Guest Post: The Penetration Paradigm and Inadequacies in India's Non-Penetrative Sexual Offence Law

(This is a guest post by Khushi Agarwal)

In India, sexual offences against women are broadly categorised into penetrative and non-penetrative acts. The former comes under the purview of Section 63 of the Bharatiya Nyaya Sanhita 2023 (“BNS”) dealing with rape whereas all other non-penetrative sexual acts are mostly brought under Section 74 dealing with indecent assault. Such binary classification often results in acts preceding penetration being prosecuted under Section 74 and are rarely categorised as an attempt to rape. The legal distinction between these provisions creates a disparity in the quantum of punishment awarded and calls for a deeper examination of the relevance of the penetration standard which distinguishes the two. By centring the definition of rape around penetration, does the BNS sufficiently address the gravity of other sexual offences which are non-penetrative in nature in terms of punishment? Can sexual activity be interpreted solely through the lens of penetration?

This post attempts to answer the questions posed above. To that end, I argue that the penetration standard is phallocentric in nature due to which it is problematic for deciding the severity of non-penetrative sexual offences. As a result, non-penetrative offences broadly get classified under any of the lesser offences. This argument, however, does not imply that the distinction should be abolished altogether. Its larger purpose is to show that the penetration standard is insufficient for determining the gravity of non-penetrative sexual offences.

The Penetration Standard and its Relevance in Non-Penetrative Sexual Offences

‘Grabbing the breasts of a minor girl, breaking the string of her pyjama and trying to drag her beneath a culvert would not come under the offence of rape or an attempt to rape.’ Anjale Patel v. Union of India |Diary No. 15118-2025 (Supreme Court of India – 24 March 2025).

‘Removing Girl's Innerwear, Undressing Oneself Not 'Attempt to Rape' But Indecent Assault’ Suwalal v. State of Rajasthan | S.B. Criminal Appeal No. 272/1991 (Rajasthan High Court – 9 June 2024).

If such actions do not amount to ‘attempt to rape,’ then what does? These rulings display the inclination towards the penetration test in the Indian legal system, while adjudicating over non-penetrative sexual violence. The judicial ambiguity surrounding the two offences primarily arises due to a broad classification of sexual offences as penetrative or non-penetrative in India. This raises questions about the relevance of penetration as a standard for distinction in sexual offences.

Notwithstanding anal, oral or urethral penetration, several jurisdictions, including India, refer to the vagina as the female sex organ. As a result, the penetration requirement is not fulfilled in certain acts such as those involving contact with the clitoris by the penis because of which the offender is charged under any of the lesser offences. For a woman, physical contact of her genitalia, or clitoris or sex organ(s) by the penis or any other object is a grave violation of her sexual autonomy and can be considered to be as violative as the penetration of her vagina. It constitutes a bodily invasion of a substantial privacy interest but due to the prevalence of the penetration standard, it is trivialised and not viewed as a grave offence. The idea that sexual intercourse necessarily involves some form of penetration, preferably penile, is an inherently male concept linked to male pleasure which has severe repercussions when viewed from a socio-legal perspective.

Presently, to constitute serious sexual violations means to engage in such conduct (such as penetration of vagina) which meets masculinist understandings of sexual intercourse. This implies that other sexual acts such as touching a woman's labia majoria or fondling breasts would constitute a lesser offence, though the acts are no less invasive or violative than penetration. It reflects a phallocentric bias as subjecting a victim to overtly sexual acts, penetrative or not, immensely violates the autonomy of an individual to determine who she wishes to engage in sexual interactions with and to what extent. It is here where the feminist perspective on the penetration standard gains importance and calls for a better legislation which addresses these gaps, especially when it comes to non-penetrative criminal acts.

Attempt to Rape and its conflation with Indecent Assault

It is due to insufficiency of the penetration standard that there have been overlaps in application of Section 64 r/w Section 62 BNS, dealing with attempt to rape, and Section 74 BNS. Where the actus reus of penetration is intervened before the actual commission takes place, there is a dilemma – will the antecedent acts come under the ambit of Section 64/62 or Section 74?

To answer this, it is important to understand the constituent elements of the two offences. The primary focus of Section 74 lies in “outraging the modesty of a woman” due to which questions as to which acts constitute a violation of woman’s modesty arise. In Keshab Padhan, the High Court laid out the test for application of Section 354 IPC (now Section 74 BNS) wherein it stated that culpability depends on whether a reasonable man would have thought that the act would likely outrage the modesty of a woman. However, such a broad test raises question regarding its application ranging from relatively minor offences to extremely serious incidents. It calls for altering the focus of the offence from notions of “modesty” to violation of sexual autonomy and for reorganising the provision in varying degrees of severity. “Modesty” becomes an archaic term which is unable to inculcate relatively serious offences which deeply violate a woman’s sexual autonomy.

An attempt under Section 64 or 62 BNS would refer to the intent of committing rape, combined with an act committed in furtherance of that intent which fell short of the actual commission of such offence. Often, the underlying principle for categorising acts under indecent assault and not attempts is that acts of the accused qualify under the ‘preparatory stage’. Preparation involves arranging the means essential for commission of the offence; attempt is the direct step towards the actus reus of the offence after the preparations are over. Indian courts have repeatedly held that the act(s) may not be the penultimate act to qualify as an attempt; but acts precedent which have been done with the objective of the completion of the offence also come under the scope of attempt. Hence, it is sufficient that the acts were reasonably proximate to the offence or if not prevented, would have resulted in the full consummation of the act attempted.

In Niranjan Singh, the accused undressed the victim, made her lie on the floor and proceeded towards penetration when he was caught. Applying Venkat Rao to the facts at hand, a clear case of attempt was made out — the accused’s acts had clearly gone beyond the preparatory stage and if someone had not intervened, it would lead to commission of the offence of rape, satisfying the test(s) laid out above. However, despite commission of such proximate acts, the Court ruled that since the accused had not tried to forcibly penetrate the victim, (which would otherwise have been the penultimate act for rape) ingredients of Section 376 IPC (now Section 64 BNS) were lacking and thus, it was not an attempt. This highlights an inconsistent stance and the courts’ inclination towards the penultimate act (i.e. penetration) test while determining culpability for an attempt to rape. It underlines the ambiguity surrounding an attempt to rape: Should an attempt to rape necessarily centre around an attempt to penetrate? If it is penetration, the slightest penetration would amount to rape and not attempt, if not then it is mostly brought under Section 354 IPC (Section 74 BNS). The court's reliance on penetration as the defining factor effectively downplays severity of near-identical acts preceding penetration in cases of both rape and indecent assault. Right to bodily autonomy is violated regardless of penetration due to which penetration as the sole defining factor for severity is insufficient. Thus, centring attempts around penetration leads to a grey area whereby courts are unclear about acts which sufficiently convey an attempt to penetrate to bring a charge under Section 376/511 IPC.

Case in point is Tarkeshwar Sahu, where the accused had taken a minor to his gumti for committing illicit sexual intercourse but had failed in the attempt because of the alarm raised by the victim. The Supreme Court decided that since the accused had not undressed himself or the victim, his acts came under the preparation stage whereas in Niranjan Singh, the accused had done so yet his acts came under the ambit of preparation and not attempt. Such contradictions signify the egregious approach taken by courts when it comes to non-penetrative sexual acts. The accused’s attempt to penetrate becomes the sole determining factor for distinguishing the two. An attempt to penetrate becomes an attempt to rape, thereby overlooking other aspects of the crime. Due to a high standard of penetration, victims are often unable to discharge the high burden of proof which results in comparatively minor consequences for severe offences. These cases are mere instances in a broad trend of troubling leniency in cases of non-penetrative sexual offences.

