Friday, August 27, 2021

Rendering Criminal Law Meaningless: On the Draconian Telangana Preventive Detention Law

In 2017, the Telangana government passed a Bill to ratify and ordinance which had made the "Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders and Land-Grabbers Act 1986", into the "Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders, Land-Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substance Offenders, Arms Offenders, Cyber Crime Offenders, and White Collar or Financial Offenders Act 1986". The Centre had at first questioned this expansion — not due to any rights' concerns, but on grounds of legislative competence — but the President approved the act in 2018, leading to Act 13 of 2018 being passed by the Telangana government (with retrospective effect). Which gave us the Act

This preposterously named statute is not designed to create fast-track criminal courts for the many kinds of "offenders" it lists out in the title, or provide different rules on bail, or even reverse the onus of proof. Rather, this statute refers to categories of persons against whom the Telangana Government can exercise its powers of Preventive Detention. To understand what this process of Preventive Detention is all about, you should take the 4 minutes it takes to go through this wonderful set of illustrations by PenPencilDraw

Simply put, it is a process which enables police to jail people for up to 3 months at a stretch even if they have not committed a crime by a process which involves no proper judicial scrutiny of the allegations, and no right to counsel. What makes preventive detention even worse is that it is often used in tandem with the regular criminal justice system for offences allegedly committed by persons, where detention orders are passed when accused persons are pursuing bail applications or are just about to be released on bail. 

The expanded Telangana Preventive Detention Law is, in fact, seemingly designed to operate in this way. The various categories of "offenders" identified under the Act are defined in a way which expressly links them to the commission of different cognizable and non-bailable offences — for instance, "sexual offender" is defined as anyone who has committed or abetted commission of offences under Protection of Children from Sexual Offences Act 2012, besides certain other Penal Code offences. If a person is accused of having committed such a crime, they will be arrested, and any "threat" to public order posed by them is therefore necessarily linked to their release, or potential release, on bail by a court.    

In this manner, the executive authority fully subverts the judicial process, sending the clear message that it does not matter whether a court applied its mind to a case and thought a person deserves to be released on bail - we can still keep her imprisoned.

When the Telangana Preventive Detention Law was recently involved in a case before the Supreme Court, the bench was surprised that it had not yet been challenged and called the law "draconian" [This was during the course of hearing and deciding Banka Sneha Sheela (Crl. Appeal No. 733 of 2021, decided on 02.08.2021)]. Preventive Detention, as I have argued elsewhere, is inherently draconian in a legal system which is based on the idea of a fair trial being necessary to impose severe sanctions of imprisonment upon anyone. Time and again, states which preach fidelity to this idea endorse Preventive Detention, relying upon that old friend called necessity. This argument acknowledges the need for Preventive Detention but, at the same time, also recognises the need for keep it confined to a domain of extraordinariness. 

By and large, it is fair to say that this has been the Indian approach, in theory, since the Constitution was passed in 1950. Which is what makes statutes such as the Telangana Preventive Detention Law so strikingly dissonant to the law, and so clearly draconian. I say statutes such as the Telangana law, because this is perhaps only the most egregious example from similar laws prevailing across states. And it is also apparent that other states have flirted with the idea of expanding the scope of their Preventive Detention laws in the past — Tamil Nadu, for instance, took a step back in 2014 considering an expansion would run afoul of the Constitution.

What Telangana has done with its Preventive Detention Law, and what other states have either wanted to do in the past and might yet do in the future, is to effectively render the criminal process redundant and in its place erect a crude system of speedy "justice" through jail time for persons "known" to be criminals. The Supreme Court has said that it is cannot be a quick alternative to the regular criminal process, but honestly, that is what Preventive Detention is today. And in a criminal process plagued by delays at every level, it is easy to understand why there is an acceptance for such measures within the government, if not also within society at large. 

Sure, a state government may suffer the odd rap on the knuckles in court for adopting tactics where such obvious deprivation of rights is involved. But on a balance of considerations, is that not worth the cost when what the government stands to gain is a reduction in the crime rate. Want to curb spurious seed sales? Bring it under Preventive Detention. Want to show a tough stance on sexual offences? Bring that also under Preventive Detention. Same for cyber crime, rave parties, and any other kind of undesirable activity you can find. 

Is not the deprivation of liberty for a few justified when it leads to the improvement in the quality of life for the many? This is a false equivalence if there ever was one — this relationship between crime rates and Preventive Detention is no scientifically identified cause and effect but the police crediting any measure they like after the data comes in. It is obvious that they will credit measures which confer upon them almost boundless power and take away the "hassle" of criminal procedure. But the problem is that this false equivalence sells and is easy to fall for. Which is why more states are likely to go down the Telangana route in the future, I suspect, as it is unlikely that any of them are going to actually make the kind of investment required to actually improve how the criminal process functions.

The Telangana Preventive Detention Law might yet be successfully challenged in court and trimmed down to size, but until the criminal process begins to assume some degree of speed, the attractions of "doing justice" through Preventive Detention will remain very high for governments. 

Tuesday, August 24, 2021

Guest Post: Expert Testimony and Section 293 CrPC, A Critique

(This is a guest post by Bharat Harne)

Expert testimony has come to play an essential role in criminal trials. With the rapid advance in science, courts in India (and across the world) have increasingly started relying on scientific proof and analysis for fact-finding. Since an avowed purpose of a criminal trial is fact-accuracy, scientific evidence is seen as a reliable way to get to the truth of the matter. The opinion of an expert is not binding but is material that helps a court to come to a conclusion about facts that it could not have ascertained on its own. Unlike predominant literature on expert testimony in the Indian context which mostly focuses on its probative value, this post looks at procedural issues surrounding expert testimony. First, I make a distinction between two different kinds of experts i.e., medical experts and non-medical experts who play a role in the criminal justice process. Then, I focus on non-medical experts and evaluate whether the relevant legal provisions ensure fair trial of the accused. 

Types of Experts 
For the purpose of this post, experts can be divided into two types, viz. medical experts and non-medical experts. The terms medical experts will be used to refer to doctors (both government doctors and private practitioners) who prepare reports like a post-mortem report, MLC report etc. 

Medical experts are usually called as prosecution witnesses. Usually, in a criminal investigation, medical experts prepare ‘reports’ which are then used for further investigation and are admitted as ‘documentary evidence’ in a criminal trial. For example, in murder cases, the doctor who does the post-mortem prepares a post-mortem certificate which becomes extremely important in the trial to establish the cause of death. Such medical expert prepares a report which contains information about injury (if any) and can be useful to prove the cause of death, nature of injuries, etc. When the prosecution calls an expert on the stand, they are supposed to prove the contents of their reports because these reports are private documents under the provisions of Indian Evidence Act, 1872. The defense is entitled to cross-examine the expert as to the contents of their report.

The term non-medical experts will refer to various other kinds of experts who play a crucial role in an investigation, such as ballistics expert, serologist, chemical examiner, handwriting expert, fingerprint expert, etc. The justification of this distinction is that the procedural law in India itself treats these experts differently. While, on the one hand, prosecution calls medical experts to prove their opinions/reports, the CrPC exempts the prosecution from calling non-medical experts. 

