Munawar Faruqui is not an Exception: Systemic Malaise in Bail Hearings

Munawar Faruqui might have been about to crack a joke, but he was arrested by Madhya Pradesh police before he could do that. A case was registered against him which invoked offences such as Section 295-A IPC that are cognizable and non-bailable (more on that later). One court has dismissed his bail as well as that filed by his friends who happened to be bystanders. This was a court of an Additional Sessions Judge as per reports, which indicates a senior rank, as opposed to the more junior magistracy. Today, he has moved the High Court for bail, which adjourned his application for weeks as police forgot to bring the case papers from next doors. As a result, he continues to remain in prison, and the law meekly requests all officials and society at large, that Mr. Faruqui must be presumed innocent until his guilt is established by way of trial.

There has been extensive engagement with the plight of this individual as it arguably shows a unique level of high-handedness by officialdom if the version of events publicly reported is to be believed. The concern shown by the High Court for his personal liberty also attracted a scathing attack in the Hindu by Gautam Bhatia, comparing this individual's liberty with another where such concern was loftily expressed by the Supreme Court. All these engagements, in focusing on specific instances, have not trained their attention to the frankly rotten legal regime that judges are presiding over on matters of bail. This post tries to add this dimension to the conversation.  

   

Understanding the Twin Pillars of Bail Law

The foundations of bail law in India rest on twin pillars: First, the classification of offences, and second, the exercise of judicial discretion. Both are considered imperative to the way our system works and I want to try and convince you that, in fact, both are contributing substantially to the arbitrariness and unfairness that is rampant in the system today.    

Classification

The two most important classifications accompanying any offence in India are (i) whether it is cognizable or not, and (ii) whether it is bailable or non-bailable: If cognizable, then police are empowered to arrest without warrant and investigate without any magistrates' orders; if non-bailable, then an arrested person has no right to bail, and must file applications seeking bail before a judge [longer take here]. Here, our main focus is the second classification about bail. This classification of offences is a feature imported to India by the 1861 Criminal Procedure Code. It is seen as reflecting the different regimes prevailing under Common Law for bail at the time in respect of misdemeanours and felonies, where felonies were seen as more serious crimes where releasing persons on bail was left to judicial discretion.  

There is an obvious issue with this classification, and that is its antiquity. The system has not been revised since at least the year 1898 and this has meant that even the purported logic of offence-seriousness does not shine through the entire setup. This was something which the Supreme Court commented upon in passing in 1958. Re-classifying offences to better reflect the concerns of today's day and age might yield a different scheme which does not deny a right of bail as widely as is done currently. One could argue that the Supreme Court sponsored such an exercise very recently in Arnesh Kumar as well. If this exercise was done with a keen eye on prisons data, it could also help reduce the tremendous pressure that is placed upon prisons, where nearly 10% of all undertrial prisoners are persons accused of simple theft. In addition to which is the issue of rendering these classification justiceable so as to recover some measure of checks and balances in this exercise of offence-classification which is currently totally under executive control.     

As helpful as that might prove in the short run, I would argue that any such reclassification would only be treating the symptoms of the malaise, which is the idea of allowing questions of personal liberty to turn on the basis of a government sponsored classification. A brief background will help explain. Let us assume a person lost some property and went to the police station. Now, in most cases, what this person will bring to the police is a complaint, a narrative, a story about what harm was caused. It is police who transform this narrative into an offence known to law, register a formal accusation in the form of a First Information Report, and start investigation. Offences usually consist of a manifest conduct coupled with a specific state of mind. This renders the transformation of a narrative of criminality into a formal offence peculiar: one kind of manifest conduct (taking property) can amount to at least three different offences under the Indian Penal Code alone depending upon the kind of unseen mental element being alleged. 

Labelling offences differently depending on the kind of conduct and prescribing different punishments is, in theory, laudable, as it helps to achieve greater nuance and fairness in the administration of criminal justice. But here’s the catch: the same genus of conduct is not treated in the same way in respect of the bailable vs. non-bailable classification. Instead, the approach focuses on the species of crime, because of which our hypothetical narrative can lead to different outcomes for bail. This creates perverse incentives to invoke a non-bailable offence and deny a right to bail, as this writer can attest to from experience. It also carries the possibility of genuine confusion, as after all, how can police be certain about the mental state associated with conduct at the start of an investigation itself? 

Simply refurbishing the bailable vs. non-bailable setup by being consistent in the specific punishments of each offence is, therefore, far from being a viable answer to the problem. The classification might be set in stone for each offence, but upon closer examination it appears to be little more than a line in the sand in the specific facts of each narrative that constitute an offence. Since the telling of this narrative is exclusively within the executive's domain, retaining any kind of classification concept will always entail some degree of subjugating personal liberty to the whims of executive officers.

Judicial Discretion      

The abiding faith in judicial discretion, albeit with notable qualifications, is perhaps the defining feature of bail law. Senior judges are trusted with unfettered discretion while the magistracy “shall not” ordinarily grant bail in cases punishable with either death or imprisonment for life (because of a distrust of the lower judiciary, as debates around the 1923 amendments to bail laws confirm. Longer take on the changes to bail laws should be out soon). Faith in judicial discretion has been so staunch that, while parliament has fettered it when deemed fit even for senior judges (UAPA, anyone), it has refused to suggest any criteria to canalise the exercise of discretion in bail matters. Superior courts have offered stoic guidance on occasion by way of illustrative lists that, essentially, ask judges to simply look at everything before doing anything.

I would argue that unfettered has, over time, become unbridled discretion in bail matters. In perpetuating the belief that judicial black-boxing of bail decisions is a value, the law has conferred almost tyrannically broad discretion upon judges in bail matters, bringing us to a situation where arbitrariness runs rife. Judges must consider factors such as the possibility of tampering with evidence or of the accused absconding, but there is no statutory or other guidance to help courts assess these factors with any uniformity for deciding release and any conditions that might be necessary. They are expected to look at the gravity of an offence, seriousness of allegations, and the nature of evidence; but what happens to securing a presumption of innocence in such a setup where judges must prejudge the case to an extent for deciding bail? It merely becomes yet another factor in the inexplicable medley for deciding bail. And, of course, while judges are asked to look at all these considerations, to what end are courts looking at all this information? There is no answer, as the system has consistently refused to offer certainty about the objectives that bail decisions are guided by.      