Conclusion

Therefore, reliance on penetration as a decisive factor creates ambiguity in determining the severity of non-penetrative sexual acts, often leading to lenient punishments for serious offences which would otherwise amount to attempt. This ambiguity not only undermines the victim's pursuit of justice but also creates loopholes for offenders to evade harsher consequences. From a victim’s point of view, penetration may not be the essence of sexual violence. While penetration is also harmful, it should not be the only defining criteria for imposing a harsher punishment and the standard should be in line with the severity of the accused’s actions. The sharp distinction between penetrative and non-penetrative offences overlooks the severity of violations of sexual autonomy and highlights a masculine outlook towards sexual offences which is inadequate in addressing trauma faced by victims. The law in its present form fails to acknowledge the gravity of non-penetrative acts of sexual violence and abuse. It calls for better understanding of sexual violence to not term actions under Section 62/64 BNS to be constituting violations of Section 74 BNS. This would ensure a fairer and a more correct application of the law while better addressing the gravity of non-penetrative sexual crimes.

Guest Post: Criminal Law and Linguistic Majoritarianism

(This is a guest post by Bhushan Raut)

India is home to over 22 constitutionally recognised languages and hundred other dialects. The ability to co-exist in differences is not just a cultural imperative rather a constitutional mandate. The last few months have witnessed a rise in linguistic discrimination especially in the states of Karnataka and Maharashtra. Recently a video surfaced where an SBI employee was harassed by a local Kannada speaker for not talking to him in Kannada. Similar incidents have surfaced in Maharashtra where a native Marathi speaker was seen forcing a non-Marathi speaker to talk in Marathi and questioning their legitimacy to inhabit the state without the knowledge of the native language. Multiple incidences on such lines have surfaced over social media. Such linguistic majoritarianism leaves a deep and unsettling scar on the foundational ideas of the Indian Constitution, particularly pluralism, equality, and unity in diversity.

This article examines the intersection of constitutional and criminal law in addressing linguistic discrimination and coercion in India. While the Constitution lays down foundational rights—such as the freedom of speech, expression, movement, and residence—it is the criminal law that enforces these guarantees when they are threatened or violated. In particular, this piece focuses on how the Bhartiya Nyaya Sanhita 2023 (BNS) penalizes acts of linguistic harassment, intimidation, and the promotion of enmity on the basis of language. Can a State or its people lawfully condition a citizen’s right to reside or work on linguistic conformity? What specific offences under the BNS apply when individuals attempt to enforce such conformity through threats or public hostility? And what remedies exist to protect linguistic freedom and preserve public harmony? These are the key questions this article explores.

Language and Identity in Indian Constitutional Framework

As per the Constitution of India, it does not have any National Language. Although under Article 343 read with the Official Languages Act, 1963 it does provide for Hindi and English as the official languages of the Union. For States, under Article 345 the state legislatures can adopt or use any one or more as official languages of the State for ‘official purposes of the State’ which means it be imposed upon individuals in private or social spheres. This distinction allows us to carve out two spheres for languages. First is the Official or Public-Facing Sphere which includes government offices, public sector undertakings (PSUs) like banks, and other institutions that provide public services. In these contexts, it is reasonable—if not essential—that public-facing employees be conversant in the state’s official language(s) to effectively serve local populations. The obligation here lies with the state to ensure accessibility and communication in the official language for the benefit of its citizens. The second sphere is the Private or Personal Sphere which includes individual daily life, private interactions, and non-governmental spaces where people interact socially or commercially. Here, knowledge of the state’s official language is not obligatory. The Constitution does not—and cannot—mandate linguistic conformity in personal spaces. To do so would violate fundamental rights as we will see in the next section.

Violation of Constitutional Rights

Coming to the rights of the individual citizens, Article 19(1)(a) provides freedom of speech and expression to every citizen. It is not confined to any particular language, be it the 22 languages in the Eighth Schedule to the Constitution or any official language. The freedom of speech and expression can be restricted by the State under article 19(2) on eight grounds which are security of the state, friendly relations with foreign states, defamation, incitement to an offence, public order, decency or morality, contempt of Court and sovereignty and integrity of India.

Moreover, there is a negative right i.e. the right not to be compelled to speak in a particular language. The US Supreme court in West Virgina Board of Education v. Barnette held that compelled speech is just as much a violation of free speech as prevented speech. Similarly, in Bijoe Immanuel v. State of Kerala the Supreme Court of India held that not being forced to sing the national anthem was protected under Article 19(1)(a). Therefore, let alone private individuals, even the State cannot impose conditions requiring the use of a specific language in personal or private spaces.

Apart from the freedom of speech and expression, Article 19(1)(d) and (e) guarantees every citizen a right to move freely, reside and settle in any part of India. The only restrictions the State can impose are identified under Article 19(5) which include the “interest of general public” or “protection of the interest of any scheduled tribe.” A citizen does not need a certificate of proficiency of the local language to move freely or reside in part of the country. Therefore any coercion to demand that persons must speak a regional language to freely reside in an area is a clear infringement of the fundamental rights guaranteed under Article 19(1)(d) and (e).

Article 29(1) explicitly guarantees the right of any section of citizens to conserve their distinct language, script, or culture. The use of ‘conserve’ implies not only the freedom to preserve and practice one’s linguistic identity but also a corresponding freedom from being compelled to abandon or suppress it. Therefore, any act—whether by the State or by private individuals—that seeks to forcibly impose a dominant regional language upon individuals who do not natively speak it constitutes a violation of the spirit and text of Article 29(1).

In addition to this it is the fundamental duty of every citizen under Article 51(e) “to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic, and regional or sectional diversities…”

Criminal Remedies against Linguistic Harassment

This brings us to the next question – what remedies does a citizen have against such linguistic harassment? There is arguably a positive obligation on the State to prevent private persons from violating fundamental rights through coercion. It may choose to deliver upon this obligation in a multitude of hitherto undecided ways. But while it does so, one avenue for state-based action already exists in the form of India’s criminal law. While the constitutional guarantees establish a right to linguistic freedom, the criminal law that secures their protection. And the harms that are visited by coercion necessarily lead us into the field of criminal law.

Under the BNS a series of provisions directly address the acts of linguistic harassment, coercion and criminal intimidation which are discussed below. Section 196 BNS, a person who promotes enmity between different groups on grounds of language and doing acts prejudicial to the maintenance of harmony is punished with an imprisonment of up to three years, or with fine or with both. The offence is cognizable, non-bailable and non-compoundable. Section 196 is analogous to Section 153-A of the Indian Penal Code 1860 (IPC), but it explicitly extends to acts committed through electronic communication, thereby including offensive social media posts, viral videos, or messages that attempt to stir linguistic discord. For an offence under Section 196 two essential ingredients must be established. First, is the presence of two groups or communities [See, Bilal Ahmed Kaloo v. State of AP]. Second, prosecution must show that the accused acted with a deliberate intention to promote enmity or disturb public peace and it was not a careless or incident remark [See, Trustees of Safdar Hashmi Memorial Trust v. Govt of NCT Delhi; Balwant Singh v. State of Punjab]. In addition to this, the Supreme Court held in Azizul Haq Kausar Naquvi and Anr. v. State that criminality is not attached to words used rather to the manner in which they are used. It further held that “If the words spoken or written are couched in temperate, dignified, and mild language, and do not have the tendency to: insult the feelings or the deepest religious convictions of any section of the people, penal consequences do not follow.” The standard for assessing impact is that of a reasonable, strong-minded, firm, and courageous person, not that of one with weak or overly sensitive disposition, nor someone who perceives hostility in every dissenting view. The “reasonable person” test was affirmed in Ramesh Chotalal Dalal v. UOI, wherein the Court approved observations in Bhagwati Charan Shukla v. Provincial Government, likened to the well-established English law standard of “the man on the Clapham omnibus.” In addition to Section 196, Section 353(2) of BNS—earlier 505(2) of IPC—makes it a crime to make, publish or circulate any statement including electronic means which is likely to create or promote feelings of enmity hatred or ill will between different linguistic groups.

In the recent past, incidents in Maharashtra and Karnataka vividly illustrated behaviour that fits within the scope of Sections 196 and 353 (2) of the BNS. For example, a video went viral where a Marathi customer threatened a non-Marathi shopkeeper to learn Marathi and warned that “If you don’t learn Marathi, I’ll close your shop in two weeks.” Then in another instance a Kannada speaking bus conductor was assaulted in Belagavi as he couldn’t speak to a passenger in Marathi. This linguistic chauvinism forced suspension of interstate bus services between Maharashtra and Karnataka. In another incident a video went viral of a heated argument between a man and an autorickshaw driver where the commuter was aggressively insisting that an autorickshaw driver converse in Hindi rather than Kannada.

