Thursday, December 2, 2021

The Curious Case of Pradeep Wodeyar: Cognizance, Confusion, and Delays

The pendency of cases in criminal courts across India is nothing short of scandalous: More than 2 crore cases in total as per government data furnished for the year 2020, with the rate of pendency at over 90%. This means that out of every 100 cases in the system, 90 remain pending at the end of the year; and since the next year does not restart at zero, the total number of pending cases never stops increasing. 

Since 2015, Special CC No. 599 / 2015 registered against Canara Overseas Ltd. and its Managing Director Pradeep S. Wodeyar, among others, for allegedly committing offences under Sections 409, 420 read with 120-B of the Indian Penal Code 1860 [“IPC”] and under Sections 21, 23 read with 4(1), 4(1)(a) of the Mines and Minerals (Development and Regulation) Act of 1957 [“MMDR Act”] has been part of this statistic of pending criminal cases. It is very likely that it remains part of this statistic for some years hence. Why? Because a year into the proceedings before the trial court, after arguments on the point of charge had begun, the accused persons moved the High Court of Karnataka in a petition under Section 482 of the Criminal Procedure Code 1973 [“Cr.P.C.”]. They claimed that due to a legal error — cognizance taken in a manner contrary to law — the case ought to be quashed. The High Court appears to have ordered a stay on the trial court proceedings in 2017, which remained in effect till November 2020, which is when the High Court dismissed the petitions. The litigants promptly moved the Supreme Court, in a Special Leave Petition [“SLP”] under Article 136 of the Constitution, where that Court also granted a stay in February of 2021. On 29.11.2021 the Supreme Court has delivered its verdict in Pradeep S. Wodeyar v. State of Karnataka [Crl. Appeal 1288 of 2021; “Wodeyar”], dismissing the petitions and paving the way for the trial court to proceed. 

I do not mean to pick on any one single case, but Wodeyar is so symptomatic of the various design-flaws in our criminal process that foster repeated occurrence of mind-numbing delays in the disposal of criminal cases — flaws that are inherent in the statutory framework which are made worse by the interpretations courts offer while working within that framework — that it offers a useful entry-point to explain these issues.

Challenging orders up the Judicial Ladder
The idea of a right of appeal is a basic tenet of fairness in any legal system. A court can get things wrong, and the aggrieved person must be allowed to raise this plea before a superior forum. But how far should this “right” extend — what kinds of orders should be open to challenge, and how far up the ladder should a person be allowed to travel? A line-drawing exercise becomes necessary for if we go allow everything to be subject to challenge, all the way to the highest court, it deals a critical blow to securing a sense of finality in cases.

The Indian criminal process under the Cr.P.C. confers a clear right of appeal only against final judgments of conviction or acquittal — a court must hear an appeal against such orders where one is filed. At the same time, the criminal process confers a variety of remedies upon litigants which enables challenges to all sorts of orders or proceedings. What kinds of orders or proceedings? Almost anything short of the final judgment, really. Most common are petitions challenging the very registration of a police case, a judicial order summoning an accused, an order framing charges, and the kind of order that was impugned in Wodeyar, viz. an order taking cognizance. Such orders are, literally, the very opposite of a final judgment and indicate the first stage at which a court is seized of a case (more on that in the subsequent section). These challenges to interlocutory orders can travel all the way up to the Supreme Court, but none confer a right to be heard and a court may dismiss such claims at the outset. These remedies include the approach taken by the litigants in Wodeyar — file a 482 petition before the High Court and then an SLP under Article 136 of the Constitution before the Supreme Court — and include other approaches such as filing revision petitions or writ petitions. 

Challenging all sorts of orders all the way up to the Supreme Court does not make sense from a cost-perspective, or a finality perspective. But since most persons embroiled in the system only have limited means, it engenders some unseen balance where only a fistful of cases out of the total number end up being taken up the judicial ladder at interlocutory stages. Because where one can afford to file petitions, the pay-off in the form of securing a relatively quick closure of the case is simply too good to pass up when the alternative is a long-drawn trial, which may be followed by an even-longer appeal. 

Challenges in superior courts to interlocutory orders are also the kinds of cases where stay orders become critical, for otherwise the petition itself might be rendered redundant if the trial is allowed to proceed. The Supreme Court admirably took note of the delays caused due to such litigation in Wodeyar (Para 40), both as a general phenomenon and the delays caused in that specific litigation before it. Towards this, it sought to locate challenges to interlocutory orders within the context of Chapter 35 of the Cr.P.C., which speaks of the course of action for courts to adopt when faced with irregularities in proceedings. For petitions which raise the kinds of illegalities and irregularities not mentioned in the specific clauses of Sections 460 to 464, the Court has suggested that such petitions flagging miscellaneous irregularities ought to be considered through the test of “failure of justice” prescribed under Section 465 Cr.P.C. Thus, the Court concludes that “Section 465 would also be applicable to challenges to interlocutory orders such as a cognizance order or summons order on the ground of irregularity of procedure” (Para 41). It then proceeded to examine whether the order in question occasioned a “failure of justice” in the case before it and found that no such failure of justice had been caused (Para 44).

Wodeyar is frankly not a game-changer in this regard, because while courts might not have been using the statutory language, they were already engaging in such an analysis in almost all cases that involve challenges to interlocutory orders by inquiring about the prejudice caused. A good example is the practice of SLP hearings where most of the petitions never cross the first stage of notice being issued because the court is not satisfied about the prejudice aspect. Nevertheless, locating the exercise within the language of the statute is an interesting step in the process and make the whole thing more systematic. Of course, this could only have happened if Wodeyar spent some time explaining how courts ought to engage in this exercise of determining a “failure of justice” beyond merely locating the statutory provisions. The judgment does not suggest any benchmarks that might satisfy this standard except the general point about the petition being delayed. Nor does the Court specify whether this issue must be considered at the outset, like a preliminary issue, or is it part of the overall conspectus of issues which a court must consider.

Compounding Confusion through Judicial Interpretation 
If the judgment in Wodeyar took at least one step forward by engaging with systemic delays and hinting at a way to contain this design-flaw, it took two steps back by needlessly confusing a step as basic as cognizance and inevitably assuring us more litigation on this aspect in the future.

I had discussed taking cognizance under Section 190 Cr.P.C. as a step in the criminal process in some detail earlier in the context of another confusing decision of the Supreme Court, S.R. Sukumar (2015). The upshot of this discussion is that the stage of cognizance involves little more than having the court confirm that a document has come to it which discloses commission of an offence — be it a private complaint [190(1)(a)] or a police report [190(1)(b)], or information that the court itself records [190(1)(c)]. The court is required to do practically nothing at this stage besides confirming (1) whether all sanction related issues are clear, and (2) does the complaint / chargesheet contain facts which make out the basic ingredients of an allegation (If the person alleges murder, does the complaint speak of a person dying due to the acts of another — that basic an exercise). 

No part of Section 190 discloses a requirement for any application of mind beyond this bare minimum requirement. Despite this, the Supreme Court still ends up reading much more into the stage of taking cognizance all too often. In Sukumar, for instance, the Court went ahead and sought to differentiate the “mere” taking of cognizance from “actual cognizance” — whatever that meant. Now, in Wodeyar, the Court has suggested that in cases instituted on a police report, it is “not obligatory for the [court] to issue a fully reasoned order if it otherwise appears that the [court] has applied his mind to the material.” Implying, thus, that in cases other than those instituted on a police report, the cognizance order must contain fully fleshed out reasons.

Why, then, does the Supreme Court confuse us (and itself) on the point of cognizance? At the heart of this issue lies, what appears to me, a conflation of the stage of taking cognizance and the stage of issuing summons to an accused person to face trial. The former falls under section 190 Cr.P.C., the latter under Section 204 Cr.P.C., and the text of these provisions makes apparent that there is a different legal inquiry underlying both stages. Cognizance, as was mentioned above, is a minimal threshold for the case to cross, but the stage of summoning requires a court to form an opinion whether “sufficient” grounds exist to proceed further in the case and summon a proposed accused. 

