Fairness and Bail

In July 2022, the Supreme Court delivered what proved to be the the last significant milestone on the law of bail — its judgment in Satender Kumar Antil v. CBI [(2022) 10 SCC 51]. At the time, I had noted that the judgment was quite a mixed bag. On some issues, such as arresting persons and denying bail after completing the investigation, it unequivocally expressed a preference for personal liberty. On others, such as actually laying down clearer guidelines for exercising bail discretion, it did not do much. And it left the subject with a plea to Parliament — forlorn, as it turned out — to think of coming up with a dedicated law on the matter of bail as is prevalent in some other countries (the UK example was cited).

Two years hence, the situation has only gotten worse. It may seem paradoxical to be writing this at a time when the Supreme Court and High Courts are invoking Article 21 to grant bail in cases where trials have been delayed and accused persons have spent years behind bars. That, however, is precisely the point: My wrongful confinement does not magically become concerning after two years, eleven months, and nine days. It was either always concerning, or it is never concerning but simply uncomfortable. 

Once we begin to see this, it is clear that granting bail is not some liberty affirming, constitutionally driven, judicial choice in such instances that we ought to be celebrating. It is a morally (and politically) convenient, and legally hollow, choice, which is perpetuating a jurisprudence of apology driven by the personal beliefs of judges with the text of the law merely a proxy, and not a choice for liberty inspired by a set of rules and political ideals that represent shared beliefs.

But this is really the tip of the proverbial iceberg. The consternation, or celebration, around the outcomes in bail cases takes all the attention and successfully masks the real scandal of procedural unfairness in the bail adjudication setting. What are the hallmarks of fairness, in a processual setting? There is no textbook definition, but it is easy to agree on some basics: (i) fair notice, in that I should know the case I have to answer (ii) an opportunity to be heard to give said answer, and (iii) a guarantee that my case will be dealt with by the same yardsticks as every other case. If even one is absent from the procedural setting, I would argue that such a setting cannot, under any stretch, constitute a fair setting especially when what is at stake is personal liberty.

And yet, we continue to adjudicate bail cases in a manner that almost prides itself in not confirming to the most basic notions of fairness. A person being arrested will almost never be furnished a copy of the First Information Report, or detailed grounds of arrest, or even a copy of the application seeking custody at the time of the hearing. Even when a bail application is somehow filed in spite of not having access to any of these documents, prosecutors and police personnel will either not file any response and rely exclusively on the secret contents of their dossiers and diaries, or object to sharing copies of any responses being filed with the accused. 

With such woeful anchoring on the aspect of notice, being granted with an opportunity of being heard is a mirage for most persons being detained. Almost always the first hearing is a washout since the lawyer has no idea of the case, and getting a hold of the documents will take a few days. At this point, the degree of protection that the law offers to your personal liberty becomes directly proportional to the money that you are willing to pay to lawyers who can secure that liberty. It is settled transformation which, sadly, leaves the vast majority behind. 

Which then brings us to the worst placed facet of the lot - adjudication itself on issues of bail and remand. There are, again, two parts to this. Firstly, there is the content of decision-making, which takes us back to the outcome. In not having guidelines on how courts ought to exercise their discretion on bail and custody, the result is that courts are free to conduct almost any kind of reasoning so long as it fits the remarkably featherlight and self-justificatory standard of exercising judicial discretion 'judiciously'. Secondly, there is the process of decision-making — how many hearings, what all has to be seen / looked at, who all have to be heard, what all must be recorded in the order, etc? 

Somehow, there is even greater flux on this aspect. A bail application may be decided now, or may be listed four months later, and may not be heard on that day citing some administrative difficulty and then be taken up two weeks later. Or a judge may simply conduct a remand hearing at his house in the morning after counsel having ten minutes notice. A court may agree to look at the documents filed by an accused, or may not, or may look at material filed by the prosecution without showing anything to the accused. A victim may be heard, or may not unless the statute prescribes otherwise, or may only be allowed to file written objections. A judge may pass a two paragraph order, or a two page order, but may not share it with the accused until after a few days due to logistical difficulties. Where the judge grants bail there may be conditions, or may not, or the same kind of cases may have different conditions, or different accused in the same case may have different conditions without any explanation. Literally, anything goes.

When we think about the need for a bail law, the conversation naturally glides towards the debates on the matter of outcomes since that is what grabs most public attention. The real need for having such a law is arguably elsewhere, in making the process of bail adjudication fairer for all parties involved. It would be a huge step in stemming the growth of this jurisprudence of apology, and reinforcing a rules-based ordering of personal liberty, victim's rights, and investigative prerogatives of the state. 

Considering that undertrial prisoner population today stands at a jaw-dropping national average of more than 75% of total prison population, there is no other legal reform requiring more attention. It needs work, yes, and it will not brook an easy solution such as simply releasing first-time offenders early. Whichever parliament, or Court for that matter, commits itself to the task, ensures that India's criminal justice system takes a step back from the abyss into which it has been staring for some time now. 

The Supreme Court's Criminal Law Explainers in Just for Rights

[This Blog Post touches upon a sliver of the issues raised in the judgment. For a much fuller discussion, albeit where the author ultimately disagrees with some of the conclusions in the judgment, see here]

In a lengthy and erudite judgment titled Just for Rights Children Alliance & Anr. v. S. Harish & Ors. [2024 INSC 716 ("Just for Rights")], the Supreme Court clarified that the possession of child pornography can amount to an offence under the law, specifically under the Protection of Children from Sexual Offences Act 2012 [POCSO] and the Information Technology Act 2000 [IT Act]. I say clarified, as there was a divergence of opinion on this issue in the High Courts which the Supreme Court has now put to rest.

The facts, then. A man, the Respondent S. Harish, was reported to the Police as his name appeared in the Cyber Tipline Report coordinated by NCRB as someone who may have viewed / downloaded offending content on his phone. An FIR was registered and a chargesheet was filed, but while the FIR was under Section 14 POCSO the chargesheet was under Section 15 POCSO and Section 67B of the IT Act. The chargesheet was challenged before the Madras High Court which quashed the case, and this judgment was challenged before the Supreme Court in Just for Rights.  

The Madras High Court proceeded upon the erroneous view that offences under Section 14 POCSO were involved in ignorance of the chargesheet. Further, it construed Section 67B of the IT Act incorrectly, as it failed to look at the full clause before concluding that Section 67B did not punish watching such content — a finding evidently contrary to Section 67B(b). The Supreme Court could have set aside the judgment on these narrow grounds alone, but it did not, and decided to engage with the High Court's view (taken by some other High Courts earlier) that the mere possession of child pornography content cannot be a crime even under Section 15 of POCSO. 

The issue arose because of the peculiarly worded nature of the provision in question. While the marginal note says "punishment for storage of pornographic material involving child", the clause itself does not per se criminalise only storage. Amended in 2019, the provision states:

(1) Any person, who stores or possesses pornographic material in any form involving a child, but fails to delete or destroy or report the same to the designated authority, as may be prescribed, with an intention to share or transmit child pornography, shall be liable ...

(2) Any person, who stores or possesses pornographic material in any form involving a child for transmitting or propagating or displaying or distributing in any manner at any time except for the purpose of reporting, as may be prescribed, or for use as evidence in court, shall be punished ... 

(3) Any person, who stores or possesses pornographic material in any form involving a child for commercial purpose shall be punished ... [Emphasis supplied]

What Section 15 did, was dispel any doubts that it was not a strict liability offence. In other words, it did not punish merely being found in possession of offending material. Instead it required the possession to be accompanied by an intention to share or transmit such material for the base offence, and prescribed even higher standards of intention for the other offences under sub-clauses (2) and (3). 

Technically speaking then, a view that mere possession of such material is not a crime under Section 15 was arguably correct. This view is what the Court seeks to address. The analysis begins by drawing upon the legislative history of Section 15 and the POCSO to justify the view that parliament actually intended to criminalise mere possession. I am not so sure. If this was the intention of parliament, nothing stopped it from adopting the clear language of Section 67B of the IT Act, which when juxtaposed with Section 15 POCSO shows what a crime which punishes pure possession can look like. If anything the Court may have dealt with more extensively on how to harmonise these two sets of clauses, with entail not only different procedural regimes but different potential punishments for the same offence. This multiplicity of crimes for the same act is an issue which the Court appears to have left for another day, which will hopefully come soon enough considering just how often the issue is coming up for consideration.