There are two different groups: on one side are the native language speakers (Marathi speakers in Maharashtra, Kannada speakers in Karnataka) who assert a regional linguistic identity, and on the other are the migrant or non-native language speakers (such as Hindi-speaking or non-Kannada-speaking individuals). The incidents reflect an explicit ‘us versus them’ narrative based on language difference—a textbook case of inter-group division. Secondly, the behaviour of the aggressors leaves little doubt about their intent. A “reasonable man” can clearly identify the threatening nature of their words—such as demanding that non-natives “speak Marathi or leave” or warning that a shop “will be shut down if you don’t learn the local language”—goes far beyond casual or incidental remarks. The anger, coercion, and public humiliation evident in these threats strongly suggest a deliberate design to subordinate or expel those who do not conform linguistically, fostering hostility between the two groups. Thirdly, the manner in which these threats are delivered amplifies the gravity of the issue. These are not private disagreements or isolated exchanges; rather, they occur in public and commercial spaces and are made in an aggressive and demeaning manner, belittling a non-native speaker before onlookers and underscoring a deliberate attempt to disturb societal harmony. In most of the cases the aggressors themselves filmed confrontations and shared them on social media, amplifying the message of exclusion and hostility beyond the immediate scene. Importantly, liability under this provision extends not just to the original offenders but also to those who forward or circulate such content, as they too contribute to promoting enmity between linguistic groups and risking public disorder.

Conclusion

These incidents of linguistic coercion are not just random isolated events, they represent a deeper problem of intolerance where language is being used as a weapon to shame, threaten and exclude. There is a crucial difference between celebrating and promoting language—which is every community’s right—and bullying or intimidating others for not speaking it, which is not only socially damaging but criminal. To conclude, Language, like culture, is not meant to divide but to connect. We don’t need a single tongue to be united — we need mutual respect.

Guest Post: LIberty 'Defaulted' — The Unraveling of Section 167(2) in Our Lower Courts

(This is a guest post by Raunaq Jaiswal and Eesha Mohapatra. Views are personal)

That procedure is the handmaiden of justice, and any interpretation of a rule of procedure which eludes substantive justice is not to be followed is a now well settled principle of law. Procedural Law can never be a tyrant. So naturally, when a person is arrested on mere suspicion, procedure dictates they have to be produced before a magistrate. But when the handmaiden of justice metamorphosizes into a tyrant, it is difficult to tell, because understanding procedure and applying it to do substantive ‘justice’ is easier said than done. Procedure was arguably there as a letter of law when ADM Jabalpur is being decided, yet justice is arguably not. When procedure is a handmaiden, and when it is a tyrant is definitely a case of blurred lines.

One such statutory provision which encapsulates this blurring of line is Section 167(2) of the Code of Criminal Procedure, 1973. This provision encapsulates one of the most important handmaidens of justice—the procedure for ‘default bail’. The procedure for default bail sits uncomfortably with the principle of presumption of innocence to begin with, but both these procedures are meant to serve the dialectics of Lady Justice. It sits at odds with the principle of presumption of innocence because a strict reading of the principle would iterate that an accused person should not be spending even a day behind the bars as this would be an unconscionable interfere with their guarantee of presumption of innocence. This balance between the State’s duty to protect, against the individual’s right to liberty has not always been there, and it arguably took a state of emergency for the Government to reform the law of pre-trial detention.

Consider if such a procedure is allowed to be circumvented, as in the case of Mantoo Majumdar [AIR 1980 SC 487] — where Justice Krishna Iyer famously wrote that Art. 21 of the Constitution and s. 167(2) of the Criminal Procedure Code, are dead letter for each petitioner, two people who were kept behind the bars for nearly eight years. Their personal liberty was “subverted by the police, prison officials and the magistracy…[and the] State did not even furnish the basic facts about the imprisonment of the petitioners, the offences for which they were kept in judicial custody…”. 

If what happened in Mantoo Majumdar continues to happen today, then a person may be accused of a crime and subsequently arrested on mere suspicion—and procedures such as investigation and chargesheet are not submitted on time, then the accused person’s liberty are abrogated indefinitely, i.e., a person is assumed to be guilty without being tried.

Liberty after Mantoo Majumdar

Mantoo Majumdar’s case could very well have been our own ‘never again’ moment, and we should have had better procedural safeguards against abuse of government machinery then and there. However, as a recent report published in this forum would indicate, that has not been the case. In theory at least, the rule of default bail imbibes a sense of necessity and urgency on the investigating officers to finish an investigation on time—which may result in a person being in custody (read behind the bars) for 60/90-day period on basically a mere assertion by the police—and if during this time the investigating officers cannot file the chargesheet, then the procedure dictates that after the 60/90-day period is over, and the chargesheet has not been filed, the accused person should be give default bail.

In practice, this simple rule has encountered quite a few interpretative difficulties, and different benches of the Supreme Court have added some variations to its interpretation over time. Illustratively, these relate to the matter and form of interpretation—relating to the principles for the computation of time in the 60/90-day clause; the meaning of ‘chargesheet’ and so forth. The point to note here is that a simple procedural rule, meant to aid justice has been made difficult in practice. Sanjay Dutt’s case (1994) had sought to rectify these muddied waters of the procedure to obtain default bail. They held that the accused’s right to default bail is indefeasible, and an accused can avail their right of default bail, if the investigating officers have not filed charge sheet (challan) before the end of the 60/90-day period. If they have filed the chargesheet by this period, then the accused can apply for other kinds of bail as per the CrPC.

The true meaning of “availed off” in Sanjay Dutt was the next ground of contestation. These lead us to some specific instances where the investigating agencies are filing the chargesheet at the very last moment of the 60/90-day period—and the contention of the public prosecutor in these circumstances is that since the chargesheet has been filed, it should have more weight than the application to enlarge the accused on default bail. In Uday Mohanlal Acharya, the Supreme Court had to adjudicate in one such case. In this matter, the Court held that the expression “if not already availed of… must be understood to mean…when the accused files an application and is prepared to offer bail on being directed.” It is however from the dissenting opinion of Justice Agarwal in Uday Mohanlal Acharya that a small lacuna in interpretation is created. Justice Agarwal suggests that Sanjay Dutt’s ‘if not availed off’ should be interpreted to connote “that if the challan is filed before any order directing release on bail is passed and before the bail bonds are furnished, the right under Section 167(2) would cease to be available to the accused”.

On a plain reading of the dissent, the personal liberty of an accused could be constrained beyond the 60/90-day period if a magistrate, for example, had not heard the default bail even on the 97th day, and in the meanwhile, a chargesheet has subsequently been filed. What is important to note in Justice Agarwal’s dissent is the constraining effect it would have on personal liberty of the construct of procedure is the handmaiden of justice, and it is meant to serve substantive justice. This dissenting opinion, based on a personal liberty constraining interpretation, was impliedly accepted by the Court in Pragyna Thakur (2011). By accepting this proposition, Pragyna Thakur’s ratio automatically came in conflict with Sanjay Dutt’s ratio.

Overturning Liberty Through a Flawed Precedent

The flawed interpretation of default bail procedure in Pragnya Thakur persisted for nearly a decade, during which numerous courts denied default bail to accused persons, relying on the incorrect reasoning (of the Pragyna Thakur ruling). In the meantime, another two-judge bench of the Supreme Court in Union of India v. Nirala Yadav (2014) had observed that the law laid down in Pragnya Thakur was incorrect and bad. However, it wasn’t until 2020, when a three-judge bench in the case of M. Ravindran v. Intelligence Officer, DRI, rectified this error and declared the Pragyna Thakur decision to be per incuriam, reaffirming the legal position established in Sanjay Dutt: that once the 60/90-day period for filing the chargesheet expires, the accused’s right to default bail becomes automatic, and the subsequent filing of the chargesheet does not invalidate this right.

