.C. Cases must be 'committed' to these courts, and this process is called Committal. It involves a completion of various formalities - securing presence of the accused, providing copies of documents etc. - before the case is sent to the Sessions Court for trial. Committal was very elaborate in the old Cr.P.C. of 1898 with evidence and arguments before the Magistrate. But the process was drastically streamlined in the 1973 Code to reduce delays. One would think that this points to a clear legislative intent of reducing the role of a Magistrate. However, over time, there naturally emerged some confusion as to how reduced the role was to be. 

Today, with Balveer Singh, we see a revision of that role with the Supreme Court discussing whether the Magistrate plays an 'Active' or 'Passive' role during Committal. I say revision, because the Constitution Bench in Dharam Pal seemed to suggest that the Magistrate could only be playing a passive role. The significance of this debate will be interesting to see. In Balveer Singh the Court held the Magistrate played an 'Active' role and took cognizance before committing the case. So could answering whether cognizance is taken by the Magistrate depend upon the 'Active' or 'Passive' role during Committal? This is critical, especially since the Supreme Court last year created a concept of 'real' cognizance in S.R. Sukumar [commented upon earlier in a longer post on cognizance].

3. Implied Approval of Ad-Hoc Criminal Procedure
One of the reasons why the Supreme Court concluded the Magistrate played an 'Active' role was because both sides were heard on the application filed by the father of the deceased. While there may be some basis in law to support the application [the judicially created concept of 'Protest Petitions'], to my mind there is nothing in law supporting the Magistrate giving the proposed accused a right to be heard. Yet, we find the Supreme Court gives a clear stamp of approval to this illegality and allow various potentially interested persons a right of hearing at the preliminary stage of cognizance thus further delaying proceedings. All this when cognizance was probably never meant to be a stage for any great discussion or argument!

What's more, the Court further supports such ad-hoc procedural innovation by way of its conclusion. One would think that since the Court concludes that cognizance can only be taken once, and it held here that the Magistrate took cognizance, then the entire process before the Sessions Court would be held illegal. In a not-so-brilliant sleight of hand, the Court upholds the process before the Sessions Court by holding it to have been an exercise of revisional jurisdiction under Section 397 Cr.P.C. as orders refusing cognizance are revisable. The small problem of there being no revision petition is taken care of by reminding us that these powers under Section 397 Cr.P.C. can be exercised suo motu But surely this still needs the Sessions Court to state that it was exercising this jurisdiction. Or, perhaps, Articles 141 and 142 can now be read as empowering the Supreme Court with the power to impregnate lower court orders with any logic necessary to protect them from legal challenge.

Friday, August 26, 2016

Section 311-A, Handwriting Samples, and Arrests

I was reading up the law on Section 311-A Cr.P.C. (inserted by way of an amendment in 2006) which empowers Magistrates to compel individuals to give handwriting samples. The provision is pretty straightforward and requires a Magistrate to decide whether it will be expedient for any investigation or proceeding to direct ay person (including an accused) to give a handwriting/signature specimen. What struck me was the proviso. It says that "no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding." What relationship, I ask, does the fact of arrest have with a requirement of taking that person's handwriting/signature specimens?

The answer takes us through the unnecessarily long history of Section 311-A, which also serves as an advertisement for how lackadaisical statutory reforms in India can be. The Supreme Court in State of U.P. v. Ram Babu Misra [AIR 1980 SC 791] upheld the view that there was, at the time, no provision allowing Magistrates to compel persons to give handwriting/signature specimens. The Court noted that the only statutory authority for compelling specimens was present under Section 5 of the Identification of Prisoners Act, 1920 - and this was limited to measurements and photographs of persons. While dismissing the petitions filed by the State, the Court noted that "suitable legislation may be made on the analogy of Section 5 of the Identification of Prisoners Act, to provide for the investiture of magistrates with the power to issue directions to any person, including an accused person, to give specimen signatures and writings."  

