Sunday, February 18, 2024

Call for Submissions: NLSIR Vol. 36(2)

(This is a call for submissions for the National Law School of India Review)

NATIONAL LAW SCHOOL OF INDIA REVIEW (NLSIR)

VOL. 36(2): DEMOCRACY, FREE EXPRESSION, AND PRESS CENSORSHIP

INTRODUCTION

The freedom of expression finds expression in the world’s largest democracy in Article 19(1)(a) of the Constitution of India. In any democratic polity, accountability, checks and balances, and transparency among various institutions are of paramount importance. As an institution, the media and the free press play a critical role in upholding accountability and transparency norms in public life. In India, particularly, the press has often been referred to as the “fourth pillar” of Indian democratic life. 

Over time, serious questions have been raised about the independence of the media and the press in India. In 2023, India ranked 161 out of 180 countries in the Press Freedom Index, the lowest it has ever been. This comes at the same time that state authorities arrested Prabir Purkayastha, the editor of NewsClick, an independent Indian news website. Purkayastha was booked under terror charges on allegations of money laundering and promoting Chinese propaganda.

The press in India is, and has always been, a prominent institution in exposing various issues that affect public life. The undermining of such an institution raises important questions of academic interest and warrants in-depth analyses.

Volume 36(2) will focus on the multiple legal issues around press freedom in India. The Special Issue aims to analyse the relationship between various laws and press freedom. In doing so, it emphasises the deeply intertwined relationship between press freedom and democracy in the Indian context.

VISION FOR THE ISSUE

The vision underlying the issue is prompted by repeated instances of undue influence, both overt and subtle, that have raised questions about the extent of freedom of press in India. Governmental interventions, as well as corporate influence, have contributed extensively to the suppression of the free press.

There have been numerous instances of such undue influence over the past few years. From the crackdown of press freedom in Jammu & Kashmir, to the blocking of independent news outlets, to increasing concentration vis-à-vis corporate ownership of media houses, the press in India has come under increased strain. This raises pertinent issues with respect to the health of Indian democracy and public discourse.

This issue seeks to unpack all these factors. An illustrative list of issues that we seek to cover in this Special Issue are:

a) Investigating how cultural norms, social identities, and power dynamics shape freedom of speech and expression in India, and the implications for inclusivity and social cohesion.

b) Analysing the influence of economic factors, such as corporate ownership, advertising revenue, and market competition, on media independence and editorial autonomy.

c) Exploring the role of digital platforms, social media, and online journalism in facilitating or restricting freedom of speech, and the challenges posed by online censorship and misinformation/disinformation.

d) Assessing the adequacy and effectiveness of existing laws and regulations governing press freedom and exploring potential reforms to enhance media freedom and accountability.

e) Assessing the legal framework governing corporate liability for media content, including defamation, privacy violations, and other legal challenges, and analysing case law and legislative developments in this area.

f) Examining the role of whistle-blowers in exposing corporate malfeasance, corruption, and unethical practices in the media industry, and assessing the adequacy of legal protections and institutional mechanisms for safeguarding whistle-blowers’ rights.

g) Assessing the constitutional protections afforded to journalists’ rights, including the freedom to report, investigate, and publish news without fear of reprisal, and analysing judicial responses to attacks on journalists and media organizations.

The Special Issue will include both invited as well as submitted contributions. We cordially invite scholars from diverse areas of study to be part of, and provide their own contributions to, this Special Issue. We invite scholarly articles, empirical research, policy analyses, etc., that contribute to understanding press freedom in India. Interdisciplinary approaches and comparative law papers are particularly welcome.  

SUBMISSION GUIDELINES

Submissions for the Special Issue may be made in accordance with our Submission Guidelines under any of the mentioned categories. For further clarity on the categories, please refer here.

Interested authors are requested to submit their manuscripts via our Digital Commons platform. Please refer to this guide for instructions and clarifications with respect to navigating Digital Commons.

The deadline for submissions is 15th May 2024.

Please note that we do not accept submissions over email.

NLSIR SYMPOSIUM 

Once the Special Issue is finalised, we will invite all authors to be a part of the annual NLSIR Symposium conducted in the form of a roundtable discussion. The transcript of the same will be published as a part of Vol. 36(2).

CONTACT

For any queries with respect to Vol. 36(2), please feel free to reach out to us at mail.nlsir@gmail.com. 


Sunday, February 4, 2024

Guest Post: The Supreme Court, Default Bail, and the Question of 'Incomplete' Chargesheets

(This is a guest post by Kartik Kalra)

The Supreme Court delivered its judgment in Central Bureau of Investigation v. Kapil Wadhawan on January 24 ('Wadhawan'). It held that the Respondent-accused’s previous release on default bail sanctioned by the trial court, and affirmed by the Delhi High Court, was incorrect, as these findings were based on an incorrect appreciation of the “sufficiency” or “completeness” of the police investigation when assessing applications u/s 167(2) of the Code of Criminal Procedure, 1973 (“CrPC”). 

In this post, I propose that the Court’s prohibition on assessing the investigation (through the report commonly called a 'chargesheet') for examining its completion constitutes a breach of the state-citizen compromise underpinning default bail. Given the crucial nature of pre-trial liberty in contemporary criminal procedure, I propose that a high-scrutiny enquiry into a chargesheet's sufficiency (and thereby, an investigation’s completeness) must be undertaken by courts at the stage of assessing default bail, as a bureaucratic assessment of the bare-bone, physical filing of a charge-sheet substantially endangers civil liberties.

I make this argument in the following manner – first, I discuss the facts in Wadhawan, noting similarities with the currently “recalled” judgment of the same Supreme Court in Ritu Chhabaria v. Union of IndiaSecond, I discuss the judgment in Wadhawan, arguing that the Court trivialised aspects of the chargesheet’s “incompleteness” highlighted by courts below, to seemingly doctrinally forbid an enquiry into a chargesheet’s sufficiency. Third, I propose that the present political economy of pre-trial detention – where prolonged incarceration constitutes punishment for pre-trial detainees – necessitates high-scrutiny enquiries into charge-sheets’ contents by courts authorising default bail.

Ritu Chhabaria Analogue: The Problem of Judicial Scrutiny into Chargesheets
Wadhawan arose with filing applications for default bail u/s 167(2) of the CrPC, which mandates the accused’s release from pre-trial detention if the police have not completed investigation within sixty or ninety days of remand. This aspect of completing an investigation is reflected by the investigating agency filing a chargesheet under Section 173 of the Code. 

In Wadhawan, the investigating agency (the CBI) filed a chargesheet within the stipulated time (which, the trial court had held after arguments, was ninety days). The trial court even took cognizance of offences on its basis. After this, the accused filed applications for bail under Section 167(2), arguing that the investigation was incomplete, and the chargesheet was nothing but a means to frustrate the right to default bail.

The issue, therefore, concerned the chargesheet’s contents, and deliberating the completeness or lack thereof of the investigation by the CBI. A materially similar issue arose before the Court in Ritu Chhabaria – there, the police filed a chargesheet, which the Court found incomplete, and held that it did not disentitle the accused from being released. The opinion discouraged other courts from “mechanically accepting incomplete chargesheets”, prompting an enquiry into its contents, which would enable a court to determine the investigation’s completeness (¶33). Of course, the opinion has since been “recalled” by the Supreme Court itself in Directorate of Enforcement v. Manpreet Singh Talwar, forbidding courts from relying on Ritu Chhabaria, but not specifically depriving courts from considering the argument therein (which was not novel at all). 

This enquiry into contents of a chargesheet is important to preserve the moral value of pre-trial detention, for the scheme of sixty/ninety days under section 167(2) is designed with the notion that detention without probative material pointing to the accused’s guilt must be for a limited duration. Disingenuous chargesheets aiming to pin guilt on the accused preliminarily, awaiting (a long) process of trial, must be deeply scrutinised by courts. 