It is the next section, where the Court breaks down the terms of Section 15 POCSO, that it makes its most convincing case to remind us that even statutes which may appear to not create strict liability crimes by criminalising mere possession can, in fact, operate to achieve precisely these objectives.

The late Prof. William Stuntz explained it with his usual lucidity more than two decades ago in the context of federal white-collar crime in the United States, and while he is not cited in Just for Rights it is the same idea which the Supreme Court has turned to. Look at Section 15 again. Sure, it prescribes an intention, but how does one prove such an intention, and more importantly when does one prove such an intention? It is all a matter of inference, in which the key fact would remain the fact of possession. Whether it was 'mere' possession, or 'criminal' possession, would in this reading become a matter for investigation and trial. In other words, where offences prescribe extremely minimal conduct requirements, along with traditional components requiring the proof of a mental element, they create de facto strict liability crimes which give vast powers upon the police to enforce the law and leave the messy questions of proof to trials. 

The justification for having such crimes is usually found in the subject-matter they deal with. Section 15 is no exception, as there is a broad consensus that child pornography is per se without any redeemable value for a harsh legal measure to be in place. The Court in Just for Rights highlighted this, and also highlighted that such an approach is not 'unduly' harsh inasmuch as a person with a sound defence would always have a chance to prove their innocence even if found in possession of the offending content. The discussion, with its multiple examples, should prove helpful for courts and police to apply the section with a measure of fairness.

The SC Order in the Fahad Shah Case

In November 2023, the High Court of J&K and Ladakh passed its judgment in Peerzada Shah Fahad v. Union Territory of J&K. Readers may recall that this judgment concerned a journalist, Mr. Shah, who had been prosecuted for offences under the Unlawful Activities Prevention Act 1967 ['UAPA']. In connection with which he had also been arrested and denied bail.  

The judgment of the High Court was the result of Mr. Shah challenging two orders, one by which charges had been framed against him for offences under the UAPA and the other by which his bail application had been rejected by the lower court. The High Court granted him bail, and also ruled that some of the charges against him, including the most serious UAPA charge, were unsustainable. [The judgment was covered on the Blog here and was also discussed in the press here, here and here].

This judgment was challenged by the Union Territory of J&K and Ladakh before the Supreme Court. The Union, presumably, sought that the bail so granted be denied and that the charges originally framed against Mr. Shah be restored. It appears that, on the first date of hearing in September 2024, the Union took an adjournment. After which the case came up for hearing on 14.10.2024, where the petition was disposed off. The two orders suggest that the Court did not issue any notice to the opposite side, i.e. Mr. Shah, before deciding the petition. 

That a petition was decided without hearing the proposed respondent is not uncommon as many petitions to the Supreme Court are dismissed at the outset as the Court considers no interference is being called for with the lower court's orders. In this case, though, the Court did not simply dismiss the petition. While it held that there was no reason to deny bail and return Mr. Shah to custody, the Supreme Court made a key observation in respect of the validity of the reasoned 25 page judgment of the High Court: It declared that the judgment was per incuriam and shall not be cited as precedent (para 6). In other words, no other court can henceforth rely upon the observations made by the J&K and Ladakh High Court, nor can counsel try to use them in support of their case.

Why did the Supreme Court arrive at such a conclusion? Paragraph 6 of the brief two page order passed on 14.10.2024 states that the per incuriam finding was because the High Court's judgment were contrary to judgments passed by the Constitution Benches of the Supreme Court. To understand which judgments, we must turn to Paragraph 4 of the same order, which extracts submissions made by the Solicitor General. To avoid any confusion I have copied the relevant part below:

"The learned S.G., Mr. Mehta has drawn our attention to the para 28 of the impugned judgment, whereby the High Court has placed reliance on Schenck Vs. United States (249 US 47 (1919) : 1919 SCC Online US SC 62). He submitted that the two Constitution Benches in Babulal Parate vs. State of Maharashtra (AIR 1961 SC 884) and in State of Madras vs. V. G. Row [(1952) 1 SCC 410] and one Three Judge Bench in Arup Bhuyan vs. State of Assam [(2023) 8 SCC 745] have rejected the application of the doctrine of “clear and present danger”, as laid down in the said judgment, i.e., in Schenck Vs. United States (supra), and therefore, the observations made in the impugned judgment would be per incuriam. ..." 

There is no doubt that the Indian Supreme Court does not fully approve of the test in Schenck and that if a High Court relies upon Schenck without understanding its clarifications by the Indian Supreme Court, it is proceeding in error. But underlying all of this analysis is a rather obvious premise: the High Court ought to have been using Schenck for the reasons why the Indian Supreme Court did not approve it, for it to have ever fallen into error. But if it was not using Schecnk for these purposes, there was no problem, because there is no complete ban on citing a case that may have been disagreed with or frowned upon in the past.

Let me explain this further. A judicial decision gives us an answer to a problem, but rarely does it give this answer in a straightforward or formulaic manner. Judges give their answer in ways that can help in future cases, and do so with their unique sense of flourish (or dose of dour). Schenck is one such judgment, in which the U.S. Supreme Court not only decided the problem before it — the validity of the Espionage Act — but did so by providing a test for future courts to decide issues of the legality of similar statutes. Now it is obviously open for future courts to disagree with this old test and come up with their own tests, which is what happens with India's treatment of Schenck. The result is that the test laid down in Schenck cannot be used to decide the kind of problems that it was intended to solve. It does not mean that no court can use the decision to aid its imaginative process of solving other problems.           

To decide, then, whether or not the High Court in Mr. Shah's case had fallen into error in citing Schenck, it is first necessary to determine just what was the problem that it was dealing with. Was the petition testing the legality of any statute on grounds of interference with freedom of speech and expression? It was not. It was deciding a challenge to arrest and detention by a person who had been arrested in 2022 on the basis of accusations against him pertaining to acts done in 2011. In other words, was an arrest in 2022 justified for alleged illegal acts committed in 2011? 

A reading of the High Court's judgment from November 2023 makes it clear that there are only three places in which Schenck, or the idea of 'clear and present danger' which the Supreme Court order cites, are referred to. The first of these is paragraph 28 of the High Court's judgment (which is also mentioned in the Supreme Court's order): 

The charge against the Appellant is basically associated with his right to freedom of speech and expression, which prima facie appears to have gone wrong. In Schenck Vs. United States, the charge against the Appellant was under the provisions of the Espionage Act that impeded the US war efforts against the German Empire in world war I, by mailing letters to discourage conscripts who had qualified to give their service as soldiers against Germany, from joining the US Army. The Appellant sought the quashing of the Espionage Act as it infringed his first amendment right of free speech. Justice Oliver Wendel Holmes writing for the court held “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that congress has a right to prevent. It is a question of proximity and degree”.

The second and third references are not to Schenck, but only to the idea of a 'clear and present danger' at paragraphs 31 and 32 of the judgment — and neither of these have been referred to by the Supreme Court. What do these paragraphs show us? That the High Court did not use 'clear and present danger' as a test to decide the validity of interference with free speech and expression, but as a kind of placeholder to create a new threshold to determine circumstances where arrest and detention would be justified under the UAPA. 

