Tuesday, July 4, 2017

Coercive Investigations - New Limits?

This Blog has been on its annual vacation hiatus, and in that time precious little seems to have been going on in the realm of criminal law and evidence in India. One proposed change that was floated in this time was the Fugitive Economic Offenders Bill 2017. The Finance Ministry released a draft for comments in May and it is likely that some version of the Bill will be presented for consideration in the upcoming session of the Indian parliament. If passed, the law would empower authorities to seize and confiscate the properties of persons involved in financial crimes of large value (this is pegged in the Draft Bill at 100 Crore Rupees or above). 

This forfeiture of properties will trigger if one does not appear before investigative authorities within a specified time period after warrants / summons have been issued seeking her cooperation. So, effectively, it authorises an additional method of coercing the persons who will potentially become 'Accused' to cooperate with investigations. This post covers some ground on exploring the limits of this strategy. Like most issues having a policy element, I am afraid the contours of the post and the argument will remain hazy, and request the reader to bear with this constraint.

Criminal Law, Coercion, and the Accused
Historically, it was not unnatural for criminal justice to follow a policy of "punish now, prove later". Confessions carried an unrivalled evidentiary quality, and also signified spiritual repentance, and thus it was quite regular to subject the Accused to physical pain to this end. Foucault does not discuss coercion by forfeiture of property in  Discipline and Punish, but considering the historical analysis by Professor Levy in License to Steal, it seems forfeiture through Deodands was not used for this aim.

The 19th Century reformation of penal systems across Europe resulted in redrawing the ideas of the acceptable limits of coercion that persons could be subjected to in the criminal process. In large measure, this was because from the Accused became a subject and participant in the process from merely being the object upon which responsibility for an incident was fastened. Physical pain did not magically disappear, of course, but it became possible to question the validity of evidence secured through these means since an Accused also had rights and some legal representation (although it would take more time for an Accused to be allowed to depose as a witness). 

Through the 19th Century, then, we find different jurisdictions draw several limits at the involvement of an Accused person based on the idea of the Accused as a willing participant in the process (but, as Foucault suggests, the wrongfulness of using pain to prove guilt was not eliminated but regulated through the codification exercises). History then lends us fresh perspective for reading the criminal procedure and evidence codes of today. Think of the Accused as being at the heart of a process, as an individual with full-bodied rights in society. The criminal process then regulates how those rights are chipped off to serve the interests of law enforcement. Perusing the Indian codes, one basic conclusion would seem that the law does not wish to support the logic that lets punishment precede guilt. Indeed, the codes make it prohibitive to force the Accused to prove anything beyond un-contestable evidence of a comparable nature such as bodily samples. 

I argue that this shift in focus, from the Accused being an object to a subject and participant affirming the legality of the criminal process, is what explains the law continuing to invest maximum coercive power for ensuring the presence of an Accused. While the law can pass judgment on fugitives and find them guilty, the absence of a subject naturally places the legitimacy of the process under doubt. It denies society the chance to express opprobrium and subject an individual to sanction, which remains (theoretically at least) the most important feature of the criminal process. Ensuring that an accused is present, therefore, is of paramount importance. This is why the law authorises pre-trial detention in such cases, a measure of the highest severity reserved for those found guilty at the end of trial. Which is why it also authorises forfeiture of property, which is what we move to next.

The Fugitive Economic Offenders Bill - A Step Too Far?
All of what I have argued above supports the logic behind the draft Fugitive Economic Offenders Bill 2017 that was circulated. The current system in the Criminal Procedure Code 1973 ups the ante against persons wilfully avoiding the course of law by anointing them 'Proclaimed Offenders' and attaching their property [Sections 82, 83 Cr.P.C.]. Property serves as a substitute for the person, and the inability to deal in property is sought to coerce fugitives from participating in the criminal process. Unfortunately, the Proclaimed Offender process is far too time-consuming to be of any material benefit, where proclamations tend to take at least a year and then there is the added difficulty of enforcing the attachment order. Therefore, a Bill seeking to hasten this process for ensuring the presence of persons would certainly have rule of law benefits.

But at what cost? This is where the cracks appear in the Government proposals. The Draft Bill does not stop at attaching properties - i.e. preventing persons from dealing with them till they appear. It authorises confiscation - not appearing means your property can and will be sold - which will happen at the end of six weeks. And confiscation not only of properties that one allegedly acquired from fraudulent activities, but any property located in India. Can the Government utilise the rule of law logic to justify these drastic means? There are no simple answers, of course. Especially given what we are told about the role of certain individuals and companies in the current banking crisis that has gripped the country. My position is that this Bill is, nonetheless, beyond the acceptable limits of coercion in criminal investigations. The link drawn between the allegations and nature of properties seized and confiscated certainly suggests a harking back to "punish now, prove later" regime that had been condemned. Remember that this is the investigation stage - the judge has little basis to second-guess what the police represent as their case and nor are judges expected to second-guess too much at this stage. Moreover, placing such importance on the Accused during investigations seems to ignore the movement of law in the direction of decreasing this importance for proving guilt. After all, even if a person was to be apprehended using this process, the law clothes her with enough protection to remain silent throughout custody placing the value addition to the government case at nearly nothing.

It is not that there are no alternatives. The Government could perhaps initiate civil in rem actions the properties themselves and then forfeit them, a common (and controversial) practice in the US. It could also, perhaps, speed up the trial itself and then forfeit the assets if it secures a conviction. Or it could do nothing and resort to the very broad (and hyper-active) PMLA regime which could cover most of these situations already. Each of these alternatives would, in fact, be more effective than the current proposal which would achieve little more than good publicity and public catharsis at seeing the big-bad affluent person being in the clutches of law. 


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  2. Abhinav, nice analysis. Can we connect? I work with Business Standard newspaper in Delhi. We are working on an story on the draft Fugitive Economic Offences Bill. Please feel free to contact at # 9811414455 or sudipto.dey@gmail.com