I couldn't find any Bill appear in the immediate aftermath of this discussion (well, it was 1980 and other more important things were happening). The next landmark was the 154th Report of the Law Commission of India in 1996. Section 311-A was mentioned as part of a Code of Criminal Procedure (Amendment) Bill 1994 and the desirability of this provision was put up for discussion. Again, the provision was labelled as analogous to Section 5 of the Identification of Prisoners Act, 1920. Unfortunately, the form in which Section 311-A was present at that time is not uploaded, nor does any one of the responses in the Report's annexures discuss it. Ten years later, though, we had Section 311-A on the statute through the Code of Criminal Procedure (Amendment) Act, 2005. Its provisions are similar to the proposed changes discussed by the Law Commission in 1996, leading one to assume there were little changes to the final Section 311-A from the draft provision of ten years ago.

It seems the Legislature took the words of the Supreme Court too strongly when it suggested that Section 5 may be used as an analogy. A comparison of Section 311-A Cr.P.C. with Section 5 of the Identification of Prisoners Act, 1920 shows they are identical - barring the words "measurements or photograph" being replaced with "signature or handwriting". Section 5 reads:

"If a Magistrate is satisfied that, for the purposes of any investigation or proceeding under the Code of Criminal Procedure, 1898, it is expedient to direct any person to allow his measurements or photograph to be taken, he may make an order to the effect, and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in the order and shall allow his measurements or photograph to be taken, as the case may be, by a police officer:
Provided further, that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or such proceeding." 

The odd proviso concerning arrest in Section 311-A Cr.P.C. is clearly there just because it is also there in Section 5 of the Identification of Prisoners Act, 1920. Ten years have passed since Section 311-A came into force but no decision has yet discussed the rationale behind the proviso, if there is any. I argue there isn't any rationale. The proviso can either be seen as compelling unnecessary arrests even where the police does not want to arrest or it can be seen as empowering the police to threaten individuals with arrest. Of course, if the only grounds for arrest is taking of signatures the Magistrate is likely to grant bail immediately. But why on earth is that entire charade required in the first place! Incidentally, this also leads to one of my recurring themes of work. Would the fact of a person having been arrested only for taking his handwriting sample make her "accused of any offence" for the purposes of Article 20(3)?

Sunday, August 7, 2016

Snippet - Unintended amendments to the Crime of Forgery?

My attention was drawn to a rather startling fact recently [see here for the one piece I found discussing this online]. The definition of forgery under Section 464 of  the Indian Penal Code 1860 [IPC] today is not what it used to be - and is commonly still assumed to be by many laypersons and lawyers alike. The cause of this is the series of amendments made to the IPC by the First Schedule to the Information Technology Act 2000 [the link leads to all statutes passed in 2000, scroll around to find the this particular one].

Section 464 before the amendment read as follows:

First - Who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document, or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed sealed or executed, or at a time at which he knows that it was not made, signed, sealed or executed ... [emphasis supplied]

The provision after the amendment reads as follows:

A person is said to make a false document or false electronic document or false electronic record - 
First - who dishonestly or fraudulently - 
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any electronic signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the electronic signature

with the intention of causing it to be believed that such document or part of document, electronic record or electronic signature was made, signed, sealed executed, transmitted or eaffxed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed ...    

The last bit in bold has curiously disappeared with the amendment. This has important ramifications for it means that antedating documents no longer constitutes forgery. Mr. Mahesh Jethmalani argues that it is possible to rebut this conclusion by arguing that this consequence is the result of an inadvertent legislative oversight, rather than the product of explicit legislative design. This invokes the doctrine of casus omissus, which has been invoked by courts to remedy patent legislative defects [the Madras High Court in 2007 discussed the concept at length in Sundaram Brake Linings Ltd. v. Kotak Mahindra Bank Ltd.], albeit rarely. The argument certainly has merit in this case. The purpose of the amendments made by the Information Technology Act to the IPC was to broaden the scope of the offences by including the electronic medium within them. And no discussion in parliament on the Information Technology Bill mentioned anything about removing a substantial portion of the forgery offence.

It has been nearly sixteen years since the amendments were passed and this issue has not received any judicial attention to my knowledge. From the latest I've heard though, a petition is currently pending in the Supreme Court where this issue has been flagged for consideration. It will be interesting to see which way the decision goes, whenever it does come.