Paragraph 31: " The legislative intent behind s. 43D (5) and its proviso was to ensure that those who were a “clear and present danger” to the society, whose relationship with the offence is proximate and direct, do not get bail during the pendency of the trial lest they take to their nefarious ways again, once released. It was not to keep incarcerated the unwary transgressor who found himself at the wrong place at the wrong time. ...". [Emphasis mine]

Paragraph 32: "We hold, that the investigating agency, investigating a case under the UAPA, has the unbridled authority to arrest or not to arrest under the provisions of the UAPA. However, upon arrest, the investigating agency would have to justify the arrest on the anvil of “clear and present danger” of the accused to the society at large, if enlarged on bail. The existence of prima facie evidence against the accused is to no avail if there is no justification for the arrest based on the doctrine of clear and present danger to the society. If the investigating agency does not satisfy this Court and is unable to justify the arrest (as warranted in Joginder Kumar) the same would result in the violation of the rights of the accused under part III of the Constitution as adumbrated in K.A Najeeb's case, and the accused may be enlarged on bail. In order to assess whether the accused is a clear and present danger, there can be no rule of thumb and it must be seen in the backdrop of the specific facts and circumstances of each case." [Emphasis mine] 

What we have here, is a court crafting an idea for solving a problem with remnants of old concepts from different contexts. And in crafting this new idea the J&K and Ladakh High Court did not simply cite from Schenck, but it turned to a concept which the Supreme Court of India has wholeheartedly endorsed time and against: that a person ought not to be arrested merely because he can, but there must be grounds for an arrest. 

Moreover, it would be a disservice to say that this is an entirely new idea to begin with. Within the Indian context, there were already decisions, by various courts, which stressed upon the need for some proximity between the allegations and the exercise of powers of arrest. All that the J&K and Ladakh High Court did was to express this rationale in different, more evocative, prose. That it did so by bringing to use the prose from a decision which had been disagreed with in a different context, could not be a reason to deprive all other courts from even considering the High Court's reasoning. 

If the the only reason to hold that the judgment of the J&K and Ladakh High Court in Mr. Shah's case is per incuriam is because it decided to adopt the same catchy phrase from a decision which earlier benches of the Indian Supreme Court had disagreed with for different reasons—and I say 'if' because the petition itself may have raised many other grounds, none of which are captured in the order unfortunately—then it appears that the Supreme Court order dated 14.10.2024 has committed a most serious error. 

Guest Post: How Long is Too Long? - On the Maximum Period that an Undertrial Prisoner can be Detained

(This is a guest post by Hany Babu and Surendra Gadling, who have been detained in prison as 'undertrials' since 2018 and 2020, respectively. This piece is being published simultaneously with the Indian Constitutional Law and Philosophy Blog)

Dedicated to the fellow undertrial prisoners languishing in the prisons of India with the hope that the system would sooner than later wake up to their plight; and that one day prisons, if not still obsolete, would at least have become places where those proven guilty are held, and not places that incarcerate those who are presumed to be innocent.

The primary author would like to thank his co-defendants, Arun Fereira and Vernon Gonsalves, for the enriching discussions – stolen at times in the corridors of the court, at times on the drives to and from the court, and at times in the ‘After’ hours; Vernon, for his characteristically incisive remark ‘You need to think more!’ after going through – what I now realise was – a much cruder earlier version of this piece even before BNSS had kicked in; and Arun, whose name may have been among the authors had their Lordships not set him free, for owning the idea that the Code should have more provisions for statutory bail. Needless to say, neither of them is to shoulder the shortcomings of this piece.

Introduction

“How long is too long a period of incarceration as an undertrial for a court to conclude the right of speedy trial is defeated?”

This was a question raised by the Delhi High Court in Mohamed Hakim v. State (NCT of Delhi) 2021 SCC OnLine Del 4623, in the context of grant of bail for an undertrial prisoner. We raise a similar question regarding the maximum period of detention permissible by law for an undertrial prisoner. Section 479 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the Section that deals with the question of the maximum period that an undertrial can be detained, largely reproduces the language of its predecessor, Section 436-A of the Code of Criminal Procedure, 1973 (CrPC), the clause that no person should be imprisoned for a period exceeding the maximum period of punishment specified for his offence.

This essay argues that the existing law, which allows a person to be detained for a period equal to the maximum period of imprisonment specified as punishment for his offence only serves to legitimise the award of “surrogate punishment” equivalent to the maximum punishment to that person, without conducting trial and determination of the question of guilt or innocence of that person according to procedure established by law. Such a law has no place in the statute book if presumption of innocence is one of the cornerstones of criminal jurisprudence.

Further, if “bail, not jail” were followed in letter and spirit, the question of prolonged pre-trial detention would not arise. In practice, however, the combination of the question of ‘prima facie guilt’ – another principle that goes against the presumption of innocence – and the tripod test of the possibility of the accused tampering with the evidence, influencing witness and / or evading trial, together conspire against the grant of bail. In such circumstances, it is only those who can afford to hire expensive lawyers and knock the doors of the Constitutional Courts who can manage to secure bail. For the rest jail becomes the rule.

In such a scenario an act of balancing is called for. We argue for a judicial reading of the BNSS that will provide us with the framework of finding such a balance.

We set out by drawing a comparison between Section 479 of BNSS and its predecessor Section 436-A of CrPC. It can be seen that far from being an improvement on Section 436-A of CrPC with respect to reducing the period that an undertrial prisoner can be detained, Section 479 of BNSS is more restrictive in its application. Be that as it may, what makes Section 479 of BNSS problematic are certain anomalies we discuss below. We shall first take a look at Section 436-A of CrPC and then go on to Section 479 of BNSS before putting forth our suggestions regarding the maximum period of detention for an undertrial prisoner.

Section 436-A of CrPC

Section 436-A of CrPC was inserted in 2006, as it was found that there were undertrial prisoners detained in jails for periods beyond the maximum period of imprisonment provided for the alleged offence. It may be noted that in spite of this, undertrial prisoners are still languishing in prisons for periods longer than the maximum punishment specified for their offence, as in the case of Dipak Joshi in West Bengal, who came out of prison after 42 years following the intervention of the Calcutta High Court.

Apart from the stipulation that an undertrial prisoner cannot be held in prison for a period exceeding the maximum period of punishment for his offence, Section 436-A of CrPC also has a provision that a person who has undergone detention for a period extending up to one half of the maximum period of imprisonment specified as punishment for his offence may be released if the punishment of death is not one of the punishments specified for the offence in question. In the prison parlance, this provision is referred to as ‘half ground’, and we shall use this term to refer to this clause. Unlike the maximum period of detention, the provision of half ground was not a statutory obligation and was subject to the Court’s discretion after hearing the Public Prosecutor.

In this article we shall be limiting our discussion to offences under the Indian Penal Code, 1860 (IPC) while discussing CrPC and offences under the Bharatiya Nyaya Sanhita, 2023 (BNS) while discussing BNSS. There are twelve offences in IPC for which death is specified as one of the punishments, and these offences were outside the purview of operation of 436-A for the purpose of half ground.

Section 479 of BNSS

Section 479 of BNSS corresponds to Section 436-A of CrPC. Unlike in the case of most sections, where BNSS just copies the CrPC provisions, in the case of Section 479 there are a few changes and considerable additions. There are three sub-sections to Section 479 of BNSS. While sub-section (1) reproduces the contents of Section 436-A of CrPC with some slight modifications and additions, sub-sections (2) and (3) are entirely new. We shall look at each of the sub-sections one by one.

Sub-section (1) of Section 479 of BNSS

In sub-section (1) of Section 479 of BNSS, offences punishable with death and imprisonment for life are mentioned to be excluded from the “half ground.” On our count, there are as many as 75 offences under BNS that have death or imprisonment for life as one of the punishments. While Section 436-A of CrPC excludes only 12 offences of the IPC from the ambit of half ground, BNSS excludes 75 offences from its ambit. If only offences punishable with death were excluded, by our count 16 offences of BNS would have been excluded from half ground.

As per Section 6 of BNS (which is almost a replica of Section 57 IPC), imprisonment for life is to be reckoned as equivalent to imprisonment for a period of twenty years for the purpose of calculating fractions of terms of punishment. So, for the purpose of “half ground,” a person who has been detained for an offence for which imprisonment for life is (and death is not) one of the punishments specified under the relevant law, that person would ordinarily have been eligible to be released on “half ground” after ten years in custody. However, that door is closed for such people under BNSS.

