Monday, October 26, 2020

Guest Post: A Critical Analysis of GJ Raja v. Tejraj Surana and 143A of the Negotiable Instruments Act

(This is a guest post by Kratika Indurkhya

In an era where credit transactions are not only convenient but also the need of the hour, the Supreme Court has given a judgment detrimental to the interests of lending institutions. In July 2019, the Supreme Court gave a decision in G.J. Raja v. Tejraj Surana [2019 SCC OnLine SC 989] holding that Section 143A of the Negotiable Instruments (Amendment) Act, 2018 [‘Amendment Act, 2018’] is only prospectively applicable. The case was lodged in the year 2016 and the Amendment Act came into force on 1st September, 2018. This judgment has not been in vogue, albeit decided recently by the Supreme Court after a lot of skepticism and divergent views of different High Courts of the country on this issue. Section 148 and Section 143A, the only sections of the Amendment Act, 2018 have been dealt quite differently, hence creating an imbroglio situation. Whereas the High Court of Allahabad [Application u/s 482 No. 11055 of 2019, Date of Decision -11.04.2019] held that Section 143A would have a retrospective effect, the High Courts of Punjab & Haryana [2019 SCC OnLine P&H 747], Madras [2019 SCC OnLine Mad 4091] and Bombay [2019 SCC OnLine Bom 436] were at consensus and held that although Section 148A is retrospective, Section 143A will be prospective. It was the Madras High Court judgment which was taken in appeal to the Apex Court, challenging the prospective application of the section. 

Statutory Context and the SC Decision
The case made an attempt to differentiate itself from Surinder Singh Deswal v. Virender Gandhi [(2019) 11 SCC 341], which dealt with the same question about retrospective effect with respect to Section 148 of the Amendment Act, 2018. Section 148 states that ‘in an appeal by the drawer against conviction under section 138, the Appellate Court may order the appellant to deposit such sum which shall be a minimum of twenty per cent of the fine or compensation awarded by the Trial Court’. 

Prior to the 2018 amendment, the imposition and consequential recovery of fine or compensation either through the modality of Section 421 or Section 357 of CrPC could arise only after the person was found guilty of an offence. This position of law was sought to be changed by introducing Section 143A. Section 143A states that ‘if the Trial Court is trying an offence under Section 138 of the Negotiable Instrument Act, 1881, interim compensation, not exceeding 20% of the cheque amount may be given’. Further, the interim compensation can be recovered by mode of recovery mentioned under Sections 421 or 357 of Code of Criminal Procedure, 1973 [‘CrPC’]. 

The Supreme Court in the case at hand held that since fine and compensation under Section 421 and Section 357 of the CrPC 1973, respectively, are for post-conviction, and the compensation in the present case is interim compensation, they create a new obligation and hence would be prospective. Precisely, the Supreme Court decided that since Section 143A not only changes the procedure but also creates new rights and liabilities, it shall be construed to be prospective in operation. While differentiating from Section 148 of the Amendment Act, 2018 it held that since Section 148 was to be applied post-conviction, it "depends upon the existing machinery and principles already in existence and does not create any fresh disability of the nature similar to that created by Section 143A of the Act."

The Supreme Court has held that since under Section 148 a convict goes to appeal and is not merely an accused, Section 421 and 357 of CrPC 1973, i.e., the existing legal machinery is enough and no new liability would be created. Further, it held that since Section 143A is for the trial stage, there is no applicability of Section 421 and 357 and hence the said section exposes the accused to a new obligation. 

In my opinion, there are two major problems with this differentiation which requires us to revisit the CrPC. Under the head of ‘warrant of levy of fine’, Section 421 states that "the Court passing the sentence may take action for the recovery of the fine …" [emphasis supplied]. This means that the section is limited to the Court passing the sentence and does not apply to the Appellate Court. The same reason flows for Section 357 which states that "When a Court imposes a sentence of fine or a sentence … the Court may, when passing judgment" [emphasis supplied]. Hence it is incorrect to consider Sections 421 and 357 as being applicable at the appellate level. 

Further, the only reason given for the retrospective application of amended Section 148 was a purposive interpretation of the clause. Towards this, the Statement of Objects and Reasons was read within the section, which says: 

"[B]ecause of delay tactics of unscrupulous drawers of dishonoured cheques... compromise the sanctity of cheque transactions. With a view to address the issue of undue delay in final resolution of cheque dishonour cases so as to provide relief to payees of dishonoured cheques and to discourage frivolous and unnecessary litigation which would save time and money.

As relied upon in case at hand, in Vatika Township Pvt Ltd [2014 SCC OnLine SC 712], it was held that “of the various rules guiding how a legislation has to be interpreted, one established rule is that unless a contrary intention appears, a legislation is presumed not to be intended to have a retrospective operation.” Since the reason for holding Section 143A prospective was that it creates a substantive and not a purely procedural right, the Court ought to have at least considered the Objects and Reasons which confirms that the legislative intent was to render Section 143A retrospectively applicable.

Lastly, in overlooking and blurring of the differentiation between civil and criminal remedies is where I argue that the Court has gravely erred. It is undoubted that Section 138 states the offence for which the punishment is given in Section 142 of the Negotiable Instrument Act, 1881, but the point to be considered here is that Section 143A (which again is for offences committed given under Section 138) provides for a civil remedy. On this issue, the Supreme Court in R. Vijayan v. Baby and Anr [(2012) 1 SCC 260 ] observed that :

Though a complaint under section 138 of the Act is in regard to criminal liability for the offence of dishonouring the cheque and not for the recovery of the cheque amount, (which strictly speaking, has to be enforced by a civil suit), in practice once the criminal complaint is lodged under section 138 of the Act….It provides a single forum and single proceeding, for enforcement of criminal liability (for dishonouring the cheque) and for enforcement of the civil liability (for realization of the cheque amount) thereby obviating the need for the creditor to move two different fora for relief.

This excerpt clears that the obligation is of civil nature and not criminal as the interim compensation, which is deducted from the final cheque amount to be recovered which is a civil obligation. 