Section 293 and Non-Medical Experts
S.293 of the Criminal Procedure Code 1973 states that any document purporting to be a report under the hand of a Government scientific expert to whom the section applies may be used as evidence in any inquiry, trial, or other proceedings. In other words, this provision creates an exception to the rule that the contents of a document must be proved. As per s.293(4), the exception only applies to reports prepared under the hand of the following Government scientific experts- any Chemical Examiner or Assistant Chemical Examiner to Government; Chief Controller of Explosives; Director of Finger Print Bureau, Director of Haffkeine Institute Bombay; Director, Deputy Director or Assistant Director of Central Forensic Science Laboratory or a State Forensic Science Laboratory; Serologist to the Government or any such expert notified by the Central Government. To date, the Central Government has not exercised its power to notify any other expert who would be exempt from appearing before a trial court. 

The 41st Report of the Law Commission of India sheds light on the rationale of this exception. It notes that s. 509 of the erstwhile 1898 Code exempted a civil surgeon or other medical witnesses from appearing in a Court of Session if the witness has given evidence in the committing court and his recorded statement is made a part of the evidence by a special rule. The Commission had received a suggestion that even the requirement of appearance before committing court should be done away with, and the report itself should be treated as evidence. However, the Commission observed that such a rule would not be helpful as there is a serious risk of experts becoming ‘irresponsible’ and a trial court, in most cases, would end up summoning the medical expert anyway. Further, Section 510 of the old Code was similar to Section 293 of the CrPC 1973. It exempted certain government experts from proving their reports. The Commission noted that the provision is meant to exempt those experts who, because of their ‘small number’ require ‘special treatment.’ Thus, the primary reason why certain experts are exempted is that they are very few in number, and it would be simply impossible to call them in each and every case. 

It is interesting that the Commission did not consider a possibility that ‘special’ experts might not give reliable evidence. Contrast this with how the Commission rejected giving the same exemption to medical experts. The only reasonable explanation for this differential treatment seems to be that medical experts (usually Government doctors) were more in number than experts who were given the exemption. Moreover, literature on scientific evidence suggests that when forensic labs work under the umbrella of law enforcement/government, the experts in the lab begin to see themselves as law enforcement professionals rather than scientists. Cognitive scientists argue that a close working relationship with law enforcement agencies leads to the subconscious adoption of the role of the prosecutor by scientists. This bias can affect the results of scientific inquiry, which are presented as neutral but, in fact, are biased against the defense. The risk is not of gross misconduct, rather that of subtle unconscious bias. CrPC gives exemption to precisely the agencies (such as Central and State Forensic Science Laboratories) who work very closely with prosecution/law enforcement and are therefore susceptible to bias. This phenomenon has been described in vivid detail for the Indian context by Prof. Lokaneeta in The Truth Machines recently.

An example of such bias was seen in reports of the SBI Laboratory in North Carolina in the United States. After a conviction was overturned after fourteen years because of a dubious report by scientists in SBI Crime Lab, an audit of procedures and standards followed in the lab was ordered. This audit led to startling revelations about the practices in the lab that favored the prosecution. The audit highlighted the fact that for a period of sixteen years, it was the practice of the lab to either withhold or misrepresent information that might benefit the defense in criminal charges. There is no empirical evidence to suggest that Forensic Laboratories in India follow similar pro-prosecution protocols. However, neither scholars nor policymakers have really explored this question, and therefore just because there is no evidence to suggest pro-prosecution bias, it cannot be said that it does not exist. 

Procedural safeguards against bias in Scientific Evidence
It is in this context of bias in forensic evidence that the criminal procedure becomes extremely important. If a forensic scientist is called and put on the stand to prove his report, he will be subject to cross-examination by the defense counsel. It has been argued that questioning an expert about his report is likely to bring out biases within such reports. Of course, it is true that such questioning requires a high level of expertise on the part of defense lawyers and judges. But the fact remains that cross-examination provides the basic minimum safeguard against bias in expert evidence. 

Section 293(2) of CrPC states that the court ‘may, if it thinks fit, summon and examine any such expert as to the subject-matter of his report’. This essentially means that it is up to the discretion of the court to summon the expert. However, the defense can also file an application under s. 293(2) to summon the expert for cross-examination. If the defense does not summon the expert for cross-examination during trial, then it cannot be argued at the appellate level that the expert was not examined. In other words, the burden shifts on the defense to file an application before the trial court to summon the expert. While it may seem that, this works as a safeguard, it would be wrong, in my opinion, to assume that litigants are actually using this safeguard. It is difficult to empirically determine how many applications under s.293(2) are filed and how many of them are allowed. However, there is some evidence to suggest that cross examination under s.293(2) is not as common as one might assume. In Abid Beig v. State of Rajasthan, the Rajasthan HC was dealing with a Narcotics Drugs and Psychotropic Substances Act (NDPS) case wherein the accused had not been given an opportunity to cross-examine the report prepared by scientists of the Forensic Science Laboratory (FSL). The court observed that although the reports of FSL are relevant and admissible by virtue of exception under s. 293, it does not mean that the accused should be denied the right to cross-examine the expert. However, more importantly, the court observed that in ‘large number’ of cases at trial court level, the prosecution reports of FSL are pointed out to the accused only at the time of recording of this statement under s. 313 of CrPC. In other words, after the conclusion examination in chief, so that the defense does not get an opportunity to cross-examine. Further, this issue should be seen in the light of the rationale for exception under s. 293, namely, the ‘small’ number of experts. It is no secret that even now, FSLs are grossly understaffed and the Forensic scientists are overworked. Therefore, going to a court to testify is a hassle and it is possible that the scientists might ask the prosecution to make sure that they are not summoned. Worryingly, the Supreme Court itself Thana Singh v. Central Bureau of Narcotics noted that since a large number cases under NDPS are pending, trial courts should take the ‘benefit’ of Section 293, thereby implying that cross-examination of experts can be dispensed with for ensuring speedy trial. While it is not my contention that speedy trial is not important, it cannot come at the cost of the right to cross-examine. 

It is interesting to contrast India’s position with the United States (US). The Sixth Amendment to the US Constitution gives the right to an accused to be confronted by the witness against him in a criminal trial (what is referred to as the ‘Confrontation’ clause). In Luis E. Melendez-Diaz v. Massachusetts, a case before the US Supreme Court (USSC), the petitioner was alleged to have been trading in cocaine. Some samples were taken and sent to a laboratory for testing. A report was prepared, which confirmed that the samples were, in fact, cocaine. In the trial, the said report was taken as evidence without giving an opportunity to cross-examine the author of the report. The USSC held this to be a violation of the accused’s Sixth Amendment right. More importantly, it acknowledged that forensic reports are not ‘neutral’ as it is widely believed and acknowledged that people working in these labs are often pro-prosecution because of close working relationships with law enforcement.

Way Forward
First of all, the policymakers should rethink the exception provided under section 293. The exception was provided in the Code because these experts were very ‘few’ in number and not because their expertise was not subject to errors/bias. However, doing away with the exception might further burden the already overworked Forensic labs in India. The unfortunate fact is that even now, forensic labs in India are disproportionately low and grossly understaffed. Recently, the Karnataka High Court highlighted the fact that a lot of cases are pending because of delays occurring in Forensic Science Laboratories. This tells us that the exception under section 293, which was supposed to expedite cases, is not working, and policymakers should instead focus on increasing Forensic Laboratories and hiring more experts. Therefore, to save the time of forensic experts, along with increasing Forensic Science infrastructure, policymakers should also focus on video conferencing of expert testimony. A recent study by PGIMER Hospital found that their doctors had saved nearly 30,000 working hours and around Rs. 2.79 crore in the last four years by using a tele-evidence facility. This facility was touted as the first such facility in what was supposed to be a nationwide program undertaken by the Ministry of Health and Family Welfare to install tele-evidence facilities across hospitals and courts in the whole country. However, so far, there has been no update on the status of the implementation of this program. 