When dealing with police cases, courts almost always deal with both stages together in one order which contains bare reasons, if any — if a court takes cognizance, it is presumed that the police investigation would have furnished sufficient grounds to proceed further and summon the accused, so courts do exactly that. A similar exercise ends up taking place where complaints are filed by public servants, in respect of which there is no requirement for courts to record pre-summoning evidence before considering whether an accused ought to be summoned. The only situations where trial courts end up clearly delineating the cognizance and summoning stages end up being those cases which are instituted upon private complaints, because the journey from cognizance to the summoning order involves a necessary stop for recording pre-summoning evidence. 

Both cognizance and summoning are stages that take place without the accused in the room — it is either the police / prosecutor, or the complainant’s counsel, who are present to assist the court in forming an opinion. Which explains why accused persons often end up challenging these orders before superior courts, and why superior courts insist upon judges to properly apply their mind to the issue at hand. However, this cannot result in superior courts demanding trial courts to do more than the statute itself asks, only to be satisfied about the propriety of proceedings below. 

Unfortunately, this is exactly what has happened in Wodeyar. Here, the Petitioner contended that the order taking cognizance was vitiated as it suffered from a non-application of mind by the judge. Since the case was instituted on a police report, the court had done the usual thing of taking cognizance and issuing summons by the same order. This appears to have affected the nature of arguments at both the High Court and the Supreme Court levels as the Petitioner raised a generic plea that the order suffered from non-application of mind [Note: there were also separate grounds assailing the cognizance order claiming it was contrary to the statutory provisions, which I do not discuss here]. 

While the High Court managed to retain the distinction between the two stages in its reasoning, the Supreme Court lost the plot. Prior precedent which explained the kind of application of judicial mind required for issuing summons — Pepsi Foods, Mehmood Ul Rehman, Sunil Bharti Mittal etc. — has resultingly been imported into the domain of taking cognizance, requiring trial courts to do much more than the letter of the law seems to require. By creating this mess about requiring detailed reasons or not depending on the kind of case, the Court has not only created confusion for trial courts, but also opened avenues for more litigation on preliminary issues. Where on the one hand the Court appeared to close doors for such litigation which inevitably delays the trial process, it has simultaneously opened new doors for curious (and well-heeled) litigants to explore. 

Conclusion
Nothing in this post ought to be taken as an aspersion on the litigants in this case, or in any other case where parties challenge orders at a pre-trial stage in the hope of getting the case closed. Filing such challenges before a High Court under Section 482 and then taking them up to the Supreme Court in an SLP, albeit at the cost of often causing serious delays in the process, are legal remedies available to all of us — it is not the litigant’s fault that the costs involved are such that only a select few can end up exercising these options. Which is why I argued elsewhere that pendency in the Indian criminal process is not because of the system malfunctioning due to a lack of resources alone, as some argue, but a feature of its very design. 

Take Wodeyar for instance. The case remains stuck at the same stage since 2016 because the accused persons raised a belated plea on a hyper-technical issue. Now, four years after the arguments on charge had been heard by the trial court, the case will head back there. But since the judge who was hearing the case is likely to have been transferred, it will probably take some more months and years for the trial court to conclude arguments on charge. Then that order will be challenged before the High Court or Supreme Court. Maybe, by the time some of the Justices of the Supreme Court who authored the opinion of November 2021 have retired, Special CC No. 599 / 2015 will have reached the stage of judgment before the trial court. And then, after several years (because there is a huge backlog in hearing appeals), the case will reach the Supreme Court again. 

In the meanwhile, who knows how many more petitions challenging cognizance orders end up in the Supreme Court, claiming that such orders ought to be set aside for not being “fully reasoned”, when all that such orders are supposed to indicate is that the court is seized of a matter which is disclosing commission of an offence.

Tuesday, November 16, 2021

Conspiracy: The Substantive Offence (Part I)

 (This is the first of a multi-part series on conspiracy. For the introduction post, see here)

Over the next two posts, we will discuss the substantive offence of conspiracy. We will first  try and identify what purpose is this offence of conspiracy designed to serve, its costs and benefits,  and only then turn to the Indian statutory provisions in the next post. 

At the outset, a word about the existing literature on theoretical issues surrounding conspiracy in criminal law. There is a whole lot of it, but very little (if any) critical engagement with conspiracy law seems has happened within the Indian context. Most of the Indian literature has either been focused on the statutory regime or interpretations adopted by specific judgments, and few if any pieces turned to issues such as the threats posed by conspiracy law to free speech — an issue that got significant attention in the United States during the late 1940s till the debates around the Model Penal Code (which came to inform the conspiracy definition in the penal statutes of many American states). For those interested, a small list of informative pieces / books is at the end of the post.

The Conspiracy Offence

Criminal law 101 is that for anything to constitute an offence, it must consist of two parts: The actual physical conduct (act / omission to act) which causes harm, which must be accompanied by a requisite mental element to confirm that the egregious conduct was engaged in wilfully [On how this kind of thinking is a common feature of communication, see this paper by Arudra Burra and Joshua Knobe]. And, the burden to prove that both these requirements were met in any given case, lies with the prosecution. 

As Nicola Lacey demonstrates in her book, it is probably be inaccurate to think that this is how criminal liability was always understood. Rather, this notion of operating with a presumption of innocence and focusing on a personal criminal responsibility, by trumping up the intentional or wilful nature of the purportedly egregious conduct, came to be a feature of society only once notions of personal liberty and equality began to assume importance. Persons were not branded criminal for who they are, but what they did, and this demanded clearly spelling out a zone of prohibited conduct to, in turn, maximise the scope of liberty. 

This liberty-maximising notion of how to define criminal laws is not the only strand of thought which has played out over time in how ideas of criminal liability have developed. Coexisting with this logic are other strands which play up the security interests of society. Thus, while a liberty-maximising view would refrain from coming down with the hard hand of criminal law before an actual crime has been committed, these security interests push for drawing the line at an earlier point in time. The core idea is simple — if you see a truck is going to crash from a mile away, shouldn't the law be allowed to intervene before the damage is done? There was a recognition that an element of harm and a risk to society subsisted in conduct besides the fully consummated crime, which led to acceptance for punishing attempts to commit offences, aiding and abetting of crime, and conspiring to commit crimes.

Much like notions about criminal law and responsibility, notions about conspiracy also gradually changed over time. At its inception the concept only attacked persons acting together to accused another person falsely, and only after the accused person was acquitted. It was the notorious Star Chamber which led to expanding conspiracy to also cover agreements shorn of this requirement of a subsequent acquittal. This recognition that the essence of a conspiracy consists of persons agreeing to commit a crime has remained with us till date. A century or so later, the scope of conspiracy was broadened to go beyond agreements to frame a person, and cover agreements to commit any crime. It was only in 1832, through R v Jones, that the definition of conspiracy which we are familiar with came to have a foothold, that conspiracy is an agreement either to do an unlawful act, or a lawful act by unlawful means.  

Thus, the line is drawn at the planning stage itself for conspiracy, where such planning occurs between two or more persons. This idea of people acting in concert, of secretly congregating in numbers to plan commission of crimes, was seen as too dangerous to be allowed to flourish even without any steps being taken to pursue the specific object of such criminal agreements. This "group danger" logic was exhorted by the U.S. Supreme Court in Rabinowich (238 U.S. 78)

For two or more persons to confederate and combine together to commit or cause to be committed a breach of the criminal laws is an offense of the gravest character, sometimes quite outweighing in injury to the public the mere commission of the contemplated crime. It involves deliberate plotting to subvert the laws, educating and preparing the conspirators for further and habitual criminal practices, and it is characterized by secrecy, rendering difficult of detection, requiring more time for its discovery and adding to the importance of punishing it when discovered. 

