Too Much Law? A Case for Limiting The Scope of Precedent

The pyramidal structure of the Indian judiciary is a feature most persons are aware of. There are three tiers: The Supreme Court is at the top, followed by 24 High Courts, and then by thousands of district courts across each state. It is also commonly known that the lower levels are bound by the decisions of the levels above when deciding cases. Thus, the Supreme Court's decisions bind all courts, and the High Court decisions bind the courts within their jurisdiction. Note that this rule also operates at the same level: decisions by five judges of the Supreme Court will bind future cases being heard by combinations of less than five judges, and so on.

The system of precedent has commended itself to countries across the world because it helps to get a sense of consistency across by ensuring similar cases are decided similarly. This system also prevents unjustified deviations from this symmetry, as changes to a settled position of law must be sanctioned by a higher authority that is not bound by the status quo.

Unfortunately, neither of these two factors appears to be functioning very well in the Indian legal system today. There are two main reasons for this. The first is that the Supreme Court, and many High Courts, operate in a system of "Benches". In this system, the smallest benches are the ones that are the most prolific, which creates a big scope for conflict. In the High Courts, this means judges sitting alone to decide writ petitions and bail applications. These cases often involve facts that invite a difference of opinion between reasonable persons, and judges are no different, which means that one can find binding decisions for (almost) any proposition imaginable. This problem is only marginally addressed in the Supreme Court, where the smallest bench is that with two Justices. 

The second main reason for why the system of precedent isn't working very well, is the sheer volume of output itself. In 2017, the Supreme Court disposed of around 66,000 cases. For each High Court, the number runs into lakhs. While disposing these thousands of cases, if the Supreme Court or High Court discusses a legal issue, then that judgment / order becomes another brick in the big wall of binding precedent that trial courts and lawyers will have to consider in the future. The rigid manner in which courts often adopt the system of precedent in India has meant that even interim orders by the superior courts have been treated as binding by lower courts. Since not every single one of these judgments and orders is publicised or reported, it leads to the obvious situation of many people just not knowing that these judgments and orders even exist.

This compounding confusion of binding precedent is most problematic when dealing with issues that arise frequently and are very heavily reliant on the facts. For instance, the grant or denial of bail, and appreciation of evidence. I am hardly exaggerating when I say that it is possible to find judicial decisions of the Supreme Court and all High Courts that can support (almost) any proposition in bail arguments, as well as appreciation of evidence. While it is great for lawyers, it is arguably not great for the system itself. Conflicting decisions having "binding" effect means that the trial courts are either always right, because they can pull out supporting decisions for any proposition, or always wrong because there is always law to take the stand contrary to what the court does. This, naturally, prompts confusion and spurs appellate litigation, worsening the crisis of high-pendency rates for cases that India has suffered for several decades.

What this leads to ultimately, is that our big wall of precedent does not depict a majestic scenery of consistent legal positions, but a big mosaic of confusion that feeds upon itself to grow bigger each year. Because of these issues, maybe we should limit just which decisions of superior courts can be treated as binding on lower courts to reduce the sheer volume of law that must be considered by before taking a call either way? One answer, which has been offered before, is to create a rule that decisions by the smallest benches — in both Supreme Court and the High Courts — cannot bind lower courts. By excluding a vast chunk of the current output, we stand to arguably gain a greater sense of control of just what becomes law every year, which helps everyone know the law better as well.

As with many other solutions to the law that this Blog offers, this one is not entirely realistic either, as it would probably need a constitutional amendment and also support from the judiciary itself. While this twin requirement is a hefty one, it is not an insurmountable hurdle by any means.     

Electronic Evidence: A Way Forward

Court cases, whether civil or criminal, are how we ask the legal system to decide contested questions of fact. Both sides give their versions of what happened by leading evidence of the many details that made up the event. Witnesses are called, documents and other materials filed, all to show that one version was more probable. A court then examines these materials to decide which version of events was probably (or most possibly) true. 

As trials are attempts at recreating what people did, it is natural to imagine that a major way of doing this is through mobile phones, computers, and social media. Not only do many of us create an almost contemporary record of their daily life on Facebook etc., but cellphones are also sophisticated tracking devices that can help locate where someone was on any given day. At the same time, the likelihood of fake accounts and tampering with this material is also quite high, making it difficult to believe all that we do end up seeing.

This throws up the following dilemma: Should it be easy for this material to come before court with no pre-emptive checks against tampering, giving the court full discretion on how it is considered? Or, do we want to have some questions that a court must ask when deciding whether to let such evidence come on record? In legal terms, the dilemma is about whether admissibility requirements for such electronic evidence should be relaxed or strict. 

In this post, I explain the evolution of law on this point, which shows that barring a brief decade between 2005 to 2014, the Supreme Court approved of strict admissibility requirements for electronic evidence. I argue that this approach was guided by a fear of the unknown when it came to technology, and ended up conflating issues of admissibility with those of a material's reliability. After 2014 though, courts have marked a silent retreat from this strict position, and in 2018 the Supreme Court suggested a return to the relaxed approach of 2005. The result of this back-and-forth is that trial courts across the country are uncertain about  what the law is, increasing the potential for manifest arbitrariness in how cases are processed. I offer my (utopian) take on how to solve this confusion, and conclude by urging for a speedy resolution of the present uncertainty to prevent costly failures of justice. 

Admissibility v. Reliability: The Judicial History of Electronic Evidence

Election cases have had a disproportionately large footprint in the judicial history of electronic evidence. In most of these, candidates had made recordings of their competitors violating election laws, and sought to use this recording as evidence in Court. How these cases were handled by the Supreme Court was the subject of a four-part series on the Blog, and I need not address that in much detail here. It suffices to say that while the Court often spoke about admissibility in those decisions, it paid lip-service to the statutory rules on the issue. Instead, the Court created new conditions beyond the text, which were concerned with the reliability of recordings and sought to exclude material that did not satisfy a minimum threshold of genuineness:

(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker. 

