Saturday, October 12, 2019

Guest Post: Letter to An Aspiring Judge

[I am pleased to re-post this piece by Mr. Bharat Chugh, which first appeared on LiveLaw]

Since you’re here, I take it that you want to be a Judge, or, at any rate, are intrigued by the thought of being a judge. You may find this ironic that someone who hung his boots as a judge after roughly 4 years of service is writing an article on what it means to be a judge, and how does one go about achieving that objective. I am happy if you had this thought. The first part of training to be a judge is to take absolutely nothing at face value. Measure scepticism is a virtue. There’s nothing worse for an aspiring (or a serving) judge than a willing suspension of disbelief. 

My competency to testify on this issue is a crucial starting point, and I hope to discharge this burden of proof. 

I make no claims to great insight, and at 29, age is definitely not on my side but having been a lawyer (at 21), judge (at 23) and a lawyer and a mentor of future judges (at 26) has been an excellent learning curve (and a roller coaster ride). Each role has enabled me to experience, not only what it means to wear that particular hat, but also what it means to be the other. Being a lawyer has given me a better sense of what and how a judge should be, and conversely, my tenure as a judge has taught me the art of lawyering. Looking at one thing in relation to another is often the best way of understanding it. And often, one has to take a step back and look at a thing from a distance in order to be able to truly appreciate it – given that we tend to appreciate the trees and ignore the forest. Taking a step back has helped me aspire to certain objectivity of thought and to a somewhat balanced way of looking at things. 

Getting back to establishing my credentials (or the voir dire, for those inclined to Latin). Picture life so far for me as a football game - I’ve been a spectator (a student of law, undecided on whether I wanted to be a judge or not); a player on the bench, watching the game eagerly from the sidelines desperate to be called-in (as someone aspiring to be a judge and preparing for the Delhi Judicial Service); a referee, setting out the rules of the game and ensuring fair play and justice (a judge); a player (as a lawyer); and finally, a coach (in my engagement with future/newly recruited judges). 

I hope the above does raise at-least a presumption in my favour; a presumption of me being qualified to comment on these issues. The endeavour throughout this series would be to ensure that the presumption is not rebutted. (Because all good presumptions, as we know, are rebuttable) 

With the maintainability question (as we lawyers like to call it) having been addressed, let us move on to what I believe is the real heart of the matter. Have you asked yourself - ‘WHY’ do you want to be a Judge? As someone wise said (probably my mother) if you have figured out the ‘WHY’ of doing something, you’ll figure out the ‘HOW’ of doing it any ‘HOW’; this is exactly why the ‘WHY’ is important and a great place to start with. 

Why do you think you want to be a judge: Is it the power-kick? A beacon atop your vehicle? Or a pursuit of power that would give you the ability to translate your personal philosophies and world-view into binding judgments?’ 

If this is what you had in mind, I would advise you to give up reading this article and, for heaven’s sake, re-evaluate your life choices; not just for your own good, but for the good of all others whose lives would depend on your orders. The pursuit of power as an end in itself is dangerous. Preparing for judgeship and clearing the exam, which is by no means easy, would require reservoirs of patience that run deep, and would require you to be up and studying, sometimes - all night, while your friends party, lead normal social lives, or take up jobs, and to make matters worse - do and share all of this (with glamorous filters) on Instagram/Facebook. 

In those moments of self-doubt and existential crises, when you think you are worthless (because you spend all your time holed up in your study room with your books, living as a hermit, while others party, marry and take up regular jobs); in testing times such as those, a hollow idea such as a blind pursuit of ‘power’ won’t keep you on track, and even if it does prove to be a moving force for you, it won’t be a good one. You may become a judge, but you won’t be a good one. 

What are the other considerations - ‘Job Security’ or a ‘Stable source of income’?’ 

I would not devalue the importance of having one’s basic needs met in life. Having worked and financed myself (and part of the household) since I was 14-15, I’ve seen ‘want’ and poverty up-close and personal. The anxiety of not being able to make rent the next month; I’ve lived with that. I’ve lived with the devil of poverty, sitting firmly on my left shoulder, for the majority of my life. I understand basic needs are important. But there are various avenues of earning a livelihood. Judging ought not to be taken as a means of earning a livelihood and can never be measured in terms of money. Though young judges are now paid reasonably well, that ought not to be the consideration. 

What then is the right consideration? Let me cut straight to the chase: No consideration would help you more than a belief in a higher purpose. A purpose bigger than you; bigger than your narrow interests and fears. A loftier ideal like the ‘the ability to dispense justice’ or ‘make a meaningful difference to people’s lives’ should be your anchor; your guiding star. A fine sense of justice and a heart that bleeds for the underdog should inform you at all times in your journey towards being a judge, and thereafter. Each injustice should rankle you and make you want to correct it. Look at yourself like a Justice Task Force of sorts. Always remember, no one in the entire judicial system has a bigger interface with the layperson than the Civil Judge/Metropolitan Magistrate at the nearest District Court. You, my friend, are going to be the brand ambassador of the justice system for close to 90% of the population. 

The enormous difference that a single bail application can make to a life. That snap ‘bail or jail’ judgment that a Magistrate makes, many times over a day, often thinking on one’s feet. The classic balancing act between the presumption of innocence on one side (liberty), and State’s impassioned argument of law and order (public order perspective), on the other. You’ll be deciding tens of them on a single day. Each would impact lives on a level you cannot possibly imagine now. 

Picture the crucial decision of granting or denying an injunction; an injunction against the demolition of a house in a slum somewhere in outer Delhi. To injunct or not to injunct! Imagine - the plaintiff’s daughter is getting married next week and an injunction for a week would help the family sail through this crucial time, but the plaintiff, even though he may have the balance of convenience tilted in his favour (and an excellent emotional appeal), he has little to show for a title. What do you do in such a case? Pure legalism, or law tempered with compassion. 