A Liberty Minimising Conundrum

The re-drawing of the line for attracting criminal liability to a stage where persons might just be thinking about engaging in an illegal act, simply because they are doing this not as individuals but in a group, carries serious implications for the liberty-maximising logic that was described above as being central to ideas of criminal responsibility. For starters, conspiracy is effectively a free-pass for police to make allegations by relying upon what is seemingly innocent conduct to round up people using coercive powers, without any real harm having materialised. As a 1959 article commented, "conspiracy doctrine comes closest to making the state of mind the occasion for preventive action against those who threaten society but who have come nowhere near carrying out that threat.This possibility of transforming criminal law into a preventive action tool using conspiracy charges is amplified by two related issues: the idea of "illegality", and that of "agreement". Let's look at both in turn.

As we know, the notion of "illegal" does not cover that idealised narrow zone of conduct in the form of proscribing murder, robbery, rape, and the like. For centuries, the state has used its power to define criminal laws to render illegal whatever it felt like, and for whatever reason it felt like — be it the Black Acts, to the tearing off mattress tags. Today, states need not go so far as to render innocuous conduct criminal per se. A simple trick for minimising the zone of freedom is to criminalise what is, on its face, relatively benign conduct, but by associating it with drastic kinds of criminal intent or creating a rebuttable presumption about the intended / known effect of the acts. Through this device, one man's peaceful speech to a crowd becomes another man's seditious libel or terrorist act, and this very essence of personal liberty in a democratic setup — speaking, writing, protesting — becomes subject to a state-sponsored narrative about devious intents and disastrous effects. 

The vehicle of a conspiracy empowers the state to not only quell such 'undesirable' activity before it takes place, but draw the net of liability as far and wide as it desires by relying upon the hazy idea of an "agreement" between persons. We will return to this issue when we turn to issues of proof and procedure in the context of conspiracy, but at this preliminary stage it will be sufficient to flag that an agreement, by definition, does not really mean much — it could be anything from a blood-pact to a general assent with someone's plans. Conspiracy paints all of this with the same broad brush, and because of this "agreement" it then foists liability for this amorphous group's actions upon everyone in equal measure, even if all members of this group did varyingly different things, and came to join in this 'agreement' at different points in time. In one fell swoop, the conspiracy crime drastically whittles away the zone of free expression and expand the zone of prohibited conduct which attracts potential criminal liability. At the same time it also drives a stake through the idea of criminal responsibility being of a personal nature, as even for conduct that someone else engaged in, without me knowing about it, I am vicariously liable because of my supposed assent to the overarching object of our common conspiracy. 

Conclusion

Legal systems, including India's, are too accustomed to the conspiracy offence and unassumingly accept a need for it, schooled as we are in believing the group danger rationale. The purpose of this post was to highlight that embracing conspiracy comes at a cost to the sphere of exercising basic freedoms. Conspiracy can very easily become a "dragnet device capable of perversion into an instrument of injustice", allowing police to go after people by trumping up the threat of what they are planning to do but for actually doing very little, or joining dots that otherwise could not be joined. The only thing preventing the law of conspiracy from being taken to its draconian logical conclusion is a degree of sensible enforcement, both at the levels of police and courts. That, one would agree, is hardly a foolproof safety valve to have. 

The comments above are focused on the premise of conspiracies to commit offences; once we move to the other wing of conspiracy i.e., agreeing to do a lawful act by unlawful means, the scope for abuse widens even further. When the going is good, the brunt of conspiracy is usually felt only by those involved in some kinds of harmful conduct - its unfairness restricted to the wrongly charged person in a drug conspiracy or corruption racket. But when the state starts to fear its weakness and imagines any expression of disagreement with existing power structures as a threat, conspiracy becomes to go-to tool for enforcement agencies to quell dissent, and cast a chilling effect on how we exercise our most basic freedoms.       

It is not without basis that Justice Robert Jackson, himself a prosecutor (who was also part of the Nuremberg hearings) before becoming a Justice of the U.S. Supreme Court, went after the conspiracy crime at length in his concurring opinion in Krulewitch (336 U.S. 440). The extract is lengthy, but deserves reading in full:

Its [conspiracy's] history exemplifies the 'tendency of a principle to expand itself to the limit of its logic.The unavailing protest of courts against the growing habit to indict for conspiracy in lieu of prosecuting for the substantive offense itself, or in addition thereto, suggests that loose practice as to this offense constitutes a serious threat to fairness in our administration of justice. The modern crime of conspiracy is so vague that it almost defies definition. Despite certain elementary and essential elements, it also, chameleon-like, takes on a special coloration from each of the many independent offenses on which it may be overlaid. It is always 'predominantly mental in composition' because it consists primarily of a meeting of minds and an intent. The crime comes down to us wrapped in vague but unpleasant connotations. It sounds historical undertones of treachery, secret plotting and violence on a scale that menaces social stability and the security of the state itself. 'Privy conspiracy' ranks with sedition and rebellion in the Litany's prayer for deliverance. Conspiratorial movements do indeed lie back of the political assassination, the coup d'etat, the putsch, the revolution, and seizures of power in modern times, as they have in all history. But the conspiracy concept also is superimposed upon many concerted crimes having no political motivation. It is not intended to question that the basic conspiracy principle has some place in modern criminal law, because to unite, back of a criminal purpose, the strength, opportunities and resources of many is obviously more dangerous and more difficult to police than the efforts of a lone wrongdoer. It also may be trivialized, as here ... However, even when appropriately invoked, the looseness and pliability of the doctrine present inherent dangers which should be in the background of judicial thought wherever it is sought to extend the doctrine to meet the exigencies of a particular case. ... 
[Emphasis supplied]


The next post will turn to conspiracy in the Indian statutory context. 


Reading List (in no order):
  1. Patrick A. Broderick, 'Conditional Objectives of Conspiracies' 94(4) Yale Law Journal 895 (Mar., 1985).
  2. Note, 'Conspiracy and the First Amendment', 79(5) Yale Law Journal 872 (Apr., 1970).
  3. Fred J. Abbate, 'The Conspiracy Doctrine: A Critique', 3(3) Philosophy and Public Affairs 295 (Spring, 1974).
  4. Solomon A. Klein, 'Conspiracy — The Prosecutor's Darling', 24(1) Brooklyn Law Review 1 (1957).
  5. Richard Arens, 'Conspiracy Revisited', 3(2) Buffalo Law Review 242 (1954).
  6. Abraham S. Goldstein, 'Conspiracy to Defraud the United States', 68 Yale Law Journal 405 (1959).
  7. CR Snyman, 'The History and Rationale of Criminal Conspiracy', 17(1) Comparative and International Law Journal of Southern Africa 65 (Mar., 1984).
  8. Alvin H. Goldstein Jr., 'The Krulewitch Warning: Guilt by Association' 54(1) Georgetown Law Journal 133 (1965).
  9. Phillip E. Johnson, 'The Unnecessary Crime of Conspiracy' 61(5) California Law Review 1137 (Sep., 1973).
  10. James W. Bryan, The Development of the English Law of Conspiracy (1909).

Monday, November 15, 2021

Conspiracy: Introducing the series

It would not be an overstatement to suggest that the idea of conspiracies has come to underpin almost all prosecutions where more than one person is accused of an offence, be it a blockbuster case (Elgar Parishad, Delhi Riots, Kerala Gold Smuggling, Agusta Westland, Aryan Khan, and so on) or an ordinary cheating allegation involving multiple persons. 

While the big-ticket cases have attracted a lot of scrutiny in the recent weeks or months, rarely has the conversation included a discussion on the concept(s) of conspiracy. Let's take the most recent case, Aryan Khan's, as an example. The prosecution, so far, has been for the commission of offences under Section 29 of the NDPS Act, which punishes persons for being "party to a criminal conspiracy" to commit crimes under that Act. Even though the state's submissions, as reported in the media, seemed to indicate that this concept of a conspiracy is all it had going against the accused — and the operative here being concept, not proof — there has been very little coverage of just what is a conspiracy in law, who can it ensnare, and how can it be proven. 