(2) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence - direct or circumstantial. 

(3) Every possibility of tampering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible. 

(4) The statement must be relevant according to the rules of Evidence Act. 

(5) The recorded cassette must be carefully sealed and kept in safe or official custody. 

(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances.

[Taken from Ram Singh v. Col. Ram Singh, 1985 (Supp) SCC 611]

A look at this test shows how the Court conflated issues of a material's admissibility with those of its reliability. Conditions on admissibility decide whether or not a court can look at material. Questions of reliability comes after the material is already before court, and affects how much weight can be placed on it. But since the decisions consistently referred to admissibility, it must be assumed that the idea was to create additional requirements to tighten statutory rules on admissibility, which were perceived as insufficient, with non-compliance warranting exclusion of the inadmissible material. 

The judiciary's multi-factor test arose at a time when Section 65-B did not exist in the Indian Evidence Act 1872. This provision, along with Section 65-A, was inserted in 2000, and provided a new procedure for admitting electronic evidence in court and address that judicial concern with a laxity on admissibility requirements in the statute. The new procedure did not differ much from the old — get originals if you can, but we will accept copies if that isn’t possible — but made some important tweaks. As Section 65-B(2) shows, the statute now carried specific checks at the stage of admissibility similar to the judicially created multi-factor test referred to above: 

(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely :- 

(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;

(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and

(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

..... 

Electronic Evidence: Anvar and the Strict Approach

Thus, the text of Section 65-B suggested that the legislature had introduced conditions in the statute that confirmed the judicially created tests that had emerged to regulate admissibility of electronic evidence. Crucially, though, when Section 65-B came before the Supreme Court for the first time in Navjot Sandhu [(2005) 11 SCC 600], it held that the provision had done no such thing. Rather, it held that Section 65-B was only one method for admission of evidence, which meant that the pre-emptive checks it provided were not mandatory. This was a clear indicator that the Supreme Court favoured a relaxed approach to allow relevant evidence and let the judge deal with it, rather than exclude it as inadmissible altogether. 

In 2014, the Supreme Court opted for a strict approach on accepting electronic evidence through a  decision by a Three Justices' Bench in P.V. Anvar v. P.K. Basheer [(2014) 10 SCC 473]. Anvar was also a case of alleged election malpractice, and the Court was asked to decide whether the material basis for the allegations — A/V recordings on a CD — was admissible or not. Despite these similarities with the old cases on tape-recorded evidence, Anvar did not simply apply those tests and decide the case. Instead, it correctly looked at the material from the prism of Section 65-B of the Evidence Act, and held that if parties were not getting originals then all copies must comply with the conditions of Section 65-B to be admissible. 

Bringing originals is not difficult with recordings, as all you need to do is get the original memory card etc. which was used in the recording device, along with the device itself. But with messages, emails, call records and the like, the originals are not in any person’s possession, but on the servers of corporations such as Google, Amazon or Airtel. Thus, for a vast chunk of electronic evidence, courts can only ever deal with copies. And in Anvar the Supreme Court held that to even look at any of this, Section 65-B had to be complied with, where compliance meant filing a contemporaneous certificate as provided under Section 65-B(4) (filed when the evidence comes to court). 

Anvar affirmed the strict approach on admissibility and overruled Navjot Sandhu in the process. In doing so, it harmonised the old cases on tape-recorded evidence with the new statutory provisions in Section 65-B. At the same time, it also prescribed a very harsh medicine for non-compliance with the law: excluding potentially relevant evidence from consideration. 

The Silent Retreat After Anvar

Anvar was flawed. Not because it held that Section 65-B is a mandatory requirement for accepting copies of electronic evidence, but because it held that a contemporary 65-B certificate is mandatory. This is plainly unsupported by the provision, which only provides for the certificate method as an option for convenience. 

Further, Anvar was also flawed insofar as the holding was allowed to apply retrospectively to pending cases and appeals, something that consequently placed all pending litigation in the country in a flux. If electronic evidence had been taken on record contrary to the single method that Anvar now prescribed, it had to go away. And since the method in Anvar made it impossible to cure defects — it needed a contemporary certificate — it meant many cases would fall to the floor. 

The initial chiseling of Anvar began with this perspective: courts read the judgment in ways to make the conditions more palatable so as to not imperil pending cases, but did not disagree with the view that Section 65-B was mandatory. A leading example of such an attempt was the Delhi High Court decision in Kundan Singh [Crl. Appeal 711/2014 decided on 24.11.2015], which enlarged the scope to cure defects by holding that Anvar did not require a contemporary certificate under Section 65-B to be filed. 

This chiseling continued with Sonu v. Haryana [(2017) 8 SCC 570]. Here, a Two Justices' Bench of the Supreme Court developed a different line to allow for curing the procedural defects that might result from Anvar. Focusing on the distinction between issues of "inherent admissibility" and "mode of proof", it held that non-compliance with Section 65-B was an issue that affected the latter. This required parties to raise this objection at the time of trial, and barred them from raising it in appeal. Effectively, it meant that the Court had shielded trial court verdicts from a retrospective application of Anvar, something it specifically flagged as a concern.

And in 2018, this chiseling fashioned a different artwork altogether when another Two Justices' Bench decided to take up many evidentiary issues in the case of Shafhi Mohammad [(2018) 2 SCC 801]. The case did not involve any questions on Section 65-B, but that did not stop the Court from "clarifying" the legal position on the same. It did so in two remarkable ways: first, it suggested that Sections 65-A and 65-B were not a complete code on the subject of electronic evidence, and second, it held that courts can relax the requirement of a certificate in the interests of justice as these are procedural provisions.