Antony Duff, for example, notes that the legitimacy of pre-trial detention lies in citizens’ obligation to account for the reasonable fears their status as an “accused” generates in others’ minds by agreeing to a degree of social exclusion, especially when the alleged offences are heinous in nature. When, however, no attempt is made to enquire into an accused’s guilt, and probative material pointing thereto is lacking even after the completion of sixty/ninety days, the accused’s obligations to account for social fears must be recognized as having diminished, for they are – overall – presumed innocent of having committed the offence.

The above, of course, is without prejudice to one’s release prior to the completion of these sixty/ninety days, which is done through ordinary bail. The extent of one’s obligation to account for social fears reduces if it can be demonstrated that they would dissociate from, and enable the peaceful completion of the fact-finding process, for it has been shown that they pose no great social risk to warrant pre-trial detention. In case, however, one has been unable to obtain bail due to, for example, the court’s assessment of the accused’s likely involvement in the offence, the sixty/ninety duration is the maximum period – without additional probative material pointing to their guilt in the form of the charge-sheet – for which they can be detained. The completion of these days is deemed a sufficient discharge of one’s obligation to account for social fears, which would be trumped by their presumption of innocence.

Courts must, therefore, enquire deeply into the police’s fact-finding process, represented through the charge-sheet, to determine whether the guilt being preliminarily pinned on the accused has been arrived at through a genuine fact-finding process, or it is merely a disingenuous attempt to “scuttle” – as noted in Ritu Chhabaria – the accused’s release.

The Instant Case: Trivialising “Incompleteness” to Forbid Sufficiency Enquiries
The allegations in Wadhawan were of bank fraud — alleged misappropriation of loans taken from banks by diverting proceeds for various purposes into various companies. The charge-sheet filed within ninety days – the accused claimed – was nothing but “a subterfuge or ruse to defeat the indefeasible right…u/s 167(2)”. The trial court agreed, holding that the investigation, both into allegations against the accused as well as other persons and companies, was incomplete, and such a chargesheet could not defeat default bail (¶40-42). The Delhi High Court concurred, holding that this assessment was correct, and “substantial investigation even qua the present accused persons [was] incomplete” (¶31). It also analysed the chargesheet’s contents independently, holding that the “material collected by the investigating agency so far… falls too short” (¶31). Its remarks align with the underlying purposes of pre-trial detention discussed above, emphasising on the wrongfulness of authorising detention without probative material pointing to the accused’s guilt:

33. …[I]n the report filed by the investigating agency there should be sufficient evidence to bring home the guilt of the accused. The purpose should not be merely to detain the accused…The detention during investigation or trial cannot be turned into a punitive detention. It is also a settled proposition that further investigation can be conducted only after the investigation is complete.

Given the insufficient probative material pointing to the accused’s guilt, which was reflected in an incomplete chargesheet, the High Court refused to authorise further pre-trial detention.

This entire line of enquiry into a chargesheet’s contents, however, has been disagreed with by the Supreme Court, which appears to place greater emphasis on the ritualistic filing of a chargesheet as against a deeper enquiry into its contents to decide the issue of default bail. The Court, I argue, does this in two ways – first, it modifies the flaws of the instant chargesheet, trivialising them to justify default bail’s general legal unavailability after any chargesheet has been filed; second, it holds that a flawed or incomplete chargesheet (especially where the alleged incompleteness is minimal, like the instant case) is – for all purposes – a chargesheet, which is all the responsibility that Section 167(2) envisions placing on the investigating agency’s part.

The instant chargesheet, it holds – contrary to the Special Judge (CBI) and the High Court – did not suffer from any major flaw, having only two minor errors – first, investigation was pending against a few co-accused but complete against the accused; and second, only a few documents were missing in the chargesheet (¶19-20; 23). These observations, it must be noted, deviate from the factors cited by both lower courts to conclude the investigation’s incompleteness, which noted the investigation’s substantive incompleteness against the accused in the instant case, as well as many aspects of the CBI’s allegations being uninvestigated. The Supreme Court, by departing from factors causing the chargesheets to be incomplete, trivialises the factors causing incompleteness, which it subsequently invokes to bar an enquiry into charge-sheets’ contents as a matter of law:

22. …The report is complete if it is accompanied with all the documents and statements of witnesses as required by Section 173 (5). As settled in the afore-stated case, it is not necessary that all the details of the offence must be stated.

23. The benefit of proviso appended to sub-section (2) of Section 167 of the Code would be available to the offender only when a chargesheet is not filed and the investigation is kept pending against him. Once however, a chargesheet is filed, the said right ceases…

In this way, the Court’s trivialisation of the instant chargesheet’s flaws transforms into a general legal prohibition on enquiring into its contents. Though I cannot comment on whether the charge-sheet in the instant case was, in fact, complete, it must be noted that the Supreme Court – leave offering reasons to depart from concurrent findings of fact of two lower courts – does not even acknowledge this departure: both courts below held the chargesheet disclosed an incomplete investigation into the accused, while the Supreme Court held the same investigation was complete, with only allegations against the co-accused remaining pending. Further, the Supreme Court did not engage with the High Court’s reasoning proposing the necessity of substantial probative material in the chargesheet pointing to one’s guilt, holding the physical act of filing a document titled “chargesheet” sufficient to defeat the accused’s release. This unfortunate conceptualisation of state-protective criminal procedure is exacerbated in the contemporary economy of pre-trial detention, where bail adjudication acquires centrality.

On the Necessity of High-Scrutiny Enquiries into Charge-Sheets at the 167(2) Stage

The centrality acquired by bail adjudication in contemporary criminal procedure, as has been noted, arises from the extraordinary duration taken by full-fledged criminal trials, which take, on average, between three and nine years (91). In such a situation, for accused persons whose guilt has not been conclusively established through procedurally-sound processes of trial, liberty at the pre-trial stage is crucial. Such liberty, however, is determined based on a court’s weighing of likelihoods: bail adjudication generally involves factual enquiries into the likelihood with which one committed the alleged offence. This line of questioning, which aims to enquire into the factual guilt of the accused to adjudicate on bail, has become the norm, likely to result in skewed rejections of bail whenever a court deciphers a semblance of one’s involvement.

Given the uncertainty involved in bail adjudication that is likely to play against the accused, default bail – where the accused possesses an assured release in the absence of probative material pointing to their guilt – must be held to this basic minimum standard, where this material is, in fact, shown to be in existence at the moment of assessing default bail’s availability. Despite Chhabaria having been “recalled” by the Supreme Court, many courts do seek to uphold this basic minimum: in Fakhrey Alam v. State of Uttar Pradesh, for example, the Supreme Court released an accused on default bail in an alleged UAPA offence, as chargesheets were “preliminary” or “supplementary” in character (¶11); and in Chitra Ramkrishna v. CBI, the Delhi High Court found that filing of “incomplete/piece-meal charge sheet[s]” could not defeat default bail (¶43).

In case the enquiry at this stage is confined solely to the timely filing of a physical document titled “chargesheet”, without a deeper scrutiny into its contents that aims to decipher the genuine collection of probative material, it would tilt the already skewed balance of criminal procedure further towards the state. It would mean that an unsubstantiated semblance of guilt is sufficient to warrant pre-trial detention by rejecting regular bail, and that a chargesheet premised on an “incomplete” investigation – that has not sought to, or been unable to genuinely determine the accused’s involvement – also enables the same, lengthy pre-trial detention. This constitutes a large normative hole in pre-trial detention’s underpinnings.