However, despite the Supreme Court’s clear ruling in Ravindran, this correction has not fully permeated the district judiciary which continues to apply the erroneous Pragyna Thakur interpretation, thus creating a significant gap between Supreme Court doctrine and the trial court practice. This has resulted in denial of default bail unjustly leading to prolonged incarceration of individuals who should have been granted bail as a matter of right.

For instance, the Guwahati Hight Court in 2021 and various other district courts across the nation such as the Additional Sessions Judge, Bombay (2021), Chief Judicial Magistrate, Prayagraj (2022), the Judicial Magistrate, Allahabad (2022) appear to have denied default bail to the accused persons relying on Pragnya Thakur. This troubling pattern indicates that despite clear and authoritative guidance on the correct interpretation from the Supreme Court, lower courts are either unaware of per incuriam rulings or choose to disregard the careful application of the applicable legal precedents. To wit, the rule has been that procedure is the handmaiden of justice. Here there is a clear pattern where the ends of substantive justice are being defeated by procedure.

This brings us to an important problem which currently overwhelms the Indian Supreme Court, namely how their judicial opinions are not percolating down to the district court level again. Previously in Shreya Singhal (2015), the Supreme Court had held Section 66-A of the IT Act to be unconstitutional—only to find later that fresh cases were still being instituted under the said unconstitutional statute. These cases were essentially being filed and argued in ignorance of the law laid down in Shreya Singhal. In a similar fashion, the Supreme Court had held a part of Pragyna Thakur to be per incuriam—but we saw a similar pattern of misapplication emerging again.

This misapplication creates inconsistency, uncertainty and catalyses the metamorphosis of handmaiden of justice into tyrannical deprivation of the accused person’s liberty beyond the procedure established by law. Resultantly, we have a paradoxical bail jurisprudence—where the right to obtain default bail has been iterated to be a part of right to life under art. 21, yet the procedure to obtain default bail has been made a marketplace of uncertainty.

Where Do We Go from Here?

In a country like India, where the judicial process is often slow and cases can drag on for years, the denial of default bail can mean years of imprisonment without trial. This attacks the very essence of justice, as individuals who have not yet been proven guilty are effectively punished by the system. The persistence of this issue raises a fundamental question: where do individuals turn when the courts themselves are responsible for perpetuating injustice? Not every accused has the resource or the privilege to approach the top court when the lower courts fail to uphold their indefeasible right to bail. It is hardly a surprise that the plaintiffs in most authoritative bail cases are what one would term as elites, who have employed the legal doyens of the day. Not everyone has the privilege to do that.

This issue certainly calls for internal introspection, and stronger mechanisms of judicial accountability, especially in cases where personal liberty is at stake; and ideally greater efforts to ensure that Supreme Court rulings are uniformly applied across the country. One potential solution is for the Supreme Court to take a more proactive role in monitoring the implementation of its rulings through a judicial audits. This could involve issuing specific directives to lower courts or creating mechanisms for reviewing cases where lower courts are found to be applying outdated or incorrect precedents. Additionally, the National Judicial Academy as well as all State Judicial Academies through regular training of judges at all levels shall ensure that they are aware and updated of the recent Supreme Court rulings. It is as bleak a situation as it gets for a person who is accused of an offence. However, we hope that we may have our ‘never again’ moment soon, and hopefully, the future generations may not have to encounter a matter like Mantoo Majumdar or ADM Jabalpur.

Guest Post: A Battle Between Bail and Silence — Comparing Section 45 PMLA with US Pre-Trial Prosecutorial Discovery

(This is a guest post)

The present post analyses the constitutionality of restrictive bail conditions in the Indian anti money laundering law from the perspective of the right against self-incrimination. Section 45 of the Prevention of Money Laundering Act, 2002 (“PMLA”) imposes twin conditions that an accused must meet to secure bail: (i) satisfy a court that there are “reasonable grounds to believe” that the accused is “not guilty of the offence”, and (ii) that the accused is unlikely to commit any further offences while on bail. By way of background, the Indian Supreme Court dismissed a challenge to Section 45, PMLA in Vijay Madanlal Choudhary v. Union of India. Petitions seeking a review of the judgment are pending). However, neither the original judgment nor grounds taken in the review petition sufficiently discuss the interplay between Section 45, PMLA, and the right against self-incrimination.

This post employs a comparative analysis of case law pertaining to pre-trial prosecutorial discovery rules in criminal cases in the United States to explore the intersection between Section 45, PMLA, and the right against self-incrimination.

Hypothetical Scenario: The Conflict Between Self-Incrimination and Disclosure of Material During a Bail Hearing

Imagine an accused is facing charges of money laundering, with one of the key allegations being that they received the proceeds of a crime from person X at location Y on a specific date. Aware that they must provide prima facie evidence of innocence to secure bail, the accused submits an affidavit to the court asserting that their mobile phone’s GPS data places them far from location Y at the relevant time. In response to this assertion, the prosecution requests the accused’s phone password to verify the accuracy of the GPS data. Apprehensive that failure to comply with this request could result in their bail application being denied, the accused agrees to provide the password to unlock the phone voluntarily.

Upon inspection, the prosecution confirms accuracy of the GPS data, but in the process, examines other files and data on the phone, discovering additional incriminating material that they were not aware of. The prosecution subsequently submits a counter-affidavit, which includes this newly discovered material. In response, the accused argues that this material should not be taken into consideration, asserting that it was obtained through their compelled disclosure and is therefore subject to the protections afforded by the right against self-incrimination. The prosecution argues that the password was provided voluntarily without any court order, and it does not amount to compelled disclosure.

I’ll build on this example and examine the constitutionality of pre-trial disclosures made by an accused during the bail stage.

US Case Law

The Indian guarantee against compelled self-incrimination avowedly borrows from the self-incrimination clause of the Fifth Amendment to the U.S. Constitution. Historically, the values of the American accusatorial system required the state to shoulder the entire burden in a criminal prosecution without any compelled help from the accused and the accused is not required to disclose their defence until the prosecution has presented its case. However, this privilege has been eroded through legislative provisions that require the accused to disclose certain portions of their evidence before trial.

In Williams v. Florida (“Williams”), the rule under challenge required the accused to disclose a list of alibi witnesses before trial. The accused was convicted and appealed against conviction on the ground that compelling him to reveal the name of his alibi witnesses violated his right against self-incrimination. However, the challenge was dismissed by the U.S. Supreme Court. To reach its conclusion, the Court first recognised that the privilege against self-incrimination consists of three elements: (i) compelled disclosure (ii) related to testimonial matter (iii) incriminating nature of the communication. The Court held that two elements, i.e., testimonial communication and ‘tendency to incriminate were present in the rule requiring disclosure of alibi witnesses. However, it concluded that the relevant rule did not compel the accused to disclose alibi witnesses. It reasoned that the defence had intended to present the alibi witnesses at trial regardless, and by providing the prosecution with this information prior to trial, the defence was simply ‘accelerating the timing of the disclosure’, thereby facilitating a more efficient trial process. It was held that even during the trial, the accused would still face the same choice: (i) to remain silent, or (ii) to offer a defence that could potentially lead to self-incrimination through cross-examination.

‘Acceleration of timing’ is an established principle today based on which pre-trial discovery by prosecution has been expanded vastly over the years. It is widely believed that prosecutorial discovery enhances the state’s ability to rebut the accused’s case and effectively cross-examine their witnesses. In light of the analysis of Williams, the issue arises as to whether the prosecution is entitled to seek any and all forms of disclosure under the guise of the ‘acceleration of timing’ principle. The subsequent cases suggest a different interpretation.

There are two ways in which pre-trial discovery from an accused can assist the prosecution. It can either (i) help prosecution in investigating the grounds of defence taken by the accused and consequently, help in preparing rebuttal evidence to the defence of the accused; and (ii) provide leads to the prosecution that can help in building a case-in-chief against the accused.