Working Towards Untangling the Knots

The chiseling, or wrecking, of the house built by Anvar in 2014 has been done either by High Courts, or by Supreme Court decisions passed by benches of lesser strength. This repeated clarification of the law by different courts is not an exercise in distilling the essence of a substance by repeated filtering. It is actually the opposite: a process which throws millions of pending into a violent churning, with the trial courts not knowing how to handle the material presented before them. 

How do we resolve this confusion over what shape should the law take? There are many answers to this. One of these is a clarification of Anvar to state that a contemporary certificate under Section 65-B is not required, and limiting the retrospective effect of that decision to save decided cases. This would address the most visible of sores. But it will not solve the problem itself. For that, we must repeal Section 65-B of the Evidence Act and bring in its place a new setup to untangle the nexus between admissibility and reliability that has contributed to the present state of affairs.

The judiciary's approach to focus on the accuracy of electronic evidence at admissibility itself worked at a time when such material was a rare oddity in trials. It was, as I have argued earlier, symptomatic of worries about misuse of unfamiliar technology that plague us all. Given the rarity of this material, as well its unfamiliarity, it makes sense that a system potentially excluding this evidence at the outset was not seen as problematic. Section 65-B reflects this reality — the product of a legislation that went through its gestation in the 1990s. However, the landscape has changed so dramatically in the last two decades that both aspects of rarity and unfamiliarity in relation to electronic evidence have almost completely disappeared.

This transformation makes a legal system which possibly excludes this material as evidence appear quite unfavourable and out of sync with common sense, and explains the retreat from Anvar. It also warrants that the system give up this approach which considers issues of accuracy and reliability at the stage of admissibility itself and ousts relevant material. This ultimately increases the already existing gap between judicial verdicts and the truth as parties might perceive it. Instead, it makes sense to revert back to the standard method for accepting evidence, found in Sections 60 to 65 of the Evidence Act. In this model, admissibility is concerned about the provenance of the material, with a preference for getting originals with the law allowing copies if the circumstances require. But the concerns over accuracy and reliability, which are at the heart of Section 65-B(2), would still be left for courts to consider when evidence is being appreciated and arguments being heard. 

Conclusion
The Indian Parliament took great inspiration from Section 5 of the U.K. Civil Evidence Act of 1968 while drafting Section 65-B: both provisions were almost identical. I use the past tense because the U.K. provision has since been repealed, with that jurisdiction adopting a relaxed approach on the point of admissibility. Here, I suggest that India should follow suit, and consign Section 65-B of the Evidence to the realm of history.

The chances of that are not very high, which is why the impetus then shifts to the judiciary bringing about changes to Anvar for making it more palatable — a petition seeking clarifications is presently pending. Even so, I would suggest that a return to the 2005 position in Navjot Sandhu should also be considered, which suggested that Section 65-B cannot be treated as the only method for accepting electronic evidence. 

Whatever way the cards fall, clarity is urgently needed. I exaggerate, but the multiplicity of judicial opinions from high above in the wake of Anvar has perpetuated a situation where nobody on the ground knows what the law is with any certainty. Rather than more episodes such as Shafhi Mohd., a decision which changes the law on electronic evidence in a case which had nothing to do with it, what we need is a firm resolution to prevent the arbitrariness from causing more failures of justice.  

Two Wrongs Don't Make a Right: The Supreme Court's Reading Down of Mohan Lal

A few weeks ago, I had mentioned the possibility of the Supreme Court changing the rule it had laid down in Mohan Lal v. State of Punjab [AIR 2018 SC 3853] [Discussed here]. That possibility became a reality when a Three Justices' Bench handed down its decision in Varinder Kumar v. State of Himachal Pradesh [Crl. Appeal No. 2450 of 2010, decided on 11.02.2019], and specifically "read down" the Mohan Lal decision as not applicable to cases pending at the time of that judgment.

Recap: Mohan Lal, and Impartiality in Investigations

The issue decided in Mohan Lal was a very precise one: can the same police officer who served as an informer for a case continue as the investigating officer? Take the following example: Officer X is working undercover and raids a room with five people. All of them flee, and only one is caught. Who should investigate the incident? There are reasons to suggest Officer X should continue: she was at the scene and knows the case the best, presumably, and there are not many police officers out there anyway. But, there are also strong reasons for Officer X to not continue as the investigating officer. Being there at the scene, not only is she a part of the story, but also has her own version of the story. Can she be trusted to disregard her recollection of events when it conflicts with other information revealed through the investigation? Unfortunately, there will continue to remain lingering doubts over the fairness of any investigation Officer X conducts in the case.

This conflict between realities of investigations and the lingering problem of fairness is what the Three Justices' Bench of the Supreme Court sought to address in Mohan Lal. It rightly identified a conflict between earlier decisions of the Court on the point: some benches had held that an investigation conducted by the same officer would be unfair and illegal, but others had held that there was no grounds for complaint unless there was some perceptible bias shown in the conduct of the officer. Mohan Lal decided this issue by agreeing that the fairness issue was paramount, and held that there was no need to show any perceptible bias. Not only this, it held that any investigation done by the same officer was unconstitutional, and could vitiate the entire trial that follows. As the decision did not specify otherwise, this rule would apply to all pending cases and appeals as well, and threw them all into doubt.

The Problems with Mohan Lal: Too Bitter a Pill 

A decision that says fair investigations are a constitutional right sounds amazing, and few would have any qualms about this aspect of Mohan Lal. The problems with the case — as discussed at length in an earlier post — were in the remedies it prescribed for violations of this right. The case held that an unfair investigation vitiated any subsequent proceedings, including a trial. Problematically, there was no clarity on (i) the kinds of unfairness that can lead to throwing out subsequent proceedings, and (ii) when can the individual seek these remedies (i.e., could this be done during a pending trial or only at the appellate stage).