Expert testimony plays a crucial role in the endeavour of criminal trials to get to the truth. Advances in medical science in general and forensic science have allowed scientists to answer complicated questions which could not have been answered before. The Indian legal framework adopts a slightly paradoxical approach to the summoning of expert witnesses. Under the Indian Evidence Act the prosecution is obligated to prove the reports of medical experts by getting them to testify before the court orally. While medical experts are obligated to prove the contents of their reports, some ‘special’ experts under the CrPC are exempt from having to come physically to court and take the stand. This exemption is premised not on the scientific objectivity of their expertise but practical problems which the legislature imagined such experts could face in having to travel to court. However, the fact remains that forensic science is not ‘neutral’ and is given to bias, and in failing to consider this issue I argue that the legislature committed a misstep. The practical concerns germane to 1973 can be addressed with relative ease in 2021, using videoconferencing for example. Given the importance of these witnesses to trials and the fact that, ultimately, it’s a matter of personal liberty, the default procedure must be that they appear and testify and are subject to cross-examination – not the present elective approach which places defendants under an onerous burden.

Saturday, July 31, 2021

Guest Post: The SC Judgment in Patan Vali - Progressive Obiter, Regressive Ratio?

(This is a guest post by Vrishank Singhania)

On April 27, 2021, a two-judge bench headed by Chandrachud J., in the matter of Patan Jamal Vali v. State of Andhra Pradesh [‘Patan Vali’], rendered an important judgement on the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 [‘SC/ST Act’]. The case pertained to the rape of a visually challenged woman belonging to the Scheduled Caste. The Sessions Court had convicted the accused under Section 376(1) of the Indian Penal Code, 1860 [‘IPC’] for rape, and under Section 3(2)(v) of the SC/ST Act. Section 3(2)(v) enhances the punishment to life imprisonment, for any offence under the IPC punishable with imprisonment for ten years or more, against a member of the SC/ST. Based on these two offences, the Sessions Court sentenced the accused to life imprisonment. 

An appeal was filed against this judgement in the the Andhra Pradesh High Court, which upheld the conviction. The orders of the High Court and the Sessions Court were then appealed to in the Supreme Court. The Supreme Court was satisfied that the conviction under Section 376(1) was proved beyond reasonable doubt and confined itself to the question of whether the offence under Section 3(2)(v) had been proved. 

In its judgement, the Supreme Court used the framework of intersectionality to critique and question the correctness of past interpretations of Section 3(2)(v). However, it stopped short of referring the matter to a larger bench, because in its opinion, the Section 3(2)(v) charge anyway failed on evidentiary grounds [paras 55-56]. Given the Court’s foray into intersectionality and critique of past precedent, the Court clearly sought to embody a spirit of caste-consciousness. However, I argue, that its application of the law to the present case belies this spirit. 

In the first section of this post, I look at some recent judgements of the Supreme Court on Section 3(2)(v) to contextualise the problems with the existing jurisprudence. While this issue has been discussed on this blog (here), I seek to go into greater detail – and in particular, examine the significance of the 2015 amendment to section 3(2)(v). In the second section, I analyse the Court’s critique of this jurisprudence in Patan Vali. In the third section, I critique the Court’s decision on the facts of the present case.

Judicial interpretation of Section 3(2)(v) of the SC/ST Act 

As mentioned above, Section 3(2)(v) provides for enhanced punishment of life imprisonment for certain offences under the IPC. While this provision was amended in 2015, earlier it provided that – 

"(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe

(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property, on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine."                                          (Emphasis supplied)

The judiciary, in its interpretation of this section, read-in a mens rea requirement: it required proof that the caste of the victim was the motive behind the accused having committed the offence. At the level of the Supreme Court, the first instance of the reading-in of such a requirement was seen in Masumsha Hasanasha Musalman v. State of Maharashtra. This interpretation of Section 3(2)(v) was then carried forward in the other cases, such as Dinesh v. State of Rajasthan and Ramdas v State of Maharashtra. None of these judgements, however, provided any reasoning as to why Section 3(2)(v) required proof of caste as motive – there is no attempt to source such a mens rea requirement to either the text or legislative history of the Act, nor to any past precedent. 

The National Coalition for Strengthening SCs & STs (Prevention of Atrocities) Act in its report noted that a mens rearequirement contradicts parliamentary intent, and a Ministry of Home Affairs note made clear that motive ought to be irrelevant. Further, in State of Karnataka v. Appa Balu Ingale, Ramaswamy J. observed that motive is irrelevant when it comes to untouchability and atrocities against SC/ST, and that social necessity requires dispending with evidence of mens rea. Despite these, courts continued to use mens rea as a ground to acquit persons accused under the SC/ST Act. 

Given the abysmally low conviction rates, various Dalit rights organisations issued a clarion call in 2010 to strengthen the SC/ST Act through necessary amendments (for more on why it is difficult to prove caste-based motive, see here). One of the recommendations was to remove the phrase “on the ground” in Section 3(2)(v) given its misinterpretation by the judiciary. In responding to these demands, Parliament amended the SC/ST Act in 2015. Section 3(2)(v) now provides that – 

“(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, 

(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property knowing that such person is a member of a Scheduled Caste or Scheduled Tribe, or such property belongs to such member shall be punishable with imprisonment for life and with fine.” (Emphasis supplied)

The phrase “on the ground” was replaced by “knowing”, to reduce the burden that courts had (incorrectly) placed on the prosecution under this Act.

The Supreme Court in Ashrafi v. State of Uttar Pradesh held that there was a distinction between the standard, pre- and post-amendment. It held that after the amendment “mere knowledge” of the victim’s caste was sufficient to establish an offence under Section 3(2)(v). However, this lower standard would apply only in cases after the amendment came into force. In Ashrafi, the offence pre-dated the amendment. However, it was held that – 

"In the absence of evidence proving intention of the Appellant in committing the offence upon PW-3-Phoola Devi only because she belongs to Scheduled Caste community, the conviction of the Appellant Under Section 3(2)(v) of the SC/ST Prevention of Atrocities Act cannot be sustained." (Emphasis supplied)

The Court thus increased the threshold under the erstwhile provision, by reading in “only”: It would have to be shown that the “only” motive of the accused was the victim’s caste – the presence of any other motive would mean that Section 3(2)(v) was not attracted. Given that other motives such as enmity, jealousy or lust could also be traced to the commission of an offence, this increased threshold then became a ground to acquit accused under the Act. 

At the very least, this judgement had recognized a lower standard under the amended section, even though it had increased the standard under the original section. However, even this distinction between the original and amended section has now been conflated by the Supreme Court. 

