Does Criminal Law Matter?

For practitioners in Delhi, courts resume regular functioning after a summer break (the length of which is determining entirely by how high you are up the judicial ladder). The start of term in July is a mix of emotions: happiness at being able to earn some money, sadness at having to work to earn that money, and a sigh of relief to be able to mingle about in familiar surroundings with familiar faces. 

For a small section of the legal community, comprising those concerned with criminal law and procedure, the predominant feeling when term started in July 2024 was neither relief or sadness, but uncertainty. The triumvirate which had defined our criminal law for more than a century — the criminal codes that were neatly combined and kept in the Criminal Manual — were being replaced by new laws. That first month was defined by conversations and discussions about what was good, what was bad, and just how much of it would apply to the cases already in motion. 

By the end of the month, most of us had realised that we weren't being asked to learn a new language in middle age, but essentially revise what we have learnt. Nevertheless, in many cases, people suffered due to the uncertainty that the introduction of new laws brought. In a system where dates of hearing are given at an interval of months and not days, losing out on a date simply because nobody knows what law applies is, well, pathetic. Yet this was the situation faced by many a litigant, and in fact, it continues to be so.

We tend to forget that not everything was smooth sailing in the aftermath. There was a strong protest by a section of the public to two changes (hiking punishments for death by negligence) and the government relented. But even this protest did not care about anything more than the specific, limited, interest, of this interest group. It did not care about the process which would affect all persons potentially ensnared within the criminal law which was being made more muscular and police-friendly. 

Why? Is it because people were not mobilised by political actors around these issues? Is it because it all happened so fast? Or was it because criminal law, honestly, simply, just does not matter within the public consciousness. It matters as gossip, as a lurid news item, as something to create a public-villain figure — at that distance, one level of remove. It does not matter because none of us ever want anything to do with it, and know that if we are sucked into that black hole of police stations, then law is not what will matter most. The overbearing discretionary nature of police powers is one way in which the relevance of criminal law is negated. This point applies to all executive power and is a broader critique of Indian law in general.

There is another critique more specific to criminal law. At its core, criminal law seeks to govern society's moral code through a combination of influences. The simple and obvious truth is that for a large part of the public, a much larger part than which stays in cities surrounded by courts and prisons and police stations, the influences of criminal law are so distant that they may as well be phantasms. The shadow of law barely manages to cover a fraction of the lives of this public, and most interpersonal relations here take place on the basis of a code that operates entirely outside the language of the sanhitas and the codes that came before. The occasions on which the state swoops in to intervene in these interpersonal relations through the criminal law are so few as to render the criminal process almost irrelevant from their calculus of concerns.

The peculiarity of criminal law means that the state knows that the elites won't speak up and the plebians can't. It means that the state can pretty much do as it wants because while criminal law matters for everyone it simultaneously does not matter at all.

Sanjabij Tari and More Guidelines for Speedy Disposal of Cheque Bounce Cases

Since the criminalisation of defaulting of cheque payments in 1988 by amendment of the Negotiable Instruments Act 1881, the Supreme Court has made many attempts to contain and reduce mounting arrears created by such cases. Much of that good-natured effort, it would seem going by statistics, has proved to be in vain. Nevertheless, the Supreme Court cannot be faulted for not making an effort. This indefatigable spirit is perhaps what animated a Division Bench in Sanjabij Tari v. Kishore S. Borcar & Anr. [2025 INSC 1158 (“Sanjabij Tari”)] to pass a fresh series of guidelines / directives, to curb arrears in cheque bounce cases.

Getting the Right Pendency Data

There can be no doubting the general observation that there is a deluge of cheque bounce cases in the system. The Court gives a sense of perspective to this by citing data from the National Judicial Data Grid (NJDG) to state that the figures for Delhi alone are 6.5 Lakh cases as of 01.09.2025 (Para 33).

The tenor of the judgment suggests that it is this sky-high pendency figure which has prompted the Court into giving directions. This shows us the importance of having data at hand. Unfortunately, it also shows us the difficulty in getting the “right” data which we face in India. One would think that using NJDG is as good as it can get to make a statement about caseloads. But as Prashant Reddy and Chitrakshi Jain explain in Tareekh Pe Justice, NJDG cannot be seen as that gold-standard. The website itself accepts this, and carries a disclaimer on the figures being given and requires visitors to cross check the correctness of the information.