The problem with remedies such as the one prescribed in Mohan Lal is that they encourage what has been called "remedial deterrence". The criticism that fundamentally good prosecutions are being thrown out on technical grounds stings, and deters courts from finding breaches of the right to avoid using these awesome remedies. In the past few weeks, this was amply on display in, first, the decision in Mukesh Singh (17.01.2019), and now Varinder Kumar (11.02.2019). In fact, the latter invokes this issue expressly, where Sinha, J. expressly suggests that a fundamentally good prosecution against a notorious offender will be thrown out because of a technicality unless the Mohan Lal rule is watered down. This is what it did, only, it did not do so with much grace. 

Varinder Kumar and the perils of a Balancing Approach

The Bench in Varinder Kumar thought a solution to the bitterness of Mohan Lal was to limit it as a rule that did not apply to pending cases. All that was needed to achieve this is a line saying "Mohan Lal does not have retrospective effect". But the decision goes further and explains why this needs to be done, and in that process, undoes whatever credit it deserved.

The analysis of this issue begins from Paragraph 9. At Paragraph 11, Sinha, J. very fairly notes that in Mohan Lal the Court did not go ahead and fully develop the remedial tool it had crafted because the need for such an exercise was obviated by the facts. Through Paragraphs 12 till 18, the opinion takes up that mantle and begins crafting the remedy. In this effort, the decision roots itself in the logic of "balancing" the rights of an accused with other stakeholders in the system. The broad argument is straightforward: Mohan Lal disturbed the ideal balance and allowed the system to "veer exclusively to the benefit of the offender", and "societal interest therefore mandates that [the rule] cannot be allowed to become a springboard ... for acquittal ... irrespective of all other considerations". 

The notion of balancing rights has frequently come to the fore when the Supreme Court has discussed victims' rights — most recently in Mallikarjun where it expanded the contours of a victim's right to appeal. Here, the active victim is replaced by the passive society, whose interests are jeopardised by the release of persons like Varinder Kumar on supposed technical flaws in the prosecution. But if you chase this argument, aren't persons like Varinder Kumar also part of that same society, and is it not in society's interests to prevent flawed and unfair investigations? Undoubtedly so. Adherence to proper procedure is not a matter of "benefit" to an offender, or creating a "springboard" for acquittals. It is a commitment of a law-abiding society, that the State's power will be wielded in a particular manner, without looking at who is the target, and is the only real guarantee of personal liberty that exists. 

Thus, while a balancing logic might — and I stress on might — be appropriate in context of a victim's right of appeal, it is thoroughly out of place when at issue is the procedure for wielding state power. In a similar vein, Mathew, J. in Prabhu Dayal Deorah v. District Magistrate [AIR 1974 SC 183] lamented the tendency to sacrifice procedural law while prosecuting "anti-social activities". The observations really do deserve being quoted in full:

The facts of the cases might induce mournful reflection how an honest attempt by an authority charged with the duty of taking prophylactic measure to secure the maintenance of supplies and services essential to the community has been frustrated by what is popularly called a technical error. We say, and we think it is necessary to repeat. that the gravity of the evil to the community resulting from anti- social activities can never furnish an adequate reason for invading the personal liberty of a citizen, except in accordance with the procedure established by the Constitution and the laws. The history of personal liberty is largely the history of insistence on observance of procedure. Observance of procedure has been the bastion against wanton assaults on personal liberty over the years. ... The need today for maintenance of supplies and services essential to the community cannot be over-emphasised. There will be no social security without maintenance of adequate supplies and services essential to the community. But social security is not the only goal of a good society. There are other values in a society. Our country is taking singular pride in the democratic ideals enshrined in its Constitution and the most cherished of these ideals is personal liberty. It would indeed be ironic if, in. the name of social security, we would sanction the subversion of this liberty. We do not pause to consider whether social security is more precious than personal liberty in the scale of values, for, any judgment as regards that would be but a value judgment on which opinions might differ. But whatever be its impact on the maintenance of supplies and services essential to the community,'when a certain procedure is prescribed by the Constitution or the laws for depriving a citizen of his personal liberty, we think it our duty to see that that procedure is rigorously observed, however strange this might sound to some ears. [Emphasis mine]

Conclusion: Saving Criminal Procedure from the Courts

Most observers would have said that the absoluteness of Mohan Lal will be tempered to make way for a more practical remedy, and Varinder Kumar takes some steps in that direction. Whether this is the last step is something only time will tell, though I would suggest otherwise — remember that the reference made in the earlier case of Mukesh Singh is pending. In this respect, then, Varinder Kumar is frankly unremarkable.

Perhaps the balancing approach of the opinion is also unsurprising. It relies upon observations made by a different Bench of the Supreme Court in Sonu v. State of Haryana [(2017) 8 SCC 570], where the issue was limiting retrospective operation of another procedural rule arising a judicial decision: The necessity of Section 65-B Certificates for admitting electronic evidence as held in P.V. Anvar v. P.K. Basheer [(2014) 10 SCC 473] [For discussions, see here]. On that occasion as well, the Bench lamented about the fear of letting criminals go on technicalities, and posing procedure as an honour among thieves. 

While it may be unsurprising, this repeated invocation of a balancing act is alarming. By subscribing to this argument of fear, where adherence to procedural law in establishing guilt is belittled as a mere "technicality", and nebulous societal interests are used to balance away what are perceived as "benefits" to an accused, the Supreme Court is not only betraying the Constitution but unknowingly setting a body of precedent that might return to come back and haunt all of us one day. 