Various commentators have argued that Williams was only concerned with and envisaged the preparation of rebuttal evidence using pre-trial discovery by an accused. The Court's reasoning supports this argument. Firstly, the court equated the situation of pre-trial discovery with the stage of defence evidence at a trial, where the accused must reveal the identity of their witnesses and submit them to cross-examination, which may furnish the State with leads to incriminating rebuttal evidence. Therefore, the court only intended to confine itself to rebuttal evidence while testing constitutionality of the discovery rule requiring disclosure of alibi defence. 

In this regard, it is further pertinent to recall that in Williams, the Court held that the alibi discovery rule did not amount to a compelled disclosure since the choice between (i) remaining silent and (ii) presenting a defence that might incriminate the accused through cross-examination or provide leads to the state to impeach their witness is ‘inherent in the trial process’. The natural corollary of this reasoning is that choices compelling an accused to make choices not inherent in a trial process amount to a compelled disclosure and, hence, violate the right against self-incrimination. In a case where the accused’s disclosure can be used to build the prosecution’s case-in-chief, the accused’s decision whether or not to disclose requires them to choose between defending by affirmative evidence or defending by failure of government proof. 

In his article on prosecutorial discovery, Prof. Eric Blumenson argues that such a choice is not inherent in the trial process, since at a trial, the accused leads evidence only after the government proves a prima facie case, and hence, the adversarial criminal process protects an accused from aiding the prosecution in building its case in chief. Therefore, if the prosecutorial discovery rule, as approved in Williams, is used by the prosecution to build its case in chief, the said discovery would not pass the ‘acceleration of timing’ principle in Williams and, accordingly, would violate the right against self-incrimination.

Secondly, the fact that the majority opinion’s focus was only on rebuttal evidence can be gauged from the examples it cites in the opinion. The Court gave an example to the effect that if the disclosure rule was not in place, the way alibi testimony would have played out is that the prosecutor would have asked for a continuance / adjournment after the alibi witness’s examination-in-chief and would have found rebuttal testimony to impeach the alibi witness before cross-examining them. The Court concluded that since the said sequence of events would not violate the accused’s right against self-incrimination, neither would the pre-trial discovery rule at issue in Williams. Therefore, the said example makes it evident that the scope of Williams was limited to rebuttal evidence and the judgment did not envisage use of prosecutorial discovery as a tool to build a case-in-chief.

The Scarcity of Jurisprudence on the Use of Pre-Trial Discovery from the Accused to Construct the Prosecution’s Case-in-Chief

There appears to be a dearth of case law addressing whether pre-trial discovery from the accused can be used by prosecution to build its case-in-chief. Before Williams, the California Supreme Court in Prudhomme v. Superior Ct (“Prudhomme”) delineated two important points concerning the right against self-incrimination: (i) the right against self-incrimination is compromised when the disclosure could potentially ease the prosecution’s burden of proving its case in chief and the accused’s disclosure cannot be used for the said purpose; (ii) any disclosure that could serve as a “link in a chain” of evidence establishing the accused’s guilt is prohibited under the principle of right against self-incrimination.

Another Californian case took the same view as Prudhomme. In re Misener (“Misener”), a broader interpretation than Prudhomme was taken when the majority held that Fifth Amendment privilege does not end upon the establishment of a prima facie case by the prosecution and that it barred any prosecutorial discovery that prevented the prosecution from carrying the entire burden of proving the accused guilty beyond a reasonable doubt, whether compelled disclosure might serve to make the prosecution’s case or to unmake the accused’s.

Therefore, in Prudhomme and Misener, the California Supreme Court explicitly recognised that any pre-trial disclosure that lessens the burden of the prosecution in proving its case-in-chief is unconstitutional. However, none of these cases dealt with a scenario in which the prosecution used pre-trial disclosure to build its case-in-chief.

Both Prudhomme and Misener were subsequently overruled in Izazaga v. Superior Court. Here, the California Supreme Court sustained a broad reciprocal disclosure requirement, rejecting the Prudhomme analysis. The California Supreme Court held that under the rationale of Williams, pre-trial discovery does not constitute compelled self-incrimination. Therefore, Prudhomme and Misener were overruled based on the reasoning in Williams, which was itself confined to envisioning pre-trial discovery for the purpose of collecting rebuttal evidence, rather than for building the prosecution’s case-in-chief.

It is pertinent to note that the issue of whether the prosecution can use pre-trial discovery to build its case-in-chief was not answered and has remained unanswered. There is no denying that prosecutorial pre-trial discovery over the years has become broader. For example, trial court rulings, based on the ‘acceleration of timing of disclosure’ laid down in Williams, have accepted a requirement of advance notification of defences, of expert witnesses, and of all other witnesses. Nevertheless, it can be fairly argued that these pre-trial disclosures should serve solely to counter defence witnesses and cannot be utilised by the prosecution to establish its case-in-chief. 

An example of this principle can be found in a trial court judgment in State v. McClaren in which while allowing pre-trial discovery, the court held that “any concerns defendant has concerning the disclosure [itself] potentially being used by the prosecutor in the case-in-chief could be addressed by an in camera review by the circuit court.” Further, even in Izazaga, which overruled Prudhomme and Misener, the concurring opinion by Justice Kennard mentions that there is a limitation on the manner in which the prosecution may use the discovery, and that it would be “impermissible for the prosecution to use, as part of its case-in-chief, evidence gained through discovery of statements of potential defense witnesses.” Therefore, while courts have been liberal in allowing prosecutorial pre-trial discovery based on Williams' acceleration principle, they are cognizant of the possibility of violation of the Fifth Amendment Principle if the said discovery is used for building prosecution’s case-in-chief.

Applying U.S. Pre-Trial Discovery Principles to the Hypothetical Scenario in Bail Proceedings under Section 45, PMLA

The principles discussed in the preceding section regarding pre-trial prosecutorial discovery should be applied in bail proceedings under PMLA. The justification for this is evident: Section 45, PMLA forces the accused to reveal their defence at a pre-trial stage. Consequently, bail proceedings under PMLA mirror the function of pre-trial prosecutorial discovery, insofar as they afford the state early access to key aspects of the accused’s defence before the commencement of trial.

Accordingly, applying these principles in the Indian context, the argument remains that if the prosecution uses the information disclosed by the accused to build the ‘foundational facts’ in its counter-affidavit (or the chargesheet later), the same would violate Article 20 (3) of the Constitution. Currently, the prosecution is not restricted from doing this, and in practice, the prosecution routinely files supplementary reports / complaints based on arguments made by the accused at the bail and charge stage to plug loopholes in its case-in-chief. Accordingly, even as per a broad interpretation of discovery rules under U.S. jurisprudence, the current use of Section 45, PMLA is violative of Article 20 (3) of the Constitution.

In light of the discussion of jurisprudence surrounding pre-trial prosecutorial discovery in the U.S., it can be concluded that Section 45, PMLA directly impacts the right against self-incrimination. The compelled disclosure of the accused’s defence at this stage undermines the privilege against self-incrimination. The argument that such disclosure is voluntary overlooks the coercive nature of the choice between liberty and silence. Courts must adopt a restrictive interpretation of Section 45, PMLA to prevent its misuse by the prosecution as a tool to build its case-in-chief through the accused’s pre-trial disclosures at the bail stage. This approach ensures that bail proceedings do not become a prosecution strategy session.

Guest Post: Trial in Absentia under BNSS — A Procedural Quagmire?

(This is a guest post by Acharaj Kaur Tuteja)

The Bhartiya Nagrik Suraksha Sanhita, 2023 has made several conspicuous departures from the Criminal Procedural Code, 1973 in an attempt to streamline criminal procedures in the country. Among these is Section 356 which permits the trial of proclaimed offenders in their absence and points towards the evolving relationship between state convenience and procedural fairness. At first glance, the provision seeks to solve a practical problem: the stagnation that follows in courtrooms when accused persons abscond. But beneath the pragmatic veneer lies a set of unanswered questions about what is willing to be traded in the name of efficiency.