Imagine a young boy accused of selling tea in a train (https://www.livelaw.in/a-tea-seller-and-a-judge-a-young-railway-judges-beautiful-retelling-of-his-struggle-with-morality-and-law/), who though technically an offender (because he does so without a license), hasn’t really done anything wrong and it would be a travesty of justice to punish him. 

Think of the imprisoner’s dilemma in the case of a young man of 18 years, who got through one of the best medical colleges in the world, but had one too many while returning from his farewell party, and now finds himself in the dock as an accused in a drunken driving case, asking for mercy. Should you send him to jail because drunken driving, after all, is a huge public menace and a good sentence should ‘deter’ and try and make an example out of him. You may, in the process, destroy all his life-chances though. So should you, instead, fine him and pass a community service order and help him become a useful citizen? (Every sinner has a future, right?). 

Cases like these would give you sleepless nights; make you toss and turn, and you should. Let not the mantra of clinical detachment make you non-responsive or make you feel any less. This job is about this. This is not to suggest that you should be paralyzed into indecision by the enormity of what you do and these moral conundrums. Be firm and decisive but, at the same time, let that conscience and moral compass be alive and kicking. 

I must also add that this, by no means, is an exhortation for you to be a knight errant, pursuing his or her own sense of what is ‘just’, without the slightest regard to law and precedent; No need to do justice ‘though the heavens fall’. Let’s be fair - Justice would mean little if the heavens do actually fall. A sense of proportion and balance, therefore, is extremely crucial. 

And, well begun is half done. A belief in your ability to make a meaningful difference to people’s lives, each day, would set the right tone for not just your preparation but also the rest of your career as a Judge. 

The ‘Why’ part of the question having been addressed, we’ll get on to the ‘HOW’ part of it, next. At the very outset (and spoiler alert) - this series does not share any magical sure-shot formula that would ensure that you make it. The reason is simple: no such formula exists. There is, however, a method to all this madness. A method of preparation. Though I say early on in the introduction that once one has figured out a ‘WHY’ of becoming a judge, discovering the ‘HOW’ is not going to be a major challenge. That statement should not be construed to mean that the method is any less important. Genius is as much discipline as inspiration. 

In the next few articles, we touch upon a number of important questions ranging from the choice of reading material, to – what is the ideal pattern of study? In this, I’ll be drawing-in on my own lived experiences and the experiences of my peers at judicial academies, institutes and elsewhere. The reader, however, is encouraged to find his own brand of preparation. Draw inspiration from each source, without blindingly copying one method or the other. Devising one’s own method, after a careful analysis of one’s strengths and weakness is critical. Failing to prepare is preparing to fail. With that, adios for now. I’ll be back soon with some pointers on preparing to prepare. 

Monday, October 7, 2019

Guest Post: Understanding Recent Developments in Bail under the PMLA

(I am pleased to host a guest post by Mr. Anuraag Bukkapatnam, a Second Year student in the B.A., LL.B. program at NALSAR University of Law)

Section 3 of the Prevention of Money Laundering Act, 2002 (hereafter referred to as the PMLA) defines the offence of money laundering. Prior to the passing of Finance Act, 2019, the definition stood as follows: 

Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming it as untainted property shall be guilty of offence of money-laundering.

This provision provided two essential elements to constitute the offence of money laundering, which are as follows: 

  • Existence of a predicate offence: An offence of money laundering cannot exist independently. It is sine qua non for the existence of an offence under the PMLA that the money in question is ‘proceeds of crime’, i.e. it was derived from another crime (which is referred to as the predicate offence). If there is no predicate crime, there can be no offence of money laundering [i]. The predicate offences are listed in Schedule I of the PMLA. 
  • Projection of tainted money as untainted money: The term ‘money laundering’ connotes the process of laundering money i.e. projecting tainted money as untainted. Money laundering has three stages, which are placement, layering and integration [ii]. Unless something has been done in furtherance of this, it cannot be said that the offence of money laundering has been committed. Mere possession of proceeds of crime could not constitute the offence under this definition. The word ‘and’ implies that both the elements must be satisfied in order to constitute an offence of money laundering. 

Numerous judgements in India have settled the point of law that an offence of money laundering is separate and distinct from the predicate offence. For example, an offence under the Prevention of Corruption Act, 1988 (hereafter referred to as the PCA) would constitute a separate offence from the offence under the PMLA, despite them being inherently connected to each other. A conviction under the PCA would not automatically result in a conviction under the PMLA. 

Understanding the distinction between the predicate offence and the offence of money laundering is crucial for understanding the provisions concerning bail for money laundering offences under the PMLA. 

Bail position Pre—2019 

Section 45 of the PMLA deals with bail related aspects of the offence of money laundering. The section, as it stood in 2017, read as follows: 

45. Offences to be cognizable and non-bailable.—
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless—
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail ... 

This section shows that to obtain bail, the accused must prove that there exists no reasonable grounds for believing that she has committed the predicate offence. The word “offence” in this section referred to the offences in Part A of the Schedule to the PMLA, and not the offence of money laundering under Section 3 of the PMLA. 

In Nikesh Tarachand v. Union of India, the Supreme Court struck down Section 45 of the PMLA on the grounds of it being unconstitutional. As Part A of the schedule consisted of diverse set of offences which vary significantly in the quantum of punishment, a bail provision treating all of them in the same manner would amount to treating unequals as equals, hence violating Article 14 of the Indian Constitution. 

Furthermore, writing for the Court, Nariman J. observed that the conditions for securing bail should be proportionate to the magnitude of the offence. This is implicit in the right to life and liberty under Article 21 of the Indian constitution. Under the provisions of the CrPC, an accused would not be required to prove prima facie innocence in the alleged offence (unless punishable by death or life imprisonment) in order to seek bail. However, under Section 45, as it stood then, an accused had to prove prima facie innocence with respect to not just the offence of money laundering, but also the predicate offence to secure bail despite the fact that no offence of money laundering was made out. In conclusion, the Supreme Court observed that absent any crucial state interest in denying bail, it violates Article 21 of the Indian Constitution. 