In Khuman Singh v. State of Madhya Pradesh, the Court was dealing with an offence committed in 2005 i.e., prior to the amendment. However, the Court reproduced the amended section and then held that “There is no evidence to show that the offence was committed only on the ground that the victim was a member of the Scheduled Caste.” (Emphasis supplied)

There is no mention of the amendment in this judgement nor of the holding in Ashrafi. Given the offence was in 2005 (before the amendment), it is likely that the Court intended to apply the pre-amendment clause, but erroneously reproduced the amended section instead. While there is some room for ambiguity here, the conflation is clear in Hitesh Verma v. State of Uttarakhand [for a criticism of the interpretation of s.482 CrPC in this judgement, see here]. This case pertained to an offence committed in 2019 i.e. post amendment. The judgement mentions the amendments to the SC/ST Act and even goes into the details of the social context and purposes of the Act. Nevertheless, it goes on to hold that "… [facts] would not disclose an offence under the Act unless the victim is abused, intimated or harassed only for the reason that she belongs to Scheduled Caste or Scheduled Tribe." (Emphasis supplied)

This conflation has also crept into some High Court judgements. For instance, consider the Delhi High Court’s decision in Danish Khan v. State (Govt. of NCT of Delhi), which has been criticised on this blog (here). As the author notes, the High Court applied the ‘only’ standard by relying on Dinesh and Khuman Singh. Interestingly, in Danish Khan, the offence took place in 2019 i.e. post amendment. The Court should have applied the new standard. Nevertheless, like the Supreme Court, the High Court conflated standards and applied the ‘only’ standard to the amended clause. A similar conflation is seen by the Chhatisgarh High Court in Pavas Sharma v State of Chhatisgarh.

Thus, after the 2015 amendment, enacted to strengthen the SC/ST Act, the Supreme Court in Asharfi first increased the standard under the pre-amendment section. It then in Khuman Singh and Hitesh Verma applied the higher standard even to the amended section, thereby destroying the purpose of the amendment itself. 

Critique of Existing Jurisprudence Based on Intersectionality
Intersectionality claims that “oppression arises out of the combination of various oppressions which, together, produce something unique and distinct from any one form of discrimination standing alone...” [para 14, Patan Vali]. In other words, the experiences of a SC/ST woman are different from the experiences of a savarna woman. Multiple sources of oppression (such as caste, gender and disability) operate together, and they cannot be isolated in silos. In contrast to the intersectional approach, a single axis approach to discrimination homogenizes the experience of a group of persons based on a single marker such as gender, caste or disability. It does not account for the differences in experiences of persons within these groups. Patan Vali uses the lens of intersectionality to make two critiques – first, of the original section 3(2)(v); and second, of the holding in Ashrafi.

In terms of the original section, the Court states that the phrase “on the ground” is an instance of a statute only recognizing a single-axis model of oppression which requires that a person prove a discrete experience of oppression suffered on account of their caste. However, the problem with such statutory formulations according to the Court is that when the oppression is intersectional, it is difficult to separate out various grounds for oppression because they operate together. When a disabled, Schedule Caste woman experiences sexual assault she does not know whether it was because she was a woman or disabled or Schedule Caste. Her experiences are not disjunctive, but a combination of all her identity markers. According to the Court, the amended section on the other hand, by doing away with “on the ground”, enables an intersectional approach. [para 50].

The Court then critiques Asharfi, which read-in the requirement – “only on the ground” into Section 3(2)(v). This the Court observes is an incorrect reading of the clause and amounts to introducing a restriction that the Act did not contemplate. Further, from an intersectional lens, such an interpretation fails to account for how oppression functions in a cumulative fashion, and a separation of the grounds of oppression is impossible. The Court states that the correct interpretation of the original section would be that an offence under the section is established, so long as it can be shown that caste was merely one of the grounds for the offence. [para 55].

This critique marks an important discontinuity from other Supreme Court judgements which have sought to validate the Asharfi interpretation and have even extended it to the amended SC/ST Act. However, in my opinion, its first criticism of the original section 3(2)(v), incorrectly identifies the problem as the wording of the section - in particular, the phrase “on the ground”. This phrase, according to the Court, indicates that a person needs to “prove a discrete experience of oppression suffered on account of” their caste [para 50]. This however is not possible because grounds of oppression operate together – thus according to the Court the amendment rectified a flaw in the statute by replacing “on the ground” with “knowing that”. But the Court provides no explanation for why it believes that the wording of the original section required a single-axis approach. In fact, it seems to contradict itself on this point later in the judgement. While critiquing Asharfi, it states that reading in “only” was incorrect because an offence under the original section is established, so long as caste is merely one of the grounds of the offence – i.e., an intersectional approach was possible [para 55]. On one place the Court holds that the original section embodies a single-axis approach, whereas in another, it holds that the section embodies an intersectional approach. 

Apart from this inconsistency, Patan Vali failed to identify a more fundamental problem with previous interpretations of section 3(2)(v) – the introduction of a mens rea (or motive) requirement. As mentioned earlier, this was without any textual or historical basis. The failure to recognize the problem of the judicial introduction of mens rea has two consequences. First, it led the Court to hold that the 2015 amendment was necessary because of a lacuna in the statute, and not because of judicial misinterpretation of the original section. Given that there are pending cases from before the amendment, Patan Vali only serves to fortify the judicial misinterpretation by characterising it as a legislative error. Second, as I argue below, the Court ends up requiring proof of mens rea – which is ultimately the reason why it finds that the charge under Section 3(2)(v) has not been satisfied.

Supreme Court’s Decision on The Facts of Patan Vali 
While the Court doubts the correctness of the ruling in Asharfi, it refrains from referring the matter to a larger bench. This is because the Court says that the case anyway fails on evidentiary grounds, and thus, it need not go into an interpretation of the section itself [paras 55-56].

The Court holds that the prosecution failed to establish that the offence was committed on the basis of caste, and in this regard, disagrees with the ruling of lower courts. The Sessions Court had inferred that the offence was committed on the grounds of caste on the basis of the circumstances surrounding the offence –the accused knew the victim’s caste, and he committed the offence in her own house, in broad daylight, with her mother around – highlighting the impunity he believed he had on account of his caste [para 7]. However, according to the Supreme Court, for a conviction under the section the prosecution must lead “separate evidence” that specifically establishes the intent or motive of the accused [para 58]. When the Court introduced a motive requirement in the past, it left room for lower courts to infer motive based on surrounding circumstances – as the Sessions Court did here. However, Patan Vali adds further restrictions by requiring prosecution to furnish “separate evidence” as to the accused’s intent. 

The Court holds that since the original section adopts a single-axis approach, but oppression is intersectional, it would be difficult to establish what led to the offence – “whether it was her caste, gender or disability” [para 58]. Intersectionality thus becomes a reason for why an offence under section 3(2)(v) cannot be established. 

Far from being progressive, the Supreme Court’s reasoning on facts ultimately creates two additional hurdles for a successful prosecution under section 3(2)(v) – first, that motive cannot be inferred from circumstances, but requires separate evidence; and second, intersectionality makes it harder to separate grounds for oppression, making it difficult to show that an offence was on the basis of caste. While the criticisms of the Act and past precedent constitute obiter and do not change the position of law (since the matter is not referred to a larger bench), the additional restrictions it introduces are part of the ratio, as they constitute the core of Court’s decision. Nevertheless, it is an important judgement in that it recognizes the challenges that plague the enforcement of the SC/ST Act. Only time will tell which aspects of this judgement are fortified in further rulings by courts across the country.

Sunday, July 25, 2021

Guest Post: Case Comment — Charansingh v Maharahstra and Developments in the Law on Preliminary Enquiry in Corruption Cases

(This is a guest post by Mr. Divyang Thakur. Views are personal)

The Hon’ble Supreme Court of India (the Court) in the case titled Charansingh v. State of Maharashtra (AIR 2021 SC 1620) decided on 24.03.2021 came to some interesting conclusions regarding the scope of a Preliminary Enquiry (PE) in corruption cases which have potentially far-reaching implications. 