The ordinary citizen access for NJDG does not seem to allow searching for statute-specific data and perhaps this is a unique feature that is available to those with special access, so we do not know exactly what the Court saw (it would be nice for everyone to have this access!). It is safe to assume, though, that this data was also not wholly accurate, given how the NJDG data presentation leads to double counting. In its gross figures, the NJDG often adds smaller miscellaneous applications filed within cases, besides the cases themselves, leading to an inflation of the total figures.

Given that pendency is anyway quite high in cheque bounce cases, overestimation here perhaps does not cause huge problems. There may be other situations though where uncritical reliance on NJDG data by a Bench does cause serious trouble. One hopes that day does not come to pass.

What to make of the Guidelines?

Having got the data part out of the way, we can turn our attention to the guidelines / directions itself that are issued in Paragraph 36 of Sanjabij Tari. A part of this is the Court restating / tweaking earlier directives, perhaps with a hope that their enforcement with some renewed vigour will lead to better results. The old is complemented by the new, where emphasis appears to be on pushing the system to (1) secure swift appearance of accused parties and, linked to this, (2) encourage settlements once they have appeared. Within these, I only want to deal with one part viz. the Court’s move to remove application of Section 223 of the Bharatiya Nagarik Suraksha Sanhita 2023 ['BNSS'] from these proceedings [Guideline E].

Section 223 BNSS is a new clause (unlike a lot of the statute) by which a court is now required to give the accused an opportunity to be heard before the court takes cognizance of an offence. The Court has approved the view taken by a Karnataka High Court judgment without adding any explanation. This view is that the Section 223 pre-cognizance notice part will not apply to cheque bounce cases since (i) these case are prosecuted under a special law (Negotiable Instruments Act 1881) and (ii) the offence is quasi-criminal where speed in the trial is key.

It is unfortunate that the Court has dealt with a legal issue in such a summary fashion, because on closer scrutiny neither of these reasons hold water. A special criminal law must prescribe a different method of proceeding for it to override the general procedural law in the BNSS, and there is nothing within Section 142 of the Negotiable Instruments Act 1881 which overrides Section 223 BNSS. This is why the Supreme Court itself has extended Section 223 BNSS to other special criminal laws, such as the Prevention of Money Laundering Act 2002.

Which naturally brings up the other point — you need this pre-cognizance hearing for serious crimes like money laundering, but not ‘quasi-crimes’ like cheque bouncing. The nature of the cheque bouncing crime is an issue which came up in another context recently on the blog — the right of a victim to file an appeal in such cases. While on the hand courts see the cheque bounce crime as 'quasi-criminal', a bench of the Supreme Court in Celestium Financial emphasised on the very clearly 'criminal' nature of this offence to hold that the complainant in such cases was at par with victims in other, traditional, offences. Interestingly, Sanjabij Tari neither cites nor refers to Celestium Financial. 

One may disagree with the approach in Celestium Financial and want to support the view that a cheque bounce case is really 'civil sheep in wolf's clothing'. Unfortunately though, this view is just not supported by law. There is no legally defined category of 'quasi-crime' in Indian law and when the legislature decides to deal with offending conduct by means other than criminal proceedings, it has prescribed punishments other than jail time. No matter how innocuous we make cheque bounce cases appear by likening them to civil disputes, it does not change the reality that a conviction for this offence can result in imprisonment and loss of liberty — the core component of proper crime. 

Conclusion

There is no disputing the fact that cheque bounce cases contribute hugely to arrears within the legal system, making it a natural target for attention by the Supreme Court. Prior to Sanjabij Tari, multiple attempts have been made by issuing directives and guidelines but without lasting or measurable success, and whether this most recent round of efforts will meet a different fate is something only time can tell. 

At the same time though, if we look deeper, perhaps there is a different lesson to be learnt here, especially with the repeated reference by the Supreme Court to the idea that cheque bounce are not real crimes but 'quasi-criminal' in nature. Why not actually take that step and conjure a set of remedies that deliver on this premise by changing the infraction in question from being a crime with possible jail time to something which can be dealt with outside of the proper legal system by means of penalties and other, non-penal, sanctions. The judiciary cannot take that step, as much as it may want to. 

It is soon going to be four decades since Parliament decided to experiment with levying penal sanctions for dishonour of cheques. The experience of these past four decades suggest that whatever benefits the move has brought to financial transactions, it is significantly outweighed by the harm that it has caused to the integrity and stability of the judicial system. Maybe it is time to call it a day on the offence of cheque bouncing altogether? 