Guest Post: Grave or Sudden Provocation? The SC Decision in Nawaz v. State

(I am delighted to host a guest post by Mr. Anant Sangal, currently a III Year student of the B.A. LL.B. (Hons.) Program at the National Law University, Delhi)

The Supreme Court of India (SC) recently expanded its criminal jurisprudence by handing down a decision in the case of Nawaz v. The State Represented by the Inspector of Police [Crl. Appeal No. 1941/2010, decided on 22.01.2019]. A Division Bench headed by Shantanagoudar J. (writing for himself and Maheshwari J.) modified the conviction from murder to culpable homicide not amounting to murder. The appellants had been charged for murdering the husband of one of the appellants (Ragila). The prosecution case was that the deceased suspected that his wife and his daughter had illicit relations with the other appellant (Nawaz). One morning, deceased called both the mother and daughter “prostitutes”. 

A quarrel broke out between Ragila and the deceased and as a result, Ragila slapped the deceased. He fell on the floor and both the appellants, thereafter, throttled him with the help of a towel and burnt the body in order to conceal the offence and transported it elsewhere. The appellants were convicted by the trial Court for murder u/s 302 r/w 34 of the IPC, and the verdict was upheld by the High Court. However, the SC held that the appellants were “provoked” by the accused on his usage of the word “prostitute” for his wife and daughter and hence, were eligible to be covered by Exception 1 of Section 300 IPC. This made them punishable u/s 304 Part I instead of (earlier) Section 302 IPC. 

Out of many factors which leave the judgment prone to attack, the ruling does not fall in line with the jurisprudence of the Court which has evolved through a variety of similar judgments. Apart from missing the ‘fit’, the Court also gravely erred in deciding and upholding what was not argued before it as well as in misconstruing the facts. 

Facts and the Fit: Instilling Realist Traditions  

In this judgment, there appear to be two emerging legal flaws, amid a wrong reading of facts by the SC. They are – (1) provocation not being grave and sudden; (2) elapsing of time between provocation and crime. 

To begin with, I would establish the first flaw in the judgment i.e. the need for grave and sudden provocation. Neither merely grave, nor only sudden provocation, attracts the defence of Exception 1. Both these effects must occur together. Contrary to this, Shantanagoudar J. holds that the appellants were “provoked” which lead them to committing the crime. He does not establish the requirements of the provocation being grave as well as sudden. The application of Exception 1 to Section 300 is, therefore, wrong and is not justified. 

In Nawaz, what appears is that provocation was only sudden but not grave. This is because in a fit of sudden provocation, the appellant slapped the deceased owing to which, he fell down. Thereafter, a towel was procured (as there is no discussion about a towel when they were engaged in a verbal quarrel) and the same was ‘thereafter’ used to throttle the deceased. It was held in Kanhaiyalal v. Emperor, that the effect of such grave and sudden provocation must be the loss of self-control. Had it been for loss of self-control for the appellant, the appellant would not have looked for a towel but would have simply proceeded to throttle the deceased using her bare hands, or whatever would have been the immediate possible response. 

What would qualify as grave and sudden provocation has been defined by the SC in BD Khunte v. Union of India & Ors. There, it held that the response to such provocation must be immediate and the cooling-off period must be absent. If the response to the provocation has been preceded by a cooling-off period i.e. where the accused received sufficient time to cool down his anger, the defence of Exception 1 would not be attracted. In this case (Khunte), a jawan killed his superior in the evening because the superior had given him beatings earlier that day. The Court ruled that Exception 1 would not be attracted due to sufficient time as the “cooling-off” period between the provocation and the killing of the superior. Since the act of killing took place after almost 7 hours of the incident, the intention element was present while committing the murder. 

As per Exception 1 to Section 300, the offence would not be a murder when the offender is deprived of the power of self-control by grave and sudden provocation. Therefore, going back to Khunte, counsel for the defendant argued that the provocation continued to remain grave for 7 long hours. The Court rejected this contention, and held that it is impossible for graveness to continue for seven hours, and hence, this defence was rejected by the Court. The failure on behalf of the Court in Nawaz to discuss Khunte is an apparent shortcoming. 

Similarly, in Prabhakar Vithal Gholve v. State of Maharashtra the SC decided that the case fell within the ambit of Exception 1 as opposed to being an offence under Section 302. The dispute there was very minor, and in a fit of rage, the accused-appellant attacked the deceased on her head using a stick, owing to which, she later succumbed to injuries. The injuries proved fatal subsequently. The Court held that the manner of committing the crime as well as lack of a motive clearly prove that the offence is one not under Section 302. Though in this case, there was a break between the provocation and crime, but the Court’s main holding is on the point that the mode of attack was not designed to reflect murder. This is the reason why the defence of Exception 1 was extended to the appellant. 

Subsequently, in Chaitu & Ors. v. State of Uttar Pradesh, where a quarrel arose between two parties over water sharing, one of the parties injured the other in the heat of passion, who succumbed to injuries the next day. The Court extended Exception 1 to cover the case of the appellants and held them liable only for culpable homicide not amounting to murder. However, in Nawaz, the manner of committing the crime, i.e. ensuring that the person dies after being slapped, reflected that the appellant-accused developed the intention to kill and thus, at that point, the element of suddenness was lost. This act of the accused clearly shows that they shared common intent to kill the deceased and they succeeded in doing so. As a result, the Court erred while adjudicating on the graveness and suddenness element of the crime. 

Secondly, in Nawaz some time had lapsed between the provocation and the crime committed. This time period is known as the "cooling-off" period. It is, however, impossible to lay down a hard and fast rule as to when a person should be said to have had time to cool down and thus to be deprived of the benefit of Exception 1. It largely depends on the individual characteristics of the accused as well as on the facts of the particular case. In this context, while discussing the shortcomings of the judgment in Nawaz, the most relevant case is that of Yasin Sheik v. Emperor. There, the appellant got to know his wife's extra-marital affair, hit her, took her to the river bank, and cut her head off. The act was rightly held to be no longer merely homicide by reason of the time which had elapsed. 