In this manner, we have not only got arbitrariness of outcomes, but denuded the entire setup of processual fairness. The very concepts of a “procedure established by law” and “equality before law” as we identify them today require a degree of certainty in how cases ought to proceed to provide clarity to litigants who approach the system. It is as if while trumpeting the cause of judicial discretion for so many years, the system forgot that discretion can never be an end in and of itself. In return, as has been starkly witnessed of late, the fundamental right of personal liberty has been reduced to the caprice of specific judges. Till the exercise of discretion in bail remains a black-box into which we cannot peer, the only conclusion is that no procedure established by law decides how bail applications are denied or granted. 

Conclusions

Justice Jackson put it plainly: “admission to bail always involves a risk …”  There is no doubt that every legal system must strike a compromise when it comes to a matter of bail, for some accused persons will manage to flee or otherwise take undue advantage of their liberty, no matter what the system is designed as. Does that fear condition the law’s approach to bail? It could, but it would be akin to driving a train through personal liberty and the presumption of innocence, both of which are central to how the republic of India imagines its rule of law regime. Only, for that to happen, the system would have to commit to an idea of objectives that it thinks should guide bail discretion, and that is something India has been loathe to do. Instead, what we have is not a system based on fear, but on pure arbitrariness, where the enjoyment of personal liberty is forever under the thumb of the state. Whether it might be the government which can make any crime non-bailable, or the capricious police officer who can then invoke a non-bailable offence, or finally the judge who has no guidance whatsoever and so must be guided by her own conscience; each of these delivers a body blow to personal liberty in the republic. 

Mr. Faruqui's case is not an exception, Rather, it is emblematic of the battered state that personal liberty finds itself in today, and will continue to find itself in, until governments reconsider the outmoded and antiquated regimes of arrest and custody. 

Guest Post: Navigating Double Jeopardy and Issue Estoppel through the Domestic Violence Act and 498-A IPC

(This is a guest post by Rajiv Kr. Chaudhary, Advocate)  

First, the factual background: 

A case was filed against Person A, a male, under Section 12 of the PWDV Act, by person B, a female. In this petition, a magistrate determined that the issue whether there was a marriage / marriage like relationship between the parties requires trial. The order was overturned by a sessions judge in appeal on grounds that neither there was a marriage between the parties, nor there was a marriage like relationship between them. A year later, B files a petition under Section 498A of the IPC against A and charges are framed against him.

In this post, we look at issues about issue estoppel and double jeopardy. At first blush, there seems to be no case of double jeopardy here as the requirements of the two provisions are entirely different, and one is quasi-civil (but not completely civil) and other is purely criminal. However, as this post argues, a closer look would suggest things are not so straightforward.

Nature of the PWDV Act

The Bombay High Court, in Nandkishor Pralhad Vyawahare v. Mangala [2018 (2) BomCR (Cri) 626] in a criminal reference answered the question, “Whether or not the proceedings under the Protection of Women from Domestic Violence Act, 2005 are in the nature of criminal proceedings?” in the negative and concluded:

“…[I]t appeared from provisions of Act that what they essentially create was plethora of civil rights breach of which results in basically providing civil remedies which were alien to criminal law. Therefore court was of considered view that proceedings under Act were predominantly of civil nature and it was only when there was breach of protection order as was contemplated under section  31 of Act and failure or refusal to discharge duty without any sufficient cause by protection officer as contemplated under section 33 of Act proceedings assume character of criminality.” 

Now, it is one thing to state that proceedings under the PWDV Act are quasi-civil, but this statute provides for such "quasi-civil" matters to be tried first by a metropolitan magistrate followed by an appeal before a sessions judge. This is the usual procedure for a criminal trial not a quasi-civil one. The problems are compounded as a magistrate or a sessions judge is inclined to look at evidence for all of the cases under the beyond reasonable doubt standard (though not bound to do so). It is difficult to accept that a judge simply changes glasses to look at evidence from a balance of probabilities just for the PWDV case on the roster. Thus, while PWDV Act matters are "quasi-civil" in theory, they are an entirely different thing in practice.

Comparing PWDV Act and 498-A IPC

With this background, it will be helpful to compare the two provisions:

Section 498A, IPC	Section 2(a) PWDV Act
498A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. …	“Aggrieved Person" as any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.

 

Section 498A IPC is specifically applicable to a husband and the victim must either be the wife or one in a marriage like relationship.  Section 2(a) of the PWDV Act defines an Aggrieved Person as being a woman who is in a domestic relationship with the Respondent (husband). Critically, in both situations there needs to be a determination of whether the parties are (a) married, i.e. husband and wife or (b) in a marriage like relationship – i.e. lived together as husband and wife.

Considering Estoppel in the Purely Criminal Case

A perusal of Section 498A IPC shows that it is against “A Husband or relative of a woman subjecting her to cruelty”, and thus there is no question of framing charge where this relationship does not exist [See Mohit Gupta & Ors. v. State Govt. of NCT of Delhi & Anr., 135 (2006) DLT 390; Capt. Rajinder Tiwari v. The State (NCT of Delhi), I (2007) DLT (CRL.) 26]. In the factual background offered above, the ingredients to determine both the alleged offences under both statutes are the same, viz. to determine whether the parties are married or a marriage like relationship. The sessions court judgement specifically held “neither there was a marriage nor a marriage like relationship”. This determination is a finding of fact. Could it, or should it, have had a bearing on the 498-A case?

Section 11 of the Code of Civil Procedure 1908, provides, that “No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.” Section 300 of the Cr.P.C. provides that “a Person once convicted or acquitted not to be tried for same offence”, and Article 20 (2) of the Constitution of India also bars prosecution and punishment after an earlier punishment for same offence. The foundation of this rule is to prevent a multiplicity of findings on identical issues, besides the problems of exposing a person to criminal charges and the potential deprivation of liberty that appear in a criminal context [See, Sangeeta Mahendrabhai Patel v. State of Gujarat and Anr., AIR 2012 SC 2844]. The strict reading of Article 20(2) offered by the Supreme Court [See, e.g., Maqbool Hussain v. State of Bombay AIR 1953 SC 325] means that the two sets of proceedings must be wholly identical with same ingredients constituting the offence in both instances. While on the face of it, this might appear inapplicable in a PWDV Act and 498A context, but would not launching a 498A IPC proceeding where the PWDV court has found non-existence of marital relationship amount to the same?