On Conspiracy — A Brief Historical Interlude

A long time ago, the Blog began a series (yet incomplete) on the blog discussing the Conspiracy offence in Indian criminal law. A couple of those posts looked at the immediate context leading to the introduction of the substantive offence — the attempt on the Viceroy's life in 1910 — and the 1913 debates in Council where the amendment bill sailed through with considerable ease.

Again, thanks to the digitisation of the Archives, one can get a glimpse of what went on behind the scenes within the machinery of colonial government. The file appears to be titled: "Enquiry into the Possibility of Strengthening the Hands of the Authorities in Dealing with Anarchical Conspiracy: Act amending the Indian Penal Code and the Code of Criminal Procedure in the matter of the law of Conspiracy". Full marks to whoever decided on this for summing up what the conspiracy offence entails.

The initial memo tabling the proposal gives a glimpse of the legal oppression wrought globally by the colonial system, for a key primary reference for introducing a law in India was introduction of a similar law in Egypt in 1910 (later notes on file also cite Ireland as another example). The Egyptian law punished as "criminal association" the act of persons who "associated together" to commit crimes, even where perpetration of crime had "only been contemplated". 

The deficit in Indian law as of 1912 / 1913, was its inability to permit prosecuting persons for only "contemplating" the commission of crime. In other words, what was needed to 'strengthen' the hands of authorities, was giving them the ability to round up people pure and simple, because what one contemplates is rarely written upon one's face. Interestingly, even the Egyptian Law did not go far enough and had to be blended the Egyptian law of 1910 with older English law in his proposed draft, as the latter allowed punishing persons doing legal acts, by illegal means.

The government file is a great place to look for understanding the process of criminalisation. It is not about principles, or justice. It is, especially when a sovereign feels under threat, about what is going to be useful to contain that threat. Exchanging notes on file, the officials from the Home Department and Legislative Department speak of bringing Indian Law in line with English Law, but this is not because they are jurisprudes seeking consistency in the definition of laws. They are wanting this move, at this particular time, because having such a crime "is likely to be useful" to deal with the problem at hand.

How was a conspiracy offence proper going to be useful? Because it rid the need for finding any overt act, allowed enhanced punishments, and perhaps most importantly cheapened the kind of evidence required to prove a case. A.P. Muddiman could not have said it better when he notes: "The vagueness of the English law has its advantages ... In matters of sedition it is rather a question of policy than of jurisprudence what conduct should be punishable, and some degree of vagueness is a necessary condition of efficiency." [Pp. 2-3, Note dated 08.01.1913]. His superior in the Department, W.H. Vincent, noted that merely adding this law is not going to be enough without sufficient procedural powers to take meaningful advantage of this vagueness that the law would bring [Pp. 3-5, Note dated 14.01.1913]. 

Usefulness of having a dedicated conspiracy law is made plain by the Home Department. As RH Craddock records: "The proposed additions to the law will not only embrace anarchist plots to murder, but conspiracies to commit crimes of all kinds, including criminal intimidation, mischief, wrongful restraint, etc., which are the usual accompaniments of a boycott movement." [Pp. 6-7, Note dated 17.01.1913]. He really lets the cat out of the bag, in a sense. Once you are willing to take a step back, it becomes obvious that rarely will an actual revolutionary conspiracy be prosecuted without overt acts being visible. What you really need this new offence for, is to pre-emptively quell even the far lesser obvious kinds of politically undesirable acts challenging British rule.  

As the proposed law goes outside the four-walls of government, the conversation loses some of its candour. We see this best expressed in the Draft Statement of Objects and Reasons that is being discussed on file. This statement is a brief description of the reasons that prompted government to propose a legislation, and will be consumed by the general public. Naturally, such a document cannot say that we need vague criminal laws to efficiently stem the rising anti-British feeling. Instead, the statement mainly gives jurisprudential reasons (there is a gap in Indian law which must be filled) and addresses the political element by simply stating that "The existing law has been found inadequate to deal with modern conditions in India ..." [Pp. 9-12]. 

This sanitising criminal law from the contest of politics is a sleight of hand which only history and the archives can help uncover, and give us a truer picture. It was not merely to fill some gap in law that Section 120-A was added to the Indian Penal Code in 1913, and has been retained in the Bharatiya Nyaya Sanhita a century later. It is because the offence of conspiracy contains the necessary vagueness allowing it to be used by the government in situations which it deems are undesirable. Prosecuting such conspiracies has never been about law, but have always been about pursuing government policies, and no amount of clothing in statutory or legalistic verbiage can somehow make them appear apolitical. 