But why does this distinction between civil and criminal matter here? It is because Article 20(1) of the Indian Constitution only prohibits the retrospective imposition of criminal liability and not civil. In my opinion, interim compensation is a civil remedy as it is neither an ‘offence’ nor a ‘penalty’ which is a prerequisite to fall under the criminal legal system and to be barred from retrospective application. 

The expression ‘offence’ is not defined anywhere in the Constitution. Article 367 of the Constitution says that unless the context otherwise provides for words which are not defined in the Constitution, the meaning assigned in the General Clauses Act, 1897 may be given. Under Section 3 (38) of the General Clauses Act, the term means "an act or omission punishable any law for the time being in force." Further, when a statute imposes a civil obligation, the failure to discharge it is not an offence unless the statute expressly makes it so. Hence, in Hathising Mfg Co. v. Union of India [(1960) 3 SCR 528] it was held that the insertion of Sec. 25FFF(1) in the Industrial Disputes Act, 1947, with retrospective effect, does not constitute a violation of Article 20(1) because the failure to pay the compensation required to be paid by the section is not made an offence though the money may be recovered by a coercive process, and the person may be imprisoned for failure to pay, under the revenue law for coercive recovery of the amount. Even Section 143A of the Amendment Act, 2018 does not make the failure to pay this interim compensation an offence. Moreover, its clause (5) is restricted to equating the modality of recovery of compensation with that of fine and does not intend to replace the civil remedy with criminal. Further, ‘fine’ means ‘to sentence a person convicted of an offence to pay a penalty in money’, and hence cannot be equated with interim compensation as the latter is awarded during the pendency of the proceedings and not when one is convicted.

It must also be noted that in Depot Manager, A.P.S.R.T.Corpn v. Mohd. Yusuf Miya [AIR 1997 SC 2232] it was held that, “offence generally implies infringement of public duty, as distinguished from mere private rights.” Even though dishonour of cheque is a criminal liability (public wrong), interim compensation is a percentage of the cheque amount to be recovered which is strictly a private right. 

Article 20(1) avails only against punishment for an act which is treated as an offence, which when done is not an offence. As per the case of Jawala Ram v. State of Pepsu [AIR 1962 SC 1246], unless there is a law forbidding the doing or the omission to do something, no question of ‘punishment’ comes. Hence in this case, although the mode of recovery is ‘coercive’, non-payment of the interim compensation is still not an offence and being a civil remedy, can be retrospective. Hence, the first condition of interim compensation being an offence is not attracted. 

Although there is no argument of greater amount being imposed post the Amendment Act, 2018, the author would like to clarify that interim compensation does not fall under the definition of ‘penalty’ as required in the second part of Article 20(1). In Sova Ray v. Gostha Gopal Dey [(1988) 2 SCC 134], the expression ‘penalty’ was held to mean ‘an elastic term with many different shades of meaning but it always involves an idea of punishment.’ Further, in Shiv Dutt Rai Fateh Chand [(1983) 3 SCC 529], the Apex Court held that this expression is used in the narrow sense as meaning a payment which has to be made or a deprivation of liberty which has to be suffered as a consequence of a finding that the person accused of a crime is guilty of the charge. Since interim compensation does not involve the idea of ‘punishment’ as it is awarded during the pendency of the proceedings, it does not fall under this definition. Hence, the latter part of Article 20(1) is not attracted as well. Even if there was any enhancement of the amount, in Mukandi Ram v. Executive Engineer [1956 SCC OnLine Pepsu 3], it was held that since the levy of an enhanced rate for unauthorised use of water created only a civil liability, a criminal prosecution for such unauthorised use is not barred under Article 20(1). 

In conclusion, missing this question and the differentiation between criminal and civil remedies has led to an erroneous judgment by the Supreme Court and a grave injustice to creditors. Additionally, this judgment, while realising that Section 143A is a procedural law affecting the substantive rights of an individual, completely ignored the intention of the legislature and thus failed to spot that the true purpose was to save creditors and lending institutions from pending litigation as part of unscrupulous activities of debtors. Rather than a judgment which protects the lending institution and others, we have a judgment which does not help status quo

Monday, October 12, 2020

Guest Post: Evidentiary Value of Memorandum Statements under Sec. 27, IEA for a Co-Accused

[This is a guest post by Mr. Priyank Agrawal, Advocate, M.P. High Court (Jabalpur)]

In criminal cases, it is regularly seen that investigating agencies tend to capture accused persons solely on the basis of a co-accused memorandum recorded under Section 27 of the Indian Evidence Act [Hereinafter referred as ‘Act’ for brevity]. However, through this post, I’ll attempt to illustrate that this is a wrong practice adopted by investigating agencies which stands in contrast with the law laid down by the Supreme Court. Further, I also make an an attempt to scrutinise the law as laid down by the Supreme Court in Mehboob Ali v. State of Rajasthan [(2016) 14 SCC 640].  

The general principal of law is that a confession made to a police officer is inadmissible in law, as is enumerated under Sections 25 and 26 of the Act. Section 25 provides that no confession made to a police officer by an accused person can be proved against him. Likewise, Section 26 states that no confession made whilst in police custody can be proved against the accused. However, Section 27 of the Act, which is not pleasingly articulated, carves out an exception to the prohibition contained under Sections 25 and 26 of the Act and enables certain statements made in police custody to be proved. 

Section 27 of the Act is reproduced herein for sake of reference:

Section 27. How much of information received from accused, may be proved
Provided that, when any fact is deposed to as discovered inconsequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. 

The scope and ambit of Section 27 of the Act was in issue before the Privy Council in Pulukuri Kottaya v. Emperor [AIR 1947 PC 67] , which still stands as the most quoted authority on the subject matter. Detailing the scope of Section 27 of the Act, the bench held as under: 

[I]t is fallacious to treat the “fact discovered” within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact”    

As a result of this judgment — which has been followed in several other cases since — it was fairly settled that the expression ‘fact discovered’ includes not only physical object produced, but also the place from which it is produced and the knowledge of the accused as to this i.e. ‘mental state’ of an accused. 