The pre-trial detention stage, as noted above, can be conceived of as a conscientious citizen’s accommodation of reasonable social fears emanating from the fact of an allegation having been made against them – especially when the alleged offence is heinous in character – to separate from society for a duration that enables a proper fact-finding. This compromise, however, becomes unreasonably stretched when one is expected to undergo pre-trial detention despite the demonstration of tangible reasons why such social fears are unwarranted (in regular bail, for example, where one shows that they would peacefully dissociate from an investigation), and a breach on the state’s part to genuinely undertake fact-finding into the accused’s involvement with the offence. In case the state alleges one’s involvement for the sole purpose of preventing release, without possessing a genuine, objective belief in their guilt, it would be difficult to justify the accused’s corresponding obligation to undergo pre-trial detention. When the state’s propensity to breach the compromise underpinning pre-trial detention becomes codified into law by the Supreme Court – which authorises it to defeat accused persons’ release without having fulfilled its end of the bargain – pre-trial detention becomes an avenue of untrammelled state power, wholly unreflective of the state-citizen compromise.

Conclusion
On this basis, therefore, I submit that the Supreme Court’s judgment in Wadhawan constitutes a breach of the pre-trial detention compromise, seemingly forbidding enquiries into the state’s fulfilment of its duty to investigate, and to genuinely express its belief in the accused’s guilt. The Court, instead of assessing the tasks to be fulfilled by the police that are expressed through the chargesheet, prizes the mere filing of the document, finding it sufficient for denying release. The Court does this by trivialising the flaws of the chargesheet, holding them insufficient to warrant the release, meshed with suggesting a general prohibition from enquiring into a chargesheet's contents.

Saturday, February 3, 2024

Guest Post: The Curious Case of Last Seen Evidence

(This is a guest post by Manya Gupta)

The doctrine of last seen evidence “LS” is one of the major kinds of evidence under the IEA “Act” which provides for an inference of guilt on the accused if they are last seen with the deceased, and subsequently the victim is found dead.

It is deduced from Section 7 of the Act which provides for fact(s) which is the occasion, cause or effect, immediate or otherwise, of a relevant fact, or a fact in issue to be relevant under the scheme of the Act.

It is one of the most interesting pieces of evidences in the circumstantial chain; since it effectively denotes a period of vacuum wherein the whereabouts of the accused and the victim are unknown and there is a gap in the timeline in which nothing is known about the whereabouts of either; this gap is then sought to be filled under what fundamentally is, an assumption; since the victim was last seen with the accused, the accused must have committed the act.

While this serves as an important piece of evidence and is a crucial part of the circumstantial chain, the inherent nature of this kind of evidence requires careful consideration and testing since it only relies on what essentially, is a gap in the factual timeline. Therefore, it has been reaffirmed, in Satpal Singh that LS evidence cannot be a basis for sole conviction, and must be corroborated.

The concern of this piece is an attempt to dissect the judicial process of evaluating last seen evidence and address inherent problems in considering such evidence. It shall also attempt to analyse possible safeguards that can be used by courts as preventive rule-based jurisprudence in LS evidence.

Context and Time Gap

A large majority of the uncertainty and inconsistent application of LS evidence arises from basic factual premises of the time between which the accused and deceased were seen and the time of death; the place where they were seen together etc. These factors determine whether LS evidence can even be used, and also affect the explanation and defence used by the accused.

Time gap in LS evidence is crucial, since by sheer logic, the longer the gap, the theoretical probability of the alleged fact to be true decreases. This increase has been sought to be explained by courts by several arguments, the most prominent being the possibility of interference; there has been an inconsistent judicial trend on the time gap that must be present for LS evidence to be relevant. Starting from Bodhraj, the court held that a long time gap makes LS irrelevant, and it only can be used when the time gap between the point of last seen and the discovery of the deceased is very small. This has been changed, the prevailing position is that even if there is a long duration of time, if the state is able to prove the accused was in exclusive possession of that place, LS can be considered.

The establishment of a test for time gap for the possible range of gap is left to Courts and the judicial trend of inconsistencies is evident, as observed in Reena Hazarika, that a ruling on gap is overturned at the appellate stages criticising either an unreasonable time gap; or lack of consideration to the defence explanation of the gap.

Further, there can be additional factors that can either refine, or adulterate the time gap, adding to the context for the evidence; taking the hypothetical of a crowded location such as a marker or a bar as opposed to a silent, unfrequented place, the former would call for a higher burden on the prosecution to prove a prima facie case.

This was observed in Satpal Singh, an oft cited case, where the Court stated that the last seen theory is applicable when the testimonies conclusively establish that the accused and the victim were together and an inference can only be derived by the court when there is no probability or possibility of someone interrupting them.

The Role of Presumptions in LS Evidence

Before S. 106
LS evidence, when proved is used for raising an inference under S. 106 of the Act; the accused has a burden to explain the circumstance since the accused is deemed to have special knowledge of explaining their presence. However, the prosecution needs to establish basic facts before invoking S. 106, the nature of these facts remains vague.

The initial burden on the prosecution per Reena Hazarika, which has been reaffirmed, is that mere invocation of the LS theory sans facts “cannot suffice and the prosecution must establish a prima facie case”.

This establishment of a prima facie case seems to be equivalent to the establishment of facts or foundational facts under S. 106 and thus far has not been conclusively defined, and is arbitrary especially in such evidence; is it the mere fact of proving that the accused was indeed last seen with the deceased, or is it a step above such as proving the proximity of the time gap and the probability of interference.

The Delhi High Court recently, in Gurdeep Singh, laid down principles on the usage of S. 106 and LS evidence, wherein these facts were said to be “foundational facts” and the said facts were facts like establishing a close connection between the accused and deceased and possession of the property wherein the body was found to be of the accused.

However, another position taken by courts is to interpret prima facie as other circumstances, as in if the prosecution has proven other circumstances to a certain extent.

Hence, the question becomes the inconsistent burden often placed on the prosecution to establish the vague standard of a prima facie case and foundational facts.

Shifting the Burden of Proof

The second question is what happens after the prosecution has established prima facie facts i.e., what is the burden of special knowledge on the accused. If the accused is unable to disprove or explain the circumstance, the Court is empowered even ordinarily to deduce facts based on other facts and raise a presumption under S. 114.

The moment when the accused fails to fulfil the burden under S. 106, the Courts apply S. 114 to raise an inference. This section will discuss what happens once S.106 has been applied and what does it take to discharge the burden on part of the accused.

The burden of special knowledge under S. 106 has its roots in the fact that some things can only be explained by some people, and it is unfair for the prosecution to prove a fact that is virtually impossible and “disproportionately difficult” for it to prove.

The special knowledge in this case, is that only the accused could know what he was doing there, and while this a reasonable assumption to make, it must be carefully done.

S. 106 has its application usually in questions of fact and requires the prosecution to prove a substantial fact; it is used either when the question is of possession of an article or facts such as residence or other general questions about the accused’s history, injuries etc. Or is applied when the prosecution has established other facts such as explanation of bodily injuries.

However, in LS, while the accused must explain their presence in the situation, the inference being made is quite starkly different; that of a serious inference that he had committed the crime. This is because the explanation is not of a simple fact in the chain, rather it is the question of whether the accused had a role to play in the death.

The presumption is of the accused killing the deceased, or having a role to play in their death since they were last seen with them, to illustrate, if the accused fails to prove their possession of bangles that were on the deceased’s hand, the inference is directly connected to the accused stealing those bangles; in LS, the inference is of a wider scope and connecting the accused’s physical presence at a location which is extended to inferring a possible role in the killing of the deceased.

While the accused is in the position to know their whereabouts, the S. 106 burden unintentionally leads to a sudden inference which jumps the gun; that the accused has played a role in the death of the deceased, since the act of the killing in LS evidence is the event that took place in vacuum and which remains unknown. Not all circumstances that complete the chain of events are equal and last seen constitutes an important circumstance and this inference is vastly different than the otherwise factual inferences that arise out of S. 106 in other offences.

It has proven to be problematic, especially when the circumstance of last seen coupled with other facts could be a basis for conviction and the question of what counts as an explanation on behalf of the accused, is legally tenuous.

An Unfair Burden on the Accused?

The aforementioned variables of context and time gap have made the job of the defence extremely difficult; the explanation is of the fact of being there and is highly subjective even for courts to decide. Since the explanation is essentially a defence of the accused having not committed the act, is often interpreted at a very high standard, thus making the essence of S. 106 and presumptions, meaningless.