Notwithstanding this issue, there is another way to approach the issue and treat findings PWDV Act case as having a bearing on the 498A proceeding. This is by way of the idea of "issue estoppel", which as the name suggests, requires honouring a finding of fact that is arrived at by a competent court in subsequent proceedings. The Supreme Court in Manipur Administration v. Thokchom Bira Singh [AIR 1965 SC 87] confirmed the narrow scope of application of this rule, which does not prohibit subsequent proceedings as under Double Jeopardy but only requires that the earlier findings of fact be honoured. In the given fact pattern, issue estoppel would arise in the 498A trial, as the issue of fact had already been tried by a competent court on an earlier occasion and a finding was recorded in favour of A. 

Hence, charges could not be framed against person A in the 498A matter given that the PWDV case has already been decided in his favour.

[Postscript: Given that the Bombay High Court has held that a matter under PWDV Act is predominantly a civil matter; civil judges, not magistrates or session judges, should be hearing these cases. Otherwise, a real likelihood of parties suffering miscarriages of justice will persist as it is unfair to expect criminal courts to change their perspectives for appreciating these matters.]

Section 144 Cr.P.C. — Part VIII: Politicians, Protests, and the Court (1961 - 1970)

(This is the eighth part in a multi-part series on the Blog. Earlier posts in the series can be accessed here)

The previous instalments in this series on Section 144 Cr.P.C. have attempted to trace a history that goes beyond the courtroom and looks at the provision more holistically by turning to the broader context. Perhaps this is nowhere more important than the decade from 1961 to 1970.

The Court

1961 and 1970; at both ends of this tumultuous decade stand two decisions by the Supreme Court which continue to tower over the legal discourse on not only Section 144 Cr.P.C. but also exercise of free speech generally in the republic of India. A bench of Five Justices delivered the verdict in Babulal Parate on January 12, 1961, and seven Justices delivered opinions in Madhu Limaye on October 28, 1970.

The wheels of justice turned very slowly for Babulal Parate, who was part of a set of mill-workers agitating in Nagpur in January of 1956. There was a scuffle between two sets of groups which led to orders under Section 144 Cr.P.C. Parate was arrested for violating these orders (besides being charged for other crimes), and after having been denied bail by the trial court and High Court, he had petitioned the Supreme Court in 1956 itself, only for the petition to be decided more than four years later. 

What had Parate argued? Besides challenging the specific order on its own terms, there were broader points raised assailing the foundation of Section 144:

"(1)That s. 144 of the Code of Criminal Procedure in so far as it relates to placing of restrictions on freedom of speech and freedom of assembly confers very wide powers on the District Magistrate and certain other magistrates and thus places unreasonable restrictions on the rights guaranteed under Art. 19(1)(a) and (b) of the Constitution. 

(2) The District Magistrate constitutes the whole legal machinery and the only check for control on his powers is by way of a petition to him to modify or rescind the order, that thus the District Magistrate becomes "a judge in his own cause" - presumably, what learned counsel means is a judge with regard to his own decision-and so the remedy afforded by the section is illusory. Further the remedy by way of a revision application before the High Court against the order of the District Magistrate is also illusory and thus in effect there can be no judicial review of his order in the proper sense of that expression. 

(3) Section 144 adopts "likelihood" or "tendency" as tests for judging criminality ; the test of determining the criminality in advance is unreasonable. 

(4) Section 144 substitutes suppression of lawful activity or right for the duty of public authorities to maintain order."

The judgment in Babulal Parate is extremely important for the manner in which it read Article 19(2) and the scope of reasonable restrictions "in the interests of" a specific purpose, and it has been studied comprehensively on this count in the past. Here, I am more interested in what the Court thought of Section 144. The broad conferral of powers was not unreasonable, rather, it was necessary (reiterating the same logic regarding sponsored in Virendra while upholding press censorship laws). At multiple places the Court insists upon reminding us that while 144 might confer wide powers, these "can be exercised only in an emergency" and so "it would be wrong to regard that power as being unlimited or untrammelled" since the power was only temporary in nature. In any case, it held "no one has a right to cause 'obstruction, annoyance or injury etc.' to anyone". And, of course, mere possibility of misuse of such powers could not justify declaring it unconstitutional. 

Not only was Section 144's broad conferral of powers reasonable, this was made more reasonable by the remedies afforded to an aggrieved person, which were far from "illusory" in the eyes of the Supreme Court: "since the propriety of the order is open to challenge it cannot be said that by reason of wide amplitude of the power which s. 144 confers on certain magistrates it places unreasonable restrictions on certain fundamental rights." To argument that this right to challenge orders was illusory was not good, as it "would equally apply to an application for review made in a civil proceeding", as if these were similarly placed proceedings. Thus, the necessity element in preventing emergencies, coupled with a procedural reasonableness secured by way of (i) recording facts (ii) securing a right to impugn such orders, made Section 144 wholly conscionable to the constitutional framework of the republic.

A decade later, the edifice of Babulal Parate and the validity of Section 144 (and other sections on preventive powers) were challenged by sitting parliamentarians who had been obstructed from carrying out protests. Justice moved swifter in this instance: the petitions were placed before seven Justices in May of 1970, who gave their verdict in September, followed by reasons given in October. The seven Justices reiterated what had been said at the start of the decade: "properly understood", these provisions of the law were "not in excess of the limits laid down in the Constitution". The same two-act play was re-enacted — the necessity of broad emergency powers could not be questioned, and Section 144 sweetened this bitter pill by providing robust procedural safeguards, placing it firmly within the constitutional fold. The Court made some stern remarks about the kind of conduct that it thought 144 was designed to prevent: 

"[T] key-note of the power is to free society from menace of serious disturbances of a grave character. The section is directed against those who attempt to prevent the exercise of legal rights by others or imperil the public safety and health. If that be so the matter must fall within the restrictions which the Constitution itself visualises as permissible in the, interest of public order, or in the interest of the general public."

Of Protests and Politicians 

Babulal Parate and Madhu Limaye were at two ends of what was a very tumultuous decade for the republic. By October of 1962, India found itself in the middle of a war with China. Though the countries had a ceasefire before the end of the year, the state of emergency that was proclaimed during the war did not. This continued till 1968, with another war (this time with Pakistan) having come in between. Together with unprecedented issues of national security, the 1960's also saw heightened tensions on various other issues; some of national importance (the creation of new states and the rise of secessionist movements), but far more regular were demonstrations for basic issues of food, employment, and in some cases religious beliefs. 