An interesting observation was however placed by the Supreme Court in the case of Mehboob Ali (supra) wherein, the Hon’ble bench was posed with the question whether information regarding other accused persons to establish conspiracy considered as ‘fact discovered’ u/s 27 of the Act. 

The Court answered this in the affirmative. It was held as under:

The embargo put by Section 27 of the Evidence Act was clearly lifted in the instant case. The statement of the accused persons has led to the discovery of fact proving complicity of the other accused persons and the entire chain of circumstances clearly make out that the accused acted in conspiracy as found by the trial court as well as the High Court.”   

The effect of the aforesaid proposition laid down in Mehboob Ali is that solely on the basis of a co-accused’s memorandum under Section 27 of the Act other accused persons can be nabbed. However, contrary opinions have been placed in other judgments of the Supreme Court which are of the view that a statement made under Section 27 of the Act can only be used as against the person making the statement and not against co-accused persons. In Lohit Kaushal v. State of Haryana [(2009) 17 SCC 106], it was held that disclosure statements made to police are hit by Sections 25 & 26 of the Act and can only be used to a limited extent provided under Section 27 of the Act, and that too only against the person making the statement. 

There is a catena of judgments wherein the courts have consistently taken a view that the disclosure statement of any accused can only be used against its author and not against any other co-accused person. In the pre-independence era, cases such as Abdul Basha Sahib v. R [AIR 1941 Mad 316] and Satish Chandra Seal v. Emperor [AIR 1945 Call 137], were of the view that Section 27 of the Act does not sanction letting in statements of one person made to a police officer as evidence against another person. 

In view of the above-mentioned contrasting pronouncement made by the Supreme Court in Mehboob Ali’s case, certain questions arise for consideration, which are as follows: -
  • Whether a confession made by a co-accused in his memorandum under Section 27 of the Act is admissible as evidence against another co-accused? 
  • If the answer to former question is in affirmative, then to what extent can the said evidence be used against the co-accused? Can he be solely arrested on the basis of the co-accused memorandum u/s 27 of the Act?
  • Whether ‘fact discovered’ as envisaged under Section 27 of the Act includes information regarding other co-accused to establish charge of conspiracy? 
The law on this subject was deliberated by the Supreme Court in Hari Charan Kurmi v. State of Bihar [AIR 1964 SC 1184], and it held that in dealing with a criminal case where the prosecution relies upon the confession of one accused person against other accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court can turn to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. In other words, it was decided that the memorandum statement of a co-accused can be used against the accused only to lend assurance to the conclusion drawn by appreciating other evidence as against the said accused person. 

The Privy Council in the case of Bhuboni Sahu v. The King [AIR 1949 PC 257], was also of the view that the confessional statement cannot be used as substantive evidence against co-accused. 

On perusal of Section 30 of the Act, it is no doubt clear that confession of a co-accused has to be regarded as amounting to evidence in a general way, but the same cannot be considered as ‘Evidence’ as defined under Section 3 of the Act. A case against an accused cannot be solely made out on the basis of the confessional statement of a co-accused person, and such a statement can merely be used to lend support to other evidence against him. That, briefly stated, is the effect of the provisions contained in Section 30. The same view has been expressed by the Court in Kashmira Singh v. State of Madhya Pradesh [AIR 1952 SC 159], and has been reiterated in recent judgments as well such as Kusal Toppa and another v. State of Jharkhand [(2019) 13 SCC 676] and Asar Mohammad and others v. State of Uttar Pradesh [(2019) 12 SCC 253]. 

It is apposite to mention herein that the misuse of Section 27 of Act is not an unknown phenomenon, as was observed by the Supreme Court in Geejaganda Somaiah v. State of Karantaka [(2007) 9 SCC 315] where it was observed that Section 27 of Act is subject to being frequently misused by police and thus the courts are required to be vigilant about its application. It is largely seen that the memorandum under Section 27 of the Act almost always contains confession by the accused and therefore the possibility of fabrication / manipulation of such memorandum by the investigating agency cannot be ruled out.

The Supreme Court in Mehboob Ali’s case, in my opinion, has exceeded the ambit of ‘fact discovered’ to establish charge of conspiracy without deliberating much upon its legal ramifications. If such information of conspiracy is construed as ‘fact discovered’ and made admissible by virtue of Section 27, it would have a direct bearing on the co-accused person which is impermissible as per the law laid down by the Constitution bench in Hari Charan Kurmi’s case. 

Interpretation of Section 27 of the Evidence Act ought to be done with utmost care so that it doesn’t render Section 25 and 26 a nullity. If the position as has been laid down through Mehboob Ali is incorporated in practice, it would give unfettered power to the investigating agency to misuse Section 27. 

The appropriate approach has been enunciated by the Constitution bench in Kurmi, that although the memorandum statement of co-accused has to be considered as evidence by virtue of Section 30 of the Act, at the same time, it has to be borne in mind that it cannot be treated as substantive of evidence against a co-accused and so the prosecution cannot built its case upon the statement of a co-accused. The proper method would be to first gather other evidence against an accused, then arrive at a conclusion, and only after this the statement of co-accused can be considered to get assurance as to the propriety of the conclusion arrived. 

Tuesday, September 29, 2020

Guest Post: Indian Prisons, Workshops of Atrocity?

(This is a guest post by Vanshika Jain)

It is well recognised that the aim of criminal law is to preserve law and order in society, promote peace and punish those who violate a legally established order, which can be achieved through the establishment of a system of prohibitions, sanctions and procedures to deal fairly and appropriately with culpable conduct that causes or threatens serious harm to society. 

A punishment can be simply defined as a means of inflicting pain on the offender for transgression of law, to serve one of the purposes of retribution, deterrence, reformation or prevention, most common form being incarceration. This includes the deprivation of liberty and freedom of the offender for a certain fixed amount of time which can even extend to life and in rare cases, to death depending on the severity of offence and the individual circumstances.

The Indian Criminal Jurisprudence believes in reformation of offenders who while serving their sentences inside prisons can be cultivated into better individuals. This is essential as the person who is now inside the prison has to come out someday and if he is not reformed, he could be a greater source of troubles for the society. 