Perhaps, there is minimal interest in discussing conspiracy law because at some level, everybody just knows what a conspiracy is. It is the word which we use to describe the conduct of two or more people conferring in secret to do something, illegal. All of us make plans, but we somehow know just what kind of plans the word 'conspiracy' is fit to describe. Plans which, for  instance, involve buying and consuming drugs, bribing officials, cheating people, laundering money, and of course, doing "anti-national" activity. 

All these are conspiracies. And because these plans are conspiracies, they must also be painted with that dark brush of secrecy and their executors brandished with ideas of deviousness. While we might otherwise insist on strict proof from the prosecution, we are more willing to accept a lesser burden on the police given these circumstances, permitting a relaxation on rules of proof and procedure impermissible in other contexts. Again, to take Aryan Khan's bail hearings as an example, the prosecution seems to have suggested it did not have much material to show to the court because it was dealing with a conspiracy, as after all, "only conspirators know how they have conspired". 

Some time back, the Blog discussed conspiracy and abetment [see here], but the idea at that time was to only scratch the surface and tease out the issues. This time around, the idea is to focus on conspiracy for some time, looking at the substantive offence, the associated procedures, and the requirements for proving conspiracies in court. 

The first two posts will look at the substantive offence of conspiracy — looking at the theoretical issues surrounding the conspiracy crime in general, and its specific history and development as an offence in India. The history behind the insertion of a conspiracy offence in the Penal Code was discussed by Nishant Gokhale in an earlier guest post, but this time around we will engage in some more depth with that history as well, and obviously take the story forward by focusing on how the judicial understanding of conspiracy has developed through some very special cases. In addition to this, I wanted to flag how there has been a mushrooming of special conspiracy laws along side the general Penal Code offence that continues to exist. 

The hope, as always, is that the series helps make sense of the law and starts a conversation.   

Tuesday, October 19, 2021

Guest Post: Complicating Indian Law's Position on Voluntary Intoxication

(This is a guest post by Kieran Correia)

The Supreme Court of Canada (hereafter ‘SCC’) will soon rule on the constitutionality of the self-induced extreme intoxication defence in Canadian criminal law. The case before the SCC concerns two defendants who committed separate but similar offences. The incidents have been widely reported on, partly because of the extreme violence involved and partly because they question received wisdom on intention, voluntariness, and liability.

Broadly, both cases comprise defendants who committed violence against family members under extreme levels of intoxication. In both instances the intoxication was self-induced. The issue has split the courts in Canada. At the lower level, courts in both cases ruled that since Section 33.1 of the Canadian Criminal Code (hereafter ‘the Code’) prohibits self-induced extreme intoxication as a defence in violent offences, the defendants were guilty. The defendants appealed, and one challenged the constitutional validity of Section 33.1 of the Code. 

The Ontario Court of Appeals (hereafter ‘ONCA’), whilst hearing the cases jointly in R v Sullivan (hereafter, ‘Sullivan’), struck down the impugned law, and also overturned the convictions (more on that below). The prosecution has lodged an appeal before the SCC. 

The SCC’s judgement is highly anticipated because it will decisively settle the matter. It will also have implications for instances of violence directed toward women, where defendants often claim intoxication as a defence. It is unlikely, Canadian analysts have said, that the SCC will overturn the appellate court’s verdict, which is the focus of this post. The verdict moreover draws an interesting contrast to India’s approach to voluntary intoxication, which is also discussed. 

R v Sullivan: Facts and verdict
The ONCA heard both cases jointly. One involves Thomas Chan, a nineteen-year-old student. Chan consumed a high dose of magic mushrooms. Whilst under the influence of the mushrooms, he went to his father’s house, one Dr. Chan, who lived with his partner. Neighbours reported Chan exclaiming ‘This is God’s will’ and ‘I am God’ before breaking and entering. He then stabbed Dr Chan and his partner. The latter survived. His father died. 

The other case involves David Sullivan who was on a drug to curb his smoking. Sullivan had attempted suicide by ingesting high doses of the drug. After taking up to eighty tablets, he experienced a ‘profound break with reality’. He believed he caught an Archon—a type of supernatural being—in his house. He brought his mother to witness this. However, she tried to assure him there was nothing in the room. Upon hearing this, and under the continued influence of his tablets, he stabbed her multiple times with two kitchen knives, thinking she was an alien. After her screaming that she was his mother, he ceased stabbing her. She survived the assault but died before trial due to unrelated reasons. 

In Chan’s case, the ONCA examined the constitutionality of Section 33.1 of the Code. The trial court had found s 33.1 prima facie violative of the Canadian Charter of Rights and Freedoms (‘the Charter’)—the Canadian bill of rights. Section 33.1 (1) states:

It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care as described in subsection (2).

The ONCA developed a three-pronged argument to explain the issues with Section 33.1. The first is that the section violates the voluntariness principle of fundamental justice (‘lacked . . . the voluntariness required to commit the offence’). It is necessary, according to the Charter, that the ‘conduct that constitutes the criminal offence charged’ be voluntary. Since the section prohibits the defence of (self-induced) involuntariness, it is in express violation of this principle. 

The second prong is that the section violates the presumption of innocence guaranteed to all defendants. To prove someone guilty, the prosecution must prove all necessary elements of a crime. However, Section 33.1, the ONCA says, infringes on that principle by substituting voluntary intoxication for the intention to commit a crime. This absolves the prosecution of their duty and violates the defendant’s rights under the Charter. 

The third prong is that the section breaches the basic mens rea requirement set out in Canadian law: penal negligence. The section fails on three fronts: first, it does not require a link between the intoxication and the act of violence. Secondly, violent behaviour is not an inevitable foreseeable risk of voluntary intoxication, even if that link was required. Thirdly, the ‘marked departure’ element is also not present, even though the section refers to it. This is because voluntary intoxication per se does not constitute a ‘marked departure from the norm.’

The trial court had refused to accept Chan’s argument in its entirety, claiming that the clause was saved by Section 1 of the Charter, which allows for ‘reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.’ The ONCA, however, rejected this justification. It held that to justify a piece of legislation under the Section 1 leeway, the prosecution must demonstrate two things: first, it must establish that the object of the law is sufficiently important to justify overriding a Charter right. And secondly, that the piece of legislation is proportionate. The latter is to be proved by ensuring the measures chosen are ‘rationally connected’, of ‘minimal impairment’, and of ‘overall proportionality’ (p 43). 

If even one element is unfulfilled, the legislation would be struck down. The ONCA found that Section 33.1 did not meet the latter three requirements and hence was violative of the Charter. 

Thus, the ONCA held that the ‘non–mental disorder automatism’ defence, whereby a person is so extremely intoxicated that she is unable to form ‘even the minimal intent required of a general intent offence’, is now a valid defence. However, since Chan has not (yet) established such a state of mind, his conviction only stands overturned, and a fresh trial ordered; he is not acquitted. 

In Sullivan’s case, since the court already established that s 33.1 would have no force and that he displayed non–mental disorder automatism, and thus mounted a successful defence, he would be acquitted on his assault charges. 

Indian and English position on intoxication
Indian law, under Section 85 of the Indian Penal Code (hereafter ‘IPC’), specifically allows for the excusatory defence of involuntary intoxication so long as the person intoxicated is ‘incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law’. However, under Section 86, the IPC limits a voluntary intoxication excuse, which states that: 

In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will.