A complaint was received by the Anti-Corruption Bureau, Nagpur regarding disproportionate assets owned by a public servant, the Appellant (hereinafter referred to as ‘C’). C received a notice issued by the Inspector (“IO”) of ACB, Nagpur in pursuance of an “Open Enquiry”. The notice required C to (i) give a statement regarding the properties owned by him; (ii) produce certain documents relating to the properties. The list of documents required to be furnished by C to the IO has been reproduced by the Court in the judgment and is repeated here for the sake of convenience: - 

“1) Record in respect of ancestral and self-acquired property in your name, for example, Registered Deed, Construction Licence, Receipts relating to tax, Sale Deed of Agricultural Land, 7/12 Extract and Mutation Entries, etc. 2) Details of ancestral and self-acquired gold coins and jewellery, likewise sale and purchase of vehicle. 3) Passbooks, Certificates, L.I.C., Shares/Debentures Certificates, etc. in respect of investments at bank, insurance and others in your name and in the name of your family members. 4) Details of documentary evidence in respect of loan borrowed by you. 5) Proofs and income tax return in respect of your income other than your remuneration. 6) Details of expenditure incurred by you in respect of pilgrimages, functions, hospitals, foreign tours, etc. 7) Information regarding remuneration and allowances received by you.”

C challenged the notice issued by the IO, ACB through a writ petition alleging that the same infringed his constitutional right against self-incrimination before the Hon’ble High Court which dismissed the petition and thereafter C appealed to the Hon’ble Supreme Court.

The Findings
Two questions arose: - (a) whether a PE was legal, (b) what is the scope and extent of such PE.

Regarding (a), the Court relying upon Lalita Kumari v. Government of UP & Ors (AIR 2014 SC 187) found that such enquiry was permissible and in the words of the Court “…and not only permissible but desirable, more particularly in cases where the allegations are of misconduct of corrupt practice acquiring the assets/properties disproportionate to his known sources of income…” This is merely a reiteration of Lalita Kumari where the Court had identified corruption cases as one category in which PE would be permissible. (Whether the Court in Lalita Kumari having interpreted Section 154 CrPC in the manner in which they did, should have given judicial sanction to PEs is debatable and also not the subject of the present post.)

The more significant findings relate to (b) i.e., with respect to the manner and extent of the PE. The Court found that (i) a PE is only held to determine if a cognizable offence is made out; (ii) the IO need not be completely convinced or satisfied about the gravamen of allegations, it is sufficient if he suspects the commission of a cognizable offence, once the IO does so suspect he is duty-bound to put an end to the PE and register the FIR; (iii) a notice sent during the PE is only to allow the receiver of the notice to clarify regarding the assets and known source of income; (iv) the statement recorded during such PE does not fall within Section 160 CrPC; (v) the statement recorded during PE cannot be used against the accused during trial; (vi) the statement recorded during PE cannot be treated as a confessional statement. 

The Court finally dismissed the appeal while adding a rider that the statement recorded during the PE could only be used by the IO to enable him to take a decision with respect to registration of the FIR.

Implications & Key Takeaways

The Conundrum of summoning of documents during A Preliminary Enquiry
From a reading of the notice as reproduced in the judgment that was issued by the IO, ACB, it appears that it was not merely a notice to give a statement but to produce documents as well. In fact, the Court notes that “By the impugned notice, impugned before the High Court, and during the course of the 'open enquiry', the Appellant has been called upon to give his statement and he has been called upon to carry along with the information on the points, which are referred to hereinabove for the purpose of recording his statement.” In fact, the Court also cited the rules under the Maharashtra State Anti-corruption & Prohibition Intelligence Bureau Manual of Instructions 1968 which explicitly allow the Enquiry Officer (EO) to collect “all available documentary evidence in support of the allegation”. The Manual of the Central Bureau of Investigation (CBI Manual) also allows for collection of documents during a PE (Point 7.14 of Chapter 7 dealing with PE states that required documents should be collected with a proper receipt. Interestingly, it is further stated that notices under 91 CrPC and 160 CrPC cannot be resorted to during a PE.) 

In Shyamlal Mohanlal v. State of Gujarat (AIR 1965 SC 1251) the Hon’ble Supreme Court held that “any person” does not include the accused u/s 91 of the Code of Criminal Procedure (CrPC) and therefore notice cannot be issued to an accused to produce documents, by virtue of Article 20(3). 

However, from a reading of this judgment, it appears that the IO could ask a person (as he would not be an accused before registration of FIR) to produce relevant documents during the PE stage. While the Court was at pains to point out that any statement recorded during the PE could not be used during trial, it did not hold so for documents. 

In disproportionate assets cases, the prosecution case often rests on documentary evidence related to the proof of known sources of income and actual assets. It would be highly contradictory for the IO to come to a finding that a cognizable offence has been made out on the basis of documents furnished during the course of the PE and then be subsequently barred from using such document at trial. 

At the same time, to say that the IO could summon documents from a potential suspect during PE but not do so during investigation incentivizes the IO to conduct the investigation in the garb of a PE, register the FIR and then place those documents on the charge sheet which were summoned from the accused during the PE, thereby doing indirectly what he could not have done directly by virtue of the Shyamlal Mohanlal judgment, without resort to Section 91 CrPC. In Charansingh, C had raised the issue of a potential violation of the rights guaranteed under Article 20(3) of the Constitution i.e., the right against self-incrimination, however the Court did not directly deal with the same and resolved the tension by holding that such statements were not to be used during trial. 

Charansingh, therefore, creates a grey area for criminal defence lawyers while advising clients at the stage of PE. Can a potential accused refuse to participate in an “open enquiry”? Could he refuse to produce documents which could potentially lead to a criminal charge, penalty or forfeiture? Would he be subject to prosecution under Section 175 of the Indian Penal Code (IPC) in event of such refusal? Unfortunately, there is no clarification in this regard in the present judgment and could possibly lead to future litigation. 

Removal of the Protection of Section 160, 161 and 162 CrPC for Statements made during a Preliminary Enquiry 
The CrPC lays down certain safeguards that protect witnesses and accused during the course of an investigation. Section 161(2) binds persons to answer truly except in cases where the answers might expose him to a criminal charge, penalty or forfeiture. Such refusal does not lead to a prosecution under Section 176 IPC. However, in the present case, the Court ruled that the statement made during PE does not fall under the ambit of Section 160 CrPC. Presumably this would be true for witnesses as well as the potential accused. Would this mean that Section 161(2) does not apply and therefore, there is no right to silence during the PE and a possibility of prosecution under Section 176 IPC? Even conceding the fact that the statement of the potential accused cannot be used against him during the trial, the judgment does not clarify the status of the statements made by other witnesses who might be arrayed as prosecution witnesses during trial. A liberal interpretation would be to presume that no statement made, whether by the potential accused or witnesses would be admissible during trial, however, as the present case only dealt with the use of the statement of the accused, there is a grey area with respect to the statements of witnesses. 

Moreover, if such witness statements do not fall under Section 160 CrPC, in that case, the bar of Section 162 CrPC would not operate, and such statements could be used to not only contradict prosecution witnesses but to corroborate them and operate in a manner similar to an FIR or a statement under Section 164 CrPC. Moreover, the EO, in absence of the bar under Section 162(1) could also get such statements signed by the witnesses, which might prejudice the accused during trial. 