As Oscar Wilde says, ‘Every saint has a past and every sinner has a future’, a prisoner should be reformed so that he can prove to be a better citizen of this country. But is India doing enough for reforming criminals? Does the conditioning inside prisons promote rehabilitation? What are the living conditions of these people? Are their basic human rights guaranteed?

Indian prisons suffer from multitudinous problems, which can be categorised under various heads such as that of infrastructure, shortage of staff, conditions of women prisoners, violence among the inmates, security lapses which had led to jail breaks previously, health and sanitation facilities and the callous attitude of jail officials towards their responsibilities. This article would highlight the issues of under trial prisoners whose basic constitutional rights stand violated; the living conditions of women prisoners and most essentially the children who live with their incarcerated mothers inside the prisons.

Under trial prisoners languishing in Jails
In 1996, when a Delhi Police team bundled him into a car in Kathmandu, Nepal, Mohammad Ali Bhat was just 25. Bhat, who hailed from Kashmir, was working as a shawl trader in the Nepalese capital. From there, he was taken to Delhi, made an accused in the Lajpat Nagar blast case, and later taken to Rajasthan and named as an accused in the Samlethi blast case. This ensured that he spent years in jails in Delhi and Rajasthan.

On July 22, 2019, the Rajasthan High Court declared Bhat to be innocent. Found "not guilty" at 48, Bhat had lost 23 prime years of his life to prison due to India's lethargic justice delivery system.

There are hundreds of such instances which can be mentioned. Such is the plight of prisoners who are under trial and waiting for that one day when they would be judged innocent and thus justice would be served. To understand this issue, it is crucial to have a look at the recent reports of Prison Statistics India, brought out by National Crime Records Bureau in 2018. The proportion of under trial prisoners in India was almost 70% of the total number of those imprisoned, their number during the last decade increased by 25.4%. 
High proportion of under trials in the overall prison population may be the result of unnecessary arrests and ineffective legal aid during remand hearings. It is also observed that maximum number of under trial prisoners belong to a downtrodden and backward section of society who continuously struggle to make their ends meet in their daily lives. More than 65 per cent of under trial prisoners in India belong to the Scheduled Castes (SC), Scheduled Tribes (ST) and Other Backward Castes (OBC).

Greater wealth generally allows for more effective representation; it is because of their financial constraints that they fail to hire competent advocates who can successfully file and get bail for them. Even if they get bail, they are unable to afford the bail fee. While our Constitution tries to eradicate this evil by recognising ‘Right to Free Legal Aid’ as a Directive Principle of State Policy under Article 39A, the situation remains dark.

There is a gap between the number of prisoners eligible to be released and actually released, under Section 436A of the Code of Criminal Procedure 1973 (CrPC). This section allows under trials to be released on a personal bond if they have undergone half of the maximum term of imprisonment they would have faced if convicted. In 2016, out of 1,557 under trials found eligible for release under Section 436A, only 929 were released. Also, research by Amnesty India has found that prison officials are frequently unaware of this section and unwilling to apply it.

Their misery does not end here, what adds to it is the inequality which they face on account of their economic conditions. Our constitution guarantees Equality before Law under Article 14 but this is one Fundamental right which is violated the most inside prisons. In their book, Black Warrant: Confessions of a Tihar Jailer, authors Sunil Gupta and Sunetra Choudhury mention about  prisoners who are extremely rich, affluent belonging to an elite society, enjoying the same luxurious lifestyle in the prison as they would have, had they not been there. Some are real estate owners or developers, politicians and what not. While the poor, who are still under trial, many of whom might have completed their sentence if it would have been awarded still continue to suffer only because of lack of wealth or power; the wealthy ones would even travel out of the jail as and when they liked that too to different cities.

Conditions of Women Prisoners and their Children
As per the most recent data available from the report Women in Prisons published by the Ministry of Women and Child Development, Government of India, there are 4,19,623 persons in jails in India. Women constitute 4.3% of this figure, numbering a total of 17,834 women. These are the official figures. Of these, 66.8% (11,916) are under trial prisoners.

There is a lack of female staff in prisons in the country which often leads to male staff becoming responsible for female inmates. This is highly undesirable since women inmates need gender-specific services that should be provided by female staff.

According to Commonwealth Human Rights Initiative, women in some jails are not provided with sanitary napkins for which they have to buy their own, rely on their families or use a cloth. No one would be oblivious of the fact that there has been a lot of awareness about menstrual hygiene and how detrimental it is for a women's reproductive system to not to use sanitary napkins. While many girls and women in our country still cannot afford sanitary napkins, conditions of Indian women prisoners is even worse.

According to extant regulations, a child up to the age of six years can stay with his imprisoned mother. There is certainly no harm in preferring the children to stay with their mothers rather than separating them. But, at the same time one needs to keep in mind the mental state of such a child whose early years are spent inside prisons and therefore this calls for establishing recreational facilities for their social, emotional and physical well being. The impact of their mothers’ imprisonment not only affects them but also their relationship with their mothers. 

Certain steps have to be taken so that these children can easily integrate with the society and don’t feel like outsiders once they are out. A field action project conducted by the Tata Institute of Social Science revealed five major problems – firstly, the prison environment hindered the growth and development of children. Secondly, most children never experience a normal family life. Thirdly, socialising patterns got severely affected due to the prison life. Fourthly, children were unsettled due to the constant transfer from one prison to another. Finally, the children in the prison showed violent and aggressive tendencies.

The Supreme Court has laid down guidelines for the holistic development of such children in R.D. Upadhyay v. State Of A.P. & Others [2006 (4) SCALE 336] wherein it said that children living with parents in prison should not be treated as a convict or under trial. They should be entitled to food, shelter, medical facilities and other basic rights. Also, children shall be permitted to stay in the prison with their mother until the age of six. After this, they will be transferred to the surrogate of the mother’s choice or a suitable institution run by the Social Welfare Department. Such children shall be kept in protective custody either until the release of their mother or till they are old enough to earn a livelihood. The children shall be given proper education and recreational opportunities in prison. Children till the age of three shall be looked after in a day care centre, and children above the age of three shall be placed in a nursery.