If we look at Nawaz, in paragraph 4, the Court says, “Since the deceased did not stop, Accused No. 2 slapped the face of the deceased. Immediately, thereafter, both the accused throttled the deceased with the help of a towel and burnt the dead body to try to conceal the offence. Subsequently, they transported the dead body in a Maruti Car owned by PW 15 and abandoned the body elsewhere.” As per this observation, it seems that after slapping the deceased and before throttling him using a towel, there was a short time-span, where the appellants could have deliberated upon the decision as to what should be done next. However, they proceeded ahead with throttling and murdering him. 

It could also be a case that the deceased did not die immediately upon being throttled. To make sure that the deceased was dead after he was slapped, they not only throttled him, but the body was taken to some place and was thereafter burnt. This clearly establishes that they intended to kill the deceased after he was initially slapped. The cooling-off period appeared twice, so to say. For the first time, it was between slapping and throttling using the towel, and the second time, between throttling and burning his body. Therefore, the Court neglected the existence of this cooling-off period as well and decided the case in its absence itself. 

Conclusion: The Road Ahead 

One problem with the decision in Nawaz is that it could be misused. This is because the Court does not visit any of the precedents which deal with identical issue of law and the judgment harps only on the construction of facts. As an appellate Court of the highest order, the Court has to limit itself to answering the questions of law. This does not mean that interpretation of facts is absolutely forbidden but apart from interpreting the facts, the Court should have limited its role to – (1) interpreting and discussing the law laid down in previous judgments of the SC itself, and (2) interpreting the provision of Exception 1 to Section 300 IPC. However, both elements are absent from the judgment. 

Apart from being legally flawed, Nawaz lays down a dangerous precedent for future courts to adhere to. This is because the case dilutes the exception of grave and sudden provocation by loosely reading the facts of the case, in a manner contrary to existing law. In future, if a similar question arises before any trial court or even a High Court for that matter, it is bound to create confusion as the most recent decision in a long-line of cases stands in opposition to almost all previous milestones.

Errantry: Where is our Criminal Justice Data?

In December, the news machine went into a tizzy when a government notification authorising several agencies to intercept communications became public. The "snooping order", as it was labelled, was stoutly defended by the Government at the time, which stated that a look at past data would confirm the order was nothing out of the ordinary. That did not stop challenges to the notification being filed with the Supreme Court, but it did encourage persons to find that "past data" through requests under the Right to Information Act, 2005 [RTI]. 

This past week, it was reported that the Government has refused to provide any of the concerned data, citing it to be "top secret". Mind you, this includes data on how many agencies have been similarly authorised in the past, as well as a figure for how many interception orders have been issued — one finds it difficult to imagine either being "top secret" material. Nevertheless, when the very basis for classifying items as "secret" has been refused to the public on account of secrecy, I guess this is par for the course.

My concern here, though, is not with this spat over the snooping order. Instead, my issue is with the government not publishing the annual Crime in India Report for a year. Crime in India is an annual publication by the National Crime Records Bureau that dates back to 1955. For a lot of years, it forms the only source of macro-level data on the criminal justice system in India. While it is no longer the only data source, it continues to represent the single most comprehensive data source for the criminal justice system even today. 

Despite this pre-eminent position, the Annual Report for 2017 is yet to be released. It is usual for the Report to come out in the middle of the subsequent year, but we are now in February of 2019.

By no means am I suggesting that Crime in India is a "good" source. Far from it. The methodological gaps and erroneous figures, all the way back from 1955, mean that most researchers treat the data with a generous dollop of salt. Nevertheless, in the absence of any comparable source, the same set of researchers — myself included — continue to swear by the Report and devour the statistics to find some meaning and patterns amidst the numbers.

Without the Crime in India 2017 Report, discussing the Central and State Government's performance on issues of criminal justice is nothing but clutching at straws. While these assessments would have helped in the State level elections that went by, it will certainly contribute to people making a more honest assessment of just how much, or how little, has changed at the macro-level. Have police gotten any better and quicker at solving crime and filing cases? Have courts become any quicker in dealing with the cases that are actually filed? These are not purely academic questions, but make a real difference to all our lives.

Crime in India is not the only publication relevant to criminal justice statistics. The Government had also been publishing the annual Prison Statistics Report since 1995, an extremely valuable resource to figure out just who it is that faces the brunt of the criminal sanction. While we do have similar sociological data on the death penalty — arguably better quality data — there is still nothing as comprehensive as the Prison Statistics Reports. 

Unfortunately, even this has suffered under the current regime. The last time Prison Statistics was published was for 2015. Thankfully some states have been very active in giving updated information about the prisons under their control, but again, it does not excuse the NCRB from discharging its burden as the central agency responsible for this data-collection and analysis. 

The point of this rant is pretty simple. To be able to make things better, we need the unvarnished facts about just how bad things are. It is fair to say that no government has managed to provide that honest assessment of the criminal justice system in India till date, and nor has any government managed to do good by keeping that data to itself. But by taking away even that imperfect set of information, the government denies the most basic tools needed to spur innovation and change in a sector that is crying out for some fresh thinking. So please, give us our data!     

Guest Post: Abandoning In Limine SLP Dismissals in Death Sentence Cases: A Half Full / Half Empty Solution in Babasaheb Kamble

(I am pleased to host a guest post by Ms. Ankita Sarkar, an Associate with Project 39-A, National Law University Delhi)

The signs outside courtrooms at the Supreme Court of India, informing law interns that they cannot be accommodated on Mondays and Fridays, speaks volumes about the furore that are ‘Miscellaneous Days’. The astounding number of cases on board are often heard for less than a couple of minutes, and their fates sealed with either the word ‘notice’, or ‘dismissed’. 