Consequently, courts have ruled inconsistently across a wide spectrum of possible explanations; on one hand, they have ruled that the prosecution’s witnesses lack credibility since there was no reason for the deceased to take a lift in the accused’s car since he was proceeding in the opposite direction, giving a wide bench; and in another, have failed to consider the accused’s explanation when he was only seen with the deceased in a crowded bar.

In a similar turn of events, they have placed the burden on the accused to explain how the deceased (his wife) died by strangulation when they were sleeping in their bedroom, whereas in another, have stated that mere companionship and the fact that they were sleeping in the same room together cannot be sufficient to raise an inference.

The standard on the accused under S. 106 per Reena Hazarika, is of preponderance of probabilities, however, the explanation is often treated inconsistently and dependent on the singular judge.

I propose that rather than looking at the standard under S. 106, the Court must, while reaffirming preponderance of probabilities under S. 106, must also establish guidelines for the subsequent presumption that is made under S. 114 and delineate the scope of the inference. This standard can be derived from Reena Hazarika and the explanation on part of the accused, even if inadequate, cannot be mandatorily conclusive, something courts have rarely considered.

Famously, in the Arushi Case, the Court held that the burden of proof is on the accused servant, who was in the house under S. 106, and when he tried to explain that he was sleeping and the AC drowned all noise, the court disbelieved this, and believed the version of the prosecution without the prosecution ever having established their facts.

There seems to be a certain hesitance in courts letting a fact remain unproved, as Sekhri puts it, the Judge wrongly held the prosecution to a lesser burden, simply because there were no witnesses barring the accused and confused the persuasive burden to prove the charge and the burden under S. 106 to prove facts. If the accused fails to discharge the burden under S. 106, then a fact does not necessarily need to be held as proved by the other side and can remain unproved and inconclusive.

Conclusion
The hasty conclusions offered by an inconsistent, unprincipled application of the last seen doctrine amounts to an abuse of S. 106, per Kirti Pal and ordinary jurisprudence of presumptions; S. 106 is to be made when the fact to be proved would be disproportionately hard for the prosecution since the accused is in the only position to have “special” knowledge against all others.

However, extending the same treatment to S. 106 under last seen is dangerous, best explained by the House of Lords in Attygale v. R, stating that “if S. 106 is to be interpreted as, in a murder case, for the accused to prove he did not commit the murder, because who could know better than him whether he did or did not”, it would defeat the purpose of the balance of burden of proofs in criminal law.

Monday, January 29, 2024

Call for Submissions - NLS Business Law Review


The Editorial Board of the NLS Business Law Review (NLSBLR) for 2023-24 is inviting original and unpublished submissions for the upcoming print Volume 10 of the Journal.

About NLSBLR

The NLSBLR is a student-run journal at the National Law School of India University (NLSIU), Bengaluru, India’s premier law school. Our goal is to recognise and foster cutting-edge academic scholarship on commercial law. Over the years, since the publication of our first volume in 2015, we have featured scholarship by a diverse range of leading academics, advocates, judges, scholars, and other luminaries, such as Justice V. Ramasubramanian (Judge, Supreme Court of India), Mr. Philip R. Wood CBE, KC (Yorke Distinguished Fellow, University of Cambridge), Prof. (Dr.) Regis Bismuth (Professor, SciencesPo Law School), Mr. Matthew Hodgson (Partner, Allen & Overy LLP), Mr. Rajat Sethi (Founder & Managing Partner, S&R Associates), and Prof. (Dr.) James J. Nedumpara (Professor, Jindal Global Law School).

The Journal is accompanied by the NLSBLR Blog, which carries shorter and contemporaneous pieces on recent developments in commercial law.

The Journal is indexed in prominent databases like HeinOnline, SCC Online, and the Indian University Grants Commission's Consortium for Academic Research and Ethics (UGC-CARE).

Our Mandate

The Journal intends to foster academic scholarship in commercial law by examining the myriad regulatory and legal frameworks, be it domestic or international, that impact business and commerce in either India or abroad. We particularly welcome submissions with a comparative law perspective, with a focus on India or the developing country context generally. Our mandate, amongst other things, includes company law, securities law, banking and finance, tax law, international investment law, international commercial arbitration, commercial dispute resolution, intellectual property law, contract law, and employment law.

Submission Guidelines

Detailed submission guidelines (along with the process for submission) for the Journal are available on our website. In brief, we accept submissions that fall within the following categories:

1. Long Form Articles: Between 6,000 and 10,000 words. Submissions in this category are expected to engage with the topic, its theme, and available literature comprehensively so as to offer a novel and original reassessment.

2. Essays: Between 4,000 and 6,000 words. Submissions in this category are comparatively more concise and limited in their scope. Essays usually deal with a very specific topic as compared to Long Form Articles.

3. Case/Legislative Comments: Between 1,500 to 3,000 words. Submissions in this category are expected critically analyse a recent court decision or legislative/policy proposal, either in India or abroad, and comment on its implications.

4. Book Reviews: Between 2,000 to 3,000 words. Submissions in this category are expected to critically analyse and engage with a recent academic book that falls under our mandate.

We recommend that potential authors choose a topic that is contemporarily relevant. We especially encourage undergraduate, graduate, and postgraduate students to consider writing for the Journal. We also welcome purely theoretical/philosophical/jurisprudential pieces.

Submissions must be accompanied with an abstract of not more than 250 words. Further, submitted manuscripts must not contain any biographical information regarding the authors, such as names, institutional affiliations, acknowledgements, etc. This information can be added at a later stage if the manuscript is accepted for publication. Finally, submissions made to the Journal must be on an exclusive basis and not be under concurrent consideration by any other academic or non-academic publication.

To reiterate, we request all potential authors to go through our submission guidelines thoroughly before submitting their manuscripts.

Contact

In case of any queries or concerns, please contact us at nlsblrjournal@gmail.com. Communication, regarding the Journal, addressed to other email addresses will not receive a response.


Thursday, January 25, 2024

Guest Post: Choice, Volition, Participation, Consent — Appraisal of a Minor's Consent in Child Sexual Abuse Cases

(This is a guest post by Siddharth Malik and Navjot Punia)

The Nagpur Bench of the Bombay High Court in Nitin Damodar Dhaberao v. State of Maharashtra [Crl Appln (BA) No. 724 / 2023 decided on 05.01.2024] granted bail to a 26-year-old accused who had been charged, among others, under Sections 4 and 6 of the Protection of Children from Sexual Offences Act 2012 (“POCSO”) and Section 376 of the Indian Penal Code 1860.

The case concerns a 13-year-old girl who had gone away with the 26-year-old accused, who had promised to marry her. She admitted to a love relationship with the accused and did not complain of use of any force or subjection to forceful sexual intercourse by the 26-year-old. Though a chargesheet had been filed in 2020, the trial had still not commenced. Accordingly, the Court released him on bail.

In this piece, while exploring the contours of consent in such cases, we argue that the Court’s reasoning in placing reliance on the voluntary and non-unilateral nature of the act is opposed to the scheme and purpose of POCSO and is deeply problematic, for such an approach places victims of child sexual abuse in an extremely vulnerable position due to the power relations that exist between them and the accused. We argue for a strict adherence to the standard of statutory rape in cases where the victim is not close to the age of consent and the relative age difference between the victim and the accused is so large that the power relations between them completely negatives the minor’s voluntariness or choice of participation in sexual activity.

Though the Court recognised that a minor’s consent has no relevance, it nonetheless proceeds to allude to it by invoking the purported love relationship of the victim with the accused. The brooding theme of the Court’s rationale behind granting bail to the accused remains to be the voluntary participation of the minor child in the alleged sexual act. The Court remarked that the case seems to be in the nature of mutual attraction between the two young persons, and it is not the case that the accused had subjected the victim to sexual assault out of lust. Thereafter, the Court took note of the delay in trial since the filing of chargesheet in 2020 and the fact that the trial will take its own time for final disposal, and proceeded to order release of the accused on bail.