Often women prisoners with children remain in jail simply because no one can provide the sureties required to release them on bail, or their terms are extended due to lackadaisical prison administration. There are few allowances, such as a separate diet or baby care items, for women imprisoned while pregnant or breastfeeding. Pregnant prisoners should be provided with the same level of health care as is provided to women not in prison, including access to obstetricians, gynaecologists if required, and midwives or birthing practitioners appropriate to their culture.

Every Cloud has a Silver Lining
Kalu Tulsiram , 35, a bespectacled, serious-looking man, brews tea at a stall near the Udaipur central bus depot. A few metres away, Deepak Lalaprasad, 33, heavier built, helms another stall, waiting for a customer. Casual passersby or customers could never guess that these two men were convicts serving life sentences under Section 302 of the Indian Penal Code of 1860, for murder.

A laudable step towards humanising prisons is the concept of Open Jails. The United Nations Standard Minimum Rules for the Treatment of Prisoners, popularly known as the Nelson Mandela Rules, laid down the objectives of open prisons stating, that such prisons provide no physical security against escape but rely on the self-discipline of the inmates, providing the conditions most favourable to the rehabilitation of carefully selected prisoners. 

According to the Rajasthan Prisoners Open Air Camp Rules, 1972, open prisons are, “prisons without walls, bars and locks.” Inmates in Rajasthan’s open prisons are free to go out of the prison after a first roll call and have to return before the allotted second roll call. The jail does not confine them completely but requires them to earn their living to support their families, living with them inside the jail. As many as 1,127 prisoners in 29 open jails in Rajasthan work as accountants, school teachers, domestic help and security guards, even those serving time for murder.

Certain prison reforms are crucial in refining the justice system
The above mentioned issues portray a sordid picture and one is compelled to ponder if prisons are ever paid attention to. Certainly not the amount it needs, majorly because the prisoners do not enjoy voting rights and hence the political class does not feel motivated enough to work in that sector. 

Borrowing words from Justice Krishna Iyer “In our world, prisons are still laboratories of torture, warehouses in which human commodities are sadistically kept and where spectrums of inmates range from driftwood juveniles to heroic dissenters”. Certain prison reforms are crucial in refining the justice system. 

'Prisons/persons detained therein' is a State subject under Entry 4 of List II of the Seventh Schedule to the Constitution of India. So administration and management of prisons is the responsibility of respective State Governments. Hence, it is high time that prisons are given high budgetary priority in the budgets for providing efficient legal aid to under trials and appointment of female staff for women prisoners. 

Regular visits of social workers, researchers and most importantly, district judges should be scheduled so that judiciary can take suo motu cognisance of those areas upon which the government has failed to work.  

Since pretrial detention has become a major source of injustice for under trials, it is high time that the access to legal aid (which is a directive principle to state policy under Article 39A) should be made a fundamental right. The Magistrates should be aware and vigilant enough of their duty of assigning a pleader for the accused at the state’s expense under Section 304(1) CrPC failing which they are liable for departmental proceedings (as was observed in Kasab v. State of Maharashtra, Criminal Appeal No. 1961 of 2011).

Above all, the aim of sending an offender to a jail is rehabilitation and ensuring that the offender can integrate with the society after his release. For this, various skill development programs should be introduced so that these prisoners can earn better. Also, wages that are paid to prisoners should be increased and be on par with global benchmarks, so that when they come out, they have some better finances. 

The inmates and jails officials should be continuously applauded and motivated for their work. The initiative of Dr. Vartika Nanda, an Indian prison reformer is worth mentioning. She has come up with the idea of awards for inmates, Tinka Tinka Awards wherein two kinds of awards are being organised. Both awards are aimed at encouraging the creative skills and humanitarian work among inmates and the jail staffs. One such award is given in 2018 to a 36-year-old murder convict, serving life imprisonment in Model jail at Burail, Chandigarh. As per Burail jail officials, Vasudev was nominated for his extremely dedicated work in the kitchen. The jail authorities said since he was convicted and brought to the prison, he had been looking after the kitchen without taking any leave, even when he fell sick.

But above all what needs to be noted is that a lot of committees have been constituted by the government for recommending prison reforms, the latest being Justice Amitava Roy Committee of 2020. There is no dearth of recommendations but what is needed is effective implementation. One committee could be set up solely for looking into the fact of how many recommendations previously given have actually been implemented and it is only then that India’s prisons could be humanised.

India has portrayed itself often as a champion of human rights causes all across the world. Alas, the dismal condition of Indian prison reflects the paradox that exists within the Indian criminal justice system itself. 

Thursday, September 17, 2020

Guest Post: Examining the Proposed Uttar Pradesh Special Security Force

(This is a guest post by Vaishnavi Prasad. Please note that the author’s analysis of the functioning of the force is based on press statements by public officials on the issue as the official state notification regarding the Uttar Pradesh Special Security Force has not yet been released. This post may be updated / supplemented once the notification is made public.)

On 13 September, the Additional Chief Secretary to the Government of Uttar Pradesh informed reporters that the State Government has given orders for the constitution of a special security force. The Uttar Pradesh Special Security Force is meant to provide security to the high court, district courts, administrative offices and buildings, metro rails, airports, banks, financial institutions, educational institutions and industrial units. However, the defining feature of this force is that it has the powers to arrest and search individuals without any warrant or the orders of a magistrate. The basis for this force is allegedly an order from the Allahabad High Court in December, 2019. In this piece, I will examine that order and the validity of such a force.

On 17 December, 2019, three men opened fire in the Court of the Chief Judicial Magistrate in Bijnor. The Allahabad High Court immediately took suo moto cognizance of this incident. The Bench recognised that this was not an isolated incident and over the past few years, similar incidents had taken place in various district judgeships. They recommended certain steps to ensure security in these district judgeships which included the following:

“(4) A specialized well-trained force be provided for the purpose of maintaining security in District Judgeships throughout the State of U.P. and whenever required, personnel from that Force may also be deployed in this Court along with existing security provided by C.R.P.F., if necessary.”