Exercising its power under Article 136, the Supreme Court on every Monday and Friday decides countless ‘Special Leave Petitions’ by determining whether they deserve to be heard as appeals. The exercise of this power in the context of death sentence cases has long been a niggling constitutional question. On the one hand we have the Supreme Court’s profound recognition of the stakes involved through its observation in Mohammed Ajmal Mohammad Amir Kasab [(2012) 9 SCC 1] that in death penalty cases it has been “the time honoured practice of the Supreme Court to examine the material on records first-hand and come to its own conclusion, unbound by the findings of the Trial Court or the High Court”. 

This recognition sits rather uncomfortably with the fact that that the court has dismissed the SLPs in limine of 9 death row prisoners since 2004. However, this practice of the Supreme Court became constitutionally unviable after the judgment in Mohd. Arif [(2014) 9 SCC 737, later itself reviewed in 2016], whereby open court hearing of death sentence review petitions became mandatory and was recognised as part of Article 21 (review petitions are usually decided in chambers and open court hearings granted on discretion of the judges). 

The November 2018 judgment in Babasaheb Kamble [R.P. (Crl.) 388 of 2015, decided on 01.11.2018] [applied in Jitendra, R.P. (Crl.) 324 of 2015, decided on 01.11.2018] seeks to resolve this constitutional tension by ruling that in limine dismissals of death sentence cases will have to necessarily accompanied with reasons at least for the sentencing part. I argue that the terms of this resolution in Kamble are unsatisfactory to the extent that the distinction it draws between conviction and sentencing is untenable in law. 

Mohd Arif, and the Problem for In Limine Dismissals for Death Cases

To understand concerns with the terms of the resolution in Kamble, it is important to first understand the constitutional underpinnings of the judgment in Mohd. Arif. The Supreme Court aptly carved out death sentence cases as a distinct category altogether, recognising its irreversibility. Considering this distinction, the Court observed that even at the stage of review, cases involving the death penalty are such that the "Bar-Bench dialogue" by way of oral hearing becomes too precious a right to be parted with. Further, the Court opined that different judicially trained minds can apply different conditions while coming to the conclusion of awarding death sentence or otherwise. Such a procedure for the review of death sentence cases, the Supreme Court held, was in compliance with the principles of "due process of law". 

As a result of Mohd. Arif, the Court's power under Article 136 to dismiss death sentence SLPs in limine presented a constitutional conundrum. The right to have a death sentence review petition heard in open court meant that the petitioners would have to demonstrate the "error apparent on the face of record" (as required by the Supreme Court of India- Handbook on Practice and Procedure and Office Procedure). In limine dismissals then fell into question, as the determination of such error became impossible when the order did not record reasons reflecting the application of judicial mind. In effect, in limine dismissal of death sentence SLPs rendered Mohd. Arif pointless. 

But given the text of Article 136, it would be untenable to argue that the Supreme Court had to necessarily admit all death sentence SLPs. Article 134 already recognises the death sentence cases in which the Supreme Court must hear the appeal. The only way to reconcile this limitation and the mandate in Mohd. Arif was to make the argument that in limine dismissals of death sentence SLPs while being permissible had to necessarily be accompanied with reasons. Reasoned in limine dismissals would enable an effective open court review within the constitutional scheme. 

Kamble and its Discontents

Kamble seeks to put a lid on this question by holding that in limine dismissals must necessarily have reasons on the point of sentence. The focus on sentencing reasons is heavily reliant on a progressive constitutional viewpoint. Reliance is placed on Rajesh Kumar [(2011) 13 SCC 706], observing that the expression ‘hear the accused’ does not confine merely to oral submissions but it is also intended to give an opportunity to the prosecution and the accused to place material that have a bearing on the sentence. The Court took the view that while upholding the death sentence, it is the obligation of a judge to give reasons as to why the alternative of life imprisonment is unquestionably foreclosed. 

This determination is critical, especially when the decision is to be challenged in review for an ‘error apparent’. Such errors while determining the sentence could be many — reliance on cases declared per incuriam, consideration of irrelevant aggravating factors, non-consideration of mitigating factors, etc. In that context, it is imperative that the SLP dismissal record the reasons for confirmation of the death sentence. Kamble now ensures that there is a concrete basis for filing and arguing of the review petition on sentencing. 

However, limiting the requirement of reasons to sentencing alone, and not conviction, is at odds with the right recognised in Mohd. Arif. That decision held death sentence review petitions will be heard in open court without making a distinction between conviction and sentencing. Therefore, the concern with in limine dismissals prior to Kamble continues as regards convictions in death sentence cases. The purpose of re-appreciating the material on conviction also echoes the sentiment of the Supreme Court, often reiterated, that a majority of convicts belong to the weaker sections of the society. The poor are more often than not at the receiving end in access to justice and access to the remedies available — something evident from the recent SCLSC Report through Project Sahyog.  

The Supreme Court has been conscious of the need to agitate the claim of innocence in multiple stages, considering the nature of punishment imposed at the back of inadequate legal representation. The need for such multi-level checks is amply demonstrated by the Death Penalty India Report, which reported that between 2000-2015, of the 1,486 death sentences imposed by the trial courts, 29.8% (443 prisoners) were acquitted by the end of the judicial pyramid. Affording such checks acknowledges the possibility of different judicially trained minds appreciating evidence differently and affording the highest levels of constitutional protection before sentencing an individual to death. Acknowledging the high rate of reversals and the critical role of the Supreme Court in ensuring strict adherence to constitutional standards, the Law Commission in Report No. 262 also recommended doing away with in limine dismissals of death sentence SLPs. 