The Court, we argue, erred in getting fixated with the binaries of presence or absence of consent in a case where such a consideration was not at all warranted. Feminist scholars like Julia Simon-Kerr and Catherine MacKinnon have argued that the entire concept of consent in cases involving sexual assault is deeply problematic as it does not take into account the ever enduring hierarchical relations that exist between sexes, and in a way reinforces such historically unequal relations. Arguments on similar lines, on the perception of consent and the innate subjectivity in this concept have been raised in the discourse over the ongoing marital rape challenge.

In light of such progressive developments, it is appalling to find judges taking such a parochial position in matters involving the bodily autonomy of individuals, where they fail to recognise the concept of statutory rape in its true sense. Enshrining the concept of statutory rape in cases of sexual offences involving minors is a move towards recognising the vulnerability and elasticity attached to the concept of consent. The tendency towards misjudgement in engaging in sexual activity renders a minor extremely vulnerable to coercion, abuse and exploitation, and a large difference in the relative age further aggravates the minor’s susceptibility to coercion, fear, confusion and peer pressure when it comes to engaging in a sexual relationship. As Catharine MacKinnon argues, consent does not account for sex that is the coerced result of psychological or social-hierarchical threats. What may appear to be a voluntary, consensual participation in sexual activity may not be so when seen in the context in which the minor’s supposed volition is exercised, thus rendering their choice of engaging in the sexual activity completely nugatory.

But in this case, not only did the Court fail to consider this reality of the supposed voluntariness of participation by the minor, it also failed to apply the judicial standards in deciding such cases. In the cases where a minor’s consent has been accounted for (thereby making the physical act non-unilateral hence not attracting POCSO), it has been done so only because the minor was close to attaining the age of consent. The issue of consent in the cases of minors who are about to turn major has been accepted to be an issue falling in a grey area, and has been accompanied by calls to lower the age for consent to 16, considering the instances where sufficient level of maturity has been gained (discussed here and in Sabari v. The Inspector of Police). The rationale behind allowing the consent of a minor to be given consideration has been elaborately explained in a Calcutta High Court judgment reproduced here:

“In the present case, the victim girl was admittedly 16 ½ years old and studied in Class XII at the relevant point of time. She was not naïve enough not to know the implication of sexual intercourse; rather, the victim admittedly had a physical relationship with the accused, who was also of a very young age, on several occasions prior to the incident. Although the consent of a minor is not a good consent in law, and cannot be taken into account as 'consent' as such, the expression 'penetration' as envisaged in the POCSO Act has to be taken to mean a positive, unilateral act on the part of the accused. Consensual participatory intercourse, in view of the passion involved, need not always make penetration, by itself, a unilateral positive act of the accused but might also be a union between two persons out of their own volition. In the latter case, the expression 'penetrates', in Section 3(a) of the POCSO Act might not always connote mere voluntary juxtaposition of the sexual organs of two persons of different genders. If the union is participatory in nature, there is no reason to indict only the male just because of the peculiar nature of anatomy of the sexual organs of different genders. The psyche of the parties and the maturity level of the victim are also relevant factors to be taken into consideration to decide whether the penetration was a unilateral and positive act on the part of the male. Hence, seen in proper perspective, the act alleged, even if proved, could not tantamount to penetration sufficient to attract Section 3 of the POCSO Act, keeping in view the admitted several prior occasions of physical union between the accused and the victim and the maturity of the victim.”

However, in the present case, the Court alludes to the consent of the 13-year-old child by referring to the purported love relationship between the victim and the 26-year-old accused. The Court based its reasoning on the non-unilateral nature of the alleged physical relationship, completely overlooking the fact that this case could not have fallen in the grey area by virtue of the extremely young age of the victim, coupled with a very high relative age difference between them. As highlighted previously, the volition to participate in the physical act is negatived by this context in which such volition or choice is exercised by the minor. The maturity level of the parties involved – the victim of the age of 13, and the accused, 26 – is highly asymmetric, contributing to a skewed power relation which further warrants strict scrutiny of the minor’s exercise of volition.

Merely because the victim in this case has confessed that they were in a consensual relationship cannot allow the court to disregard the fact that there is a stark difference in the level of maturity (particularly in matters of sexual activity, discussed here) that can be expected from a 13-year-old as against 16-17 years old. It was inappropriate on part of the Court to conclude that the relationship was one that emerged out of love and not out of lust without adequately considering the effect, on the purported love relationship, of the context of their relative age and the asymmetric level of maturity of the two. The Court in the present case has extended the teenage romantic relationship exception to the accused, an individual (in the words of the Court) of the tender age of 26. The exception for relationships emerging out of love has generally been confined to cases where the accused was just above the borderline of 18 years. The Court has, however, unreasonably stretched this argument to include a relationship between 26- and 13-year-olds within it. The “close in age” exemption could not have been applied here. It has been stated in no uncertain terms in Independent Thought v. Union of India, (2017) 10 SCC 800, that-

“[t]here is no question of a girl child giving express or implied consent for sexual intercourse. The age of consent is statutorily and definitively fixed at 18 years and there is no law that provides for any specific deviation from this. Therefore, unless Parliament gives any specific indication (and it has not given any such indication) that the age of consent could be deviated from for any rational reason, we cannot assume that a girl child who is otherwise incapable of giving consent for sexual intercourse has nevertheless given such consent by implication, necessary or otherwise only by virtue of being married. It would be reading too much into the mind of the girl child and assuming a state of affairs for which there is neither any specific indication nor any warrant.”

Such an approach in POCSO cases has not been uncommon on part of our Courts (another such instance was the 'skin-to-skin' judgement of Bombay HC) whereby the rigours prescribed by statute are diluted in the courtroom. We therefore question if legislative means that recognise the complexity and layers of consent are in and of themselves sufficient to reform sexual offences adjudication (involving minors, more particularly), where the social and political context so strongly informs the perception and understanding of choice and consent for the functionaries in the adjudicatory process. Katharine K Baker has argued on similar lines to press on the need to reform the underlying social perceptions, and not just the law. She argues that–

“[c]riminally punishing nonconsensual sex has proved difficult [...] precisely because the legal proscription on nonconsensual sex competes with the masculinity norm, biological theory and popular belief, all of which re-enforce and legitimate the notion that men crave sex regardless of consent. Given this tension between the law and other well-established norms, it should come as little surprise that a sizable number of men have yet to internalize the moral wrong of nonconsensual sex. And even those men who have internalized the abstract wrong [...] have difficulty concretely identifying what nonconsensual sex is. This difficulty stems both from well-established sexual behaviour roles that shun explicit communication and from our continuing reluctance to explicitly discuss, both societally and individually, what consent is.”

The present bail order is only one such reflection of an instance where the social beliefs and a subjective understanding of consent overpowered the statutory obligation to strictly comply with the standards of statutory rape. It highlights the possibility of unsettling a victim-centric legislation through the Court’s perusal, albeit indirectly, of considerations that are foreign to the POCSO’s letter and purpose.

[Note: This piece is only intended to explore the Court’s appraisal of a minor’s consent (and effect thereof) in cases involving childhood sexual relations. It does not seek to argue against the grant of bail to the accused on account of delay in the trial of the offence.]

Sunday, January 21, 2024

Guest Post: Section 65-B Certificates — Confusions Created, and Compounded, by Courts

(This is a guest post by Anushka Kanabar)

In 2020, a 3-judge bench of the Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal settled a conflict with regards to the application of Section 65-B of the Indian Evidence Act. It upheld the 2014 decision in Anvar P.V. v. P.K. Basheer, which laid down that a certificate complying with Section 65-B is a mandatory requirement, and that electronic evidence tendered without it is inadmissible.