However, the Bench also stated that such recommendations are merely broad ideas and are subject to modifications and they invited suggestions from various District Bar Associations on the same. The matter of the participation of the State in the matter of security of court complexes was subsequently fixed on 20 December, 2019.

On the issue of specialised security personnel, the Allahabad High Court in its order on 20 December, 2019 stated that the Additional Chief Security (Home) must inform the Court regarding the formation of such a force via an affidavit and until such a time, an appropriate number of police personnel must be made available.

The matter was further listed to be heard on 2 January, 2020. The order includes an affidavit of compliance sworn by Sri Awanish Kumar Awasthi that stated that the State Government proposed to establish the Uttar Pradesh Special Security Force so as to maintain security of this Court at Allahabad, Lucknow, and other district judgeships. Further, the Special Security Force can be utilised for providing security of other installations and institutions, establishments or individuals notified by the state government for this purpose.

Two questions arise here: One, whether the High Court can direct the constitution of a special police force? Two, whether the present powers of the Uttar Pradesh Special Security Force are in consonance with the provisions in the Code of Criminal Procedure.

The State’s Authority to constitute a Special Police Force

The Constitution holds that Police is a subject governed by the State. The Police Act, 1861 governs the police in States such as Uttar Pradesh, Madhya Pradesh, Manipur and Nagaland. The State government shall exercise control over the police force and the superintendence of the police shall be vested in the State Government. The State Government’s executive function encompasses the creation and control of police forces. This power, to some degree, extends to police officers as well.

The Police Act, 1861 also gives police officers the authority to appoint special police-officers. Section 17 states that any police officer, not below the rank of inspector, may apply to the magistrate to appoint citizens as special police officers. Further, Section 18 specifies that these special police-officers have the same powers, privileges and protection as ordinary police officers.

The Supreme Court has established certain limitations to the State’s exercise of executive power in maintaining law and order. In Nandini Sundar and ors. v. State of Chhattisgarh, the Supreme Court discussed various aspects of the constitution and functioning of the Salwa Judum— an armed civilian vigilante group who acted as temporary police officers promoted by the Government of Chhattisgarh.  The respondent-State argued that due to the severe security issues caused by the threat of Maoist violence in Chhattisgarh, they have the executive authority to enforce law and order.

The Supreme Court held that while the State has the exclusive executive responsibility to provide security to its citizens, if it conflicts with core constitutional values such as the right to life and equality of its citizens, the Court is forced to intervene. Irrespective of the efficacy of such groups, they may not be used as a yardstick to measure constitutional permissibility. Therefore, the necessity of developing a well-trained and professional law enforcement capacity than function within the limits of constitutional action is emphasised.

Therefore, while the U.P. State Government may constitute a special police force, the members of such a force must be well-trained professionals and must operate within the boundaries of due process.

Arresting and Searching Property without a Warrant

From the perspective of a police-officer’s power to arrest, offences are broadly divided into cognizable and non-cognizable offences. Cognizable offences are those offences for which the police may arrest an individual without a warrant. This is specified in Schedule I of the CrPC. This includes offences such as kidnapping, murder, rape etc. Other offences are non-cognizable. A police officer cannot investigate a non-cognizable case without the order of a magistrate having jurisdiction over such a case. Further, a police officer has no powers of arrest without orders of a magistrate in such non-cognizable cases.

Section 41 of the Code of Criminal Procedure, 1973 provides certain circumstances where an individual may be arrested without a warrant. Section 41(1) of the Code of Criminal Procedure empowers a police official to arrest without a warrant, any person “who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned.

Clear guidelines on the police’s power to arrest without warrant has been held in Joginder Kumar v. State of UP. The Supreme Court held that no arrest can be made simply because it is lawful for the police officer to do so and the police officer must justify their arrest beyond the fact that it is lawful for them to do so.

The Third Report of the National Police Commission suggested that an arrest during the investigation of a cognizable case may be justified in certain circumstances: One, if it involves a grave offences like murder, dacoity and rape and it becomes necessary to arrest the accused; two, the accused is likely to abscond and evade the processes of the law; three, the accused is given to violent behaviour; and four, the accused is a habitual offender. However, the police officer making such an arrest must record the same in a case diary and conform to due process. An arrest may be made only if there is reasonable satisfaction of the genuineness of the complaint after some investigation and there is necessity to arrest.  

Further, if arrest is effected, the individual who is arrested is entitled to certain rights guaranteed by Article 21 and 22(1) of the Constitution. They must have a relative or friend informed of their arrest and where they have been detained. The police officer must specifically inform the arrested person of this right and record the arrest in their case diary.

The aforementioned guidelines were reaffirmed in Som Mittal v. Government of Karnataka. Both Section 2(c) and Section 41 of the CrPC state that the police officer may arrest therefore implying that they’re not bound to arrest even in cases of cognizable offences. The Supreme Court observed the trend of immediately arresting individuals accused of cognizable offences even if the situation doesn’t meet the high threshold for arrest as held in Joginder Kumar.

Interestingly, the Supreme Court in this case also noted that due to the trend of arbitrarily effecting arrests as well as there being an absence of a provision for anticipatory bail in Uttar Pradesh, there is excessive overcrowding of jails, and hardship caused to both the public and the courts.

When one examines the prospective Uttar Pradesh Special Security Force, the officers of that force may arrest an individual without a warrant merely if they have reason to believe that a crime has been committed. This is a sharp contrast to the aforementioned threshold. The power of arrest is clearly based on the nature of the offence, and demolishing this legal requirement while vesting this power in any security force is arguably illegal.

Further, the UP Government has stated that Courts may not take note of actions of employees of such a force without government permission. This immunity from prosecution is not unknown in statutes in India. However, even then, there must be a showing that duties were discharged in "good faith" — if the proposed immunity clause here goes beyond this, it is a quick step into the realm of impunity.

Law and Order in Uttar Pradesh

This prospective move is yet another nail in the coffin of due process in Uttar Pradesh. The past few years displayed a shocking trend of rise in encounter killings by police (with reportedly media being "invited") and a spike in hate crimes against marginalised groups. Further, the jails are overcrowded, the courts overburdened, and the justice delivery system remains extremely inaccessible to ordinary citizens. It’s important to understand that the creation of another security force in a State where police atrocities go largely unquestioned is only diverting focus from the real issue of enforcing due process and improving transparency in police functioning. Even in the context of crime reduction, excessive policing is a poor (and expensive) replacement to actually improving welfare, quality of life and accessibility to justice, which have proven to effectively reduce crime rates in countries.