Amendments to the PMLA after Nikesh
Subsequently, in 2018, the government amended the section by means of the Finance Act, 2018 to comply with the judgement. The amended section starts as follows: 

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence under this Act shall be released on bail or on his own bond unless ...  [Emphasis mine]

The new section has narrower scope as compared to before the amendment, and confines itself only to the money laundering offence: The court would not be required go into the merits of the predicate offence. 

In 2019, the definition under Section 3 of the PMLA was amended by the Finance Act (No. 2), 2019. An explanation was added to this provision, which reads as follows: 

Explanation.-- For the removal of doubts, it is hereby clarified that,--  
(i) a person shall be guilty of offence of money-laundering if such person is found to have directly or indirectly attempted to indulge or knowingly assisted or knowingly is a party or is actually involved in one or more of the following processes or activities connected with proceeds of crime, namely:--  
(a) concealment; or
(b) possession; or
(c) acquisition; or
(d) use; or
(e) projecting as untainted property; or
(f) claiming as untainted property,
in any manner whatsoever; 

The explanation states that by committing any of the acts from (a) to (f), the person has committed the offence of money laundering. We see a major departure from the original definition, as the act of projecting the proceeds of crime as untainted property is no longer a precondition for an offence under PMLA. The absence of the word ‘and’ before Explanation (i)(f) indicates that no act needs to be done to project the property as untainted. Post the amendment, mere possession of proceeds of crime can also be considered as an offence.

Before the Finance Act, 2019 and after the judgement in Nikesh Tarachand, bail proceedings would have been, theoretically, something like this. An accused would have to show, prima facie, innocence with respect to the PMLA offence only. But after the Finance Act, 2019, even possession of proceeds of crime has been criminalised. Thus, now, to show prima facie innocence in the PMLA offence today, an accused would again have to go back to the predicate offence to show that possession is not of proceeds of crime. In this manner, we see that the burden at the stage of bail post 2019 is similar to that seen before the judgement in Nikesh Tarachand

Consequences
The current legal position on bail in PMLA cases restores the problem of this judicial determination having larger consequences for the trial. Even though at the bail stage the court can only make a very preliminary determination, nevertheless, the determination being made is whether or not the accused is prima facie guilty of an offence. And, since the PMLA offence by its very nature relies upon another predicate offence, this translates into a dual finding by the court. Now, one might say that findings at the bail stage are usually guarded with the observation that "nothing in this order shall prejudice the trial". But, where such a finding takes place by a higher court (such as the High Court or the Supreme Court) it can still have a bearing on the actual trial by the lower courts. 

The shifting of the presumption of innocence, and the difficulty involved in getting bail, also gives an incentive to the executive to trigger the PMLA in cases where it might otherwise not have done so. The list of predicate "Scheduled Offences" is fairly long, and so one can imagine situations where a PMLA case is triggered using the new definition by alleging that an accused is in possession of alleged proceeds of crime, and then use the harsh bail provisions to cause prejudice. This creates a genuine risk of normalising an extraordinary process, for vast parts of the criminal law where some economic element might be involved.

Unless, of course, a legal challenge throws this regime under the bus. I would think that this is not a far-fetched possibility. Because while the 2019 amendments inserted an Explanation suggesting that the projection of the proceeds of crime can be an independent basis to trigger the Section 3 offence, it did so without amending Section 3 itself, which still suggests that projecting the proceeds of crime is a separate prerequisite. It will be fascinating to see how this legal setup goes ahead.    

Saturday, September 28, 2019

Guest Post: Prosecutorial Control over Investigations — A New Paradigm for the Criminal Justice System in India

(I am delighted to present a post by Mr. Divyang Thakur. Mr. Thakur has been working as a Public Prosecutor for three years in Delhi, and was practising law across trial courts in Delhi before that. The views expressed here are entirely personal.)

The traditional view and status quo, at least in Delhi NCR, on the role played by prosecutors during the investigation process is as follows: An FIR gets registered, the police conducts investigation, and upon finishing the investigation, the Investigating Officer ["IO"] prepares a Chargsheet / Cancellation Report [under Section 173 Cr.P.C.], as the case may be. If the IO thinks a person should be tried for a crime, that Chargesheet is submitted with the area Prosecutor for comments. The Prosecutor raises objections (a sort of Due Diligence), and the file goes back to the IO. After this, the matter is out of the Prosecutor's hands: The IO may or may not choose to address the concerns of the Prosecutor, and then forward the file for this to eventually go before court. 

It is evident that, currently, a Prosecutor plays a minimal role during the investigation; his objections are like non-binding directives, his views on sufficiency of material on record to secure a conviction mere observations, which have no impact on either how the investigation proceeds or how it ends. 

Through this post, I will argue that we need to move away from this status quo, towards a model where prosecutors are more involved with the investigation. Such a model, I think, stands a much better chance of doing justice to all stakeholders in the Criminal Justice System. 

The Goals of a Criminal Justice System 
When I argue that my model will help secure justice, what do I mean? I mean that such a model will help ensure four broad goals are fulfilled more regularly: 
  • First, prosecutions are launched carefully to ensure that persons face trial only when there is a reasonable shot at conviction, thus avoiding unnecessary prosecutions, for the process is often the punishment. This also ensures that victims are not left short-changed, when the seemingly “open and shut” cases end up in acquittals. 
  • Second, ensuring that no person is deprived of liberty unless essential. 
  • Third, completing investigations in a time-bound manner, as having your life under the cloud of a criminal investigation can be a traumatic experience—for both an accused and the victim. 
  • Fourth, and flowing from these goals, is the idea of lessening the number of trials themselves, to ensure that our judges are not tasked with gargantuan dockets and can apply their mind to cases rather than simply treat them as an issue of processing files. 
Currently, India’s Criminal Justice System is far from achieving any these goals. We need to change this status quo. 