The holding in the present judgment that statements made during a PE do not fall under Section 160 CrPC might have some unintentional consequences and create a grey area. 

Section 27 of the IEA and Discovery during PE
Another problem that might arise is if a discovery takes place by virtue of a statement made during PE. Usually, such confessional statements are admissible by virtue of Section 27 of the Indian Evidence Act 1872, notwithstanding anything contained in Sections 25, 26 of the IEA. In this case it would be the prosecution that stands to lose, because the present judgment makes the statements completely inadmissible, without exceptions. 

The other alternative with the IO would be to register such confessional statement as an FIR and thereafter conduct the subsequent recovery, but then that would subvert the rationale behind the present judgment where the Court tried to shield potential suspects from their statements made during PE being used against them subsequently. 

As noted above, Charansingh could potentially lead to unintended consequences, especially in the three situations outlined above. It should also be kept in mind that the present judgment would also be applicable to a vast variety of white-collar crime, matrimonial, commercial cases investigated by the local police authorities, where a PE is usually conducted, and not only to corruption cases. It would have been better, therefore, if these issues were clarified, especially as this ruling could incentivize Investigative agencies to conduct investigations surreptitiously in the guise of a PE, with wider powers than they have under the CrPC. Moreover, while the Court held that the statement of the potential accused cannot be used against him during trial, it would have been better if the Court had identified the statutory principles behind this, as to my understanding, there is nothing in the Evidence Act that bars the use of such statements.

Of even more significance is the rationale used to justify the PE as being helpful to the potential accused as it enables him to give an account of his assets. This sounds very much like an obligation on the accused to disclose his defence at the pre-FIR stage itself. It also looks like a discovery procedure for the Prosecution against the defence at a much earlier stage. Certain jurisdictions like England under the Criminal Justice Act 1996 (amended in 2003) require a disclosure of defence in certain circumstances. We should be on guard against any such ad hoc disclosure and discovery procedures in the garb of a PE. IOs often place the entire record of the Enquiry on record before the Court and without being intended, such record could play a role in the final decision on charge and judgment. 

In the larger perspective, while the Supreme Court was at pains to point out that the framework of the CrPC is inapplicable PE, it is unclear then as to what rules can be resorted to by the IOs of various agencies to conduct a PE. The CBI Manual recognizes that the CrPC is inapplicable to the collection of material including documents during a PE but then also requires the Enquiry Officer to collect “required documents”. While it has been the settled law that the CBI Manual and other manuals of similar nature are in the nature of executive instructions and cannot override the statutory law, the decision in Charansingh has, in my opinion, given the judicial go-ahead for Enquiry Officers to collect documents and statements while explicitly making the CrPC inapplicable. While the decision clearly states that this exercise is only for the purpose of deciding whether a cognizable offence is made out, it is not clear as to what remedy is available if an Enquiry Officer exceeds his mandate.

It is time that PEs, if seen as necessary, should have legislative backing, clearly delineating the safeguards, and resolving the conundrums highlighted in this post.

Tuesday, July 20, 2021

Guest Post: Analysing The Constitutionality of The Reverse Onus Clause In The Uttar Pradesh ‘Love Jihad’ Law

(This is a guest post by Ishika Garg and Shamik Datta)

In February, 2021, the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2021 (Hereinafter “the Law” or “the Uttar Pradesh Law”) was passed by the Uttar Pradesh State Assembly. Section 3 of the Uttar Pradesh Law lays down the offence punishable under the legislation, and reads as: 

“No person shall convert or attempt to convert, either directly or otherwise, any person from one religion to another by use or practice of misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage nor shall any person abet, convince or conspire such a conversion”

In relation to this offence, the contentious Section 12 of the Law crafts a reverse onus clause. The clause reads as follows: 

“The burden of proof as to whether a religious conversion was not effected through misrepresentation, force, undue influence, coercion, allurement, or by any fraudulent means or by marriage, lies on the person who has caused the conversion and, where such conversion has been facilitated by any person, on such person.”

A reverse onus clause can be understood as one that places the burden of proof upon the accused once the prosecution establishes certain foundational facts. In the absence of such a clause, the onus would be on the prosecution to show that the conversion was coercive. However, in the present case, this clause would require the accused to prove that the conversion was consensual, as long as the prosecution establishes the basic foundational fact of the occurrence of the act of conversion. In this post, the authors shall analyse the constitutionality of this clause by subjecting it to the four-fold test laid down by Justice Gupte in his separate opinion, in the case of Shaikh Zahid Mukhtar v. State of Maharashtra [(2017) 2 AIR Bom R 140]. In doing so, the authors shall rely on various judgements that have upheld the constitutionality of reverse onus clauses in other statutes. 

An analysis of the clause, through Justice Gupte’s four-fold test.

Justice Gupte laid down the four-fold test to scrutinise the constitutionality of reverse onus clauses, on the anvil of the fundamental rights of equality and liberty enshrined under Article 14 and 21 of our Constitution (Paragraph 213, Pages 231-232). The four conditions stressed upon were as follows -

  1. Is the State required to prove enough basic or essential facts constituting a crime so as to raise a presumption of balance of facts (considering the probative connection between these basic facts and the presumed facts) to bring home the guilt of the accused, and to disprove which the burden is cast on the accused?
  2. Does the proof of these balance of facts involve a burden to prove a negative fact?
  3. Are these balance facts within the special knowledge of the accused?
  4. Does this burden, considering the aspect of relative ease for the accused to discharge it or the State to prove otherwise, subject the accused to any hardship or oppression?

We shall now examine the clause through each prong of this test. 

The first condition of the test requires the prosecution to establish certain basic foundational facts which must have a rational connection with the presumed facts, in a way that makes the latter highly probable. This presumption of ‘balance of facts’ (considering the probative connection between the basic facts and the presumed facts) is a prerequisite for presuming the guilt of the accused. In the landmark case of Noor Aga Khan v. State of Punjab [(2008) 16 SCC 417], the Supreme Court upheld the constitutionality of Sections 34 and 54 of the Narcotics Drugs and Psychotropic Substances Act, 1985. The presumption of guilt only arises, when the prosecution proves certain foundational facts, which would shift the burden on the accused to rebut this presumption. 

This crucial requirement of proving foundational facts was reiterated in Dharampal Singh v. State of Punjab [(2010) 9 SCC 608] and Bhola Singh v. State of Punjab [(2011) 11 SCC 653]. The evidence presented by the prosecution must have probative value, which essentially means that it must sufficiently point towards the conclusion that the accused committed the crime. Only when the prosecution satisfies this standard can it be considered just for the accused to displace such presumption of guilt. In the context of NDPS, this standard of proving initial facts would be satisfied once the prosecution established that firstly, there was contraband and secondly, that the same was in the conscious possession of the accused. Similarly, in the recent case of Justin @ Renjith v. Union of India, the Kerala High Court stressed on the importance of necessitating the prosecution to prove certain foundational facts such as the age of the victim, and the occurrence of the alleged incident, in order to uphold the constitutionality of the reverse onus clause in the Protection of Children from Sexual Offences Act, 2012

Contrary to this requirement of establishing basic facts, the Uttar Pradesh Law presumes the guilt of the accused without the establishment of a probative connection between the basic facts and the criminalised act of religious conversion. This is because the only foundational fact to be established in the present case is that of there having been a conversion. In our view, this fact alone is not sufficient to establish a probative connection in this regard. To better understand the problem associated with shifting the burden of proof under the Law without the establishment of a probative connection, we must turn our attention towards the numerous instances where the Law has been misused. From these instances, it becomes clear that even in cases where the conversion took place with the consent of the ‘victim’, the accused has had to face an FIR lodged by the family members of the converted person, or a third party. When such is the ground reality, one must question the absence of proving the non-consensual aspect of conversion from the ambit of the basic foundational facts. The mere fact of there having been a conversion, without establishing the non-consensual nature, cannot suffice to establish the probative connection between the facts and the criminalised act under the Law. Therefore, the Law does not rationalise the connection between the basic and presumed facts and hence, does not fulfil the first condition laid out in the four-fold test.