Saturday, September 12, 2020

Guest Post: The Police Violence in JMI and AMU — What does the Law Say?

(This is a guest post co-authored by Naeemullah Azeem and Rudraksh Lakra. It is in anticipation of an upcoming report published by Citizens against Hate where the thrust of the report is upon disproportionate use of force by police and paramilitary forces in JMU and AMU, based on testimonies of more than 200 students. The report also makes a detailed legal analysis of powers governing use of force by police / other forces.)

On 15th December 2019, in response to largely peaceful protests against the Citizenship (Amendment) Act 2019, the police and paramilitary forces forcibly entered Jamia Millia Islamia University's campus and subjected students to indiscriminate violence. On the same night, a similar story played out against students at Aligarh Muslim University. They were protesting the crackdown on students of Jamia Millia Islamia. UP police and Rapid Action Force personnel entered their campus late at night and subjected protestors to lathi charge, teargas shells, stun grenades, and even bullets.

This post assesses the legality of these actions by the law enforcement agencies (LEA) against the largely peaceful and unarmed protests by Jamia Millia Islamia (JMI) and Aligarh Muslim University (AMU) students discussed above. It attempts to answer three specific questions: whether LEA’s can enter university campuses, whether they can use force against protestors, and what ought to be the magnitude of force they employ.

It has been asserted that LEA’s have the power to enter campuses and to use force to carry out arrests and to disperse unlawful assemblies. To answer the questions that follow this initial line of inquiry, this article is divided into two parts: the first section examines and analyses the power of LEA’s to effectuate an arrest, examining whether or not they can enter education institutes to do so, and if yes, then to what extent force may be used to enforce an arrest. The second section explores the power of LEA’s to disperse an unlawful assembly and explores the extent of force that can be deployed to facilitate such dispersal. The article considers India's domestic and international obligations.

It concludes that while the LEA’s did have the power to enter the JMI’s and AMU’s campus, the state’s use of violence against the students amounted to unlawful use of force.

Power of LEA’s to effectuate an Arrest
Police can forcefully enter the campus for effecting an arrest under Section 41 and Section 48 of the Criminal Procedure Code 1973 [Cr.P.C.] allows police personnel to pursue individuals without warrants into places that are not within their territorial jurisdiction. The Cr.P.C. authorises LEA’s to enter any place (Section 165, 166) or any jurisdiction (Section 48) to effect an arrest, the degree of force that may be deployed by the police to effect an arrest ought not to be to more than that is necessary to prevent the target’s escape (Section 49).

The Kerala High Court in Vijayakumar v. State Of Kerala [2004 (2) KLT 627] clarified that “students indulging in criminal activities inside the college campus are liable to be dealt with just like any other offender and if the situation warrants the police can enter the college campus without anybody's request or permission to prevent such criminal activities or to take action against persons who commit criminal offences.” However, within the same judgment, it went on to caution “considering that the college is a 'temple of learning' any action of the police inside the college campus shall, as far as possible, be with the knowledge of the Principal.” (Paragraph 9)

The Bureau of Police Research and Development, which addresses the functioning and methods of police, has also clarified that the police should “keep the head of the institution informed of visits to the campus as far as possible.” 

Therefore, although there is no legal restriction upon entering campuses under circumstances where an official is “authorised” to effect an arrest, however permission is sought as a matter of custom.

Fact Matrix Analysis
While the police could have entered the JMI and AMU campus for effectuating lawful arrests, given the sensitive situation they should have consulted with the administration before entering the campus, on how best the situation could have been handled.

Moreover, the range of police activities that were carried out on JMI and AMU campus reportedly went well beyond merely arresting students. It was reported that police had deployed arbitrary and excessive force in their dealings with the students and targeted minorities. For instance, the instances of reported use of force in the library and reading room, would appear wholly unconnected to the purpose of locating and arresting students, and so could not possibly be justified because it fell within the police's power to effectuate an arrest.

In JMI, it was reported that over 1000 police and paramilitary forces were present; surely not all of them could have been positioned to arrest students. Therefore, the power of the police to effect an arrest cannot be used to legitimise the range of the LEA’s activities on these campuses.

While the lawfulness of the arrest can only be determined on a case to case basis, on the face of it, a case could be made that the force use by the police to effectuate arrests was illegitimate, as the force employed was not limited to the extent that would have been necessary to prevent suspects from escaping. PUDR’s fact-finding report concluded that the police used force to inflict “maximum damage,” and the force was deployed for reasons entirely unconnected to the object of arresting students, for instance, forces engaged, in the destruction of property of students and other residents vehicles in and around JMI, of window panes, of CCTV cameras, and library property.

Power of LEA’s to use force to disperse an Unlawful Assembly

Indian Law
Cr.P.C. Sections 129 and 130-131 encapsulate the powers of police and armed forces to use force to disperse an unlawful assembly. The Cr.P.C. does not place any territorial-jurisdictional limitation to the power of the police or armed forces under the sections, and therefore, it follows that they can even enter educational institutes.

The Supreme Court in Karam Singh v. Hardayal Singh [1979 Cri. L.J. 1211] noted an assembly being unlawful will not by itself warrant the use of force, the object of the unlawful assembly must be to commit violence or breach of peace, and it must be likely to commit violence or breach of peace (Paragraph 6).

The term “breach of peace” may be better understood by referring to SC’s articulation of the term public order, this is supported by the fact that Section 129 is placed within the chapter titled “[m]maintenance of public order and tranquility.” In Ram Manohar Lohia [AIR 1966 SC 740], the Supreme Court gave us the concentric circles logic for understanding the overlapping concepts of "law and order", "public order", and "security of the state" — law and order is the widest, public order narrower, and state security the narrowest (Paragraph 55). 