Religious beliefs were central to the demonstrations organised in New Delhi in 1966 as part of the anti-cow slaughter movement. Groups from various parts of the country had been coming to the capital. On November 7, a demonstration was led to the gates of parliament, and after a set of fiery speeches the demonstrations took a violent turn in the afternoon, with plush parts of the city seeing hitherto unheard of scenes of arson and rioting. By 530 PM that evening (see e-page 149), the-then Home Minister made a speech regarding the "shocking events of this afternoon". After giving a brief summary of the events thus far, the Minister said:

"Today's deplorable happenings underline the great danger from violence to the fabric of orderly society. It is clear that the grim situation has been brought about by sustained instigation to violence. We are taking steps to put down firmly this lawlessness and vandalism. Government have decided not to allow processions within a sizable distance of Parliament. I am thinking that this might well be up to two miles radius. ..." (Emphasis mine)

Deposing at the proceedings of the Privileges Committee of Parliament on May 3, 1967 the then District Magistrate for Delhi, B.N. Tandon stated that "Section 144 round about parliament is imposed at the request of the Speaker. Earlier it used to remain in force throughout the year around Parliament House. Now we are having it only when the Parliament is in session." This would mean that the Government's decision in 1966 was not about using 144 around parliament but enforcing it more strictly. And, by all accounts, this they enforced strictly hereafter. 

After this, there were many prominent protests in New Delhi — including demonstrations by police officers and government employees in 1967, and political groups agitating the cause of unemployment in 1969 — and none of these groups was allowed near parliament house. As one M.P. put it while making a statement about the unemployment protests on May 12, 1969 (e-page 113), for protestors "parliament has been reduced to the position of a boat club", and while he requested that the ban be lifted as this group was not led by "Naga sanyasis", the demands went unheard. When the protestors tried to come near Parliament, they were forced back, leading yet again to calls for lifting the 144 orders around parliament (May 15, 1969, e-page 104) but to no avail. On July 25, 1969, S.M. Banerjee raised a question in the Lok Sabha asking the government whether any decision had been taken to lift Section 144 from around parliament when it was in session and at least allow demonstrations in the outer precincts. "No such proposal was under consideration of the district authorities" was the reply. The government had actually made its position clear in the previous year itself: Responding to another question regarding lifting 144 around Parliament in the Rajya Sabha on December 4, 1968, the Minister said that while we "recognise the importance of peaceful demonstrations in a democracy, it is equally important that parliament should be able to function in a peaceful manner without any obstruction."

Why is this history important when we talk about the legality of Section 144? Because all of this was happening a stone's throw away from the august halls of justice where seven Justices of the Supreme Court took up the hearings in 1970. The importance of Section 144 to secure public spaces had always been well-known in independent India, but between 1965 to 1969, it had been placed as the cornerstone of public order policing in New Delhi by the government for the areas in and around the Court itself. It was so integral, that by the time the hearings in Madhu Limaye would have been taking place in September 1970, Section 144 orders were perpetually in force across these parts of New Delhi. Would the Court go ahead and remove this cornerstone and imperil its own confines by declaring 144 illegal? Of course not. 

Critiquing the Court

Madhu Limaye upheld the legality of Section 144 on a curious premise — it was valid "if properly applied". By 1970, it was apparent to everyone that the clause was not being properly applied.

The first element in its "proper application" to justify Section 144 was emphasising the transient nature of this power — the broad conferral of power was justified because it was an emergency measure, to be used only temporarily in times of grave need. But what history shows us is that by 1970, the state confirmed the existence of a permanent state of emergency in and around its centres of power, which hollows out this justification based on the fleeting nature of emergency powers. Of course, the Section 144 orders in question in Madhu Limaye were not the ones near the Court and Parliament House. But it is difficult to square this avowed faith in the transient nature of Section 144 when it had become a permanent feature of policing the streets around the Court's own backyard.  

The uncritical incantation by the Supreme Court in 1970 of the second act in Babulal Parate — the robustness of procedural safeguards in 144 — seems even more absurd in hindsight. This is on two counts. First, the Court at this stage was moving beyond the processual basis for securing reasonableness in the infringement of fundamental rights and engaging with the substance of the restriction, but this did not stop the Court from turning a blind eye to the obvious vagueness of some of the text of Section 144 — an issue that had been flagged almost twenty years ago by the Punjab & Haryana High Court. Second, of course, was the practice of passing Section 144 orders and litigating them. Let's look at the first element of recording facts by the magistrate. What did this entail in practice? I can do no better than extract the contents of a 144 order that was in place around Parliament in March, 1967:

"Whereas the area known as Parliament House together with its surrounding localities are busy public places frequented with heavy vehicular and pedestrian traffic when Parliament is in session. 

And whereas unrestricted holding of meetings, processions and demonstrations therein or in their close vicinity are likely to cause danger to human life or safety and a disturbance of the public tranquility; 

And where it is necessary to take speedy measures in this behalf to prevent danger to human life or safety and a disturbance of the public tranquility; 

Now, therefore, in exercise of the powers conferred upon me by section 144 of the Criminal Procedure Code, I, S. C. Vaish, additional district magistrate, Delhi do hereby make this written order prohibiting the holding of any public meeting, procession or demonstration in any public place within the areas specified in the schedule appended to this order without a written permission either from me or the sub-divisional magistrate concerned, which permission if accorded may be subject to such conditions as the said authority may deem fit to impose ..." 

         

All that the order stated is that an official thought that "unrestricted holding of meetings [was] likely to cause danger to human life or safety and a disturbance of the public tranquility" — so the facts were no more than restating the text of Section 144. Which then brings us to the claim that Section 144 is reasonable because it contained processes for challenging orders. The limits of this claim would have been ex facie apparent considering the manner in which "facts" were recorded in Section 144 orders. But if this was not enough for the court, surely it could have taken note of the rising rate of judicial delays at the appellate level itself and the effect such delays had in the context of securing rights of free assembly and popular protests. Where the Court recognised the need for urgent action when it upheld emergency powers, it conveniently ignored how time was equally essential to securing any redressal of grievances for aggrieved persons. This could have been secured in some ways by placing the burden of justification on the government, but the Court rejected this.   

The Aftermath

Babulal Parate and Madhu Limaye contributed to a discourse in which the fulsome text of the law can cloak its routine excesses. "Misuse" and "Abuse" of power, though admitted, were not evidence of faults in the law but only proof of the faults in men. The court did not leave the matter at simply placing the law within the constitutional framework, but went ahead to express its views about the desirability of having such provisions. In doing so it offered a source of support to the government in retaining this provision almost wholesale when a new criminal procedure code was being drafted. The Law Commission in its 41st Report on a new Cr.P.C. sought to remedy the one fault that the Supreme Court had identified with 144 — the absence of time limits when such orders were re-promulgated by state governments — but went no further. 