The Classical Approach to Prosecutorial Involvement 
The standard legal position on the role of Prosecutors was discussed in an earlier essay on the Blog, and so I need only mention the Supreme Court’s decision in R. Sarala v. T.S. Velu & Ors [(2000) 4 SCC 459), “Sarala”], where the Court discussed the issue of Prosecutors being involved in the decision to file a Chargesheet. The Supreme Court said that they cannot be so involved, for the Prosecutor’s role was triggered only after a case reached court. The possible benefit of nipping unfair prosecutions in the bud was seemingly met through the power of prosecutors to withdraw cases under Section 321 Cr.P.C is what the Supreme Court held. 

This logic of limited involvement can also be seen in the Standing Orders of the Delhi Police [See the order dated 25.10.2010], which outlines the process that I described at the start of this post, where the Prosecutor’s role is somewhat similar to that of the President in our electoral democracy. The Chargesheet goes to the prosecutor for comments, who can send it back pointing out gaps. Regardless of the police agreeing or disagreeing, the Chargesheet can then be sent to court directly, and “should ordinarily not be sent to the prosecutor” again. 

When the Delhi High Court tried to pull away from this view of limited involvement of prosecutors in Court on its Own Motion v. State [Writ Petition (Criminal) 1352/2015, order dated 05.04.2018], the weight of the views in Sarala forced the Court to beat a hasty retreat, for by an order dated 28.05.2018 it stayed its observations that had mandated prosecutorial approval before a case goes to court, and that is where matters stand today as the case is still pending. 

Kishanbhai’s Case: A New Paradigm 
It would be apropos to now cite the following lengthy excerpt from the Supreme Court's decision in State of Gujarat v. Kishanbhai [(2014) 5 SCC 108, “Kishanbhai”]. The observations were made by the Court in a case where investigative lapses and poor prosecution led to an acquittal. Presumably under its extraordinary powers, the Court stated: 
The situation referred to above needs to be remedied. For the said purpose, adherence to a simple procedure could serve the objective. We accordingly direct, that on the completion of the investigation in a criminal case, the prosecuting agency should apply its independent mind, and require all shortcomings to be rectified, if necessary by requiring further investigation. It should also be ensured, that the evidence gathered during investigation is truly and faithfully utilized, by confirming that all relevant witnesses and materials for proving the charges are conscientiously presented during the trial of a case. This would achieve two purposes. Only persons against whom there is sufficient evidence, will have to suffer the rigours of criminal prosecution. By following the above procedure, in most criminal prosecutions, the concerned agencies will be able to successfully establish the guilt of the accused.
The further directions given by the Court are too long to extract here but well worth a read. 

The Supreme Court in Sarala had observed that any consultation with “legal experts” was optional. But after reading Kishanbhai, it seems as if the Court has taken a U-Turn. Kishanbhai suggests that consultation and opinion of the prosecution has been made mandatory after the completion of the investigation. Moreover, the prosecuting agency may require further investigation [not to be confused with the statutory provision of Section 173(8) Cr.P.C.] to be made to rectify deficiencies in the charge sheet. 

I would argue that Kishanbhai must become the lodestar for future discussions on the issue of a Prosecutor’s role in the Criminal Justice System. Following this, we must shift the status quo to a model where Prosecutors are associated with a case from its inception, can assist the IO during the investigation to help avoid gaps and errors, and must have a say on whether the case should go to trial or be closed. 