Whilst the wording of the section is ambiguous, the Supreme Court in Basdev v State of Pepsu (1957) clarified it. In specific intent offences—murder, robbery, and other offences which have a more purposive intent—the defendant’s drunkenness will be taken as a mitigating factor in determining if they possessed the intent to commit a crime. However, this will only apply when the drunkenness is sufficient to render them ‘incapable of forming the specific intent essential to constitute the crime’ (para 13). In general intent offences—culpable homicide not amounting to murder, assault, grievous hurt, and so on—the excuse would not apply. 

To sum up, Indian law, stated expressly in Mirza Ghani Baig v State of Andhra Pradesh, (AP HC, 1996) maintains that ‘voluntary drunkenness is no excuse for commission of a crime’. Considering the mitigating nature of Section 86, voluntary drunkenness does not prevent courts from imputing knowledge to the accused—and that is after crossing the very high threshold of being so drunk as to be unable to form intent. Thus, for example, a defendant’s murder charge under Section 300 may be lowered to culpable homicide not amounting to murder under Section 299 of the IPC. But it would not exonerate him—even though voluntariness and mens rea are vitiated by his intoxication. 

This mirrors English law on the issue, which Professors Andrew Ashworth and Jeremy Horder in their Principles of Criminal Law (9th ed) talk about. The absence of mens rea and volitional actus reus is ‘subordinated to considerations of social defence’, the idea being that some sort of deterrent is necessary, lest a clear path to acquittal be found using intoxication. This further justifies partially excepting specific intent crimes—murder, theft, and so on—because defendants can still be convicted under basic intent offences, such as manslaughter; no social defence is thus lost. Relatedly, and slightly confusingly, since ‘recklessness’ offences (similar to basic intent crimes) only require recklessness, courts find recklessness in the act of being intoxicated, which thus satisfies the ingredient. 

Moreover, even an automatism defence—such as in Sullivan—is not applicable to defendants in India, because, as Professors Ashworth and Horder explain, courts impute the case to intoxication (the cause) rather than automatism (the effect). This follows the doctrine of prior fault. R v Quick set this principle down in stone: Automatism that follows voluntary intoxication will not exculpate the defendant. (It is notable that the prosecution in Sullivan raised a similar argument. However, the ONCA, referencing a long line of Canadian judgements which rejected this transference of wrong to the intoxication rather than the criminal conduct being charged, discarded this argument.)

Reading Indian law with Sullivan
Indian law has a nuanced position on voluntary intoxication. However, it has no excuse provision for a defendant who, whilst self-intoxicated, experiences so profound a break from reality that he does not voluntarily commit the offence, even in specific intent offences. At most, the intoxication will lower the charge from a specific intent offence to a basic intent offence—for example, from murder to manslaughter. 

Against the backdrop of the discussion in Sullivan, this is problematic on three levels: first, the distinction between specific and basic intent crimes has no bearing on extreme intoxication cases. Secondly, extreme intoxication inhibits the voluntariness required to perform an act. A voluntary act is necessary for almost all severe crimes in India, including murder, grievous hurt, and so on. By allowing for a conviction even when the actus reus was not voluntary, this section contravenes an important principle of natural justice. Thirdly, and relatedly, even when accepted in specific intent crimes, the excuse is only mitigating. 

Section 86 bases itself on the principle that voluntary intoxication negatives specific and not general intent, the latter of which is held to be so basic as to endure even whilst voluntarily intoxicated. This does not hold up to scrutiny because the law does not hold the same for involuntary intoxication. Further, in extreme cases of automatism, for instance, even general intent offences would be hard to prove. In such cases, the defendant would be unaware of her immediate circumstances. To claim that she still possessed intent, however basic, is suspect. Alternately, the argument that recklessness offences’ ingredient is satisfied through intoxication annihilates the distinction between ‘legal’ recklessness (where the defendant knew of the consequences and ploughed ahead regardless) and the colloquial usage of the term, something Professors Ashworth and Horder talk about as well. 

Secondly, a voluntary act is a core requirement of criminal law. In cases of voluntary intoxication of extreme levels, an individual may lose control over their actions. That is, they suffer from volitional incapacity. However, the section disallows even volitionally incapacitated persons from raising the excuse. This contradicts the voluntariness necessity. 

Finally, the excuse is a mitigating factor; even after satisfying the high requirements of the section, it does not serve as an exculpating factor. Even though foundational elements of crime—voluntariness and mens rea—are unfulfilled, or are cast doubt on, the defendant does not stand to be acquitted. He will continue to be liable. The law thus negates the defendant’s rights and grants wide latitude to the prosecution in proving their case. 

As for the prior fault doctrine which underpins English law, it is manifestly unfair to generalize correlations between intoxication and criminality. As the Sullivan court states, "proving intoxication does not necessarily or even ordinarily prove the intention to commit assaults" (p 34). A case-to-case approach must be followed. Thus, where it was unexpected and unforeseeable—as with Chan and Sullivan—that the intoxicants would have such violent results, it does not follow for courts to impute ‘prior fault’. 

Conclusion
R v Sullivan, most legal analysts agree, is a valuable and measured amendment of the law on the intoxication defence. By rejecting this rigid restriction, and positing a carefully considered replacement, the ONCA took a balanced approach to a hot-button issue with potentially deleterious implications for women and children. It thus restores important legal rights to defendants.

The decision has useful learning for Indian legislators and jurists. The Indian law on voluntary intoxication, encapsulated in Section 86 of the IPC, is heavily biased against the defendant. It flies in the face of important principles of natural justice which safeguard defendants against prosecutorial zealotry. It is urgently in need of amending. 

Nevertheless, it is imperative to make sure that reforms do not go too far in favour of defendants, since this defence is often taken up by alleged domestic and sexual abusers. This concern takes on added significance in India, where institutions of law are overtly arrayed against women’s interests. Where truly intoxicated to the point of being unaware of one’s surroundings, it would be unfair to charge defendants with either general or specific intent crimes. However, giving carte blanche to an accused would do more harm than good. Following Sullivan’s constricted approach—applied only after the defendant meets a very high threshold—provides a way out of this quagmire.

Wednesday, October 13, 2021

The New Supreme Court "Guidelines" on Bail

It is fairly well known that under the Criminal Procedure Code 1973 [Cr.P.C.], the investigating agency files a Report before court upon completing an investigation, sharing the finding of its investigation [Section 173]. What is not so well known is that, at this stage, if police concludes that there is sufficient evidence to prosecute a case, then under Section 170 the officer "shall forward the accused under custody" to the court empowered to try the case. Only where the offence is bailable, and, the accused can furnish some security to the effect that she shall appear before court when required, can the police choose not to forward the accused in custody. 

This clause is not problematic when persons are arrested during investigation as the "custody" requirement is met. But Section 170 creates a perplexing situation where no such arrest takes place, for it seemingly demands that all accused persons should be taken into custody when the investigation is complete and the case is sent to court, without elaborating more about the nature or duration of such custody. 

In August of 2021, a Two Justices' Bench of the Supreme Court in Siddharth v. State of U.P. [Crl. 838 of 2021, decided on 16.08.2021] was presented a chance to interpret Section 170 in a case where an accused person was served with warrants for his arrest upon completion of the investigation by the police so that it could present the 173 Report in court. Troubled by the mandate of this clause and the prospect of routine arrests it entailed, the Supreme Court blessed the line of High Court cases which had interpreted Section 170 to contain a measure of discretion, so that in cases where the police officer had no reason to suspect an accused will abscond, then there was no cause to arrest the person upon completing the investigation. The Court used the opportunity to reiterate what has become the settled legal position on the issue of arrests:

We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made.

The story did not end here, though, because in parallel proceedings based on seemingly similar facts [Satender Kumar Antil v. CBI & Anr., SLP (Crl). 5191/2021], the same bench of the Court on an earlier date had expressed its displeasure at the prospect of routine arrests and also felt that it was appropriate to "lay down some principles in this behalf". Once the judgment in Siddharth was pronounced, the Court on 18.08.2021 suggested that counsels take note of the same to "assist" them in this case. On 14.09.2021, the agenda moved from principles (which, frankly, Siddharth provided) to "Guidelines", as the Addl. Solicitor General submitted to the Court that he would want to provide suggested guidelines after consulting other counsel. That exercise culminated in the order dated 07.10.2021 in Satender Kumar Antil, where the Court blessed the Guidelines so proposed by the counsel. 