If BNSS takes a tougher view of offences punishable with imprisonment for life, as it considers them to be offences of a serious nature and wants to show no leniency towards persons accused of such crimes, there is hardly any room for argument. However, a look at Section 474 of BNSS (which corresponds to Section 433 of CrPC), which deals with the power of the government to commute sentences, would make us doubt this. As per clause (a) of Section 474 of BNSS, imprisonment for life can be commuted to imprisonment for a term of not less than seven years. That is to say, if you are convicted for imprisonment for life, you may stand a chance of being freed after spending seven years in prison provided you are in the good books of the government of the day; however, for the reasons set out above, if you are detained as an undertrial prisoner you are not eligible to be released even after spending ten years in prison.

So, rather than treating serious offences with iron gloves, BNSS seems to leave it to the whims of the executive rather than to the wisdom of the judiciary. What this implies for hapless prisoners who cannot afford to engage lawyers to file bail applications on their behalf is that pleading guilty and begging for the mercy of the executive in the form of commutation to a term of seven years of imprisonment would be a more attractive option than languishing endlessly in prison as an undertrial prisoner.

Apart from the “half ground,” BNSS introduces what we shall call ‘one-third ground’ for first time offenders. A first-time offender can be released if he has undergone detention for a period extending up to one-third period of the maximum punishment specified for his offence under the relevant law. The parenthetical clause explains that a first-time offender is a person “who has never been convicted for any offence in the past.” Let us not overlook the inappropriacy in using the term ‘offender’ for a person yet to be proven guilty. The possibility of getting bail after having spent one-third of the maximum period of punishment raised the hopes of so many prisoners who have been behind the bars for years. Their hopes were further raised with the possibility of the retrospective application of Section 479 of BNSS following the ruling of the Supreme Court in W.P. (Civil) 406 / 2013, In Re Inhuman Conditions in 1382 Prisons. It is not surprising that they missed the fine print that said offences that have imprisonment for life as one of the punishments are excluded from the ambit of Section 479 of BNSS. (Ed Note: A similar conclusion was made on the Proof of Guilt Blog here).

Sub-section (2): More than one offence and multiple cases

Sub-section (2) of Section 479 of BNSS is a non-obstante clause that says a person who has more than one offence or multiple cases pending against him is not eligible to be considered to be released, neither on the basis of one-third ground, nor on the basis of half ground. Section 436-A of CrPC had no such restriction.

“Offence” is defined in Section 2(q) of BNSS (a replica of Section 2(n) of CrPC). It says “any act or omission made punishable by any law for the time being in force…” As per sub-section (1) of Section 243 of BNSS (equivalent to Section 220 of CrPC), a series of acts connected so as to form the same transaction can lead to more offences than one being committed. Sub-section (3) of Section 243 of BNSS states that if an offence falls within two or more separate definitions by which offences are defined under any law, the person may be charged with each such offence.

Illustration (1) pertaining to sub-section (3) of Section 243 of BNSS says if a person wrongfully strikes another person with a cane, he may be separately charged with and convicted of offences under sub-section (2) of Section 115 (i.e. voluntarily causing hurt) and Section 131 (i.e. punishment for assault or criminal force other than on grave provocation) of BNS. This would mean that on a literal reading of Section 479 of BNSS, a person who strikes another with a cane would be ineligible to be considered to be released on the basis of one-third or half ground even if the person is a ‘first time offender’.

A combined reading of sub-sections (1) and (2) of Section 479 BNSS gives us a peculiar situation. The condition in sub-section (1) that a person should be a first-time offender is applicable only for the one-third ground and not for the half ground. Or, in other words, if you have a previous conviction, you cannot be considered to be released on the basis of one-third ground, but you can be released on the basis of half ground. Well and good. Now consider this: as per sub-section (2) of Section 479 BNSS, a person who has multiple cases pending against him (or even more than one offence against him in a single case) cannot be considered either for one-third ground or for half ground. That is to say, BNSS takes a more considerate view of a person who has a previous conviction than of a person who is yet to be proven guilty but has more than one case pending against him in that the former is eligible to be released on half ground, but not the latter. Does this not eviscerate the presumption of innocence?

Sub-Section 3: A silver lining

Sub-section (3) of Section 479 of BNSS is indeed a welcome addition as it casts a duty on the Jail Superintendent to make an application to the Court to release a person who has completed one half or one-third of the period mentioned in sub-section (1), as the case may be. Under the previous scheme, it was left to the accused to move court. Often the persons were hardly aware of such a provision or would not have the legal support to make such an application.

Applying the Law

Having gone through Section 479 of BNSS, which deals with the maximum period that an undertrial prisoner can be detained, we shall turn to two related issues: (1) How to reduce the number of undertrial prisoners in the prisons? and (2) How to ensure that an undertrial prisoner does not get incarcerated for too long a period? Albeit related, these two questions are distinct, and different steps need to be taken to tackle them effectively.

The ABC of reducing the number of undertrial prisoners

If the number of undertrial persons in the prisons is to be reduced, the three necessary steps are:

A: Avoid arrest unless necessary;

B: Bail to be granted unless circumstances warrant otherwise;

C: Conduct speedy trial.

In spite of the repeated pronouncements of the Supreme Court about the need for the police to be judicious in the use of the power to arrest, BNSS makes only a feeble attempt to strengthen the safeguards offered by CrPC. Sections 41, 41A, 41B, 41C and 41D of CrPC, which deal with arrest, are reproduced and renumbered as Sections 35 to 38 of BNSS. The only additional protection BNSS offers – and what perhaps justifies renaming of the Act as “Nagarik Suraksha” – is the addition of sub-section (7) of Section 35, which stipulates that prior permission of an officer not below the rank of Deputy Superintendent of Police is needed to arrest a person who is infirm or above sixty years of age, for an offence punishable with less than three years of imprisonment.

There are at least more than one hundred offences in BNS (just as was the case with IPC) that have a punishment of imprisonment for a maximum period of less than three years. However, barring roughly half a dozen of the rest are all bailable and non-cognizable offences. Therefore, the introduction of sub-section (7) of Section 35 of BNSS may hardly make a practical difference. Moreover, experience shows that in order to circumvent provisions like those of Section 35(7), police may easily add a Section that provides for punishment of three years or more and may also get away with it.

Going into the issue of grant of bail is beyond the scope of this piece. Some of the recent judgements of the Supreme Court that have upheld the right to life of the undertrial prisoner and granted bail upholding Article 21 as an effective means against the prolonged incarceration and award of surrogate punishment seem to offer a beacon of hope. However, as noted by Abhinav Sekhri in his blog post [‘A curious Constitutionalism’ dated July 19, 2024], it is still as though prolonged incarceration of an undertrial prisoner and the issue of grant of bail are issues only the highest Court has to concern itself with. For those who cannot afford to reach that level, there still isn’t much scope for hope.

The culture of seeking adjournments and postponements are usually cited as the main causes of delay in judicial proceedings. Section 309 of CrPC that dealt with powers of the Court to postpone or adjourn proceedings presents a curious case. The Section said that proceedings in every trial or enquiry should be conducted on a “day-to-day” basis and postponement of the commencement of trial or adjournment beyond the following day is to be resorted to only if necessary, and the reasons for the same have to be recorded. However, postponement of the commencement of the trial for months and years and adjournments of proceedings have become the norm rather than exception. There is also a stipulation that trial in offences related to rape should be completed within a period of two months from the date of filing of the chargesheet, which would be a miracle in our trial courts.

Apart from the time limit of 60 / 90 days for the completion of investigation, CrPC had no time limit specified for the framing of charges, commencement and completion of trial, or the delivery of the judgment. BNSS, on the other hand, sets a time limit of “sixty days from the date of first hearing on charge” for framing of charges in Sections 251 and 263 (corresponds to Sections 228 and 242 of CrPC, respectively) and a period of forty five days for pronouncement of judgment after conclusion of the trial in Section 392 (which corresponds to Section 353 of CrPC). The efficacy of these steps, however, will have to be tested in practice as no remedies are prescribed in the eventuality of these limits not being observed. There is hardly any reason to assume that the time limits introduced in BNSS will not remain a dead letter, like the clause about “day-to-day” trial and the sixty day limit for the completion of trial in offences related to rape, which were part of Section 309 of CrPC; or that Section 346 of BNSS will ensure framing of charges and commencement of trial without undue delay. It has to be underlined that no time limit has been specified as to when “hearing on charge” should commence after the filing of the chargesheet.