When the Bill for the new Cr.P.C. was debated in Parliament in September 1973 many members — including a young Atal Bihari Vajpayee — attacked the total retention of a provision so closely linked to colonial oppression in laws for the independent republic. But the Supreme Court's seal of affirmation in 1970 meant that the government could also be sanguine about the validity of the law and pass the buck by characterising the high probability of abuse by virtue of unbounded discretion as being mere possibility of misuse on part of overzealous officers. In the end, all the proposals to amend this were waved away by the Minister with a recitation of that same old formula: "We feel that this provision is very necessary. There are safeguards. The Magistrate has to satisfy himself that a situation exists of a serious nature where orders under this section ought to be passed. I am therefore unable to accept any of the amendments of the Hon. Members."  

And so, Section 144 Cr.P.C. as we know it, came to be. 

Some Thoughts after Diving into Prisons Data and Emerging on the Other Side

The National Crime Records Bureau [NCRB] runs the annual Crime in India reports as well as the Prison Statistics India reports. Both get their yearly moment in the sun when, around their publication, news stories with attractive pie charts get published with infographics to show that an unearthly number of cases are pending across the country, that Indian prisons are overcrowded, or that the overwhelming number of prisoners are not convicts but undertrials. The NCRB efforts at logging data came in the news this past week for a different reason — a litigation which resulted in future reports on prisons data carrying details about transgender prisoners as a specific category besides male and female prisoners. 

It so happened that I had spent the past few months working on prisons and prisons data for a project. Reading about the litigation, it struck me that while the project will take some time to come out and is probably yet another lament, it might be useful to talk about the prisons data in some detail, and specifically, about some other areas which the NCRB could perhaps think about including in future editions of its reports besides data about transgender prisoners. I sincerely mean it, because after going through all the Prison Statistics reports over 1995 till 2019, it is a feature of the reports to try and improve upon the clarity with which data is presented (accuracy notwithstanding, of course).

What Kind of Data is Available?

Prison Statistics reports are sources which freeze on a particular frame — 31st December of each year — and then give us information about prisons and prisoners within them. On prisons, we are told about total prisons across the country with explanations behind any change in numbers and specifics about different kinds of prisons; the budgetary expenditure of states on prisons; and the kinds of rehabilitative services, if any, that prisons of different states might have. With respect to prisoners, there is data about the total prisoners at the end of each year, how many of these prisoners are convicts and how many undertrials, and how long is the average prisoner's time in custody. There are also lots of charts, tables, and graphs splicing this data set across various categories: gender, age, caste, religion, educational qualification, etc. All of this data is presented in terms of national figures as well as state-wise figures, which helps to discern the vast differences in the experience of different states. 

Some Notable Macro-Level Trends from 1995 till 2019

Chandra and Medarametla provide some important macro-level trends for data between 2000-2015 in a 2018 study, and much of their findings for this 15 year period are observed even if the data set is extended for the full period from 1995 to 2019. So,

• Average national prison populations as at the end of each year have been on the rise, except for a curious seven year period between 2003 till 2010 where there were some years of a decline in the end-of-year numbers. This coincided with what were two big amendments to the procedural laws — introduction of plea bargaining (2005), and new restrictions on arrest powers (2008). The seven-year period and any linkages between the amendments and prison populations merits close scrutiny, and I would suggest that any such scrutiny will probably show some initial positive effect of the amendments in emptying out prisons. But, the bump brought by these amendments did not last possibly because of how the slow but steady decline in plea bargaining across India, and police simply going back to their old ways and finding work-arounds to new rules.
• The national year-end average for population of undertrial prisoners out of total prisoners has consistently been higher than 65% during 1995-2019, and while the seven-year period of 2003 to 2010 showed a decline of sorts, there has once again been a steady rise bringing us to an average of 69% undertrial prisoners at the end of the year. Of course some states and Union Territories had a horrible ratio for throughout this period — Delhi consistently had over 70% undertrials, with 2019 data reporting 82% prisoners were undertrials. But what worried me is that between 2010 to 2020, the gradual increase in undertrial prisoner populations was not attributable to a few states alone but because most states had gone down this path.
• Reports from 1995 till 2019 suggest that the average length of incarceration for at least 35% of undertrial prisoners is up to three months in jail, and over 60% of undertrial prisoners are in custody for up to six months. This would mean that by the end of the year, which is when the headcount is taken, almost three cycles of prisoners would have been completed. Slowly, but surely, these numbers have changed over the past fifteen years with a reduction in the share of undertrial prisoners in jail up to six months, and an increase in those who are detained for up to a year and above. 
• The pie-chart indicating the different kinds of offences for which persons are incarcerated as undertrials also reflects broad similarities over twenty-five years — offences punishable under the Indian Penal Code constitute the major share, as opposed to offences punishable by various special and local laws. The reports suggest change and stability within these two sets over time. For instance, Offences against the Body (murder, rape, etc.) are still the main Penal Code offences for which people are jailed, but the share of undertrial prisoners arrested for property crimes such as theft, cheating and forgery has increased.     

The Scope for Improvement

There are a lot of important trends that remain difficult to track in part because of the way data is presented in the reports and in part because the data is simply not presented at all. Towards this, some suggestions are flagged below:

• Crime in India reports have tracked arrest data on an annual basis for a number of years which gives an indication about how arrests without warrant are made. But at the same time, there is no clear data for police station or court bails to indicate how many of these were cases where persons had a right of bail — either because the offence was "bailable" or because the police did not complete investigation and statutory bail accrued. This makes it difficult to get an idea about how many cases are those where persons end up incarcerated despite having a pure right of bail.
• For some years from 1995 till 2019, primarily in reports after 2010, there is also about the total number of prisoners admitted to prisons each year with state-wise breakups. But little or nothing has been done with this information, and this is a problem. More details about this figure on total inmates can go a long way in providing a richer picture of incarceration trends. Today we have the National Prisons Information Portal which gives a daily update in broad-level prisons data with a seven-day history. If not the NCRB, then surely the online portal can be improved to not only give more clarity besides telling us how many admissions, releases, and visits take place daily, but also retain that data for longer than seven-day periods allowing researchers to plot trends.
• The statistics for average duration of custody for undertrials are useful, but we still do not have data linking duration of custody to types of offences. So while we do know that over 50% of undertrial prisoners spend up to six months in custody, we have no idea if certain kinds of offences are over-represented in this bracket. Such information is likely to prove critical for making targeted interventions to amend statutes by either decriminalising conduct or at least making it non-cognizable and / or bailable.  
• The NCRB data on duration of incarceration creates brackets that begin with a range of "up to 3 months". This is pathetic, in my opinion, because it is a slap in the face of our rhetoric about how each day in fetters is critical. We need to blow up this detail to figure out (a) the length of police custody detention suffered by persons before they go to jail, (b) if the "up to" 3 months is showing greater concentrations around certain days in custody. 