Trials in absentia are not a novel idea. Jurisdictions across the world have flirted with the idea out of political necessity or emergency. Indian law, however, has resisted this temptation by tethering the right to a fair trial to the physical and participatory presence of the accused. Section 356 marks a departure from that tradition. What does it mean to conduct a criminal trial without the accused? Can the adversarial process survive the absence of one of its central participants? And how, if at all, does this square with the constitutional promise of due process under Article 21?

This post explores Section 356’s structure and underlying presumptions. It demarcates the dangers it presents to a system already overburdened by inequitable procedural protections. The BNSS’s solution leans towards the kind of innovation that is prioritising closure before justice. A hasty conclusion may reconstruct Kafka’s courtroom in modern Indian criminal law, despite the validity of the state’s interest in avoiding delay.

Dissecting Section 356: Text and Structure

To break it down, Section 356(1) empowers the Court to proceed with trial if the accused, after being declared a proclaimed offender under Section 84, continues to evade appearance. This proclamation arises only after issuance and non-compliance with a warrant, followed by a public notice. The trial may not only begin, but conclude, and a judgement may be rendered in the absence of the accused. The Court merely has to record the reasons in writing and ensure representation via a pleader. A notice has to be published additionally in a national or local newspaper – a formality that may neither inform or alert the accused in rural or otherwise marginalised contexts.

Section 356 fails to make a legal distinction between two conflated categories: the absconding accused and the absentee accused. The former is a legal status granted by Section 84 BNSS after meeting specific requirements, mostly post-proclamation wilful evasion. The latter’s absence may be for a variety of reasons, including illness, non-service of summons, coercion, or logistical inaccessibility. There is a chance that the legislation will dismantle these classifications, establishing a loophole whereby absence is assumed to be inherently related to guilt. Unfortunately, the language of Section 356 does not operationalise the subtlety that not all absentees are absconding.

Section 356 sidelines the requirement for deeper judicial inquiry into whether such evasion is wilful, or whether the absence results from coercive tactics or abuse of power by investigating agencies. This opens the door to strategic absences orchestrated by the police or other law enforcement authorities. The absence of terms such as ‘maliciously’ or ‘deliberately’ in the statutory text does not relieve the Court from conducting such inquiries; rather, this omission renders the provision even more susceptible to abuse, where the bare fact of non-appearance becomes sufficient to greenlight trial.

The Illusion of Remedy: Examining of Witnesses and Making an Appeal

The proviso under clause (4) of Section 356 states that if the proclaimed offender is arrested and produced before the Court during trial, the Court may, in the interest of justice, allow him to examine any evidence which may have been taken in his absence. Firstly, the clause imposes a double burden: the accused must prove both a) lack of notice and b) the absence of a wilful evasion. This reverses the usual presumption of innocence and places the accused in a position where they are trying to recover a sliver of participation in proceedings that have already condemned them.

Secondly, the court is under no obligation to allow cross-examination, nor is there a requirement to re-open earlier stages of the trial. The word ‘may’ vests a discretionary power with the court. This lack of guarantee under the clause goes against the principle of providing the accused with a reasonable opportunity of being heard. The Supreme Court, in the case of State of Kerala v. KT Shaduli Grocery Dealer, allowed the assessee to cross-examine the witnesses on whose evidence the Sales Tax Officer had relied to make the arrest. The Court recognised that under the rule of audi alterem partem, “to prove” means to establish the correctness, or completeness of a fact by any mode permissible under law. The usual mode recognised by law for proving a fact is by production of evidence and evidence includes oral evidence of witnesses. The opportunity to prove the correctness would, therefore, necessarily carry with it the right to cross-examine the witnesses.

The accused, once labelled a proclaimed offender and tried in absentia, may find themselves returned to a process that has long since passed them by, with key evidentiary stages foreclosed. The danger of an unfair trial is further compounded by clause (6) that states that even if the accused is produced before court or arrested at the conclusion of the trial, the proceedings need not be stalled. The judgement can be pronounced in their absence. Moreover, the right to appeal is curtailed under Section 356(7) wherein the appeal is barred unless the offender presents himself before the appellate court within 3 years of the passing of the judgement.

What happens then, is a skeletal notion of a trial, moving from absence to conviction without substantive procedural rights. In Kartar Singh v. State of Punjab, the Supreme Court was unequivocal in its caution: dilution of safeguards in the name of expediency, carries the risk of systemic abuse and wrongful conviction. The purity of the procedure to discover truth shall always remain fair, sensitive to the needs of the society and fairly and justly protect the accused. And these clauses of Section 356 exist not to protect the accused, but to immunise the provision from critique.

Undermining Adversarial Ethos

Under Section 356(1) the Court is empowered to proceed with the trial of a proclaimed offender “in the like manner and with the like effect as if he was present”, thereby eliminating any procedural distinction between a full adversarial trial and a unilateral one. The assertion that the accused’s wilful absence amounts to a waiver of rights, becomes a linchpin to justify lack of procedural parity.

The right to be tried in person, to confront witnesses, and to mount a defence are all implicit in Article 21’s expansive right to a fair trial. The Supreme Court in Zahira Habibullah Sheikh v. State of Gujarat, while affirming the centrality of a fair trial, clarified that it includes not just the right of the prosecution but, more importantly, of the accused to have their case heard fully and fairly. This renders the trial permitted under Section 356 structurally disfigured. Informing the accused’s friend or relative and ensuring that legal aid is appointed does not cure the deeper malaise of negating the accused’s participatory rights.

This transformation of the trial from adversarial to inquisitorial is not accompanied by the institutional safeguards of the latter. In inquisitorial systems, the judge assumes an investigative role, bound by duties of neutrality and evidence-gathering in favour of both sides. Indian courts, in contrast, are not structured for such a role. The result is a hybrid system that borrows the most coercive aspects of the inquisitorial form while discarding the checks and balances that justify its operation.

Conclusion

There is no denying that trials in absentia address a very real institutional challenge. In an overburdened criminal justice system, where accused persons routinely manipulate safeguards to stall proceedings, Section 356 may act as a corrective. It reaffirms that justice will not be held hostage to deliberate non-appearances.

However, the problem does not justify abandonment of the process. The risk lies in the unstructured application of trials in absentia. The provision, in its current form, rests on a troubling presumption: that a proclaimed offender’s absence is necessarily wilful, and that procedural compliance with notice formalities is enough to substitute meaningful participation. A declaration under Section 84 BNSS is formally premised on wilful concealment or absconding but the statute’s structure outsources that finding to procedural triggers (two warrants, public notice, etc.), not to a substantive inquiry into motive or capacity. In other words, the statute assumes wilfulness from procedural non-compliance. But procedural non-compliance can occur in a number of ways that have nothing to do with intent. The ask isn’t to duplicate the finding of wilfulness - it’s to interrogate how shallow the first one really is. If procedural default alone gets elevated into a legal fiction of intentional evasion, then a second judicial inquiry – before triggering the far more serious consequence of trial in absentia – becomes less redundant and more necessary.

To avoid this turning into a tool of convenience, certain safeguards must be built into the provision. Firstly, the judicial determination of whether the accused has actually absconded should be more than just a declaration. It should follow an inquiry to examine whether the accused had a reasonable opportunity to appear, and whether the evasion is deliberate or due to an extraneous hardship. Secondly, recording depositions via audio-video [as mentioned in Section 356(5)] should be the norm, not a technological afterthought. The attempts to contact the accused in any manner must be furnished duly. Thirdly, the accused should have the opportunity to retrospectively participate in the trial and cross-examine the witnesses if the conviction has been based on their evidence. And lastly, use of Section 356 must be accompanied by periodic judicial review to ensure that the waiver of rights was voluntary in nature.

Trial in absentia, then, is not inherently illegitimate, but it is inherently dangerous. It demands a justice system that can distinguish between tactical evasion and structural absence, between the wilfully hidden and the invisibly marginalised. Without such discernment, Section 356 risks becoming a procedural sleight of hand, manufacturing the illusion of fair process while steadily hollowing it out. The State’s interest in proceeding with trials must not eclipse the constitutional guarantee of a fair one. To that end, the legitimacy of this provision will rest not on how often it is used, but on how scrupulously it is constrained.