Guest Post: Extending the Conversation on Law and a 'Legal Science' in India

(This is a guest post by Rajyavardhan Singh)

The editor of this Blog recently sketched a provocative thought. His argument, stated simply, was that Indian law is a landscape without a lodestar, lacking any “legal science” that could guide coherence in lawmaking or adjudication. What we confront instead is a dissonant landscape, where legislatures, courts, and enforcement agencies operate at cross-purposes. This is so, for their approach seems to be shaped more by immediate contingencies rather than a settled conception of law.

By tracing the Constitution back through colonial codification, company rule, and pre-colonial inheritances, the earlier post showed how Indian law is a layered historical construct, but one that lacks an organising framework to make its elements cohere. In this piece, I seek to continue that conversation by asking what it might mean to imagine coherence in Indian law today. To pose the question in this way is to recognise that law and order without coherence risks devolving into administration alone, where outcomes are dictated more by contingency and power rather than by reason.

Towards a Grammar of Coherence

To imagine coherence in Indian law is not to posit a single, all-encompassing theory that tidily resolves every institutional conflict. Rather, it is to ask whether there exist conceptual anchors that can discipline the otherwise unstructured interplay between legislation, adjudication, and enforcement. What such anchors might look like, however, is a contested question. Comparative experience offers some possibilities — Hart and Sacks’ Legal Process school in the United States, or Dubber’s project of a New Legal Science, both sought to reconstruct law on the basis of shared principles that could orient lawmaking and adjudication without erasing pluralism.

The Indian context, however, is complicated by the absence of any comparable intellectual tradition. As was also argued in the earlier post, our legal system is an inherited mosaic of colonial codification, postcolonial constitutionalism, and precolonial practices — none of which has been systematically interrogated for the principles that might underwrite a coherent order.

This absence, I suggest, has consequences. Take, for example, the Courts oscillating between the established maxim that bail is the rule and the contrary practice that treats custody as the default; with little more than case-specific discretion to explain the difference. What results, as Gautam Bhatia has recently argued, is a kind of judicial double-standard. For when a fact is potentially favourable to the individual (say, in a UAPA matter), courts invoke the Watali judgement to refuse engagement, shutting their eyes to material that might support bail. But when the fact is adverse, the same courts are happy to wade deep into the evidence, even drawing inferences that go beyond the record.

Legislatures, meanwhile, frequently add new offences or enhance punishments in response to episodic crises (as with the post-Nirbhaya amendments to the erstwhile Indian Penal Code in 2013, their further expansion after Unnao and Kathua in 2018, or, most recently, the Aparajita Bill introduced in West Bengal following RG Kar) without any reference to a settled framework of penal theory. As scholars of penal populism observe, they embody a politics of symbolic criminalisation, where the severity of punishment substitutes for any substantive justification of criminal law.

Enforcement agencies then, for their part, exploit ambiguities in the law by exercising vast discretion in arrest, investigation, and prosecution. Despite repeated judicial reminders that arrest must remain an exception, police and specialised agencies continue to use it as the default. Besides, investigations themselves have long been marred by political misuse and lack of independence, while prosecutions operate less as trials of guilt than as punishment by process. The resulting system, hence, is one where liberty turns on happenstance rather than principle.

Thus, coherence (in this sense) would not mean the elimination of judicial discretion or the homogenisation of legislative policy. It would mean that discretion and policy are exercised within an intelligible grammar — such that it allows citizens, institutions, and scholars alike to evaluate whether state action is consistent with the law’s core commitments. What, however, would such a grammar consist of?

At its simplest, such a grammar would rest on a set of conceptual commitments that organise the otherwise scattered practices of lawmaking, judging, and enforcement. These commitments are not difficult to name. To name a few — Culpability as a precondition for punishment. Proportionality as the measure of how much punishment is justified. Due process as the assurance that the road to punishment is neither arbitrary nor degrading.

None of these, I submit, are alien imports. They exist in fragments across case law and statutory text. Yet, because they are rarely articulated as organising principles, they fail to discipline practice. Proportionality, for instance, is invoked in sentencing but abandoned when legislatures escalate punishments to death or life terms. Due process, again, is hailed in theory but hollowed out in practice by a set of procedural checklists. Seen thus, this grammar is not just a code to be written once and for all. It is a discipline of justification.