Like I said at the outset, I genuinely think that the NCRB can work to start looking at these and many other trends if it wants to, because the reports over time suggest a willingness to explore and expand the range of data collection and presentation. If arbitrary arrests, overcrowded prisons, and high rates of undertrial incarceration are amongst the most serious problems that trouble the criminal legal process in India, then one way to try and fix them is by acknowledging that each of these issues comprise of a myriad set of problems that can only be identified if we have the right kind of data. Otherwise, it's little more than aiming our shots in the dark.  

Guest Post: End of Justice? The Supreme Court's Order in Hitesh Verma v State of Uttarakhand

(This is a guest post by Prannv Dhawan & Ishwar Singh)

The Supreme Court’s recent judgment in Hitesh Verma v. State of Uttarakhand [decided on 05.11.2020] reversed an order of the Uttarakhand High Court and quashed the case with respect to allegations under SC/ST (Prevention of Atrocities) Act 1989 (‘the Act’). The Court held that insulting or intimidating a person belonging to a Scheduled Caste or Scheduled Tribe (SC/ST) community will not be counted as offence under the Act unless such insult or intimidation is on account of the victim belonging to SC/ST community. We argue that the decision has gone against the settled principles of invoking the power of quashing under section 482 and can act as a major hurdle for criminal trials to take place under the Act.

Factual Background

Before commenting on the reasoning and outcome of this decision, it is important to discuss the factual context and the impugned judgment of the High Court. The petition of the accused for quashing of the chargesheet and summoning order under the Act was dismissed by the High Court as it observed that the offence of insulting was prima facie made out and that the accused had failed to demonstrate any dereliction of duty or irregularity in the police investigation to merit the exceptional remedy under section 482 of CrPC. 

The complainant, a woman belonging to a scheduled caste, got lodged a First Information Report on 11.12.2019 regarding an incident that allegedly happened on her fields where the construction of her house was going on. She alleged that the accused (along with his family members) "entered illegally in to four walls of her building and started hurling abuses on myself and my labourers and gave death threats and used castes’ remarks/abuses and took away the construction material such as Cement, Iron, Rod, Bricks… said that you are persons of bad caste and that we will not let you live in this mohalla/vicinity." She also alleged that the accused (along with his family members) since "past 6 months, [was] not allowing the applicant to work…[gave] death threats and [used] caste coloured abuses". 

The FIR was filed under section 3(1)(e) and section 3(1)(r) but the chargesheet was filed only under section 3(1)(x) [3(1)(x) post-amendments corresponds to 3(1)(r)]. Section 3(1)(e) deals with any act derogatory to human dignity like removal of moustache etc. The constant threats, and forcible taking away of construction material could be covered under the same. However, the legal proceedings were limited to the question of casteist remarks which the police reported to be covered under sub clause (r) that deals with ‘intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view.’

The Supreme Court's Reasoning

The Court held that because the remedy under section 482 has been provided for in and applied in cases under the Act, it should be applied in this case as well. Precedents, however, require exceptional circumstances, grave error in investigation or the necessity to meet ends of justice, to justify the grant of this remedy. A three judge bench of the Supreme Court had, in Girish Kumar Suneja v. CBI (2017) 14 SCC 809, clarified the scope of these appeals. In the context of the appeals for revision (s 397, CrPC) and plenary jurisdiction (s 482, CrPC), the Supreme Court held that the revisionary jurisdiction is a discretionary jurisdiction (para 11) for the aid of justice. It also reiterated the principles laid down in Madhu Limaye v. State of Maharashtra (1977) 4 SCC 551 that the power under section 482 of the CrPC should be exercised only in the rarest of the rare cases (Paras 34, 38). Another two judge bench of the Supreme Court, in State of UP v. Banne alias Baijnath, (2009) 4 SCC 271 reiterated the principles on the scope of interference in appeal held in Chandrappa v. State of Karnataka, (2007) 4 SCC 415 to conclude that there must be “very substantial and compelling reasons” to discard the High Court's decision. These principles state that the Court must be extremely reluctant while reversing concurrent findings of lower courts and must intervene only if the impugned order is manifestly unjust and unfair based on erroneous law and facts leading to grave miscarriage of justice (Paras 27-28).

Another aspect which is of paramount importance is the explicit bar to use the power under Section 482 when a prima facie offence is made out from the FIR and other additional material present before the court as held in J P Sharma v. Vinod Kumar Jain, 1986 (3) SCC 67 (Para 51). This is important especially at the stage when the charge-sheet is laid before the trial court and only duty of the court exercising powers under Section 482 is to "prima facie consider from the averments in the charge-sheet and the statements of witnesses on the record in support thereof whether court could take cognizance of the offence on that evidence and proceed further with the trial" as per State of HP v. Prithi Chand, 1996 (2) SCC 37 (Para 12). Even if the accused is successful in showing some suspicion or doubt, the allegations are to be believed at their face value [Rajiv Thapar and others v. Madan Lal Kapoor, 2013 (3) SCC 330 at Para 28 and Subrata Das v. State of Jharkhand, 2010 (10) SCC 798 at Para 6] and any enquiry as such to ‘probability, reliability, genuineness’ [Rupan Deol Bajaj v. Kanwar Pal Singh Gill, 1995 (6) SCC 194 at Para 23] or ‘truthfulness, sufficiency and acceptability’ [State of Maharashtra v. Salman Salim Khan, 2004 (1) SCC 525 at Para 12] of the material produced should necessarily be relegated to stage of trial. Interestingly, a recent decision by the Court in Arnab Manoranjan Goswami v. State of Maharashtra (Criminal Appeal No. 742 of 2020, delivered after Hitesh Verma) has seemed to clarify the position that the powers under Section 482 must necessarily be exercised to evaluate to find out whether offence has been made out as per the allegations especially in cases where the accused has prima facie been able to establish instance of abuse of process such as ‘weaponized’ use of instrumentality of state (Paras 61 and 62).

The only exception to this bar is when continuity of the criminal proceeding constitutes an ‘abuse of process’ such as when a complaint has been initiated with malice or to cause harm or where allegations are absurd and inherently improbable [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 at Paras 102-103]. The Court, in Prathvi Raj Chauhan v. Union of India, (2020) 4 SCC 727 also states that the cases can be quashed in ‘exceptional circumstances’ when misuse of provisions is established. In this case, there is no evidence for the misapplication of the section, irregularity in investigation or any other infirmity. 