Two Sides of the Same Coin

Outside of the legal fraternity, it did not matter much that some judges of the Supreme Court were retiring in these past weeks. Within the legal fraternity, though, the retirement of Justice A.S. Oka led to a genuine outpouring of affection and emotion from across the aisles; no doubt made more stark by the near total absence of such reaction a few days prior in respect of Justice Trivedi. 

Revisiting this juxtaposition, and reading several judgments authored by the two retiring Justices (limited, largely, to the field of criminal law and procedure), I could not escape thinking how Justices Oka and Trivedi are but two sides of the same coin of judicial discretion. When it came to matters of criminal law, the former wielded discretion to actively question exercise of state power, while the latter wielded judicial discretion to shield the state from questions; of course, subject to exceptions. 

We might like one approach over another, sure, and there are no doubts about which approach this blog might prefer. But the unfortunate truth is that our preferences do not count for much as a legal principle. I say this, because at the end of the day, in our frustratingly polyvocal judicial system with its constitutional mandate of rights riddled with exceptions, there is no single correct approach to issues that these judges were dealing with. There is no fundamental principle, no categorical imperative in these parts.

If anything, the closest thing that Indian constitutional jurisprudence in action appears to have in the name of 'principle', is a loose concept of balance. A jurisprudence of the 'Force' in Star Wars with its constant tussle between dark and light, if you like. In this jurisprudence of balance, every story has two sides, every right is tethered to its exceptions, and so even the most egregious instance of personal liberty being violated is not an absolute but can have some justification that requires we form a special investigation team to find out. 

This is our fickle rule of law, where consistency in outcomes is an honourable exception and even the simplest case appears to be cast in jeopardy. A few senior lawyers I know stress the jeopardy aspect by telling their clients that going to court, especially superior courts, is quite like playing high-stakes poker. Are they wrong? Administration of such a 'rule of law' where every scenario brooks an exception ultimately turns entirely upon how every singular actor wields their discretionary power to advance their personal notions of law, justice, and whatnot. One judge can view that discretionary power as being guided by a vision to uphold liberty, the other can view that same power as guided by a mission to secure law and order. Both views are correct, as much as you might not like one of them. 

The problem is that both views should not coexist in all scenarios. Some situations do not justify two views. Some cases only have one correct view. And these truths should not change whether we are dealing with petty disputes between family members or dealing with dissidents who disagree with the State and its policies. In ours, however, they do. A jurisprudence of balance is not one in which the rule of law retains an inconvenient and unwavering consistency in times of war as in times of peace, but one where law must have the flexibility to bend and contort itself into whatever is the convenient shape for the day. Is this jurisprudence of convenient balance something to be scornful about? At times. But if you think about the high chance that any revisit of the status quo will make things intolerably and inexorably worse — by, say, stacking all the decks in favour of the State — then a constant tussle between impulses is a happy compromise to live with. 

We can eulogise one judge and demonise another all we like, but no one person or their vision can straighten out the many contradictory impulses within the Indian legal system, all of which can be traced back to the Constitution itself. In the grand scheme of things, all that they manage is tilt the balance, by wielding their awesome power of judicial discretion. Depending on where you stand, that tilting of balance is something will either be something to be very grateful for, or extremely despondent about. 

Untangling the Many Threads of the Sarla Gupta Judgment

A Three Justices' Bench of the Supreme Court rendered its judgment in Sarla Gupta & Anr. v. Directorate of Enforcement [2025 INSC 645 (Sarla Gupta)]. The Court was hearing different appeals together, which presented somewhat similar issues that could loosely be grouped under the category of obligations on prosecuting agencies to disclose the material gathered during an investigation to the accused, in context of cases under the Prevention of Money Laundering Act 2002 ['PMLA']. 

While the judgment itself does not categorise issues, I think it is helpful if we are to try and make sense of its conclusions [summarised at Paragraph 55]. An attempt at the issues is as follows:

1. Whether the accused has a right of disclosure to seek copies of documents seized during searches done under the PMLA by the Enforcement Directorate? 

1A. If so, at what stage can the right be enforced and the documents disclosed / shared with the accused?

2. Whether the accused has a right of disclosure to seek copies of the documents filed by the prosecuting agency in support of its complaint under the PMLA ('relied upon documents')?

2A. If so, at what stage can the right be enforced and the relied upon documents disclosed / shared with the accused?

3. Whether the accused has a right of disclosure to seek copies of the documents seized but not placed in support of its complaint under PMLA by the prosecuting agency ('un-relied upon documents')?

3A. If so, at what stage can the right be enforced and the un-relied upon documents disclosed / shared with the accused?

Issues 1 and 1A

The first set of issues — 1 and 1A — were the easiest to answer for the Court. The PMLA itself provides that in event of a search and seizure, a list of seized items must be supplied to the person concerned, and the person can apply to get a copy of the documents when the authority concerned has decided to retain them [Sections 17 to 21]. So, the answer to issue 1 was 'yes', and the answer to 1A was that the person can apply to get copies after a decision is made to retain them for longer than thirty days.

Issues 2 and 2A

The next set of issues — 2 and 2A — are slightly more complicated because of how the PMLA and the general procedural law under the Criminal Procedure Code 1973 ['Cr.P.C.'] — now  the Bharatiya Nagarik Suraksha Sanhita 2023 ['BNSS'] — operate. The Cr.P.C. applies to PMLA prosecutions, but where there is a conflict between the two laws, the PMLA governs. In this realm of supplying complaints etc., there is no specific clause within the PMLA, taking us back to the Cr.P.C. [clarified within Sarla Gupta as well]. 

Indian criminal law envisages prosecutions can start either by a state agency investigating facts and bringing a case, or by an aggrieved party filing a case basis material it has in its possession to prove wrongdoing. Ordinarily, the state agency tasked with investigating cases is the police, and police files what is called a 'police report'. The disclosure rules for material filed with a police report are fairly clear: material which the agency is relying upon to support its case, has to be supplied [Sections 173(5), 207]. 

When it comes to a 'complaint', the Cr.P.C. stipulates that if a court finds that a person ought to face trial upon the allegations in a complaint, it must ensure a copy of the complaint is given to an accused. But, there is no corresponding right of disclosure availing to an accused here, as it is with cases launched pursuant to a police report. The limited exception, textually speaking, is a requirement for a magistrate's court to ensure that materials filed with a complaint are furnished to the accused in cases where the prosecution is one which must be conducted before a sessions court [Sections 204, 208]. I say textually, because courts have read in a similar disclosure requirement in cases launched on complaints for some time now.

This background is necessary to understand issues 2 and 2A. Even though prosecutions under PMLA are lodged after investigations by a state agency — the Enforcement Directorate — the document launching the prosecution is styled as a 'complaint' and not a police report [Section 45 PMLA]. The Cr.P.C., as we have seen, confers clear rights in cases launched on a police report, but is not so strongly worded when it comes to complaints. What this reflects is that, unlike issues 1 and 1A, here the Court in Sarla Gupta had some options on how to proceed. 

How has it answered the issues framed above? On issue 2, the Court has taken two steps. First, it clarifies that when a person is brought to court to face trial in a PMLA case, they must be provided with not just the complaint but also the materials being relied upon in support thereof [Paragraph 25]. This was held necessary owing to the general Cr.P.C. rule on supplying copies of complaints to accused persons. In other words, the Court recognised an obligation on part of the agency to supply a copy of the material it proposes to rely upon in support of its case. 

What about the right of the accused within the statute to demand for such relied upon material? Here, recall, that the rights-language is far clearer for police reports than for complaints. But since the PMLA involves no assignment of a case from a magistrate to a sessions court, the Court in Sarla Gupta noted that the Cr.P.C. complaints' clause on disclosure would not strictly apply to the PMLA [Paragraph 30]. 

It could have deemed the 'complaint' filed by the Enforcement Directorate as a 'police report' or adopted some other means to hold that the rules of Section 207 Cr.P.C. applied to PMLA complaints. If it would have done so, the Court would have thrown open the doors to topple the investigative scheme of the PMLA, because it hinges upon treating these complaints by state agencies as not being akin to police reports. There are many investigative powers that flow to the Enforcement Directorate (and other agencies) from simply not being labelled 'police'. Any ruling that dents this scheme would be extremely troubling for central investigative agencies which file 'complaints'. 