In reality, as observed by the Bombay High Court while granting bail to the accused in a POCSO case in which charges were not framed even after five years, once the chargesheet has been filed the case is often kept on the back burner and the investigation agency and the court forgets all about the accused after remanding him to judicial custody. The remand gets mechanically extended from time to time in most cases, without the accused person being produced before the court either physically or through video conferencing. This process goes on for months or even years. In order to curb this, effective checks should be built into the system similar to the statutory bail granted to the accused in case investigation has not been completed within the stipulated time. We turn to this issue in the next section.

How Long is too Long

As we argued right at the outset, a law that states no undertrial prisoner shall be detained for a period exceeding the maximum period of imprisonment specified as punishment for his offence is an anathema to the principle of presumption of innocence, as it only legitimises the detention of the undertrial prisoner to a period equal to that of the maximum period of imprisonment specified as punishment for that offence. It thereby provides for inflicting surrogate punishment on those who are considered to be innocent until proven guilty by procedure established by law. The question, then, is how long a period of incarceration is too long for an undertrial prisoner?

In an ideal world, no person should be punished until proven guilty. And without mincing words let us admit that the label ‘judicial custody’ does not make detaining an undertrial person within the confines of a prisonhouse qualitatively very different from punishment. Nevertheless, setting idealism aside, we may still arrive at a reasonable period for which an undertrial prisoner can be detained by confining ourselves to the four corners of BNSS. In order to arrive at such a figure, we need to turn our attention to another Section of BNSS – Section 474 (which corresponds to Section 433 of CrPC) that deals with the power of the government to commute sentences.

Unlike most other Sections, Section 474 of BNSS is a considerable improvement upon its counterpart, namely Section 433 of CrPC. Sentences can be commuted as given below as per Section 433 of CrPC:

• death sentence to imprisonment for life;
• imprisonment for life to imprisonment for a term not exceeding fourteen years;
• rigorous imprisonment to simple imprisonment; and
• simple imprisonment to fine.

Section 474 of BNSS offers the following possibilities for the commutation of sentence:

• death sentence to imprisonment for life;
• imprisonment for life to imprisonment for a term not less than seven years;
• imprisonment for seven years or more to imprisonment for a term not less than three years;
• imprisonment for a term less than seven years to fine; and
• rigorous imprisonment to simple imprisonment.

As is evident from a glance at the above, BNSS takes a much more liberal view with respect to conviction, in cases where the power to show leniency and commute sentences is vested in the hands of the executive. If we consider the arithmetic behind the calculation involved in arriving at the number of years to which terms of sentences of imprisonment are commuted, we can see that it hovers around one third of the sentence. For instance, imprisonment for life is reckoned as equivalent to imprisonment for twenty years for the purpose of calculating fractions of terms of punishments (as per Section 6 of BNS / Section 57 of IPC). So, one third of imprisonment for life is six years and eight months. Similarly, one third of seven years is two years and four months. If after conviction, the term of sentence can be commuted to its one third at the sweet will of the executive, we propose that the same formula can be adopted in fixing the maximum period for which an undertrial prisoner can be detained.

We propose that seven years be fixed as the upper limit beyond which a person in custody as an undertrial for an offence punishable with imprisonment for life or death cannot be detained. Similarly, for offences punishable with imprisonment for seven years or more, the maximum period that a person can be detained should be three years (in line with clause (c) of Section 474 of BNSS). Since there is no term of imprisonment specified in the case of commutation of conviction for a term of less than seven years in Section 474 of BNSS, we could follow the principle of one third of the maximum punishment in such cases. For instance, the maximum period that a person can be detained for an offence punishable with three years of imprisonment can be fixed as one year.

As the Supreme Court has reiterated in some of the recent judgements, the right to life of the accused cannot be obliterated, no matter how serious the alleged offence. An accused has the right to speedy trials and if the State and the Court cannot provide it to him, they have no right to detain him for a prolonged period and award surrogate punishment, but have to release him after a reasonable time. The bogey of the possibility of tampering with the evidence, influencing witnesses, and flight risk cannot be grounds that trump presumption of innocence and right to life. And fixing the maximum period that an undertrial can be detained as a period equivalent to one third of the punishment for the offence is only a small step to show that fundamental rights are taken seriously and are not to be trampled upon indiscriminately.

Similarly, there is no reason why presumption of innocence should be whittled away due to the subsequent conduct of a person who has been found guilty on a previous occasion. A law that treats a person harshly on the basis of previous conviction when he is yet to be proven guilty on a subsequent occasion is just a legal garb for the prejudice that operates against a who has been found guilty once. It may make sense to treat a person harshly on a subsequent conviction – as in the award of enhanced punishment, but not when the person is yet to be proven guilty. Therefore, the upper limit on the maximum period for which an undertrial can be detained should apply uniformly to all undertrial prisoners regardless of whether they have been convicted earlier or not.

If the clause about the maximum period an undertrial prisoner can be detained has to be implemented effectively, it has to be raised to the level of a statutory obligation on the lines of Section 187 of BNSS (which is pari materia Section 167 of CrPC), which leaves no discretionary power to the Magistrate. If the right to be freed when the investigation is not completed within the stipulated time is a fundamental right and not merely a statutory right as held in Vikramjit Singh v. State of Punjab (2020) 10 SCC 616, the right to be freed if the trial is not concluded within a reasonable time can be no less in stature. The option of continuing detention after hearing the Public Prosecutor would virtually close the doors of bail as Magistrates more often than not get persuaded by rhetoric of Prosecutors, who at times act as though they were Police Prosecutors rather than Public Prosecutors.

In the current scenario, as there is no statutory limit specified for the conclusion of trial, it is left to the Constitutional Courts to intervene and adjudicate on the question whether the right to life of the accused person has been violated due to prolonged incarceration without trial. And this would happen only in the case of those who can afford to reach up to the Constitutional Courts. As it is left unspecified, the interpretation of what ‘reasonable time period’ is varies according to the vagaries of the varied Benches. It also depends often on how soon or late the file of the accused person reaches before a sympathetic Bench. If in some cases it is a matter of a year or two, in some cases it is nine or ten years or even more. Specifying the outer time limit for the conclusion of trial in the statute would not only make it uniformly applicable, but it would also make it enforceable at the level of the trial court and thereby within the means of those who cannot afford to know the doors of the Constitutional Courts.

Conclusion

The proposal to have parity between the term of imprisonment to which sentences of imprisonment can be commuted and the maximum period for which an undertrial prisoner can be detained – both in proportion to the sentence for the offence in question – cannot be repugnant to the spirit of justice the new laws are supposed to usher in. Mandatory release of an undertrial prisoner after the stipulated time period is only part of the commitment to conclude the trial within that time frame, and thereby ensuring justice to both the accused person and the victim of the crime. Keeping an undertrial person in prison endlessly and awarding surrogate punishment is justice to neither parties. And the new criminal laws are all about ushering in an era of justice, aren’t they?

Some Thoughts on the FATF Mutual Evaluation Report for India

It is here. Lisan Al Gaib. The moment many were waiting for. If you do not know what I am referring to, then you need to rouse yourself from your stupor, fast. The Financial Action Task Force (FATF) has published its Mutual Evaluation Report (MER) for India, and the country has passed the evaluation with flying colours as the Press Information Bureau gleefully announced. This mutual evaluation was the exercise which prompted all branches of the Indian State to ignore constitutional separations and unite to permit an extension for the officer who could no longer serve in office — the Director for the Directorate of Enforcement — and look how wonderful it all turned out. Kudos to one and all.

What is FATF, its MER, and why must you care?

Some context on what the FATF and the MER are is necessary before we proceed. Essentially, the FATF is a body setting global standards on combating money laundering and terrorist financing (and also what it has labelled 'proliferation financing). What began as a cabal comprising a few nations slowly attained pure global status as the 'rich' countries decided that those who do not meet the FATF standards are markets too risky to invest in. Ergo, no FATF compliance slowly meant being cut off from financial markets, which in today's world meant economic peril. 