Therefore, for the use of force under Section 129 the object of the assembly, must be to carry out an act which rises to the level of disturbance to the public order – the public peace, safety, and tranquility in the society and such an act must be likely; consequently, a mere infraction of the law, would not invoke Section 129 CrPC.

Amount/Quantum/Extent of Force?
Section 130(3) of the Cr.P.C. indicates that “as little force as possible” is to be used by armed forces while dispersing an unlawful gathering. This section is indicative that even LEA’s are required to use “as little force as possible.”

In Anita Thakur v. Union of India [2016 SCC OnLine SC 814], the Supreme Court noted that the police's use of force in response to an unlawful assembly has to be reasonable and cannot be over the limit required to control and disperse the crowd. Even in a case where the protesters pelted stones at the Police, the Court held that the police’s use of force surpassed what was required to control the situation and amounted to a violation of human rights and human dignity (Paragraph 17-18). The same Court unequivocally noted in Ramlila Maidan Incident v. Home Secretary [(2012) 5 SCC 1] that the disciplinary action ought to be taken against those police officers who indulged in lathi charging, brick battling, and “excessive use of tear gas shells upon the crowd” and stated that these actions had “an element of criminality” (Paragraph 286.17(a)).

This is also found in Delhi Police Standing Order 72, which notes that the least force possible is to be employed.

Guidance is further provided by the Model Conduct Code for the Police (1961) and the Model Rules on the Use of Force by Police against Unlawful Crowds (1964), which state that minimum force necessary is to be employed to achieve the desired object, with the latter specifically stating that the object of use of force must not be punitive or repressive. These guidelines have been cited with approval in P. V. Kapoor v. Union of India [1992 Cri. L.J. 128] (Paragraph 35) [and the latter with approval in Anita Thakur (supra)]. In P.V. Kapoor, the Delhi High Court noted that “in maintaining order, the police should use the method of persuasion, advice, and warning” and only on the failure of these methods, the absolute minimum force employed as required in the situation (Paragraph 34-35).

Thus, force used under Section 129 of the CrPC should strictly be limited to what is strictly necessary to disperse the crowd, must halt once the crowd starts to disperse, and must not be deployed for punitive or other such purposes.

International Law
Basic Principles on the Use of Force and Firearms by Law Enforcement Officials [BPUFF], and the Code of Conduct for Law Enforcement Officials [CCLEO] are authoritative laws regulating the use of force by LEA’s and many of their principles are part of customary international law [CIL].

BPUFF’s principles are part of customary international law as recognised by the European Court of Human Rights in the Benzer v. Turkey (2013) (Paragraph 90) and by the Inter-American Court of Human Rights in Cruz S├ínchez et al v. Peru (2015) (Paragraph 264). Principle 5 states that the exercise of force should be proportionate to the seriousness of offence; Principle 13 states the force employed to disperse an unlawful assembly should be to the minimum extent possible, and principle 14 states that legal force should be the last resort.

Fact Matrix Analysis
Indian legislation, judicial decisions, and its international obligations, therefore, require LEA’s to exercise minimal proportional force to be used to disperse an unlawful assembly, and once the crowd starts to disperse, the use of force must stop, and the object of force employed should not be punitive. Moreover, force should only be employed where the object of the unlawful assembly is causing violence or breach of peace (or likely to do so).

Consequently, we argue that the use of force in JMI and AMU was excessive and unlawful. On 15th December 2019, a protest was organised by the JMI body crossed the JMI campus, and started walking toward Mathura road. It was at this point that the police started lathi charging and used tear gas because of which the crowd started dispersing, running towards the campus. Even if the assembly was unlawful, Section 129 could not authorise the use force, as the majority of these protestors were unarmed and peacefully protesting, and therefore is nothing to suggest the object of the protectors was to cause violence or breach of peace and that they were likely to.

Assuming the invocation of Section 129 was lawful when the assembly was marching towards Mathura road, even then force employed should have halted as and when the police were successful in dispersing the crowd which was heading back to the campus.

Lastly, even if the police claim that entry into the campus was important for dispersing the crowd and finding out who was pelting stones is accepted, the force used inside the campus remained vastly disproportionate to the extent required, lending itself an element of criminality [Ramlila Maidan (supra)].

The LEA’s use force only was not restricted to only those who were allegedly throwing stones; they “were certainly not being thrown by students in the reading room and library, the washrooms that they had to be gassed out or from the History and Urdu departments which were vandalized by the police.” The police targeted individual students and used force which was intended to brutalise and not merely to disperse the crowd. Islamophobic and targeted slurs were used against students indicating the action was punitive, targeted, and reprehensible.

In AMU, reports suggest that the actions of police were similar to those undertaken by them in JMI. The police arrived to disperse a crowd protesting at Bab-e-Syed​ and used non-lethal force including tear gas shells, rubber bullets, stun grenades, pellets, and other kinds of explosives into the crowd inside the gate. The crowd, at this point, reportedly began to disperse, which means that there was no need for further use of force. Despite this, LEA searched the campus to target student, the “nearby buildings such as Guesthouse No. 2 and 3 along with the mosques were raided by police and RAF and all the unarmed students (estimated 12-15) were heavily lathi-charged.

A fact-finding report shows that in Morrison Boys’ Hostel, AMU, soldiers beat up guards and fired teargas into the rooms of the students to smoke them out, and one of the rooms caught on fire. Doctors from the university medical college rushed more than ten ambulances to pick up the injured students, but the soldiers refused to allow them to rescue the students, and even broke the bones of one ambulance driver. As in the JMI incident, the kind of force reportedly used was disproportionate, targeted, and was employed to penalise and brutalise minorities.

The LEA’s and paramilitary forces did have the power to enter the campuses of JMI and AMU, however, the extent of use of violence against JMI and AMU students was disproportional and was unlawful. In our opinion, such use force of force was not towards securing a lawful object, but rather the purpose was something else entirely — an attempt to subjugate minorities and to suppress dissent from resilient and autonomous educational institutes, by sheer coercive action, in complete disregard for rule of law.

[This post was updated at 12 PM on 12.09.2020 to add details to the introduction and correct a typographical error regarding the date of incident]