Below, I cull out some instances of how prosecutorial involvement at the investigation stage can help make a difference: 
  1. Loss of Relevant Evidence: In law, today, an IO is required to appreciate nuances of evidence law surrounding the material gathered during an investigation. But is it reasonable to leave such a determination to only an IO? By the time that a Chargesheet is prepared, an innocent man may be known as an accused, avenues of investigation might go unexplored forever, valuable evidence might be lost and the prosecution might not be able to meet the required standard of proof. I would argue that the involvement of Prosecutors can help streamline this process and avoid errors, by creating a system of checks and balances and taking away the sole authority of police. And, arguably, a more effective method than burdening courts with taking "action taken reports" in sealed covers. In my own experience, countless times I have asked an IO to investigate, where possible, for CCTV footage, and countless times the reply received is that the footage even if initially available, has since been deleted as 15 days have elapsed. By the time a court acquits on the ground that the best evidence has not been placed on record, the proverbial "open and shut" case is lost, and justice remains elusive. 
  2. Setting Standards and Boundaries to create an Institutional Check and Balance: A very simple example will speak volumes. In our criminal jurisprudence the Courts generally acquit for offences like Section 33 of the Delhi Excise Act 2009 (possession of illicit liquor), Section 25 Arms Act 1959  (possessing firearm without a valid licence) and Section 411 IPC (dishonestly retaining stolen property) on the ground that public persons were not made witnesses to the recovery despite their availability. As a Prosecutor, I know that there is a slim chance that such recoveries will be proved and an accused convicted. However, I must allow cases to continue, as there is a prima facie case and police witnesses cannot be doubted beforehand. In a system, where the Prosecutor is involved in the decision of whom to prosecute, I would never bring such a case to trial unless the police convince me that no public person was available (recovery was in a remote region etc.) or that those public persons who refused to join were sent a notice for their non-cooperation and that action was taken. The effect of my refusal to act on such a recovery as a Prosecutor is what I call the setting of standards and boundaries. It is a precedent which sends a message to the Institution as a whole – though I personally might believe that the police officers did recover contraband, however, the Prosecutor as an institution sets standards for how an investigation is conducted or a recovery / raid completed. The Police scarcely care that the end result of an investigation is a perfunctory acquittal. However, stopping the Police from incarcerating (however temporarily) and filing a Chargesheet against a person on basis of a recovery that the court ultimately does not rely on might have a cascading effect and lead to the creation of a more transparent culture. 
  3. Enforcing Public Policy: Another example is appropriate. One of my colleagues encountered a case where a firefighter was driving a truck in a narrow lane where a building had caught fire. He hit one man near the building, causing him grievous injuries. The firefighter was charged for the offences u/s 279/338 IPC. Consequently, he lost his government job and was suspended without pay for many years before the matter came up in court for arguments on charge. I did not ask about the fate of the case, but considering the facts as a whole, my colleague and dear friend did not feel that it was a particularly egregious case of rashness or negligence, in fact the police did not even cite anything in the charge sheet to show that state of mind. The firefighter argued that he could not even see properly, it was dark and a narrow lane had to be navigated to reach the building which was on fire. Now, is it not a case where a Prosecutor at the very outset could and should have decided not to file a charge sheet against the firefighter as a matter of policy? Of course, the prosecution can be withdrawn, but it is already too late — the firefighter is now an accused, and his colleagues have been delivered with a message that they too could be prosecuted for an accident while on duty. And so by the time help comes from the courts or the Prosecution, it is too late to avoid mental agony. If we have to become a mature economy and country, we have to move towards a policy of mindful prosecution keeping the larger picture in mind, rather than the mindless chargesheeting as displayed in the example above. We must at least start the discussion on going through the rigours of a cost-benefit analysis of non-prosecution where it might have an unintended chilling effect on a certain group of persons and activity etc. 
  4. The Relationship between the Prosecutors and Witnesses: I related in my previous post that witnesses are often bewildered when they arrive for the first time to depose before courts. A Prosecutor can be invaluable in giving psychological and logistical support to a witness and in counselling them on the future course. We have the beginnings of a Witness Protection Scheme and considerable jurisprudence and legislation has already amassed with respect to the Victim Compensation Scheme. A Prosecutor could provide valuable input for implementing both these schemes in letter and spirit. But this requires the Prosecutor and witness to interact during the initial stage itself, at the time the crime has taken place. Moreover, it could help the Prosecutor in deciding on the credibility of the witness and in advising the IO to run background checks so that he is not surprised by the defence if the matter goes to trial. Most importantly, talking with the witness can help a Prosecutor decide the manner of the examination in chief, rather than having to improvise and, even worse, declaring a witness hostile based on minor technicalities. I find it amusing and sad that a Prosecutor, in whose hands the trial lies, is the one most surprised by the turn of events when the trial starts. Witnesses often state that the police never took their statement or that they never joined the investigation. The sad truth is that this is often true, and when a witness states on the stand that the police officer merely noted his address and name and never read out their statement, I believe them. 
  5. Due Diligence: No company invests without a detailed due diligence by well-paid lawyers who painstakingly go over each and every document, prepare requisition lists and ask the questions that need to be asked of an investee. Should then a person be charged with a crime, lose his reputation in society and be called upon to answer to a charge of a crime at the drop of a hat? Chargesheets are shoddily prepared, with documents hither thither, without any explanation for why a particular document is placed on record, its relevance and value, link to the crime, how it shall be exhibited if a photocopy, its admissibility, what part of the same needs to be proved and by whom — these and many other questions remain unanswered even at the stage of trial. IO’s seem to have bigger fish to fry and are either transferred, or have retired / resigned from service by the time of trial, and so have no accountability or stake in the outcome. So, does the system have trained lawyers who can do the necessary checks and direct how the brief can be presented in Court? You know the answer already.

Conclusion 
The Prosecution Department must be seen as an accountable institution, separate from others like the Police and Judiciary. The Prosecutor, if he prosecutes, must have no qualms about the innocence of the accused at the outset itself. I firmly believe in this. Of course, anything may change during trial. But at the outset, the Prosecutor must be sure of the evidence, the quantity and quality thereof, and then take the decision to prosecute. The decision to prosecute or not could always be communicated to the victim, concerned parties and of course, the public at large. This is by no means infeasible in today’s day and age. Moreover, it is important that a decision to prosecute is not made by the Investigating Authority or Government of the Day, but a separate, independent institution, insulated from interference. Such a setup promotes institutional complacency, corruption and inequity in a vast number of cases.

A decision to prosecute affects the life and liberty of the accused and his family. It irrevocably leaves an imprint on their lives. Moreover, it affects institutions and their cultures, and the society at large. On the other hand, a crime darkens the life of the victim. A faulty investigation which lets the guilty party scot-free is a blot on the system, as much as the prosecution of an innocent. It is essential that no single institution is granted this exceptional power to affect lives without sufficient and timely checks and balances. As I have argued, the Prosecution Department, is best placed to address the current iniquities prevailing at the stage of the investigation. Moreover, a decision to prosecute can only be taken by the Prosecutor after having being involved during the course of investigation, being sure that no other explanation is available, that no avenue unexplored. 

For all these reasons, I argue that the system needs change, and needs it immediately.

Friday, September 20, 2019

What the Protests over the Motor Vehicles Act Amendments tell us about Criminal Law

On 19 September, 2019, there was a big strike organised by public transport workers across Delhi and other parts of India, to protest against the amendments recently made to India's Motor Vehicles Act [MV Act]. The main cause for the protests, I am led to understand after speaking to several cab and auto drivers and reading the news, is the enhancement of penalties that the amendments have brought about. 

In fact, the outcry over steep fines has been in the news for some weeks now. Many states, including those that have BJP led governments, have also refrained from giving full effect to these provisions of the new law because of the perceived voter-backlash that such a move will generate. 

Such protests over changes in laws are rare in India nowadays — the demonetisation of high value bank notes of 2016 met with a whimper of protest — which is why protests over the MV Act, by the people and by state legislatures, demand attention. I think a closer look at this legislative process tells us a lot about legislative processes generally, and specifically about the apathy surrounding criminal law. 