It demands that legislatures explain why a new offence requires criminalisation rather than civil liability (as with the criminalisation of Triple Talaq), that courts justify why liberty is denied in one case but granted in another (for instance, Gulfisha Fatima’s treatment in the Delhi riots bail hearings, contrasted with the release of similarly placed accused), that enforcement agencies demonstrate why an arrest was necessary beyond the fact that it was possible and used as a reflexive tool of control.

A coherent grammar, however, would not guarantee agreement — scholars, judges, and lawmakers will still disagree about the scope of culpability or the limits of proportionality. But it would guarantee that such disagreement occurs within an intelligible frame, one that allows citizens to assess state action against principles rather than personalities, and to demand fidelity to the law’s core commitments rather than its most immediate conveniences. Without such a grammar, Indian law risks remaining what it too often is today — a set of rules and practices that work until they do not, lacking any deeper account of why they should endure.

To Conclude

If coherence in Indian law, indeed, is to be imagined as a grammar, then the challenge is in cultivating a culture that insists on returning to them. The law does not fail for a want of lofty ideals. It falters when those ideals are not treated as binding coordinates. To that extent, coherence is less a destination than a discipline of thought, one that requires institutions to account for themselves in ways that transcend immediate expediency. For too long, the discourse has been content with doctrinal bricolage — stitching together precedent here, statutory text there, and leaving the seams to show. What a grammar of coherence demands, instead, is sustained reflection on the why of law, and not merely the what.

Now whether Indian law can rise to this challenge remains open. But to ask the question is, at the very least, to resist the comfort of dissonance.

Guest Post: Flawed Vision — Rethinking Eyewitness Identification in Indian Criminal Trials

(This is a guest post by Viraj Thakur)

How much weight should a 7-year-old memory carry in a murder trial? Courts in India have often answered: enough to convict.

On 29 July 2025, dealing with a case concerning the Godhra Riots of 2002, the Gujarat High Court (“HC”) in Sachinbhai v. State of Gujarat had the opportunity to elucidate on the law surrounding Test Identification Parades (“TIPs”) i.e. identification of suspects by eyewitnesses, outside of court, and Dock Identifications (“DIs”) i.e. the identification of suspects in court by eyewitnesses. While the HC, on facts, rightly refused to rely on identification in my opinion, it failed to engage with foundational issues: how time, stress, and suggestibility undermine visual memory, despite scientific consensus on these. This gap between evidence law and memory research poses a direct threat to fair trial rights for an accused, who may be convicted solely on the basis of a DI.

 

I argue that the effect of delays on eyewitness memory and the impact injuries/weapons have on accuracy of eyewitness identification are overlooked by courts, by referring to key precedents on TIPs. Consequently, I argue that courts must actively bear in mind that the standard to admit DI without a TIP ought to be very high. While courts do occasionally recognise this, a more well-reasoned rationale coupled with scientific evidence may make for a fairer process.

Introduction to TIPs and DIs

TIP is an eyewitness identification out of court made relevant under Section 7 of the Bharatiya Sakshya Adhiniyam (“BSA”). It is relevant for purposes of corroborating substantive evidence of eyewitness identification in court i.e. DIs (Daya Singh v. State of Haryana, ¶ 11). A TIP in particular is primarily meant to help investigators check if they are on the right track regarding the accused’s identity (Dana Yadav v. State of Bihar, ¶ 37). They are ordinarily held at the instance of the investigating officer (Dana Yadav, ¶ 5) and the accused has no right to ask for a TIP to be held, though courts may grant TIPs on an application if they believe it prudent to do so (ibid, ¶ 14). However, DIs have low probative value if uncorroborated, unless DI is of “sterling quality,” especially when the accused is a stranger to the witness (Sachinbhai, ¶ 44).

Reconsidering Time and Anxiety in Assessing Eyewitness Identification Reliability

Time elapsed between the crime and the identification and consequent memory decay

It is well-established that delays can affect the reliability of eyewitness identification. The delay may arise in holding the TIP or in the DI ultimately held in court. In Raja v. State, it was held that the impact of delays is a fact-based inquiry (¶ 14). However, if it can be demonstrated that a witness has an “enduring impress” of the identity of the suspect, then DI, even seven years after the crime, can be considered reliable (Daya Singh, ¶ 14). This “impress” often arises from sustained interaction or noticing distinctive features of the accused (¶ 23). However, if the testimony is unreliable or the suspect had changed their appearance, even a two-year delay would be fatal (¶ 25).

However, I argue that the theory of “enduring impress” overlooks the impact delays have on eyewitness memory.