Understanding the Guidelines 

If you have had a chance to read the order of 07.10.2021, then you may as well skip this section which looks at what are the Guidelines. At the outset, it must be stated clearly that these are guidelines and do not override judicial discretion available to judges to decide cases on their facts. But, as anything that comes from the Supreme Court, it will probably be given great deference by the lower courts. 

The Guidelines in Satender Kumar Antil are meant to be relevant only if two conditions coexist: (1) A person is not arrested during an investigation, and (2) She cooperated during the investigation including appearing before the police when required. The Guidelines state that for such persons, there is no need to arrest such persons and send them to court when filing the 173 Report, and then suggest how courts should decide the issue of bail for sucsuggest how a court should decide on the issue presented by Section 170 Cr.P.C. in respect of such persons, and does so by adopting an offence-specific approach. 

Offences have been divided across four Categories: (A) Those punishable with a term of seven years or less, but not falling either in categories B or D; (B) Offences punishable with death, life imprisonment, or a term of more than seven years; (C) Offences punishable with special acts which contain restrictive bail clauses, such as Section 37 NDPS, Section 45 PMLA, etc.; (D) Economic offences, not covered by the said special acts, and where emphasis ought to be given to the seriousness of the charge and associated punishment in each specific case. 

While for all such cases, persons ought not to be arrested and sent in custody while filing a 173 Report where the two conditions outlined above are met, the Guidelines suggest different future courses of action depending upon the kind of offences involved:

  • Category (A) cases are the most benign from a custody perspective, where resort to coercive process (warrants, as opposed to summons)  to secure appearance of accused persons is discouraged and bail applications may be decided without taking an accused in custody or releasing her on bail during pendency of a bail application.
  • For Category (B), (C) and (D) cases, courts are simply told that upon appearance of accused persons pursuant to issuing process (with no suggestion to first resort to summons and not coercive process), their bail applications ought to be decided on merits. For Category (C), courts must also consider the bail clauses contained in special acts while deciding cases. There is no bar on granting interim bail, but at the same time, it is not expressly commended in such cases either. 
Problems Ahead?
There are general issues, and some very specific ones, that I wish to place under the spotlight.

General Issues — Understanding "Cooperation", "Merits", and the Pitfalls of Categories
The preconditions set out by the Court require cooperation during an investigation besides the fact of the accused person not being arrested. The meaning of cooperation is not clarified by the Court, but it seems reasonable to assume that the Court meant the word means something more than appearing before police as and when required, for the court refers to this as being but one facet of cooperation. I agree that pegging cooperation simply to appearance might be counterproductive to investigative needs and, even contrary to law in some cases. But then again, the problem with a qualitative understanding of cooperation is one that has already been seen in context of bail, where police do not shy away from taking a stand that till an accused parrots whatever line the agency wants, she is not cooperating with the probe. By making cooperation a precondition, it confers just the kind of discretion at the stage of 170 Cr.P.C. which the Court might have wanted to do away with. If the Court was making the effort to give guidelines, a little extra effort to spell things out could have helped.

The other general issue is that of deciding bail applications on "merits". The Court does not use this kind of language for Category (A) cases but the other more serious kinds of cases, either punishable with imprisonment for more than seven years and / or for offences under statutes with restrictive bail clauses. There is a fair bit to unpack here. If not merits, then on what basis are courts to decide bail applications in Category (A) Cases? Unless, of course, the Court meant that merits excludes the three keystones of bail i.e., that the accused is not a flight risk, will not threaten witnesses, or tamper with evidence; and instead a court ought to be concerned only with the merits of the allegation. It is no secret that the allegations play, arguably, the most important role even at the stage of bail in the Indian criminal process. But never has the Supreme Court recognised its position of first among equals. The Guidelines can be seen as doing exactly that, which in my opinion is contrary to law.     

Finally, there is the broad issue of the adoption of yet another set of categories for aiding in the exercise of bail discretion. This is an issue about which I have written about elsewhere, suffice to state that in creating categories where the court expressly discourages use of coercive powers for some offences, it ends up creating perverse incentives for the police to try and mischievously paint cases as involving more serious offences simply to keep a hold on the coercive powers that make ordinary people so fearful of the police setup in the first place. For it is police who retain almost exclusive control on how to frame the narrative in the language of criminal law — a victim might bring a story in the form of a complaint, but the police decides which offences are made out in a case. This levelling-up already happens with the cognizable / non-cognizable category, and began to happen post 2014 in respect of offences punishable with up to seven years being painted as more serious, when the Supreme Court limited the scope of arrest powers in Arnesh Kumar [(2014) 8 SCC 273]. In this scenario, while invoking the more serious offence will not give police automatic arrest powers in a Section 170 Cr.P.C. context, it can make bail a lot harder by taking a Category (A) case into Category (B), and encourage misuse and corruption as people would be willing to go to great lengths to remain out of custody.       

Specific Issues — Category (C) and the Economic Offences 
In noting Section 45 of the PMLA under Category (C) as an example of clauses prescribing restrictive bail clauses, the Court set alarm bells ringing in some quarters. Recall that the restrictive bail clause of Section 45, PMLA had been struck down as unconstitutional by the Supreme Court in 2018. Since then, the state and the Enforcement Directorate have tried a great deal to resurrect the clause, with the issue now pending consideration with the Supreme Court. For some lawyers, this reference to Section 45 is being seen as a blessing in disguise, which they fear might be used by the Enforcement Directorate to support its claim that the restrictive bail clauses of Section 45 are active. The Court would have done well to simply avoid reference to Section 45 given the contentious nature of the clause, and it cannot be seen as resurrecting the conditions at a time when the issue is pending before a different bench of the Court. Nevertheless, it will be interesting to see if the Enforcement Directorate tries to make use of this reference in Category (C) the next time it is opposing a bail under the PMLA.

Lastly, I come to Category (D), which covers "economic offences not covered by special acts". This fetish with placing economic crime on the same pedestal as crimes punishable with death has been around since 1950 — back then, death was suggested for hoarders and black-marketeers — and is a sentiment that the courts have never let go of in the seven decades since the Constitution came to be. The scrutiny required to interrogate this moral equivalence is far too much for a blog post to contend with. While I disagree with this position strongly, I will assume its validity for now but instead ask why was the court required to paint its canvas with such a broad brush — economic offences will range from measly theft till robbery, but all were lumped together in Category (D). Thankfully the Court paid heed to the suggestion given by counsel and mentioned that factors such as the seriousness of charge and severity of punishment will matter when we step into the vortex of Category (D). But even then, the Court could not help emphasise the "different nature" of these offences, and so one can only wonder just what kind of warped alternate reality might the issue of bails for economic offences be pushed into following the Guidelines.        

Conclusion
Of course, we will know more about the Guidelines and the benefits / problems they bring only when the dust settles and they are implemented. At this preliminary stage, one can only flag concerns down the road, and the concerns are aplenty. Honestly, it is difficult to understand the need for the Guidelines after the Court had already laid down principles in Siddharth. Even though they are not meant to circumscribe judicial discretion and are "guidelines", they are likely to be implemented with the force of law and throw up some difficult situations. One such will probably be the limited issue of Section 45 PMLA, and that one will be visible. The other issue will be the behind-the-scenes manipulation of case files that the Guidelines will prompt, where offences will be levelled-up or levelled-down by the police keeping the Guidelines in mind; all of which will be invisible, and will further erode the credibility of the criminal process.   