The Court also reasoned that the offence was in relation to a property dispute and not relating to 'indignities, humiliations and harassment’ faced by vulnerable sections of society. Para 13 of judgment states that, "[T]he assertion of title over the land by either of the parties is not due to either the indignities, humiliations or harassment. Every citizen has a right to avail their remedies in accordance with law. Therefore, if the appellant or his family members have invoked jurisdiction of the civil court, or that respondent No.2 has invoked the jurisdiction of the civil court, then the parties are availing their remedies in accordance with the procedure established by law. Such action is not for the reason that respondent No.2 is member of Scheduled Caste." However it is trite that the mere existence of prior civil dispute or availability of simultaneous civil remedy alone is not a sufficient ground for quashing as held in Indian Oil Corporation v. NPEC India Ltd, 2006 (6) SCC 736 (Para 12). 

In fact, the Court has in Kailas v. State of Maharashtra, 2011 (1) SCC 793 explicitly noted the historical stigmatisation of scheduled communities and also has recently acknowledged in Union of India v. State of Maharashtra, (2020) 4 SCC 761 that SC/ST informants face various difficulties in getting cases filed. In the present case, the court disregarded the testimony regarding death threats, insult regarding lower caste status and intimidation to pass a judicial remedy enforcing caste amnesia. The Court also presumed that the offence was not on account of the informant’s caste despite the existing complaint and testimony. It is also stated that section 482 is an exceptional revisionary remedy that exists in case a misuse is demonstrated. Hence, a clear problem with this judgement is the low threshold applied in application of section 482. Hence, the Uttarakhand HC dismissal should have been upheld.

In light of the above analysis, the Court’s intervention at the pre-trial stage in a criminal investigation leaves much to be desired. It is hardly surprising that the National Coalition for Strengthening SCs & STs PoA has called for a review of the judgment. The coalition has further pointed out the failure of the police to invoke 3 (1) (u) and 3 (2) (va) of the Act in this case. Considering the ‘abysmally low’ rate of conviction under this social protection legislation, the Court ought to have considered the impact of its judgment on how the law will be interpreted by police and subordinate courts. The grant of the exceptional relief, thus leads to an ‘end of justice’ when no ends of justice were being achieved by the intervention at this stage.

Freedom of Religion and the Limits of Criminal Law

Seventy years on, the Indian state is yet to have a clear grasp of its relationship with the ideas of religious identity that each of its citizens is free to express under the Constitution. A secular state that has always been uncomfortable with expressing aloofness about religious beliefs, India has often struggled to clearly draw a line separating the ideas of religion from that of a nation, often creating a situation where the state finds its way into the realm of an individual's private space of her religious beliefs. This is not to say that I am in favour of a hard separation or think that it is necessary in each case, but only to make the limited point that these struggles to clearly demarcate zones of non-interference have existed for quite some time. 

At the same time, perhaps one basic line that (somehow) the state had maintained up till recently was a formal recognition of personal autonomy: laws might curb activities of those who aggressively proselytise to get people to change their religion (such as the Orissa Freedom of Religion Act 1967), but the law would not directly penalise the persons making this choice itself.     

Somewhere along the road though, it seems a switch was flipped, and it became acceptable for legislatures to no longer respect this precept. What followed is many laws which actively penalise the temerity to exercise the freedom of choice in favour of retaining a broader community interest in the expression of religious identity. In this version of reality, many laws masquerading as tools to secure the freedom of religion can be found, such as the Himachal Pradesh Freedom of Religion Act 2019. It is nothing short of a state-sponsored effort to create mechanisms and pathways which enable the society to totally overwhelm individual autonomy in matters of religious identity. After all, how else can one explain the law's bias when it creates a truly monstrous legal apparatus to deal with individuals who move out of a religious fold, but keeps it at bay if individuals are returning to whatever religious beliefs one is deemed to have had by virtue of being born into a fold.

The legal scheme works in two ways: criminalisation against those who allegedly force / induce / marry another to change their religion by way of offences that are non-bailable in nature and permit arrests without any warrants, but this is now broad and also punishes anyone who abets this act and so potentially applies to the person changing their religion. This is coupled with the creation of an oppressive legal regime which requires any person desirous of changing religious beliefs to make declarations to this effect before a District Magistrate, with similar notice requirements also being imposed on priests involved in any ceremonies that might be involved (All this, remember, won't apply if one returns to the parental religious fold). The Magistrate is legally-bound to inquire into the intention behind any such proposed move, and what's more, this inquiry can even be through the police. Yes: a law requires you to tell the state if you plan on changing your religious beliefs, and empowers the police to "inquire" into why you're doing it — all this while the Constitution is busy guaranteeing your privacy.

But all this is not what makes the law monstrous: this epithet is earned by the provision which states that the burden to prove that any "conversion" of religion is free from fear / inducement / even marriage, lies on the person who chooses to change her religious beliefs along with whoever facilitated this exercise of religious freedom. In one fell swoop, not only does the law manage to place individual autonomy under suspicion, but it also exposes the individuals and their loved ones to a trial by fire for a private choice that they make. This is the bottom line in a system like ours — it is never about trial and punishment, which rarely anyone cares about, but it is about merely triggering the criminal process which ensures even the innocent must face considerable harassment before clearing their name. 

What is this "Freedom of Religion Act" telling us then? That one is free to exercise the right to choose one's religious beliefs, subject to the state's satisfaction with possible penal consequences. Of course, the state will bother to inquire only if individuals choose to leave their parental religious fold, not when they "choose" to return to it. Thus, state and society seamlessly merge to combine the forces of public disapproval with the might of police / other agencies, leaving privacy and individual autonomy out in the cold. 

I won't be surprised if the current sprint between many states to suitably "protect" individuals being forced / conned into changing their religion ends up with the Himachal Pradesh statute being replicated across the length and breadth of the country soon. I will wonder, though, if that might be that gust of wind which blows out the dying embers of India's tryst with its transformative constitutional vision.  

Guest Post: Circumstantial Evidence — Time to Reassess the "Panchsheel" Approach?