Like many countries aspiring to gain greater influence on the world stage, India has aggressively worked to become a full-time FATF member (which it became in 2010), and then comply with recommendations on how to improve the anti money laundering and countering of terrorist financing frameworks. These recommendations are the result of site visits by FATF assessment teams, who eventually publish the MER. Adoption of the MER is followed by a 'Follow-Up Report' to see how the country has fared in adopting recommendations made in the MER. The scope of the MER exercise ranges beyond merely the legal framework devised to combat money laundering and financing of terrorism and looks at issues of state capacity and knowledge sharing as well.

India's last MER cycle happened in 2010-2013 i.e. more than a decade ago, which was hardly five years after the enforcement of the Prevention of Money Laundering Act 2002 (PMLA). It was due for a review earlier but Covid-19 intervened, pushing the review to 2023. A measure of just how important the FATF process is for a country can be gleaned from how India's money laundering and terrorist financing laws have been amended over time to specifically address shortcomings identified in the MER, transforming the PMLA into the hydra-headed behemoth that it is today. Perhaps the biggest change being India's shift from having a money laundering law with a narrow catchment to a law which would be far more encompassing in scope (discussed here). 

Given this background, it is imperative for everyone to wake up and take note of just what the latest MER says and does, for it is as reliable a fortune-teller as you can get as to what trends will India's anti-money laundering enforcement take. But that's not all. At a time when an already secrecy-loving State has gone into overdrive to prevent public disclosures about its workings, the MER gives us a window into how the anti-money laundering machinery is working behind the scenes.

What the MER tells us about India's Legal Regime

There are many points of note here, so for ease of reference (and my own laziness), I have resorted to the use of pointers. Note that I do not engage with the FATF assessment of India's terrorism financing regime and anti-money laundering measures in the economy. 

• For starters, the MER shows us that behind the veil of secrecy in which the Enforcement Directorate operates — remember that it refuses to publish ECIRs, or its practice manual, and convinced the Supreme Court that yes it is not necessary to do so — lies a wealth of administrative circulars and papers guiding the Enforcement Directorate's functioning in theory. Granted, these are only internal documents that cannot confer rights upon persons, but it would be interesting for courts to examine how often are these circulars breached in practice. 
• The MER confirms what most of us familiar with the money laundering regime knew — pendency in PMLA cases is quite high. The FATF has concluded that this needs capacity building with more special courts / prosecutors etc. More on that in the next section.
• The MER also confirms the sequitur, that India is not securing many confiscations of assets alleged to have been involved in money laundering, because confiscations are mainly linked to convictions. But at the same time, the FATF lauds India's proactive approach to attaching allegedly assets, which for the FATF reflected India's commitment to tackling money laundering seriously. Again, thoughts on this follow in the next section.
• Even though previous reports had criticised the lack of non-conviction based confiscation, there is no adverse remark this time. Equally surprising is the total lack of any mention about the appellate authority on matters of confiscation not being operational for several months prior to 2023. 
• The FATF has noted that India's approach listing out predicate offences is not fully in-line with the FATF recommendations (see technical compliance summary).
• What the government has not mentioned in its laudatory press release, is that India has been rated 'Partially Compliant' in respect of how the anti-money laundering regime is affecting the non-profit sector. This is a damning indictment, which buttresses domestic criticism of abusing legal rules to unfairly target NGOs (see technical compliance summary).   
• Reading the MER it appears that the FATF has left feeling convinced that many problems in respect of enforcement in PMLA were the result of the delays caused by the Supreme Court's consideration of the legality of the PMLA regime. The MER notes that this consideration concluded in 2022 with the Supreme Court upholding the PMLA regime, and hoped that this would begin to curb delays.

If past experience is a reliable indicator, then one imagines there may be some legislative amendments to (i) change the scheduled offences list, (ii) introduce some checks and balances to improve the rating for the non-profit sector issues, (iii) explore / expand non-conviction based confiscations further, and (iv) take steps (besides increasing budgetary outlays) to combat delays in money laundering cases. 

Critiquing the FATF's Findings

I have made my prejudices slightly bare about what the FATF is and what it does. But even so, there is no doubting its importance in the global landscape today. Accepting this premise, what one would then expect is an exercise which engages with diverse stakeholders and views countering the dominant narrative that is offered by a set of representatives that are obviously invested in securing a positive result. In this regard, a reading of the MER leaves one slightly baffled as to some of the observations and conclusions. I give two examples out of many.

First, consider the section which deals with attachments. At Paragraph 294 the MER notes that "The routine manner in which ED attaches assets at an early stage of investigations is a significant strength of the system, as it substantially reduces the risk of asset flight and also acts as a deterrent." It then gives us the statistics of how provisional attachment proceedings fare before the Adjudicating Authority over the past 5 years (Table 3.17) to reveal that from 2022 till October 2023, not a single provisional attachment was set aside. This, for the FATF, is a great outcome.

I pause here and wonder, did nobody in the FATF think that it would be good to maybe take a look at any one of the 390 provisional attachment orders issued, and 390 confirmations returned by the Adjudicating Authority, to examine whether this is bearing out its assumptions of a system in rude health? Did nobody in the garlanded team of experts pause to wonder that, maybe, this instead reflects a system that is working mechanically to first attach assets to bulk up numbers, and then for the Adjudicating Authority to routinely allow attachments by passing remarkably unreasoned orders? Did nobody bother to check how many of the orders were set aside in appeals, before the appellate authority and high courts? Such an uncritical and frankly naive assumption from the data left me quite amazed.

The second is the FATF's engagement, or lack thereof, with the Supreme Court's 2022 decision that finds such a frequent mention in the report. This judgment, of course, is Vijay Madanlal Choudhary, which has been a frequent topic of conversation over the past two years. My criticism of the FATF is twofold in this regard, so in a sense there are points 2A and 2B here. Point 2A is that the FATF again behaves like a doe-eyed deer in simply accepting the government's version that the pendency of this verdict caused delays. A look at the lead-up to the judgment would reveal that the government was not a passive object, but many a time it went to get a stay on proceedings as well, and frequently delayed hearings by taking adjournments. 

But this is the minor quibble. Point 2B is the FATF's reluctance to engage with the 2022 verdict besides a passing observation that the Supreme Court upheld the legal regime. By not probing further as to what has been the aftermath of Vijay Madanlal Choudhary, the FATF did itself a huge disservice, and I would argue it directly tainted some of the data in the report in respect of money laundering prosecutions. If the FATF dug deeper, it would have learnt that just before, and after, Vijay Madanlal Choudhary, courts began to set aside money laundering cases where the predicate offence no longer survived. But by framing the fate of PMLA prosecutions in a binary of 'acquittal vs. conviction', the FATF fails to capture this growing number of cases where the money laundering prosecution is quashed by the appellate court. This naturally affects how we perceive the effectiveness of the money laundering regime.

Further, greater engagement with Vijay Madanlal Choudhary may have also made the FATF think twice about its assumption that simply getting more special courts will curb delays. It may help, sure, since the numbers of judicial appointments and institutional capacity are poor across the board in India for all cases. But I would argue that it is unlikely to prove a game-changer and that delays will remain endemic to the prosecution of money laundering cases because of how the legal regime is structured. The inextricable link between the underlying predicate offence and the money laundering allegation suggests there should be greater synergy in the two sets of issues, but besides allowing for trials to happen in the same court, there is no legal measure to reduce inefficiency. Thus, the same judge deals with two trials, with two different procedural regimes, helmed by two separate investigating agencies and prosecuting teams, which bring in two separate sets of voluminous yet repetitive documents, with separate accused persons bearing different evidentiary burdens. And, of course, run these in tandem.  

Why We Must Not be Fooled by the FATF Report

A word of caution before we close this post. As I mentioned above, the grandstanding about the MER has already begun. It is critical to remember that, as glowing as the FATF review of India's money laundering regime may be projected in some quarters, the entire FATF exercise has absolutely nothing to say on the use of coercive powers by states for combating money laundering. For good reason too. Remember that the FATF is interested only in testing countries for compliance across a set of recommendations (presently 40 in total) and it has no time to deal with issues outside of those. One look at the 40 recommendations will tell you that how a country uses coercive powers of arrest, and how it frames its laws on bail in money laundering cases, is not the FATF's concern.