Sunday, October 10, 2021

Guest Post: Stealthing — Interpreting through the Gaps of Consent

(This is a guest post by Dyuti Anand and Jai Agarwal)

On 7th October 2021, a Bill was made into law in California “whereby the non-consensual removal of condoms, commonly referred to as ‘stealthing’, has been included under ‘sexual battery’.”. Sexual battery could be characterized as an act done by a person to make offensive contact with an intimate body part of another, thus committing a sexual offence. There are no laws regarding stealthing in India. However, the Indian Penal Code 1860 (hereinafter “IPC”) deals with various provisions revolving around women’s modesty. The primary element of stealthing and of the provisions of IPC is consent. 

This article attempts to comprehend the position of consent in order to critically interpret stealthing. When the act for which consent is given is terminated, that consent is revoked. In the case of R v. Hutchinson (2014), Mr. Hutchinson poked holes in the condom to get his partner pregnant. However, the partner had only consented to protected intercourse, unprotected intercourse vitiated her consent. This understanding presses the need to incorporate affirmative consent which takes into account the subjective experiences as well as ensures sexual autonomy. Affirmative consent is an informed and voluntary agreement to a sexual activity which must be clearly demonstrated through words. 

The article is three pronged. The first prong addresses the role played by consent in stealthing and its implications. It further delves into the facets of affirmative and conditional consent. The second prong attempts to take the global practices as a precedent towards interpreting stealthing. Finally, the third prong further deals with the idea of the vitiation of consent by fraud in the Indian context, followed by a conclusion. 

[It is preliminarily clarified that the primary focus of the article is on the heteronormative interpretation of consent due to the restrictive language of Section 375. The authors fully recognize that the issue of stealthing largely affects the LGBTQIA+ community.

Placing Consent
The issue of stealthing gained academic prominence after the publication of a 2017 paper by Alexandra Brodsky titled ‘Rape-adjacent’. Stealthing negates consent at the immediate moment of the commencement of unprotected intercourse. According to Brodsky, herein consent is vitiated in two ways. Firstly, in the literal way, as one person has only consented for protected intercourse and secondly, in a risk-inherent way, that one person only consented being aware of the risks involved. The idea here is that had the person been aware of it not being protected intercourse, their affirmation to the act could be different. This highlights the implicit existence of conditional consent. Conditional consent means that consent is given on the basis of certain conditions. If those conditions are not met, consent is deemed to be revoked.

In India, there is no legal provision that deals with stealthing. However, a surface reading of Section 375 of the IPC gives an apparent idea of consent which could be used to gain an insight into stealthing. The issue of consent remains central to the crime of rape. Explanation 2 of Section 375 defines consent as “an unequivocal voluntary agreement when the woman, by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act.” Thereby, consent can be understood to simply mean an explicit ‘yes’. Section 90 of the IPC defines consent in a cursory manner which leaves out inherent subjectivities of the very act. However, it is essential to lay down what does not constitute consent in a manner that it takes into account the subjective experiences.

Understanding the interplay of consent requires us to take into account the social-gender hierarchies existent in the society. In a country where sexual intercourse is looked at from a male perspective, it is impractical to situate female autonomy over their own bodies. It is essential to formulate the definition of rape in a manner that it asserts central importance to consent. Women are aware that they can say no, however, it is the agency that they lack. Agency and autonomy can be ensured by explicitly laying out what does not constitute consent. In the case of Mahmood Farooqui v. NCT of Delhi (2017), the woman’s feeble no was interpreted to mean yes by the courts. The Court was of the opinion that the unwillingness of the prosecutrix was not communicated in her actions. Moreover, the Court said “instances of women behaviour are not unknown where a feeble no would constitute yes.” This necessitates the need to incorporate subjectivity and hence the affirmative standards of consent. A feeble no, though feeble is still a no. It cannot be redefined to mean consent or yes. The prosecutrix was aware that she could say no, she did that as well, however, her no was interpreted to mean yes because of the lack of agency and sexual autonomy that women have. A feeble no is a no, absence of no is a no, silence is no, hesitation is no. The only interpretation to consent is an express verbal yes given out of a person’s own volition. 

Subjectivity of experiences can be incorporated if affirmative consent is given specific importance. The oppressive meaning that has been given to consent must be deconstructed. If a woman has consented to intercourse with condom, the instance the condom is removed without her consent, the act must amount to rape. Affirmative consent gives agency and empowers women despite the implicit presence of power dynamics. Such dynamics lead to a presupposition of consent based on the relationship. Affirmative standards ensure that consent cannot be presumed instead, it must be procured. Centuries of oppression has subjected women to a disempowered position in society. As a consequence of this, their lived and subjective experiences hold no value. The law must give due regard to the disempowered position of women and existing power dynamics in sexual relationships.

Conditional consent can be understood to mean that ‘true consent’ exists only when the conditions upon which that consent was based are met. Thus, affirmative consent may help us only to better answer the existence of consent for an intercourse but conditional consent takes it forward to fill its apparent gap. The gap being that this very consent was given for a particular way of intercourse that should be narrowly understood to mean protected intercourse. The instance this way is done away with, consent is revoked.

The act of stealthing finds its roots in male entitlement and the thrill of degradation. There exists a loosely connected network of blogs, websites, and forums that revolve around the ideas of male chauvinism. Upon a deeper dive, it can be found that these networks exhort acts like stealthing under the garb of masculinity and natural sex. Stealthing affirms the notion that men have sexual entitlement to women for intercourse. It further perpetuates the ideas of violence and non-consensual intercourse in the name of fantasies.

Consent & Stealthing: Round the Globe
Even though it is an issue that plagues us from time, the recent legal developments around it have shaped its discourse around the world. The case of Hutchinson from Canada is one of the earliest additions to the discussion where a man poked holes in the condom and told the woman about it later. The Supreme Court convicted him of sexual assault by observing that the sabotaging of condoms fundamentally altered the nature of sexual activity in question and concluded that the consent was vitiated by reason of fraud. This implied understanding for application of conditional consent is the fundamental position of this article.

In Swiss case of Assange, it was observed that deception about protection would vitiate the consent and thus, the accused was convicted. New Zealand and Germany have also held convictions for the act of stealthing. Australia, this year, saw a huge demand for a legislation on stealthing. In the United States itself, there are pending legislations for stealthing in the States of New York and Wisconsin.

Vitiation of consent by fraud?
In the above section, we discussed the concept of conditional consent as adduced from the case of Hutchinson. The Court in this case held consent to be vitiated by the reasons of “fraud” as the other person was deceived into an act for which she did not consent to. Section 90 of the IPC mentions that it is not a valid consent when given under “misconception of fact”. In this section, we locate this rationale of fraud being present in the Indian jurisprudence and then extend it for the act of stealthing. 

There is a unique and concurrent fact situation in India where consent to sexual intercourse is given under the pretext of promise to marry, which is not fulfilled subsequently. The question of it being characterized as ‘rape’ has come before the Supreme Court of India on multiple occasions. Notably, in the case of Pramod Suryabhan Pawar v. State of Maharashtra (2019), the Supreme Court extending upon its earlier decisions, held that for it to be considered under Section 90 and Section 375, the promise to marry must be a false promise given in bad faith with no intention of being adhered to, and the consequent sexual act must have a direct nexus to this false promise. It has been consistently held by the Court that cases like these cannot come under a straitjacket formula and can only be decided on a case-to-case basis. 

Therefore, we observe that the understanding of vitiation of consent for the reasons of misconception of fact is already existent in the Indian jurisprudence. This can be applied to stealthing using the premise of conditional consent. Stealthing, as understood from the lens of conditional consent, thus, must be read into Section 90 and Section 375 to categorize it under rape. 

The Way Ahead
The primary element in identifying stealthing as an offence is incorporating affirmative consent to give gravity to the subjective experiences. As can be ascertained from the examples spanning across jurisdictions round the globe, stealthing must be categorized as an offence. The primary understanding that should be grounded in the interpretation of consent is one that upholds the principles of affirmative and conditional consent. 