Conclusion

The judgment in Kamble is significant for its procedural tightening of the death penalty and is also a recognition of the sentencing woes that afflict death penalty jurisprudence. It seeks a procedural cure for this problem by ensuring that more judges apply their mind to the confirmation of the death sentence. Of course, the question before the court was one of procedure, but in the current position of death penalty jurisprudence suffers from certain fundamental sentencing questions that need judicial clarity and procedural fixes can only take us that far. The procedural tightening in Kamble is of great significance but it must also be accompanied with a full-fledged acknowledgment of the poor legal representation that death row prisoners receive. Mere acknowledgment is insufficient, and what we need is a robust judicial discourse on its consequences in terms of constitutional and criminal law. Unfortunately, the judgment in Kamble by drawing a distinction between conviction and sentencing does not fully embrace this systemic reality. 

The Asthana Judgment and the Puzzle of Section 17-A, PC Act

A few weeks ago, a Single Judge Bench of the Delhi High Court dismissed the petitions filed by Mr. Rakesh Asthana and others, seeking to quash the criminal investigations initiated against them by registration of a First Information Report [FIR] under provisions of the Indian Penal Code 1860 [IPC] and the Prevention of Corruption Act 1988 [PC Act] [See, Devender Kumar v. CBI, WP (Crl.) 3247 of 2018, decided on 11.01.2019]. The allegations, briefly, were that the concerned officers were extorting the complainant into paying them huge sums of money to close investigations being run by the CBI. It took the complainant almost a year after the first alleged incident of extortion to register a complaint with the CBI, which then lodged an FIR against the concerned CBI officers. 

The Section 17-A Issue

The High Court judgment dismissing the petitions discusses several arguments, but the focal point of attack for the CBI officers was a lack of sanction under the new Section 17-A of the PC Act, that was inserted in 2018. This Blog has discussed Section 17-A in depth earlier, and for convenience the text of the provision is copied below (the judgment copies the incorrect provision, amazingly):

(1) No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval [relevant authorities mentioned] 

... 

Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person: 

Provided further that the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month. [Emphasis supplied]

Briefly, the point to be noted is that Section 17-A applies to investigations. This is different from the existing provisions in Indian law that require police to obtain sanction before prosecuting public servants.

The High Court's View on Section 17-A
In dismissing the petitions, the High Court naturally held that there was no need for prior sanction to register the FIR. How did it come this conclusion? The analysis is distilled in Paragraph 36 onwards, and I have shortened them to two broad points:

• One, Section 17-A is only designed to protect bona fide decisions. If the act is "ex-facie criminal or constitutes an offence" prior approval is unnecessary. The alleged acts — extortion and threatening persons — cannot be in "discharge of official functions or duties of the public servant" and so no sanction is needed. 
• Section 17-A is not attracted as this case involves "no recommendation or decision on record by a public servant in the discharge of his official functions" [Emphasis mine].

There is other rhetoric as well, on the lines of speedy investigations being in the best interests of all and that the law does not defer to personalities, but these are the broad legal reasons for the High Court's view. The first point is an old one and sourced from the existing law on sanction to prosecute, where the Supreme Court has restricted sought to eliminate any need for sanction where acts are per se a crime, such as entering into a conspiracy. The second point, though, is new, and an ingenious take on the text of Section 17-A PC Act. While the section mentions nothing about decisions "on record", the Court has introduced that to exclude this case from the need for sanction.

A Critique of the High Court View

The thrust of the Delhi High Court decision is to interpret Section 17-A as a safeguard for the good officer. In the words of the Court, the purpose of sanction "can be read to be only to provide protection to officers who discharge their official functions and / or duties with diligence, fairly, in an unbiased manner and to the best of their ability and judgment, without any motive for their personal advantage or favour." 

This approach has held the judiciary in good stead in cases involving sanction to prosecute officers for several decades, but is not without faults. The most natural one being that this involves placing the cart before the horse: the judiciary ends up judging whether the act was bona fide or not at the outset, whereas that job is for the sanctioning authority. 

This logical problem is greatly accentuated in the case of Section 17-A of the PC Act, which triggers at the stage of investigation itself. After all, this is the first step in the case, and it is impossible for the allegations to be concrete as the FIR is not the outcome of a thorough investigation. Moreover, the language of Section 17-A is very loose — it seeks to not only protect the decision, but also acts that are relatable to it. 

In focusing on a bona fide decision, is the judgment not giving a simple way out of Section 17-A sanction by telling us that complaints should be framed so as to avoid any mention of official decisions? It is impossible to apply the bona fide decision test with any sense of objectivity. If we keep going down this road, what Section 17-A will be reduced to is the judiciary vetting every FIR, in addition to the vetting by the executive branch that the provision originally contemplated.

This then brings me to the second point, of requiring decisions on be "on record" for Section 17-A to apply. As ingenious as the solution may be, the fact is that these words are not there in Section 17-A and thus amount to the court re-writing the statute. This re-writing is usually impermissible unless the law has a gap or a clear and obvious error. Both seem to not apply here, which make this ground a rather weak one.

Conclusion: The Puzzle of Section 17-A 

The Delhi High Court's decision in Devender Kumar offers one of the few judicial engagements of Section 17-A currently available and deserves to be discussed widely. At its heart, the Delhi High Court is driven by the idea that Section 17-A is driven to protect bona fide decisions in the same way as the existing law did. But in extending the protection of sanction from prosecution to investigation, it becomes very difficult for courts to actually figure out when decisions are good or bad. This makes it equally difficult to accept the High Court's view of the purpose behind Section 17-A. Rather, one would argue that the purpose is exactly to confer a blanket protection to public servants, except if they are caught red-handed. This is perhaps why the expedited sanction of three months is provided for as well. This blanket view will also take away the need for courts to review each case to decide if sanction is needed or not. It will be fascinating to see how different courts perceive the issue going forward, and also to see how many courts engage with the other ground of Devender Kumar of only applying Section 17-A to recorded decisions.