In other words, a glowing FATF review is not a glowing review of the entire PMLA or its implementation. 

Ramblings on the New Codes

This is a short post which hopes to make three brief points. First, I want to draw attention to an interesting contribution by Prof. Arudra Burra and develop further on his critique of using the colonial / decolonial framing in context of the new criminal codes. Second, I want to bemoan the startling lack of imagination in how successive governments, scholars, and us lawyers continue to display when we think about reforms. Third, I hope to urge readers to continue to write on the intended and unintended consequences of the codes!

Of the Colonial Milieu

Prof. Burra argues that the decolonisation framing to argue on the merits / demerits of coming up with new criminal codes to replace the 19th century ones is 'the wrong answer to the wrong question'. He does not comment on the substantive content of the codes itself but his limited focus is to argue that the framing itself is spurious, tying to his earlier work on this subject. 

The intervention is extremely vital and helped me frame some thoughts I had after reading an excellent book on Myanmar's criminal process by Nick Cheesman (hat tip Rohit De) and earlier research on the growth. What I was left thinking after finishing Cheesman's book was that the decolonial / colonial framing to argue about the criminal codes is not merely spurious, it is actively detrimental to the development of law. In projecting everything colonial as 'bad' but retaining most of it, we are not only being facetious but actively jettisoning valuable links to a global legal tradition with a remarkable history that would help us immensely to continue to make sense of our immediate milieu. Sure, it is a bloody and oppressive history, but it is in equal parts an erudite, revolutionary, and inspirational history of the world which we must hold close and keep learning from, rather than shut our eyes to. The level of interconnectedness in the colonial legal world is crying out for exploration, and not for being consigned to the record rooms by a bandwagon of jingoism and arrogance. 

The Barren Reform Imaginary

Throughout the conversations about the 'Aparajita' Bill — only the most recent example of how it is always politics which wins over principle in matters of criminal law — it was one aspect which stood out. A criminal process which is more punitive and more quick to deliver outcomes (soon faster than the transmission of thought) is all that the political class seems to view as 'reform'. In this regard, it is ironic that barely three months after the new codes promised exactly these two developments, a state government has brought in such a set of amendments as if to say "I see your reforms Mr. Union Government, and raise you tenfold".

Maybe it is not their fault. Look at the debates which we have around the legal system and it is clear that the reform imaginary is just completely barren. Today all that the "smart people in the room" (yes, economists and data scientists, I am looking at you) want to do is for the process to be faster to free up more time and give us more GDP growth by showing some chain-reaction of cause and effect. The more ethical set of reformists will also focus on this conversation, but for good measure decry deterrence as not being evidence based. 

There is far too little radical thinking about the process and its contents. Where is the paper that dares to re-imagine what the criminal process may be like, or what a new set of crimes may look like for contemporary India? Gathering cobwebs in the physical and digital spaces. The more I look at the literature generated in the last two decades on issues of the criminal process, the more I am left to wonder whether any outcome other than the codes with their minimal changes to status quo could have been realised even by the most agreeable of dispensations.

Time to Write!

We are all witnessing an unprecedented time where an entire system of legal professionals appears to be trying its best to somehow make sense of the relatively few changes that the new codes have brought upon us. Until such time that High Courts issue practice directions to help, which I would argue is the most sensible way to resolve many issues, let us try to write about the problems we are facing and solutions that courts are working out! 

For instance, how are the provisions on service by way of electronic means being treated by the courts? Or, what about the provisions requiring the accused be heard before taking cognizance in cases instituted upon private complaints? And, of course, what about Section 531? By sharing insights across state boundaries, all of us can do our measly bit to improve the lot of litigants who are the ones ultimately suffering the vagaries in interpretive choices that courts will make. 

Guest Post: Beyond the 'Pin Drop': Rethinking Tech-Enabled Bail Conditions

(This is a guest post by Sarthak Gupta and Tarun Agarwal)

On July 8th, 2024, the Supreme Court delivered its decision in Frank Vitus v. Narcotics Control Bureau, (2024). It held that the bail condition directing the accused to drop a PIN on ‘Google Maps’ to ensure that their location is available to the investigating officer is unconstitutional as it violates the right to privacy under Article 21 of the Constitution. The decision implicitly endorses the proportionality standard for bail conditions and critiques the court’s past rulings that imposed similar onerous conditions, marking a significant step in protecting individual freedoms. At the same time, the Court’s reasoning falls somewhat short of delivering a transformative interpretation of the law. As I argue here, it could have adopted a different line of reasoning to reach its conclusion, potentially leading to a binding precedent and more robust development of privacy jurisprudence.

Courtroom Kaleidoscope, Bail Bedrock

The trend of imposing electronic monitoring and GPS tracking as bail conditions is evident across various courts in India, demonstrating a consistent yet potentially arbitrary approach to bail jurisprudence. The SC in Vernon v. Union of India, while granting bail to Vernon Gonsalves and Arun Ferreira in the Bhima Koregaon case, mandated 24-hour GPS monitoring and phone pairing with the investigating officer. A similar condition was imposed on another Bhima Koregaon accused, Shoma Sen. The SC has followed such arbitrary conditions in a bail order in the case of State of Uttar Pradesh v. Maulana Kaleem Siddiqui, allowing the accused to use only one mobile phone with location setup open so that his location could be traced at any point in time by the investigating agency.

This pattern extends to HCs. The Delhi HC in Neha v. State (NCT of Delhi) imposed a condition that the Applicant was to ‘drop a pin’ on Google Maps so that the SHO/IO can verify the presence and location. In State of NCT of Delhi v. Sanjeev Kumar Chawla it issued similar conditions noting that ‘[d]igital and electronic equipment, as presently used in America, ought to be introduced in India, so that a tracking system similar to the GPS Tracking System, can be used to monitor the movement of the accused released on bail, allowing the authorities to gather information all the time while permitting the accused to undertake the usual and ordinary activities of normal life.’ From what I could gather, the Delhi HC has regularly imposed such a condition in 2024: more than 60 cases  came up during my research.

The use of such conditions by pointing to foreign jurisdictions fails to consider that in other jurisdictions, there are specific statutes that allow such conditions to be imposed. For instance, in the UK, electronic monitoring is permitted under the Terrorism Prevention and Investigation Measures Act, 2011. In the USA, electronic monitoring is permitted under the Adam Walsh Child Protection and Safety Act, 2006, which allows for electronic monitoring as a condition of supervised release or probation for certain sex offenders. In Malaysia, legal frameworks on electronic monitoring have been developed by amending existing legislation and enacting new laws, such as the Prevention of Crime Act of 1959, the Security Offences Act, 2012, the Dangerous Drugs (Special Prevention Measures) Act,1985, and the Criminal Procedure Code. In Canada, the Criminal Code of Canada allows for the use of electronic monitoring as a condition of parole, conditional release, or probation for certain offenders. In Australia, the Crimes Act 1914 and various state-level laws permit the use of electronic monitoring for certain offenders. In India, there is no similar provision anywhere, and nor do the new criminal laws provide for it.

The Punjab and Haryana HC has also been particularly stringent, as seen in cases like Samar Gakhar v. State of Punjab, and Hussain Abbas alias Tippu v. State of Haryana wherein it not only mandated GPS tracking but detailed smartphone usage rules, including restrictions on clearing history and formatting devices. Similar conditions were imposed in many other bail matters including Gursharanjit Singh @ Sunny v. State of Punjab and Umed Singh v. State of Haryana (all by the same bench). The arbitrary nature of these impositions was escalated by the HC of Jammu and Kashmir when in a UAPA case it became the first to mandate the wearing of a GPS-enabled tracking device as a bail condition.

This diverse yet consistent application of technologically invasive bail conditions across different courts and jurisdictions underscores a growing trend in Indian Tech-Enabled Bail Jurisprudence. While the conditions aim to ensure compliance with bail terms, their widespread and often indiscriminate application raises significant concerns about the balance between judicial discretion and fundamental rights, particularly in the context of privacy and the presumption of innocence.