The Rationale for Steep Fines in the MV Act Amendments
This is a simple one. The Central Government has consistently maintained that higher fines in the MV Act will serve as a deterrent to bad driving and help increase road safety. Going by the numbers on road safety in India, which confirm that it is as poor as one might suspect, it is difficult to argue that such deterrents are unnecessary. Which is why, perhaps, most states also agreed with the Centre during deliberations that the higher fines are a good idea. 

The regular argument against deterrence in the criminal justice system is that it can't be measured and so it doesn't exist. That claim might work for valuing deterrence in specific cases, but most of these accounts also agree that there certainly is a general deterrent effect that penal laws have and this helps to improve obedience to law at a macro level. Higher penalties for breaking road laws, I think, certainly achieve this general deterrence.

Moreover, higher fines will also work better than, say, higher punishments in criminal laws such as enhancing the punishment for rape to a death sentence. The reason here is the immediacy of inflicting punishment. The traffic police can fine you on the spot, immediately after you break the law. Whereas the death sentence is not going to be delivered until the criminal process runs its course lasting years. This is another reason why I think general deterrence might be more probable for traffic norms and increase compliance.       

The Argument against Steep Fines in the MV Act Amendments
Considering everyone cares about road safety — well, almost — it is difficult to argue against a law designed to increase this. Which is why the primary argument has not been against high fines, per se, but that high fines alone are not going to do anything. 

How do detractors pull the carpet from under the Central Government's justifications? They point to the architecture that governs road traffic. First off, you need decent roads. If you have this, then you also need functioning traffic lights, clearly marked lanes, lower jaywalking, and a higher standard of basic driving sense for getting a license. Unfortunately, for most parts of India, none of the above are true. Rather than continue the slow slog towards improving this architecture, and get ground up to a higher standard of road safety, it is argued that the Government is imposing top-down reform as it is wont to do. 

This criticism only travels a certain distance, because why can't the Government also increase fines as it continues the slow slog towards improving road safety from the ground up. Understandably this is not being touted as the main reason behind the protest against the high fines either. That main reason, according to whoever I have spoken to, is distrust of an authority that has historically been known for its corrupt and arbitrary enforcement of traffic laws.

That almost all states in India do not have enough police officers is a known fact, and the same truth applies to numbers of traffic police in the states. These limited traffic cops simply cannot man every traffic light and patrol every road, and the insufficiency in numbers necessarily breeds arbitrariness in how laws are enforced everyday and thus takes away from any general deterrence that might have been possible. Granted, this might change with the increasing use of CCTV cameras to catch cars speeding, but the core arbitrariness of enforcement will remain. 

Besides arbitrary enforcement, the other problem is the manner in which the laws are enforced. Many adult Indians have stories about having gotten off easy when caught by traffic police. Higher fines only go towards allowing the police to charge higher rents for a stay on execution, rather than make us more compliant with the law. 

What links the MV Act protests to the absence of protest against Regular Criminal Law?
The arguments levelled against high fines can almost entirely be used for the criminal legal process in India at large. The systemic problems faced by road traffic norms are similar to that of the criminal justice system breaking under its own weight because of caseloads that run into crores, making all cases move at a snail's pace. And the problems with traffic police enforcement being arbitrary and corrupt are fully applicable to the criminal law more broadly. 

I would argue that what links the protests against MV Act amendments to absence of protest when laws are passed with similar effects — say, passing Section 66-A of the IT Act or diluting criminal procedure guarantees for accused persons — is the idea that the criminal law will not apply to "us" but to "others". 

The mere act of driving places people in peril of facing hefty fines, because the regular way of driving is totally removed from how the law might require a person to drive. This makes notions of "us" against "them" disappear without requiring any great mental effort. But the same can't be said for criminal law, where the idea of "othering" is writ large. The idea that Section 66-A would only hit provocateurs and not ordinary people made it easy to ignore the same problems that lay at the heart of that legal zombie and the fact that they could potentially be used to wantonly arrest anyone. The idea that "criminals" should not have a broad right to silence can even make the Supreme Court forget that there is no pre-defined criminal class and that such measures ultimately render everyone more susceptible to abuse of police power. Today, the same notion of othering is perhaps why the UAPA amendments that allow the state to brand anyone a "terrorist" can pass through without any protest. 

Until those of us interested in criminal justice reform can make it loud and clear that these notions of "us" and "them", of predefined criminal classes for whom harsh laws are justified, are bogeys, it will be impossible to prevent new variants of the same oppressive, liberty-stifling laws, from being passed no matter how many times a court strikes them down. 

Wednesday, September 18, 2019

Preventive Detention: Article Update

(This is an article update for new scholarship and not a substantive post. The paper is available here)

Since August 5, the rest of India has been cut-off from the happenings in the (erstwhile) State of Jammu and Kashmir, except when the happenings are released at the convenience of those in power. Thus, today, we find ourselves in the remarkable situation, that even after almost 45 days, the rest of India remains unaware of the legal basis for the untrammelled show of executive discretion currently on display in various parts of Kashmir. A situation which the Supreme Court is aware of, and yet, has taken no steps to remedy either.

The eerie silence around Kashmir has also, reportedly, been brought about through widespread arrests and detentions — again, the basis for which has not been made public to the rest of us. It is probable, that a large number of these arrests have been carried out by the police using powers of what is called "Preventive Detention". But it would be a misnomer to continue calling it this, considering that it is rarely only used for preventive purposes. So I'll call it by another name by which it is known in other parts of the world: Executive Detention.

What, then, is Executive Detention? As the name suggests, this is a denial of liberty carried out by the Executive, and only the Executive, without any worthwhile judicial supervision. A Commissioner of Police can order the arrest of any person on suspicion of doing acts prejudicial to "public order" or other vague / strange grounds, without giving any reasons upon arrest, and detain persons for upto ninety days without judicial scrutiny. The law allows police to arrest first and seek approval for this detention, which only involves scrutiny by senior executive officers. Of course, the person can make a representation against this arrest and detention, but she is denied the right to counsel. And, if a non-judicial body approves, the detention can also last upto one year or more.