In P.N. Krishna Lal v. Govt. Of Kerala [1995 Supp (2) SCC 187], the Supreme Court recognised that the casting of burden of proof on the accused cannot be allowed when such presumption is raised in relation to the proof of negative facts. Building on this, the second condition of Justice Gupte’s test enquires whether the aforementioned ‘balance of facts’ involves a burden to prove negative facts. The Uttar Pradesh Law criminalises conversion via ‘misrepresentation, force, undue influence, coercion, allurement, or by any fraudulent means or by marriage’. Section 2(a) of the Law defines ‘allurement’ as:

(a) Allurement means and includes offer of any temptation -
(i) any gift, gratification, easy money or material benefit either in cash or kind.
(ii) employment, free education in reputed school run by any religious body; or
(iii) better lifestyle, divine displeasure or otherwise;

In the present case, the negative fact to be proved by the accused is that no allurement occurred due to their actions. Broad terms like ‘allurement’ and ‘any temptation’, once alleged by the prosecution, require an analysis of the mind of the victim at the time of the commission of the offence, on the basis of whether the party actually felt ‘tempted’ by the actions of the accused. Even if the test of preponderance of probabilities is applied, it is unthinkable how the accused can reasonably or fairly be expected to disprove this subjective feeling of temptation, once alleged by the prosecution. Such a burden imposes an unreasonable standard of proving negative facts on the accused. 

On this account, the Uttar Pradesh Law also fails the third condition of the test which requires the balance of facts to fall within the special knowledge of the accused. As argued by the authors, the proving of negative facts does not lie within the special knowledge of the accused in the kind of situations dealt with by the Law. As emphasised in Justin @ Renjith v. Union of India, Parliament is justified in reversing the burden of proof in context of aspects which lie exclusively within the domain of the accused’s knowledge. This case is distinguishable in the present discussion, as it deals with sexual offences committed under the Protection of Children from Sexual Offences Act, 2012. The rationale for such justification was based on the fact that there may not be any eye witness to the incident committed. However, this rationale cannot be deemed to apply in a fool-proof manner in the context of religious conversions, and the authors argue that no other comparable justification is present either. 

It is undisputed that the reversal of burden of proof can only be allowed in those cases where it is evident that there exist certain special facts within the knowledge of the accused, which he can prove or disprove easily. Knowledge, or mens rea, is imputed to the accused in cases such as those of possession of firearms, where mere possession leads to presumption of a harmful purpose [Shaikh Zahid Mukhtar]. However, merely proving the basic foundational fact that a religious conversion took place, cannot be deemed to be in furtherance of a harmful purpose. This is because in multiple cases of religious conversion, it has been noted that the accused had the consent of the converted person, which is not an offence punishable under the Uttar Pradesh Law. The mere proof of conversion does not lead to a presumption that the act was in furtherance of an unlawful, let alone a harmful purpose. Thus, the standard for imputing knowledge to the accused is not satisfied in the present case. With this in mind, the Uttar Pradesh Law fails to fulfill the third condition of the test. 

This leads us to the fourth condition of the test, which enquires whether the burden of proving innocence will subject the accused to any hardship or oppression. In addition to the distress mentioned above, there is also a psychosocial aspect to be considered. In India, religious conversions are widely associated with social stigma and seen as ‘immoral’. This leads to the viewing of the accused as a ‘wrong-doer’, even when the conversion is performed with the consent of the converted person. This situation is further exacerbated when the Law is misused extensively by the prosecution. The justification of reverse onus clauses in light of ‘easier convictions’ cannot be accepted as a higher conviction rate could only increase the possibility of wrongful convictions. A conviction under a reverse onus clause does not necessarily signify guilt, and may just be the undesired result of the accused not being able to satisfy the high standard of proof he is burdened with. An example of the possibility of such wrongful convictions is found in a recent case, where the government explicitly admitted that it did not possess the requisite evidence to prosecute two Muslim men accused of converting a Hindu woman. The woman supported the men, stating that her husband had wrongfully tried to frame them because they supported her when she faced domestic violence from her husband. In all such cases, the hardship faced by the accused is evident and it is clear that the Law does not meet the fourth condition of the test. 

When assessing the validity of Section 12 of the Law, ignoring the inextricable link between constitutional and criminal law would be a grave mistake. The above analysis of the reverse onus clause under the Law, leads to the conclusion that the Law fails to meet the criteria of the four-fold test. Moreover, the rationale behind the law of curbing ‘unlawful conversions’, cannot be justified when analysed in comparison to reverse onus clauses in other statutes, whose constitutionality has been previously upheld by the court. In light of these considerations, the authors believe that the reverse burden of proof clause needs to be reconsidered.

Monday, July 12, 2021

Guest Post: India Needs a 'Derek Chauvin' Moment

(This is a guest post co-authored by Anurag Tiwary and Priyanka Singh)

With Derek Michael Chauvin being sentenced to two hundred and seventy months in prison for the murder of George Floyd, it’s about time India followed suit by addressing the right questions on Police Reforms 

When 46-year-old African-American, George Floyd, was murdered on the streets of Minneapolis, Minnesota by Derek Michael Chauvin, a senior Minneapolis Police Department (MPD) officer, the incident brought to light the years of violence, oppression and acts of subjugation meted out against blacks and African Americans in the United States since centuries. It also brought to light how unashamed those in power were. 

It wasn’t the first time something like this had happened in America. Breonna Taylor, Rodney King, Michael Brown, Alton Sterling are just a few names that come to mind. This time it seemed like an inflection point in America’s racial history. There was a palpable sense of frustration among the entire population. Floyd’s death had sparked a row of protests across America. People of all age, class, race, gender, region, religion and community came out in the open and protested on the streets.

The administration acted swiftly. Mr. Chauvin was immediately dismissed from service, was arrested within three days of the incident and was convicted of murder by a 12-member jury within a year. Jurors took less than a day to reach this unanimous verdict. The MPD chief came out and said that the acts of Mr. Chauvin were against the norms, practice and training of the department. The President of the United States hailed the verdict. Chauvin is now in prison. The trial judge had identified four aggravating factors and sentenced Derek Chauvin to 270 months in prison. This was historic. 

This case is significant to India not just because it took practically less than a year to convict a white police officer (something next to impossible in India for any kind of matter given the number of cases pending in our courts) who murdered an African-American without any fear of the law in broad daylight with bystanders filming his dastardly act, but is also noteworthy for the kind of debates and discourse that it has given birth to on Policing and allied issues across the world. 

In this post, we shall specifically pick up two major developments which are comparatively new and fairly significant additions to the debate that help highlighting the major problems India faces today in the context of police reforms. 