The Court was certainly aware of this position, which had been restated a few months ago by a bench comprising the Chief Justice. As a result, rather than apply either Section 207 or Section 208 by twisting their language, the Supreme Court in Sarla Gupta conveniently holds that the 'principles' of both clauses apply to the PMLA context, and all relied upon materials should be supplied [Paragraph 30]. 

Thus, the answer to issue 2 is a 'yes', but it is more an obligation on part of the agency and court rather than an issue that the accused must chase by enforcing their rights. There is a right too, just to be clear, and issue 2A stands answered by telling us that this right can be enforced from the time that an accused is first summoned to court to face a trial under the PMLA. If any deficiency exists in terms of material that the agency relied upon, the accused can seek copies, and arguments on the aspect of charge should not start till this supply of material is complete.

Issues 3 and 3A

Which then brings us to the last issues of the lot — issue 3 and 3A. That an accused has a right to seek the copy of un-relied upon documents has been an unequivocally clear position now for quite some time, and the Court merely reiterated precedent to stress upon this aspect [Paragraphs 31-33]. Issue 3A is where the controversy existed — at what stage would this right to get un-relied upon documents trigger? This section of the judgment is couched with qualifiers and it is safer to first set out the general position that the Court has identified, before delving into the devilish details:

• There is a clear right to be supplied with a list of the un-relied upon material, and this must be given along with the entire copy of the PMLA complaint i.e. prior to arguments on charge [Paragraph 41].
• There is no clear right to seek copies of un-relied upon material at the time of arguments on charge [Paragraphs 33-41].
• There is a clear right to seek copies of un-relied upon material during defence evidence by moving an appropriate application for summoning such records [Paragraphs 42-51].
• There is a clear right to seek copies of un-relied upon material during bail hearings by moving an appropriate application, and the extent of the right depends upon the stage at which the investigation is [Paragraphs 52-54].

Out of these four conclusions, the first brooks no exception nor generates any controversy. The Supreme Court has endorsed this approach of directing the agency to prepare a list of un-relied upon materials that must be supplied as part of a set of guidelines for better functioning of trials issued in 2021. Sarla Gupta has extended that logic to the PMLA as well. 

The 2021 judgment did not specifically say anything about the stage at which the accused can seek copies of the un-relied materials cited by an agency. This aspect was touched upon in two subsequent decisions — Manoj [2022 INSC 606] and Ponnusamy [2022 INSC 1177]. Out of the two, Manoj did not specifically mention a stage either and generally observed that disclosure of the un-relied upon materials was necessary to secure a fair trial. It was only Ponnusamy which specifically dealt with this exact issue — the two opinions from the bench diverged on precisely this aspect of a right to un-relied upon documents and the stage at which it would trigger. 

Curiously though, Ponnusamy is not mentioned anywhere within Sarla Gupta. This is a problem because it would seem that Sarla Gupta has diverged from the view taken in Ponnusamy. Both Ponnusamy and Sarla Gupta hold that there is no right to seek copies of un-relied upon material at the stage of charge. But where Ponnusamy held that the right would trigger at trial and that a court could consider the relevance of the material sought to be summoned while considering the request, Sarla Gupta has specifically linked the right to defence evidence, not trial generally, and has limited the scope of discretion vesting with a judge to refuse a request for summoning the materials (permitting it only on grounds of delay). 

It is unclear why Sarla Gupta specifically linked the prospect of seeking un-relied upon materials to defence evidence, and not adopted the view taken in Ponnusamy. The Supreme Court's logic in stressing upon the existence of a right for accused persons is that there is a reverse burden operating after charge is framed under the PMLA. In that case, why specifically link the right to only defence evidence? No reasons are offered to explain why an accused should remain quiet throughout prosecution evidence when having this material would enable a more effective cross-examination of witnesses at the relevant stage. Instead, the Court proposes a tortuous route, suggesting that an accused after applying for this material and obtaining it can then apply for recalling of witnesses to cross-examine them on this material. 

This course of action does not commend itself on logical grounds as mentioned above, nor does it commend itself on grounds of efficiency, economy, or strategy. Accused persons will have to adopt an artificial posture and work out two potential cross-examinations of the same witness. If a second cross-examination yields new incriminatory evidence from the witness, that would necessitate a trial court to put these statements to an accused and record a fresh statement under Section 313 Cr.P.C. These are only surface-level problems, mind you, and I am sure that more emerge the moment that lawyers and courts begin to try and apply the rules of Sarla Gupta to the facts of actual cases.    

We are left with the second and fourth conclusions then — no general right to copies of un-relied material at charge, but a right to apply for such material during bail. Although Ponnusamy is not cited anywhere within Sarla Gupta, it has followed the holding in Ponnusamy that there is no right to seek un-relied materials at the stage of charge by moving applications under Section 91 Cr.P.C. It also relies upon another earlier Three Justices' Bench decision in this context, Debendra Nath Padhi, which held that the hearing at charge must be confined to the record of the case, and this record consisted only of material that the prosecution brought forth. But while doing so Sarla Gupta has not slammed the door shut upon potential requests for un-relied upon material at this stage since it qualifies its position by repeatedly stating that 'ordinarily' an accused would not have the right to apply under Section before trial for copies of such materials [Paragraphs 33, 37, 49]. In the right facts, then, one may still have a chance to get un-relied materials prior to framing charge.

What complicates matters a great deal further is the fourth conclusion — that an accused has a right to apply for un-relied upon material during bail hearings. In this section of the judgment, the Court has moved entirely free of any past precedent and taken a view that fairness demands that the accused must have this right because bail under the PMLA places an onus upon the accused to show that no offence is made out. To ensure a fair opportunity for an accused to discharge this burden, the Court felt it was necessary to have a right to seek un-relied upon material which the agency might have.

This section greatly complicates the task of making sense of Sarla Gupta. Firstly, because it further undermines the already logically precarious position to allow a right to apply for un-relied upon material at the stage of defence evidence alone, since the reverse burden operates at the time the trial begins. Secondly, because if the reverse burden on an accused is such a critical hit to fairness, then why should an accused have to suffer framing charge on the basis of potentially unfair prosecutorial conduct and then get a valuable right to expose this during trial? Thirdly, and finally, because ordinarily bail will be a stage that comes before charge is framed, and if a court ends up viewing the un-relied material as being relevant to deciding the bail application it will undoubtedly end up thinking it is relevant to decide the point of charge as well. This creates a weird and inconsistent position where persons in custody may have greater opportunities to fair hearings at the stage of charge than those who are never arrested during investigation.

Sarla Gupta cites many past decisions of the Supreme Court on this issue of disclosing un-relied upon materials by prosecuting agencies. A unifying theme through all those past decisions was clearsighted acknowledgment that there was a need for a right of disclosure to mitigate against the very real possibility of unfair suppression by prosecuting agencies of material gathered in an investigation but of an exculpatory nature. But in Sarla Gupta the issue of suppression is nothing but an elephant in the room. Throughout its 86 pages, not once does Sarla Gupta mention this aspect of possible suppression and the unfair prejudice it causes, even though it is clearly the driving force behind the Court conferring a right to un-relied upon material at the bail stage. A full and frontal acknowledgment of this issue being one of the guiding reasons to confer a right of disclosure may well have yielded different configurations of how the right operates.

Conclusion

To conclude, then, One is left feeling that Sarla Gupta is yet another one of those judgments in which a bench of the Supreme Court is torn between adopting fairness as a yardstick for reading rules of criminal procedure, but is unable to adopt this yardstick consistently when faced with the ghost past judicial precedent that has taken a restrictive and unfairly textual view of the statute. Even so, the judgment is bound to be immensely relevant not just for PMLA cases, but criminal trials generally, and criminal trials with reverse onus clauses more specifically. One cannot help escape the feeling that this is not the end of the matter, but only the start of new complexities in the law on disclosure obligations and rights of accused persons.