There is the regular outrage when Executive Detention is used by governments for, seemingly, jailing political opponents or trampling upon civil liberties. But, amidst all this, there is surprisingly little critique about the set of legal regulations that primarily governs all legislation on the subject of Executive Detention in India: Article 22 of the Constitution itself. Through Articles 22(3) to (7), the Constitution prescribes a set of do's and don'ts that the Executive Detention laws must comply with. And my description of such laws in the preceding paragraph is fully constitutional

The shortcomings of the legal minima prescribed by the Constitution are many. Not only were these baselines extremely generous to the Executive when compared with other existing legal positions in 1950 itself, but over time, the continuance of these baselines has created a strange duality in the law. While the judiciary has expanded the protections for individual liberty in most spheres of law, it has not been able to do so in the sphere that requires these protections the most. All of which has led to a reality where, over the years, successive governments have gradually turned the supposedly extreme measure of Executive Detention into just another law enforcement tool, by passing laws that only barely pass the already low-lying constitutional threshold. 

If that strikes your conscience, even the tiniest bit, then ask yourself: Why do we persist with this set of legal standards that maximise executive discretion to ensure public safety but by nullifying individual liberty to absurd levels? Can we not reconfigure the attempts at striking a balance between these apparently conflicting interests that the framers of the Constitution made? If we have done this for many other parts of the Constitution, noting that times change, then why not this part which  goes to the root of the Constitutions' ambition of creating a legal order that safeguards individual liberty?

In a short paper, I've tried to initiate this conversation around Article 22 of the Constitution. I strongly think that the persistence of these clauses is a blot upon the Constitution, in more ways than one, and it is no answer to say that we must live with the status quo  simply because the Constituent Assembly had brought this Article to life. This ritualising goes against the very idea of a social contract between Citizen and State, which imagines that future generations are not bound by the choices of their predecessors. It is high time we begin the discussion to reconsider the choices made by the Framers of the Constitution to place the "interests of the state" high above the "exigency of liberty of the individual". 

P.S.: I must not be mistaken to say that the choices of the past can be thrust aside by the tyranny of a majority or executive supremacy. Discussion, not imposition, is the means towards a new set of laws in a democratic republic.  

Thursday, September 5, 2019

The Supreme Court Order in P. Chidambaram v. ED: Some Thoughts

A Two Justices' Bench of the Supreme Court has decided the appeal filed by P. Chidambaram against an order of the Delhi High Court dismissing his plea for Anticipatory Bail in an ongoing investigation being conducted into what is being labelled as the "INX Media Scam" [Crl. Appeal 1340 of 2019, decided on 05.09.2019. ("Chidambaram")]. The main difference between the two sets of proceedings was that while the High Court order considered bail pleas in two parallel investigations being conducted by the Central Bureau of Investigation [CBI] and the Directorate of Enforcement [ED], the Supreme Court hearings were only concerning the ED case. This is because, as many will already know, the CBI arrested Mr. Chidambaram the same night that his bail plea was dismissed by the High Court.

The Gravity and Uniqueness of Economic Crime
I had discussed the High Court order here, and had flagged three issues which I thought were not only central to the hearings but also to the practice of deciding bail applications more generally within the sphere of economic offences. The High Court order had stressed upon the gravity of economic offences and had taken it so seriously that it considered it appropriate to recommend that anticipatory bail be taken away as a possible remedy in any such case. I did not think it was possible but the Supreme Court somehow managed to amp this rhetoric up several notches. 

While the Supreme Court does not expressly recommend removal of anticipatory bail as a relief, it went 9/10ths of the way [See Paragraphs 67 to 82], and almost reached that projected finish line in the specific context of money laundering cases. At the end of Paragraph 34, the Court went so far as to note that "In cases of PMLA, in exercising the power to grant anticipatory bail would be to scuttle the statutory power of the specified officers to arrest which is enshrined in the statute with sufficient safeguards."

The Supreme Court develops the logic adopted by the High Court, and links the rhetoric of economic offences being very grave with the idea that they are also very complex to investigate, and thus, uniquely in need of custodial interrogation [See Paragraphs 76 to 81]. Therefore, the Supreme Court concludes, that "Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation." [Paragraph 81] 

Pause here to see just how lazy this reasoning is. What are "economic offences"? Theft and cheating are economic offences — but are you telling me that they are so complex to investigate that you require custodial interrogation to get to the bottom of them? Of course not, which is why I implored the Court to try and come down from the high altar of principle and delve into the specifics and help give some clarity so that the lowly magistracy can go about applying the law with greater certitude. But this wasn't to be.

The laziness is also on display in terms of the Court unquestioningly accepting this position of cases involving economic offences being so complex as to almost justify custodial interrogation and denial of bail. Granted, some cases can be very complex — for instance, laundering through hawala channels where there were no real paper trails created. But surely this principled stance cannot apply to all cases, and this is why we needed the Court to get messy with detail. Moreover, why should the Court trump up custodial interrogation? What about how this can reduce incentives for independent investigations? This is hardly a novel thought — James Fitzjames Stephen retained the ban on confessions in the Indian Evidence Act because, as a civil servant told him, it made sure that the officers don't sit in the shade all day while rubbing chilli in the eyes of some poor sod trying to get him to confess to a crime, rather than go out and investigate a case.    

A Carte Blanche to the Police? 
Moving on, we find that the Supreme Court marries this discussion about the position of economic offences with a more general level of argument when it engages with the issue of what to do in situations where an accused denies she is being "evasive". Here, to remind readers, the accused asked the Court to call for transcripts of his questioning as he challenged the assertion that he had not been cooperating with the probe.