 

Memory research shows that recollections fade and distort over time, unlike video recordings.[i] The greater the time between the crime and identification, greater the chance of false identification (ibid, pp. 23). As Gambell argues, repeated questioning, multiple recounts of the event, and multiple identifications, lead to changes in the memory of an eyewitness. Eyewitnesses may add details under the assumption that this “must have happened” (pp. 190-1). This is done by the eyewitness simply to make sense of the event and to avoid appearing as untrustworthy.

 

Consequently, given that verbal and pictorial information tend to be forgotten as time passes[ii] and that recollections of physical attributes (such as age, hair colour, complexion, height, etc.) are usually inaccurate (pp. 298-9), it is clear that delays have an adverse impact on the reliability of eyewitness identifications.

 

This becomes especially concerning given that with time, eyewitnesses grow more susceptible to suggestive cues – whether from police, environment, or internal bias – making delayed identifications less reliable (pp. 323-4).

 

This suggestiveness may be inherent in the process, such as in DIs, wherein only one person is shown to the eyewitness for identification. This is suggestive because the identity of the police suspect is inherently obvious, if there is only one “option” for an eyewitness to choose from (Perry v. New Hampshire Amicus Brief, pp. 24).

 

Suggestiveness may also arise due to the actions (subconscious or conscious) of the police, who may present the suspects differently from the fillers. For instance, in Tahir Mohammed v. State of MP, the suspects were put up with fetters connected by rods, while the fillers in the line-up were unfettered (¶ 8). Or, in case of TIPs, police personnel may indicate their approval / disapproval of a particular identification by the eyewitness through verbal or non-verbal cues (pp. 273).

 

Suggestiveness may even arise due to the psychology of the eyewitness – the desire to bring a criminal to justice, to exact vengeance upon them, or to find a scapegoat (pp. 367). It may arise due to the behaviour of the suspect themselves. Suspects are incentivised not to stand out and therefore may appear to be most anxious, standing further apart from the rest of the group, or receiving the most “looks” from the others in the lineup (pp. 319). Hence, the greater the delay, the more susceptible the eyewitness to suggestive cues.This further compromises the reliability of their identification.

 

Therefore, convicting a suspect based on a DI seven to eight years later, as in Daya Singh, is arguably incorrect. It would be a conviction based on unreliable evidence.

Stress & Anxiety due to Weapons and Injuries

The SC has held that eyewitnesses being injured would allow them an opportunity to observe a suspect, therefore overcoming problems posed by delays.[iii] In other words, being injured is a relevant factor in holding that a particular eyewitness had an “enduring impress” of the accused. In Pargan Singh v. State of Punjab, it was held that being in a near-death experience and sustaining injuries would mean seeing the suspect for merely 90 seconds would make for a sufficiently reliable DI, even with a delay of 7½ years (¶ 17). The SC specifically noted that “[t]he testimony of an injured witness requires a higher degree of credibility” (ibid, ¶ 19).

 

This goes against well-established evidence to the contrary. If a weapon is used to threaten / injure the eyewitness in committing a crime, most of the eyewitnesses’ attention is focused on the weapon and not the suspect (pp. 276). Stress and anxiety adversely affect the ability of a witness to recall, narrowing their attention – not the other way round (pp. 694). This becomes all the more concerning when “various factors that affect eyewitness accuracy often interact to compound the risk of mistaken identification” (Commonwealth of Pennsylvania v. Walker Amicus Brief, pp. 18). Therefore, in Pargan Singh and Daya Singh, delays coupled with injured eyewitnesses ought to render eyewitness identification, whether through TIPs or DIs, extremely unreliable – to the point, I suggest, that the results of such identification ought to be disregarded.

Conclusion

I have argued that Indian courts often overestimate the reliability of eyewitness identification. Long delays, and high-stress circumstances – especially where weapons or injuries are involved – distort memory. Scientific research suggests that such identifications are prone to error, yet courts continue to rely on them without adequate safeguards. Courts must adopt stricter evidentiary standards for visual identification – particularly DIs – or risk legitimising wrongful convictions based on flawed memory and implicit bias.

 

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[i] Arne Trunkell, Reliability of Evidence (Beckman 1972) 21.

[ii] Jessica Lee, ‘No Exigency, No Consent: Protecting Innocent Suspects from the Consequences of Non-Exigent Show-Ups’ (2005) 36 Columbia Human Rights Law Review 755, 759-60.

[iii] See Dana Yadav [8]; Raja [22].