Despite this, the Supreme Court decided Sundar @ Sundarrajan v. State in 2023 and dismissed objections relating to the absence of such a certificate, relying on Sonu @ Amar v. State of Haryana (2017) for the proposition that such objections cannot be raised at the appellate stage if they were not raised at the trial stage. The problem with such reliance is not that the Court ignores the decision in Khotkar – rather, it side-steps it by saying that it did not deal with the questions of the retrospective applicability of the law laid down in Anvar, and whether objections relating to 65-B certificates can be raised at the appellate stage.

This is untrue, or at least immaterial, because Khotkar lays down in clear terms that the absence of a 65-B certificate renders secondary electronic evidence inadmissible. The Court did not have to discuss the applicability of Anvar by virtue of the fact that objections of inadmissibility – that arise because of the contravention of mandatory requirements – can be raised at any stage of the process. So, the position of law it stipulates is essentially the same as would result from it explicitly making Anvar retrospectively applicable. In proceeding on the line that the question of whether a 65-B certificate is mandatory is different from the question of whether an objection regarding it can be raised at the appellate stage, the Court in Sundar, in effect, ignores that Khotkar overrules Sonu by implication.

The reliance on Sonu for the proposition that Anvar is prospectively applicable is also questionable on the ground that the Court in that case could not have, and did not, prospectively overrule Anvar. Knowing that its hands as a division bench were tied, it left the question open for a larger bench to consider, after making some remarks about the necessity of doing so. If Khotkar indeed left a gap in the jurisprudence (which I argue it did not), the court in Sundar had the discretionary power to declare Anvar prospectively applicable, which it refused to do in clear terms – it “agreed with the ratio in Sonu” that Anvar is generally prospectively applicable, while exempting its own facts from its application (it being a death penalty review petition). Instead of independently considering whether the mandate of 65-B certificates should be made prospectively applicable, the Court in Sundar validated the dicta in Sonu, ignoring not only that the latter withheld a conclusion on the subject, but also that it proceeded on a now-erroneous line of reasoning (that 65-B certificates only concern the ‘mode of proof’ and do not strike at the heart of the admissibility of secondary electronic evidence).

The approval of the general rule in Sonu had no bearing on the ultimate holding in Sundar, because the Court, following Mohd. Arif v. State – another death penalty review petition – exercised its discretion to eschew the electronic evidence in contention on account of the change in law (though it was arguably distinguishable on facts from Sundar on account of the facts pertaining to the electronic evidence). Since the Courts in both these cases only eschew the evidence on discretionary grounds, upon a consideration of the nature of the penalty, they make themselves out to be exceptions to the otherwise problematic precedent they set for lower courts. The apprehension that this case can be cited as authority for the proposition that objections to the absence of 65-B certificates cannot be raised at the appellate stage is not without cause. Even without authority to this effect, the Madras and Calcutta High Courts have held that the dictum in Sonu is undisturbed by conclusions in Khotkar.

Thus, the Supreme Court’s espousal of such reasoning risks undoing the effect – and indeed the whole point – of a 3-judge bench decision clarifying that the absence of a 65-B certificate renders evidence inherently inadmissible. Moreover, by applying the idea of ‘waiving’ objections to the mode of proof, to inherently inadmissible evidence, it penalizes parties that were (due to the then-prevailing position of law) discouraged from raising objections in the first place.

A caveat regarding the status of Khotkar is in order, due to the introduction of the Bharatiya Sakshya Act. At this point, what we do not know about the new criminal codes and their application far overshadows  what we may know. But, what is clear in a sea of uncertainty, is that some kind of certification requirement has been retained in the new evidence law and therefore these conflicts are unlikely to dissipate.

Saturday, December 23, 2023

The Criminal Codes are Dead; Long Live the Criminal Codes

[This is a long post]

Prologue

For over a century, the foundations of the Indian criminal process have been identified by its three codes: the Indian Penal Code of 1860 [IPC], the Criminal Procedure Code of 1973 [Cr.P.C.], and the Indian Evidence Act of 1872 [IEA]. Not anymore. Henceforth, unless some last minute surprise is sprung upon us, the three codes are to be replaced by the Bharatiya Nyaya Sanhita [BNS], the Bharatiya Nagarik Suraksha Sanhita [BNSS] and the Bharatiya Sakshya Adhiniyam [BSA] of 2023.

There are many questions that come to mind when considering this development. Perhaps many of them combine into a single, big, question: Why? Was the existing set of laws problematic, and if so, then in what way was it problematic? Were the Codes failing to strike a just, fair, and reasonable approach to questions on defining and punishing crime? Were the structures proving to be outmoded given the fast technological pace of society? Or, all of the above?

None of these questions have uniform answers, or objective positions. One can only speak for oneself. In that regard, I would unhesitatingly state that the 19th Century Colonial Codes (or their 20th century avatar in case of the Cr.P.C.] were deeply problematic and required a brutal re-examination. A comprehensive study of how courts had interpreted the clauses across these Codes was required to update the statutory position. The archaic language of the IPC required revisiting, its punishments needed streamlining, and the general law of crime required to be harmonised with the burgeoning field of laws defining specific crimes. Far more important was the need to tear down the Cr.P.C. and IEA and rebuild again to solve what the most pressing concerns of the criminal process, which have been rotting it from the core since independence (and even before): delays, significant pre-trial incarceration rates, and a complete surrender of personal liberty and privacy to batons and lathis wielded by the police.

The fainthearted would be pleased to note that none of this has come to pass. The Codes are dead, but they gloriously live on in the BNS, BNSS, and BSA. What we have just witnessed is a grand sequence where the villain sheds an exoskeleton to assume a more monstrous form appropriate with the times. In other words, the new Sanhitas do not offer a new perspective on administering the weighty notion of 'criminal justice' for an independent, democratic, republic as we were promised, but merely offer a shiny new vessel to sustain the beating heart of colonial ideas that the Codes represented. 

With that sombre prologue out of the way, it is time to look at what appears to be in store for us.

Repeal and Savings

Now that the new laws are almost here, arguably most important is the question is what happens to all that was done under the old laws? When it comes to offences themselves, the constitutional prohibition of any criminal liability retrospectively allows us to assume that the new BNS offences (deceitful sexual acts; terrorism; organised crime, etc.) will not apply to acts done on a date prior to the date when the BNS is brought into force (whenever that is). However, at the same time experience has taught us that things are never straightforward when it comes to interpreting law. The iron-clad prohibition of Article 20(1) may be done away where offences are continuous, and so we may still be presented with situations where prosecutions are brought under the BNS for acts which began prior to the date of its enactment but continued subsequently to create an unbroken chain of conduct. In respect of acts that were offences under the IPC but are not covered by the BNS, even as the BNS repeals the IPC, nothing in the BNS overrides application of Section 6 of the colonial General Clauses Act 1897 which ensures that such prosecutions do not automatically lapse. So while there is no Section 124-A IPC prosecuting sedition, or Section 377 IPC prosecuting unnatural sexual acts, existing cases would not die a natural death. Similarly, till such time as other laws are amended to erase all presence of the colonial IPC from the statute books, we would have to keep referring to Sections 6 and 6A of the General Clauses Act to make sense of how will such references to the IPC be read [think the PMLA schedule, for instance].

When it comes to the Cr.P.C. and IEA, the general rule being created with repeal is that the entry of the BNSS / BSA will not disturb pending investigations, inquiries, trials, or appeals. However there will certainly be cracks which lawyers will explore to try and make use of. For instance, what happens to a case where the police filed a closure report and it has been accepted, or a case where proceedings have been terminated prior to the enforcement of the BNSS, and the aggrieved party now wishes to revive the litigation. What about cases where the police registers a fresh FIR invoking slightly different offences to now make use of the broader remit of police custody? Would these count as 'pending' cases? Or, what happens for a case that is closed for non-appearance of a person who was declared a proclaimed offender - would it be possible to revive such a case using the new BNSS clauses allowing for trials in absentia? These are only the easy examples, and I am sure more tricky ones will come up in the next few years. Courts will want to turn to the years after the 1973 Code was introduced in 1974 to see how some of these issues were dealt with back then (although many of those dealt with retrospective application of the new Cr.P.C. clauses that enhanced the sphere of liberty, rather than truncate it further).    