Professor Mrinal Satish in Discretion, Discrimination and the Rule of Law (2016) writes that stealthing should amount to rape on the basis of conditional consent. Section 90 defines consent, negatively, in the sense that it does not include misconception of fact. While Section 375 secondlycategorizes an act to be rape when done “without her consent.” Therefore, the authors believe that stealthing should be read under Section 375 to be characterized as rape.

Thursday, October 7, 2021

Guest Post: On 354C IPC — An Inadequate Provision to Combat Voyeurism?

(This is a guest post by Ritu Bhatia and Manas Agrawal)

Voyeurism is commonly understood to mean the act of watching someone secretly while the person is engaged in a private act. The harms caused by instances of voyeurism include humiliation, breach of trust and privacy, increased risk of sexual violence, ramifications on professional and personal relations, among others. Thus, it is vital to have an adequate provision penalising such conduct. In India, voyeurism can be the basis of civil action, and is criminalised under s. 354C of the Indian Penal Code, 1860 [“IPC”] and s. 66E of the Information Technology Act, 2000 [“IT Act”]. 

The former provision is what occupies our attention in this post. We argue that this provision is grossly inadequate to cover many different situations in which voyeurism can take place. Our focus will be on the concept of “private act” in the definition of the offence as provided today. We do not engage in detail with Section 66E of the IT Act, but suffice to state that while that clause is certainly broader in scope than Section 354C IPC, it is not comprehensive and may yet fail to cover certain scenarios.   

The Provision
Section 354C was enacted on the recommendation of Justice Verma Committee. While there are some differences between the enacted provision from what was recommended, Explanation 1 to Section 354C is materially similar to the recommended definition of ‘private act’ in the Verma Committee Report. 

As per Explanation 1, for anything to qualify as a ‘private act’, there are two conditions that must be met. Firstly, there must be ‘reasonable expectation to provide privacy’. Secondly, there must be an exposure of victim’s genitals, posterior or breasts or covered only in underwear; or using of lavatory or engaged in sexual act. These two conditions are dealt with in segments I and II of the Post. We also briefly compare this definition with its counterpart in Section 66E of the IT Act. 

I. ‘Engaging in private act’ 

Section 354C states in material part that Any man who watches… a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed …” (Emphasis supplied). A literal interpretation of “engaging in private act” conveys that the woman is actively and consciously carrying out a private act. This requirement of active engagement makes ‘private act’ where an expectation of privacy could arise as narrow, excluding various instances of voyeurism. For instance, consider a situation where P has installed cameras underneath tables at a cafe that allow him to see up the skirts of women and capture them. This act will not be voyeurism under Section 354C because she was at a cafĂ© drinking coffee and not ‘engaged in a private act’. 

P cannot be charged under Section 354C IPC; however, he can be charged under Section 66E of the IT Act because it does not require an ‘engagement in private act’. What is needed is that the image of the private area must be captured without consent. Furthermore, the Explanation(e)(ii) to s. 66E defines “under circumstances violating privacy” such that a person can expect that his/ her private parts are not visible in public places as well. Thus, though the woman was in a public place it will still be covered under circumstances where privacy must be respected. It will be reasonable for a woman to expect that while she is in a cafe, her private areas are not visible.

[Note, though, that if there is no capturing of an image but say, merely using a mirror to observe the underskirt area, then the conduct may go unpunished even under the IT Act]

II. Exposure of body parts 

The second condition for ‘private act’ is that there must be an exposure of victim’s genitals, posterior or breasts or covered only in underwear [A]; or using of lavatory [B] or engaged in sexual act not ordinarily done in public[C]. Thus, for the fulfilment of the second condition any among A, B or C must be satisfied. 

Coming to Part A, we argue that it requires mandatory exposure of the genitals, posterior or breasts; or there being covered only in underwear. The word ‘exposed’ as per Cambridge Dictionary means “not covered or able to be seen”. Thus, there must either be a complete exposure, i.e., not covered in any clothing of any of the three body parts [1] or the genitals or posterior must be covered only in underwear [2]. 

The implication of [1] is it does not cover situations where there was no exposure of other two parts but breasts are visible partially. For example; V, a woman, is breastfeeding her newborn baby in a baby care section in a shopping mall, where she has a tthereasonable expectation of not being observed. Now D, a man, had installed a camera in the room and is watching and capturing images. The breasts were only partially visible as some parts were covered. Will this be penalised under s. 354C of the IPC? The answer is no because the breasts were not ‘exposed’; thus, the act was not a private act as per Explanation 1. It may yet be penalised under s. 66E IT Act because there the capturing of private area is not qualified by ‘exposed’. 

Sub-part A can also be satisfied if [2] is satisfied. The usage of the word ‘underwear’ has caused difficulties in the UK and might also be a point of contention as the jurisprudence on voyeurism develops in India. Let us consider an illustration: M, a woman wearing a bikini, has gone to the changing room of the swimming pool club. N, a man, had placed a camera in that changing room. However, he was only able to capture the picture of the woman wearing the bikini. 

The question that arises is whether the term ‘underwear’ includes ‘swimwear’. A UK Court had answered this question in Police Service for Northern Ireland v. MacRitchie. and it held that the context is what mattered. It was stated that if a swimwear bottom is used as underwear and then a woman is photographed in circumstances where there was a reasonable expectation of privacy, it will be voyeurism (See, this paper for a discussion). Consequently, for the above facts, the court held that N was wearing a bikini as swimwear and not underwear at the relevant time and, thus, N could not be charged with voyeurism.

A similar reasoning may be used by Indian courts because Explanation 1 of s. 354C IPC is taken from s. 68 the Sexual Offence Act, 2003 [SOA]. We would argue that adopting this line of reasoning would be flawed and would further water down the already limited scope of Section 354C IPC. The following two examples will illustrate the oddness and absurdity of this reasoning. 

1. R, a woman, is going to the beach and for convenience wears a skirt over her bikini. She thought she will discard the skirt when she goes for swimming. 

2. S, a woman, is going to her laundry and since she has no spare underwear, she wears her bikini bottoms.

Now in both these situations, consider that while going to their destination they get engaged in private act with a reasonable expectation of privacy and their bikini bottom covered genitals are exposed. T, a man, observed it and managed to capture it. Now as per the reasoning of the UK Court in MacRitchie, T will be penalised under s. 354C in the second example and not the first one. In both the examples, T observed and captured the same thing but the only difference was in the intentions of the two women. R used the bottom as swimwear and S used it as underwear. Even if we consider Section 66E, the first situation may not be penalised. That provision uses the words “undergarment clad genitals” and undergarment means ‘a piece of underwear’ as per the Cambridge Dictionary. Thus, the same reasoning will follow. 

Though in both the situations, the privacy of the woman is comprised, but only one gets justice. This shows that the provisions criminalising voyeurism are inadequate.

Concluding Remarks 
Section 354C was added to the IPC on the recommendation of Justice Verma Committee for the prevention of initial minor deviance that would prevent the escalation of a major sexual offence. However, Explanation 1, which defines ‘private act’, is very restrictive and ends up excluding many instances which would otherwise constitute voyeurism. Though many of these instances get covered in the IT Act, that statute also does not criminalise the act of ‘watching’, leaving the scope for several kinds of offending conduct to go unpunished.

What is needed is a definition of ‘private act’ which criminalises the perpetrator’s actions and does not put the onus on the woman to actively ‘engage’ in a private act or ‘expose’ certain parts. To adequately cover the different instances of voyeurism a provision similar to Section 67 and 67A of the Sexual Offences Act must be adopted that also criminalise upskirting. Additionally, an approach that was followed in West Bengal v. Animesh Box, ought to be mandated. The court here along with imprisonment and fine under Section 354C IPC ordered that the victim should be treated as a rape survivor and provided compensation. Considering the harm caused, it will play an important role in assuaging the victim’s difficulties.