The Limits of Judicial Review and Unaddressed Legal Questions

 

The judgment in Frank Vitus noted that a GPS tracking condition had been imposed by the Supreme Court in bail orders earlier, but refrained from commenting further, noting that it was ‘not called upon to decide the issue of the effect and legality of such a condition’. This rather cautious approach introduces a problematic ambiguity into the jurisprudence on such bail conditions. By acknowledging that similar conditions may have been imposed in other cases without going further, the Court implicitly admits to a pattern of potentially unconstitutional practices that have gone unchallenged. This underscores a systemic issue where rights-infringing conditions may be, and arguably are, routinely imposed without proper legal examination, allowing unconstitutional practices to persist.

 

Perhaps most problematically, Frank Vitus does not definitively settle the issue either even after raising it and specifically dealing with GPS tracking conditions. By focusing on the technical ineffectiveness of the bail condition in this particular case and the potential impossibility of obtaining an embassy certificate, rather than providing a comprehensive constitutional analysis, the Supreme Court leaves the door open for similar conditions to be imposed in future cases under different circumstances. The Court's failure to establish clear, binding principles regarding the use of surveillance technology in bail conditions is a missed opportunity. Instead of setting a precedent that the rest of the judicial pyramid can follow, the judgment effectively delegates decision-making to a case-by-case basis. This approach will only perpetuate the currently arbitrary use of such conditions (and arguably other conditions as well). Further, by not definitively ruling on constitutionality of such surveillance-based bail conditions in general, the Court has potentially prolonged legal uncertainty. This ambiguity may encourage law enforcement and prosecutors to continue pushing for such conditions, leading to further litigation and potential rights violations before the issue is conclusively settled.

Road Not Taken

Building on the limitations of the Court's approach, a more decisive and comprehensive ruling on the legality of surveillance-based bail conditions would have strengthened the judgment's impact and provided clearer guidance for future cases. The Court could have established clear principles by explicitly addressing the constitutional dimensions of such conditions to allow for more consistent assessment rather than courts merely invoking privacy and then being left to do as they please. For example, a detailed proportionality analysis, combined with an assessment of the 'tripod test' of risks, would be necessary. This integrated framework, drawing on established principles, offers a systematic method for determining whether an infringement on fundamental rights can be justified within the context of bail conditions.

Proportionality analysis involves a four-pronged test: Firstly, the condition must pursue a legitimate aim. While ensuring the accused's appearance in court and preventing flight risk are undoubtedly legitimate objectives of bail conditions, the question to be answered (and left unanswered in Frank Vitus) is how continuous GPS tracking specifically advances these aims beyond traditional methods. Secondly, the suitability prong requires that this tool be rationally connected to the objective. Chandrachud J. (then) in Mohd. Zubair v. State of NCT of Delhi while referring to Parvez Noordin Lokhandwalla v. State of Maharashtra noted that the bail conditions must not only have a nexus to the purpose that they seek to serve but must also be proportional to the purpose of imposing them, ensuring a balance between the liberty of the accused and necessity of a fair trial. Here, the technical limitations of the "drop a PIN" feature, as elucidated by Google's affidavit, cast doubt on whether the condition could effectively achieve its purported aim.

The third prong of necessity demands that the measure must be the least restrictive means available to achieve the objective, which Frank Vitus could have more thoroughly explored alternative, less intrusive measures such as periodic check-ins or travel restrictions, which might adequately serve the same purpose without the pervasive privacy implications of constant location tracking. Finally, the last prong of balancing requires a careful weighing of the degree of rights infringement against importance of the objective. Continuous GPS surveillance represents a significant intrusion into the accused's privacy, liberty, and freedom of movement—rights retained by those on bail. The Court's cursory treatment of this balancing leaves much to be desired, particularly given the presumption of innocence that should inform pre-trial measures.

Moreover, the proportionality test could have been applied in conjunction with the 'triple test' of risks traditionally considered in bail i.e. i) Risk of reoffending; ii) Flight risk, and iii) Risk of tampering with evidence and influencing witnesses. The Supreme Court could have thus established a comprehensive framework for evaluating surveillance-based bail conditions requiring courts to:

1. Identify the specific risk(s) the condition aims to address (from the triple test).

2. Assess whether the surveillance measure is legally sanctioned and pursues a legitimate aim.

3. Evaluate if the measure is suitable for addressing the identified risk(s).

4. Determine if less intrusive alternatives could effectively mitigate the risk(s).

5. Balance the degree of intrusion on the accused's rights against the importance of addressing the identified risk(s).

This integrated framework would provide a more nuanced and rights-respecting approach for imposing bail conditions. It would ensure that surveillance measures are employed when strictly necessary and proportionate to the risks, thereby safeguarding the accused's fundamental rights while addressing legitimate concerns of the criminal justice system. Such a framework could have offered lower courts with a clear, constitutionally grounded approach, to evaluate proposed surveillance-based bail conditions, promoting more consistent and rights-respecting decision-making across the judicial system.

A forward-looking judgment could have addressed not just the specific GPS condition at issue, but also set guidelines for the use of other current and potential future surveillance technologies in bail contexts. Finally, the Court could have emphasized the exceptional nature of surveillance-based conditions, explicitly stating that they should be considered as a last resort when less intrusive measures are demonstrably insufficient. This would have reinforced the presumption of innocence and the principle that bail conditions should be least restrictive, necessary to ensure the accused's appearance and the integrity of the judicial process.

Notes from foreign fields:

Use of electronic monitoring as a pretrial condition has become increasingly prevalent in various jurisdictions, particularly the United States. Courts have imposed electronic monitoring as an alternative to detention, with the number of individuals subject to such monitoring growing significantly over the past decade. For instance, in 2021 alone, 254,700 individuals were subjected to electronic monitoring, including 150,700 under the criminal legal system and 103,900 by U.S. Immigration and Customs Enforcement. Cities like Indianapolis and San Francisco have seen their rates of pretrial electronic monitoring double or triple in recent years.

American Courts have generally relied on two primary rationales for imposing electronic monitoring: ensuring public safety and preventing flight. However, the effectiveness of electronic monitoring in achieving these goals has been questioned. Studies have shown mixed results, with some early research indicating worse pretrial outcomes for those on electronic monitoring. More recent studies, such as those conducted in the Federal District of New Jersey and California's Santa Clara County, have shown limited positive results, but neither demonstrated overall success in keeping individuals out of detention during the pretrial period. 

Several courts have critically examined the appropriateness of electronic monitoring. In Commonwealth v. Norman (2020), the Massachusetts Supreme Judicial Court found that the causal link between GPS monitoring and ensuring court appearances was too attenuated and speculative to justify its use. Similarly, in State v. Grady (2019), the North Carolina SC ruled that a lifetime electronic monitoring condition was unreasonable under the Fourth Amendment due to a lack of evidence of its efficacy. These decisions highlight a growing recognition that electronic monitoring may not be proportional to the risks it aims to address and that less restrictive alternatives should be considered. The European Court of Human Rights has also weighed in, stating that while GPS surveillance may interfere less with privacy than methods like telephone tapping, it still constitutes a significant intrusion that must be justified and proportionate to the alleged offence and assessed risk.

Conclusion

While the Supreme Court's decision in Frank Vitus represents a step forward in protecting privacy rights within bail conditions, it falls short of establishing a comprehensive framework for evaluating surveillance-based measures. The Court correctly deemed GPS tracking conditions unconstitutional, but its narrow focus on technical ineffectiveness meant it missed an opportunity to provide broader guidance to courts. A more robust approach, incorporating the Puttaswamy proportionality test and the traditional 'triple test' of bail risks, could have offered clearer direction for lower courts and addressed the wider implications of surveillance technology in criminal justice.

Furthermore, this case highlights the urgent need for legislative reform. The Court cannot continue to rely solely on purposive interpretation in the absence of specific laws, especially as other jurisdictions have already enacted such legislation. Parliament should consider introducing similar enactments to provide a clearer legal framework for use of surveillance technologies. As these technologies become increasingly prevalent globally, this case underscores the ongoing challenge of balancing public safety with fundamental rights in the digital age.