Even though the BNSS declares that pending cases / investigations / inquiries will be governed by the Cr.P.C., this is not going to prevent serious changes to their working because the BNSS carries out serious changes to the administrative structures of our courts. I refer to the abolition of the cadre of metropolitan magistrates altogether in the BNSS, without any provisions accounting for how areas where this system is in vogue (Delhi, for instance) will carry out the transition to now erect a new system with Chief Judicial Magistrates, First Class Magistrates, and Second Class Magistrates. One wonders how this transformation will be carried out, and whether it will give rise to service law related issues if metropolitan magistrates — who are at par with First Class Magistrates under Cr.P.C. — will be divided up into the two categories. 

Changes to the Criminal Process

For most practising lawyers, what really matters is whether, and how, the rules of the criminal process are being altered by the introduction of the new laws. This post looks at some important changes in this regard that have been introduced. Note, however, that it does not look at specific issues that are going to arise because of, say, the introduction of offences in the BNS that are at present criminalised through special statutes with special procedural regimes. Nor does it look at specific issues arising within the realm of preventive powers of police and magistrates.  

Arrest, Custody, and Bail

There are small tweaks in the arrest provisions of the BNSS from the Cr.P.C. regime, besides the sorry re-introduction of handcuffing. There is hardly any change when it comes to the issue of granting bail in non-bailable cases — either in terms of the guiding judicial discretion in this process, or by reducing the number of non-bailable and cognizable offences. There is rather slight confusion introduced because of the tweaks between the first and final versions of the BNSS. The key changes here are, firstly, to the legal regime on custody post arrest during an investigation, and secondly to granting default bail where a person has spent a significant time in prison as an undertrial.

On the former, the BNSS appears to have done away with the limits on police custody being restricted to the first fifteen days after arrest to allow it within a period of the first forty or first sixty days after arrest. What is more uncertain is whether the BNSS has also done away with the maximum limit on police custody being fifteen days. If so, then it would signal a significant shift in the legal position which has had the duration of police custody capped on fifteen days since even prior to the 1973 Code. The wording of the BNSS clauses would make it seem that the absence of 'police' custody in Section 187(2) of the BNSS is not deliberate but an inadvertent omission. It would, nevertheless, be clarified only after some person suffers the consequences, and courts rule on the issue. Unless parliament acts proactively - which as the passage of the BNSS shows us, it certainly can.  

Why restrict police custody, and what is the consequence of removing the shackles so to speak? A colonial and post-colonial learning about the administration of criminal law in India has been that the police resort to unfair practices to solve a case. This involves extracting pressure on people in their custody to make a false statement. Enhancing the period to take police custody proportionately raises this risk, especially as this enhancement is being conceived of without any increase in the rights of the detained person. Placing a limit on police custody as being available only in the first fifteen days furthers a separate goal of ensuring that the police work with promptitude. Removing this limit takes away any incentive for the police to try and solve cases quickly. This would mean that more and more investigations only end when nearing the upper limit of 60 or 90 days — cementing the perverted turn over the last fifty years (and manifesting the fears of legislators) where ceilings that had been installed by the 1973 Code became default periods for the investigation to complete.        

The extension of police custody also has an impact on bail. In practice, courts are reluctant to grant bail if it appears that custodial detention is required to secure some investigative purpose. Most lawyers thus do advise clients to wait till the first fifteen days expire, or police say that they do not require further custody. Now, police will have a card up their sleeve to invoke custodial detention at any stage during the period of investigation, creating a practical difficulty for courts who had become used to working a certain way. It would require re-programming how courts view these claims if we are to ensure that two / three months without bail do not become default periods of incarceration in all cases.  

In respect of bail, one must mention the lip-service paid to the Supreme Court's endeavours in Satender Antil. The BNSS changes provisions that were being interpreted in some states as mandatorily requiring an arrest before the chargesheet was filed in court, which was what started the litigation in Antil. However, as we know, Antil went far and beyond that to suggest policies on guiding judicial discretion for bail. None of that has made its way into the statute. What the BNSS does do is bring in significant changes in respect of the provisions on default bail. Currently, Section 436A of the Cr.P.C. carried a rule where a person was entitled to bail if she had spent a time in custody that was equivalent to half the maximum possible punishment for a crime. Lets be clear — 436A was not a ringing endorsement to liberty, but a damning hang-your-head-in-shame indictment of the legal process. Section 479, BNSS reduces this period undergone to one-third of the maximum imprisonment but only for 'first-time offenders' [not 'offenders' for undertrials]. But what one hand giveth, the other taketh far more. Section 479 carries a new explanation which excludes persons against whom there is an "investigation, inquiry, or trial in more than one offence or in multiple cases". Make no mistake, this is the overwhelming majority of persons who are ensnared by the system. Practically every FIR has more than offence invoked if you add conspiracy to the mix. Thus, in other words, the BNSS renders 436-A practically redundant, and replaces it with a rule that such undertrials can be released if they have already served out the maximum possible term of imprisonment.   

Investigations and Inquiries

The big-ticket declamations on the floor of the House and outside were the introduction of technology in how police conduct investigations and inquiries. A close look at the BNSS reveals the hollowness of the claim. The bogey is made apparent by the extension for police custody remands and confirms that what the BNSS does is continue how investigations have been (and arguably makes them poorer by encouraging police to rely on custodial interrogations more) whilst using technological means to smooth things over at times. For instance, allowing statements to be recorded over video by police during investigations, or by recording the conduct of a search. Again, this shows that the BNSS does not change how investigations are being done. If anything, this can add to troubles later, because there will be doubts during trial as to reliability of what has been recorded as standardised practices will not easily emerge given vast disparities of funding for police stations across India. A real commitment to introducing technology would mean the introduction of provisions in the BNSS that regulate the practice of agencies when it comes to seizing our personal devices and rummaging through them on the pretext of an investigation to safeguard privacy, but of course the BNSS is silent on all that while simply expanding the scope of what material can agencies demand persons to give and include electronic devices / electronic communications [Section 94, BNSS].   

Another noteworthy addition is a set of provisions allowing for seizure of property. This is Sections 115 to 122 of the BNSS. This introduces new powers for police officers to effect seizures and even provisional attachments of property [Section 117] and allows for forfeitures of property where a court concludes that these are proceeds of crime even though the trial has not concluded, without specifying any rights for the aggrieved to challenge orders or specify what happens if the trial results in an acquittal. In this fashion, the BNSS may have impliedly repealed the Criminal Law (Amendment) Ordinance of 1944 and replaced it with the broadest civil forfeiture regime ever seen in Indian law, that is modelled on provisions tried by certain states in context of corruption crimes. Provisions which, though deeply problematic, were blessed by the Supreme Court in 2015 [Both the 1944 Ordinance and the 2015 judgment have been discussed on the Blog and elsewhere]. 

There are some crucial new provisions on registration of cases. Practices that had been in vogue for years i.e. the registration of FIRs online and the registration of 'Zero FIRs', are now given statutory force with Section 173 of the BNSS. At the same time, the BNSS dilutes and further muddles the legal position on the very concept of registering an FIR. It gives statutory backing to the police conducting preliminary inquiries for a category of cases (punishable for three years but less than seven years) and determining if a 'prima facie' case exists. If it does exist, then they proceed to investigate. But if not, then what? Logically, they do not investigate. Which then begs the question, what about all other cases — would they be lodged on the basis of some non-statutory inquiry showing existence of a prima facie case? What does that mean for the idea that the police must register FIRs? Again, it is not that the BNSS drafters were helped by the Supreme Court's take on these issues in Lalita Kumari either [critiqued on the Blog]. But what they have done is only make things worse.