Pattern-or-Practice Investigations
First and foremost is the debate around the need to introduce ‘Pattern or Practice Investigations’(POP Investigations) within our police administration. POP investigation was introduced in America under the Violent Crime Control and Law Enforcement Act of 1994 as a response to the Rodney King police beating in 1991. The Act authorises the Attorney General to conduct investigations and, if needed, file civil litigation to eliminate a “pattern or practice” from the police administration. POP investigations are the kind where the focus is on finding out whether the police, as a class, has systematically engaged in discriminatory activities. Do its actions form a pattern or behaviour and is it embedded in routine practices of misconduct? A historical analysis if you will. Post this identification stage, there is a preliminary enquiry against the erring police department collectively and if sufficient evidence exists then a formal investigation is initiated. 

The investigation involves a comprehensive evaluation of the policies, procedures and practices of the police in the areas where specific allegations are alleged. These investigations are carried out through in-depth interviews with the police personnel, evaluation of the department’s training and curriculum programs, reviewing the department’s written policies and practices, their systems for monitoring and supervising officers and their formal procedures for investigating complaints. According to a report, there have been more than 71 such investigations since 1994. 

The idea behind POP investigations is to identify the pain points within the police administration and initiate early interventions by critically examining the issues. A POP investigation assesses systemic deficiencies by gathering information from police officers, community members, advocacy groups, organisations and other stakeholders. Once the investigation is complete, it ends with a negotiated agreement which is then given a legal status by a federal court order and is overseen by an independent negotiator. 

The provision of initiating such an investigation into the wrongdoings and misconduct of the police, remains a distant dream in India. For one, such an attempt has never been made here and secondly, debates around Police Reforms in India have mostly remained ‘structural’ as opposed to being more ‘foundational’ and one that takes a bottom-up approach to solving the problem. Identifying and defining the issues that plague our system, outlining their scale and intensity and critically analysing these findings is key to successfully initiating any reform. On the contrary, there seems to be a lack of commitment in India to acknowledge any existence of police misconduct. This is at a time when misconduct and brutality has been institutionalised within the force. 

The 2019 Common Cause Report on Status of Policing in India which surveyed close to 12000 police personnel across 21 states and 10595 of their family members, states that 36% of our policemen use violence as means to deliver justice and 19% of them believe that killing convicts of heinous crimes by the police is the right way to go about dispensing justice. The report also claims that many police personnel today believe that Gender-based-Violence complaints are false and motivated and that members of the Transgender community, Muslims, Dalits and so on are more naturally prone to committing crimes. Resultantly, with its own share of obviousness, this attitude jeopardizes the underprivileged and the marginalised more than it does to anyone else. A few recent incidents also tend to vindicate this conclusion

According to a 2014 article, methods of torture by the police in India included hammering iron nails in the body, hitting private parts, urinating in mouth, applying chilli powder in private parts and inserting a hard-blunt object into anus, among others. These are not sporadic incidents of police brutality but appear to be part of the police administration machinery and normalised to an alarming extent in society at large.

In these circumstances, a POP investigation will facilitate the creation of an official database comprising of numerous incidents of misconduct that the police administration has engaged in for years together. Lack of such a historical database in the status quo is an obstacle to any critical analysis that needs to be undertaken. America, now, is seeking to create such a database with the help of a National Police Misconduct Registry which will improve transparency and naturally increase accountability. 

Accountability for Law Enforcement Misconduct
Ensuring Accountability is an important facet of any modern government in a democracy and a lack of it results in a serious blow to its legitimacy. Any debate around ensuring accountability for law enforcement misconduct has two facets. Firstly, ensuring that the accused, i.e. police officer accused of misconduct, is put on a trial and Secondly, that the trial doesn’t take years and that justice is served within a limited time frame. Both of these are principles that stems from our constitutional goals of creating a society where social justice is guaranteed and rule of law prevails. However, India has failed on both these facets. 

Despite the high number of custodial deaths in India (reportedly around five deaths daily), prosecutions are very rare and convictions rarer still. According to the National Crime Records Bureau (NCRB) data, between 2001 and 2018, only 26 policemen were convicted of custodial violence despite 1727 such deaths being recorded. These are shocking numbers. Added to that, immunity-conferring provisions such as Section 197 and 132 of the Cr.P.C. can act as barriers to pursuing cases against police personnel. Internal departmental disciplinary proceedings are allowed under the Indian Police Act of 1861. However, such proceedings can only be challenged before the High Court or the Supreme Court on the issue of “quantum of punishment on ground of proportionality”

If an FIR is registered, an already understaffed and overburdened police administration takes ages to get a chargesheet filed. Infact, even if a chargesheet is filed, the criminal intent is usually difficult to prove as the standard of proof requirement is ‘high’ and the victim needs to show a ‘clear and gross violation that shocks the conscience of the court’ or a ‘patent and incontrovertible violation of any Fundamental Rights’. Under the George Floyd Justice in Policing Bill, 2021, the USA is now seeking to lower the criminal intent standard and to limit qualified immunity as a defence available in such prosecutions. The Bill also seeks to restrict the use of certain policing standards and promises transparent policing with the help of a ‘National Police Misconduct Registry’. These are attempts to make police more accountable, responsible and trustworthy and to ensure that cases of police misconduct are tried faster than ever before by removing such legal barriers that act as obstacles in the status quo. 

Another obstacle to securing accountability in India is its liability regime in cases of police misconduct, which, as of this day, is largely pecuniary and compensatory as opposed to a criminal conviction. The Judiciary in several landmark judgments has paid huge emphasis on monetary compensation to be paid by the state for a lost life. Judgments such as Saheli vs. Commissioner of Police (1990), Rudul Sah vs. State of Bihar (1983), Bhim Singh vs. State of Jammu and Kashmir (1986), PUDR vs. Delhi Police (1989), State of Maharashtra vs. Ravi Kant Patil (1991), Nilabati Behara vs. State of Orissa (1993) and several others are examples of how accused police officers initially got away, and after many years the state was held liable to pay compensation to the victim’s family from the treasury. 

These are problematic areas of the law that serve the accused police personnel by granting them loopholes within the laws so that they can get away by either paying monetary compensation from the state treasury or being protected by immunity-conferring provisions. Furthermore, the extremely slow Criminal Justice System in India only exacerbates problems. Accountability, therefore, is almost never possible. 

There have been several other developments post the George Floyd murder. One such development is the rising call for defunding the Police, limiting its powers, and creating alternate organisations responsible for crime prevention. The murder of George Floyd was a final nail in the coffin for activists who have been demanding for years that the powers of the police be curtailed. Their demands rise from several well founded concerns. To start with, police brutality is just one form of police misconduct; other forms include false arrests, intimidation, illegal profiling, political influence, surveillance abuse, sexual abuse, police corruption, etc. These are global concerns which have resulted in claims that the police is no more good at its job and has, therefore, become a defunct organisation. That is precisely why there are specific demands to fund alternate organisations and incorporate scientifically driven and legally sound frameworks for crime reduction. Although this development hasn’t been covered in this post in greater detail, it certainly demands further exploration. 

Derek Chauvin’s conviction was the culmination of a long history of struggles but, Americans believe it is only the first step in the right direction. As India awaits its Derek Chauvin moment, it is important that these debates take place, that questions are asked, and that accountability is sought – more than ever before. All this has to first start with an acknowledgement of the problem at hand and only then steps to eradicate them can subsequently follow.