The Court refused these requests by turning to the principle that courts and police operate in separate spheres. This forestalls any court from qualitatively assessing the investigation, and so where an agency asserts that an accused is "not cooperating" or "being evasive", a court is supposed to accept these assertions without question. Doing otherwise would sully the principle of separation between the police and the judiciary. 

Alas, the Court forgot about its own prior judgment in Sakiri Vasu, where a different bench had actively authorised magistrates to entertain applications from persons aggrieved by the manner in which police ran an investigation. Or did it? In the section of the judgment which justifies why sealed covers are alright, the Supreme Court notes that looking at confidential material (without showing it to the accused) has always been accepted as long as it is done by a court "to satisfy itself that the investigation has been conducted in the right lines and that there is no misuse or abuse of process in the investigation" [Paragraph 53]. 

So then, how can the Court go ahead and refuse to test the police officer's assertion that an accused was "not cooperating" or "being evasive" in questioning? If a court is going to be deprived of the ability to question police on their stand in such situations, then aren't we effectively condemning a person to custody and surrendering her liberty to the mercy of the executive? The doublespeak on display is astounding, and deeply concerning. 

Conclusion: A Recipe for Disaster
Talk to anyone in the profession and they will tell you that the money laundering law has given wide powers upon executive officers that are capable of being abused. After all, money laundering is not a crime like theft or cheating, but a crime which depends entirely upon creating a narrative about what someone did with the fruits of that previous theft or cheating. The scope for imagination is wide, and in our system of slow-moving justice, the result of this imaginative exercise often results in an unfair onslaught upon the civil liberties of an individual for a significant time of her life.

Rather than take a scalpel and forensically examine allegations in some detail during bail hearings in order to make sure that an innocent person is not ensnared by police agencies on frivolous grounds, and to ensure that custodial interrogations do not become a principle of first resort for investigators, with its decision in Chidambaram, the Supreme Court has taken a leap towards a world where all of this becomes more than possible. It was once said that a draconian law is not only made on text, but also in how it is applied. With this verdict, perhaps the same might soon be said of the money laundering statute. Of course, if it wasn't already the case.  

Friday, August 30, 2019

Science in Policing: The New Old Thing

Recently, the Home Minister made an interesting public speech where he reportedly lamented the poor conviction rates. An official report of his comments also notes that the Minister suggested that wholesale changes to the Indian Penal Code of 1860, and Criminal Procedure Code of 1973 were on the cards to help make things better on the conviction front.

This blog has often argued that reforms to these statutes, as well as the Indian Evidence Act of 1872, should occupy the minds of legislators. So to hear that some legislative process might be underway soon is, well, arguably a good thing. But, as we all know, the means are as important as the ends: if the changes end up being little more than an implementation of the draconian "reforms" suggested by the Malimath Committee Report of 2003, then certainly status quo will seem like paradise. 

All one can say at this stage is that if a consultation process to amend the Indian criminal process does materialise, as suggested in the reports, then the legal system will certainly benefit if those who care about fixing the bad elements take an active part in the legislative process [a shout out to the good folks at IFF who have taken up this mantle in the sphere of, inter alia, internet policy].

The initial comments about where this reform process might lead can be seen in some observations that the Minister reportedly made about improving the quality of police investigations. He reportedly termed "age-old" investigation techniques involving third-degree methods as "pitiful", and argued that using more forensic science for police investigations will certainly increase convictions.

First Kashmir, now this: Reading these remarks about forensic science and "age-old" investigations made me feel as if everyone in the Government has decided to go back to the 1950s for inspiration about what to do in 2019. For if you go back to the newspapers of the early 1950s, you'll find them replete with editorials and press reports of ministers condemning "third-degree" police practices. At that time as well, the Government made loud noises about "forensic" evidence being a game-changer for policing in India. I discuss this history in a paper, where I also argued that the mere use of forensic science cannot do away with a tendency of police officers to use force: After all, what is stopping the use of brutal force to get the forensic samples.  

As we obviously know, the efforts of different governments since 1950 have not led to a significant change in public perceptions of the police from being the "Bully Boys" of the Raj to "Willing Servants" of the Indian people, as David Arnold wonderfully puts it. Is it possible though, that this time things will be different? I don't think so. Leaving aside the point about the use of coercion for implementing forensic science, I think that the recent political and economic trends render it rather unlikely that the modernisation supposedly needed for improving the quality of police investigations can happen any time soon. Two reasons stand out among the many others. 

The first is money: India loves to spend on defence, but not on policing, which results in huge staff shortages and poor tools, equipment, and training for investigations. The point about staff shortages is also affecting central agencies, as has been seen with the CBI. Currently, hearings are ongoing before a bench of the Supreme Court in Dilawar Singh where the Court has again expressed anguish about how slow the forensic science processing systems are (again, contributed by labs being understaffed). Thus, when governments do not like to spend on policing in normal times, how can we expect the Central Government to change this trend now, at a time when the economy is reportedly witnessing an unprecedented slowdown and the Government's busy spending to revive the falling demand? 

The second reason why the Home Minister's speech is likely to not yield much improvement is a technical one. Policing is a state subject. So, even if we treat the speech as being made in earnest and not an exercise in mere sloganeering, it is still the state governments which will be the key drivers in any push for police reforms. Unless, of course, the Central Government aims some more bulldozers in the direction of the quasi-federal structure of the Indian Constitution and lends aid and expertise to only those states where the government is an ally. Or, maybe it restricts the spending on forensic science to only central agencies like the CBI and the ED. Either way, given that those agencies don't deal with the bulk of prosecutions, it is unlikely to change much in the larger scheme of things.        

I honestly don't think this speech is a sign of much increased spending in the near future — the government has already been spending a lot on using more technology for police purposes. But I do think that changes to the Penal Code and Criminal Procedure Code might be part of the legislative agenda in the near future. Keep your eyes and ears peeled.