There are even more innovations when it comes to registration of cases against certain persons — public servants. The final version of the BNSS does away with some provisions in the earlier draft published in August, but it retains a mighty set of new protections in Section 175 insulating public servants from police investigations being directed by magistrates on the basis of private complaints. This is reiterated when it comes to private complaints filed against public servants directly in court [Section 223] Here, the BNSS has taken a step on an issue which was pending before the Supreme Court after its M.K. Aiyappa decision which had sought to introduce such a protection was referred to a larger bench. It has gone above and beyond even what M.K. Aiyappa envisaged by giving the prospective accused a right to be heard before start of a case. In a setup where prior sanction was already required to instituting prosecutions, introducing this rule only blunts the idea of holding those in power accountable to the public even further. 

Lastly, in respect of completing investigations, a notable addition has been the introduction of some time limit within which further investigation must be completed unless extended by courts [Section 193(9)]. This is a useful addition, which at the same time makes one wonder why not introduce such a clause for completing investigations generally. The answer, as most lawyers know, is because that time limit has long since been seen in Section 167 Cr.P.C. [now 187 BNSS] which directs release on bail unless investigations conclude within 60 / 90 days, making 60 / 90 days the usual time for investigations to conclude. Again, this was, and is a gross misreading of what the law required — 60 / 90 days was the upper limit, which has become the usual course of time for investigations to conclude only because police know they must file something to avoid release on bail. Furthermore, Section 193 requires some communication to victims about the progress of investigations, which is hailed as some revolutionary step since this was absent in the old Section 173 Cr.P.C. In reality, it is a cop-out, and a failure to incorporate mandates of the Supreme Court which require copies of the Chargesheet (or Closure Report) filed by police with victims so that they can pursue their remedies. Adding the requirement to share copies at a post cognizance stage, as the BNSS does, worsens the position of victims by only entitling them to copies where chargesheets are filed but not allowing them to clearly contest the failure of police to do proper investigations by filing protest petitions. 

Trials and Appeals

A case will end in three years under the BNSS was the battle-cry. Well, so what is the response? NCRB data shows that many cases already end within three years. It would be quite something if all cases will end within three years was the claim on the floor of the House. Which, obviously, it was not. And cannot be either, because like all other parts of the BNSS, its parts on governing trials and appeals also retain the beating heart of the Cr.P.C. process while tweaking a few things here and there.

The sales-pitch changes here were time limits and introducing provisions for conducting trial even when an accused obstructs the progress of a trial by refusing to show up, where currently such cases would have to be kept in cold storage as there is nobody to condemn. Let's take both of these in turn. The only time limits are on conducting arguments on charge—for sessions triable and warrant triable cases instituted on police reports, but not warrant triable cases on complaint or summons triable cases—and on pronouncing judgment. There are no time limits on conducting evidence. This begs the question "Was argument on charge or pronouncement of judgment a stage which took so much time that placing time limits on it will solve delay?" The answer, obviously, is no. Arguments on charge in most cases do not take long. Similarly, judgments are pronounced with promptitude and where they cannot be so pronounced the Cr.P.C. allows for a court to release an accused on bail. Where it does take time for courts to hear such arguments or write judgments is where state agencies register FIRs against 40 people based across the country on some amorphous notions of them being involved in a 'larger conspiracy' and file Chargesheets with documents that run into ten thousand pages. And, make no mistake, since the BNSS does not change how such cases are investigated, arguments on charge in 'larger conspiracy' cases that the agencies love will continue to take much longer to finish than the few months that the BNSS has in mind, as will writing judgments at the end of such trials. 

In short, the marginal gains by introducing these time limits are imaginary at best. Especially if we take a look beyond cases instituted on police reports to cases instituted upon complaints. Here, fresh avenues for delay have been created by giving accused persons a right to be heard where previously none existed. Section 223 prohibits taking cognizance on any complaint without giving such an opportunity, and Section 274 provides a fresh right of hearing before framing notice / charge in summons triable cases. Of course, what seems a provision for delay to the victim will be heralded as a boon by defence lawyers to nip false cases in the bud. But, ultimately, it is unquestionable that such cases will take longer under the BNSS. 

Studies conducted by the government and judiciary itself have shown that the real stage which takes time in a case is recording evidence. Time limits or schedules to finish this process are not introduced. What the BNSS does is introduce a peculiar provision [Section 336] which allows for recording evidence of 'successors in office' when the original government officer who prepared a report is unavailable. This even includes police officers. The provision has been retained in the final version despite criticism by the Select Committee; and, naturally, the ceremonial debate on the floor of the house did not explain why this is the case. It pains me to say this, but in a bid to rush reform, the government appears to have sponsored a move that would encourage acquittals by asking that prosecution leads incompetent evidence of witnesses who are not the authors of documents to sustain its charge. 

Which brings us to the second major reform under Section 356 of the BNSS. Conducting trials against a person who has absconded is, thankfully, not a bludgeon. It appears to create a procedure that needs some application of mind before a court proceeds on that path, and allows for the decision to be revisited once an accused does show up either voluntarily or after being apprehended. I say 'appear' because it is unclear exactly how the procedure will operate. What is meant by giving the accused an opportunity to 'examine' evidence? What impact will conducting trials on mobile phones have on the reliability of what has been recorded? What will be a constitutionally compliant reading of sub-clause (8) which allows extending the clause to any absconder by notification? A well-drafted code would not leave all this up for grabs. 

Execution of Sentences

Despite the Select Committee recommending some more clarity on community service as punishment, no such clarity came in the final version of the BNS or BNSS that have now been passed except for helpfully telling us that community service is punishment that benefits the community [Section 23, BNSS]. So much for a new dawn.

There are two other important developments in respect of the execution of sentences which I would want to mention here. First, we have legislative sanction for imposing solitary confinement [Sections 11, 12, BNS], allowing it to be granted in any case where rigorous imprisonment is imposed for a sentence of six months or more in prison. In other words, practically any convict may be subject to solitary confinement. One wonders if this is in consonance with Article 21 and its reformative ideals. 

Second, we have a procedure outlined for filing mercy petitions [Section 472 Cr.P.C.]. In theory it is not a bad idea as it now allows every convict to know that such a right exists and how it is to be availed. The devil, as always, lies in the details. There are unnecessary restrictions on who may file such a plea on behalf of the convict. More potentially problematic is the idea that there is a time limit of thirty days on filing such plea based on when the convict is informed by jail authorities of the rejection / dismissal of her petition by court. That the statute does not clarify that the intimation must be clearly recorded in writing and must be communicated separately to family members / counsel is startling, considering what is at stake and knowing that there will be precious time lost in the convict informing the persons on the outside who will study the order and frame the plea. Or, perhaps it is not so startling, given that the statute allows for practically all convicts to be subjected to solitary confinement for up to a week if not more.

Summing Up: Little Reform Amidst much Posturing?

Many commentators found it difficult to describe a system comprising of the existing trifecta of the IPC, Cr.P.C., and IEA as a system of 'criminal justice'. It is quite unlikely that they will find it any easier to do so with the BNS, BNSS and BSA triumvirate that will soon be upon us. There is little reform in these pages amidst the posturing, if we stick to the classical notion of reform as a measure which seeks to improve the lot of the individual. Rather, in sync with the communitarian ideologies in vogue today, the emphasis of these laws is to strengthen the already powerful state by enhancing police powers while reducing the scope for liberty. 

Such an approach is expected from a government which places duties before rights, demands that citizens do not question but obey, and treats all those who do question as potential threats to the stability of society and thus wants as much power as possible to adequately deal with the threats to restore stability. To use a now infamous analogy from another era in India's past here, these are laws to ensure that the trains run on time.    

Worryingly enough, once the dust settles, I wonder if the very fact that the BNS, BNSS, and BSA do not attempt any meaningful reform will ensure that they manage to embed themselves within the system without evoking fervent protests from various quarters. The baseline for acceptable incursions by the state into a citizen's life and personal liberty having been lowered even further will probably stop mattering after a while, since it was not very high to start with.