(This is a guest post by Anam Chowdhary)

A trial more often than not revolves around disputed facts – facts that one side would want to prove and the other would want to disprove. The Indian Evidence Act, 1872 (hereinafter ‘Act’) essentially works in the realm of two categories of facts – facts in issue and relevant facts. While Section 3 of the Act clearly defines these facts, in colloquial terms, it can be stated that facts in issue are those facts which underpin the entire trial, in the sense that if these facts are proved or disproved, the matter in enquiry would come to an end, and liabilities, rights, etc. would be put forth for the parties concerned. As an example, in a trial for murder, the facts of mens rea, actus reus, and causation, would be required to be proved in order to establish the guilt (liability) of the accused and thus these facts would be the facts in issue i.e once proved/disproved would answer the question of guilt or of any other liability or right. Relevant facts on the other hand are such facts which are connected to the facts in issue and when proved/disproved, lead to an inference about the facts in issue. Whether a fact is relevant or not is purely a question of law and has to be decided keeping in mind the instances of relevancy provided in the Act.

Facts are proved / disproved via evidence i.e. the existence / non-existence of facts shown through evidence. Section 5 of the Act makes it clear that the Act envisages evidence to be provided for only Facts in issue and Relevant facts. Thus, it can be stated that a party can provide direct evidence for a fact which is in issue and for a relevant fact. While providing evidence for a fact in issue would help determine the core question of rights or liabilities, evidence would be provided for relevant facts so that these facts would lead to an inference about the existence or non-existence of facts in issue, would prove / disprove the fact in issue. This is where circumstantial evidence enters the discourse of the Indian Evidence Act. By allowing evidence to be provided for relevant facts the Act, though not expressly, paves the way for these facts to become evidence for the facts in issue – these relevant facts then become circumstantial evidence for facts in issue. Thus, circumstantial Evidence can be defined as those unrelated facts (relevant to a facts in issue) which when considered together lead to an inference regarding a fact in issue. Circumstantial evidence can be the basis of conviction, and thus, is an integral part of criminal trials.

In this context, I want to deal with a simple issue that is often discussed: the parameters regulating what courts accept as “circumstantial evidence”. My argument is that the existing threshold, established by the Supreme Court, is flawed as it fails to properly filter out unreliable and irrelevant facts, while building up a chain of inferences towards proving guilt based on circumstantial evidence.

The Panchsheel Test (hereinafter ‘Test’)

The law on convictions based on circumstantial evidence has been put forth by the Supreme Court in form of a‘Panchsheel Test’: 

“(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused.

(3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”

The usage of circumstantial evidence is largely based on inferential reasoning (read on) and this test attempts to provide a yardstick for this inference to go in the ‘right direction’. But, the loose wording and the subsequent application of the Test has shown that much of the jurisprudence around circumstantial evidence is still unclear, problematic, and left too susceptible to judicial discretion, as shall be discussed below.

Panchsheel - A Weak Gatekeeper of Facts

On a plain reading of the Test, one can make out that it governs the facts that can become a link in the chain of circumstantial evidence. Point (1) and (3) of the Test hint towards the proposition that the facts that form the basis of inference should be proved. This when read in consonance with the Section 5 of IEA, can be understood to include only relevant facts which have to be proved by evidence. The way courts have applied this Test shows that not much thinking has gone into these basic requirements that the facts must fulfil as the first step — relevancy and then being proved. Time and again irrelevant facts have been included as the links in the chain of circumstantial evidence using the Test, and often such facts have been included which have not been proved properly and can be discarded as ‘not proved’ under Section 3 of IEA. This poses a problem as the Courts can then include everything and anything as a link in the chain of circumstantial evidence which can ultimately prove fatal to the cause of justice.

In State of Uttar Pradesh v Rajesh Talwar, to ‘fill the missing links’ in a case revolving around circumstantial evidence, the trial court considered the denial of the incriminating circumstances by the accused persons under Section 313 of CrPC as a relevant fact whereas the section clearly mentions that false pleas would be used as evidence . By using false pleas as a missing link, the court considered it as a relevant fact when it was never a "fact" in the first place. This shows how facts which are not relevant or are not even facts, are made relevant for the sake of the Test. Another example could be the Priyadarshini Mattoo case, where the court made the mother’s suspicions about the accused relevant under Section 6 of the Act in a very unclear manner even though the fact did not lead to much of an inference about the fact in issue. The dissenting judgement in Sharad Birdichand Sarda [the progenitor of Panchsheel] throws light on the problem of how facts which are not even proved properly enter the realm of circumstantial evidence using the Test. The issue there was whether the husband had murdered his wife by poisoning her. The Court decided that the wife had committed suicide. The dissenting opinion points out how the majority opinion includes facts (like extra-marital affair of the husband, ill-treatment by in-laws, etc. to show why the woman would have committed suicide) which were not even proved, to complete the link in the chain of the circumstantial evidence. It can be said that such inclusion of facts can also be the result of the judge having drawn a conclusion beforehand (in this case, the conclusion that the woman committed suicide) based on the available facts and now trying to fill the missing links in a manner that could support that preconceived conclusion.

Thus the manner in which the Courts have acted in contravention to basic principles of IEA (relevancy and the need for the fact to be proved) to consider a fact as a link in the chain of circumstantial evidence is apparent. If it was not for the links in the chain and satisfying the Test, these facts would not have qualified as relevant facts or facts which are proved.

The Obsession With The ‘Chain Metaphor’

It is quite apparent that the Test lays much emphasis on the completion of a chain by using the facts as the links. This has popularly been called the ‘chain metaphor’ in R v Exall. This metaphor gives importance to the completion of the chain but it is pertinent to mention here that not all cases are links in chain type of cases, some can even be ‘strands in a cable’ cases. The express mention of a chain metaphor in the Test excludes the possibilities of such cases being decided on the basis of circumstantial evidence, where the situation could not be proved by the chain metaphor but by the ‘strands in a cable’ metaphor as explained in the case of R v Exall.

If the Test only foresees the chain metaphor kind of cases, it might seem that for the ultimate inference to be drawn (as inferred from point (2) of the Test), all links must be there which would make the ‘story’ complete. Instead, using ‘strands in a cable’ metaphor would allow for having different facts which may not be links of a chain per se, but could then be considered in total to determine the inference to be drawn. Anyways, the inference has to be drawn not from one line of proof alone but from all the present lines of proofs which would make the whole story incriminating and including only the chain metaphor would be equivalent to narrowing the ambit of circumstantial evidence. Further, looking at the issue practically, the cable logic involves greater judicial discretion than what might be imagined while thinking within the chain logic. If we only limit the discretion to chain the metaphor, then it is more likely than not that for the sake of completion of the chain, bad decisions might be rendered which might be reversed in appeals – the Rajesh Talwar and Sharad Birdichand  are good examples of this. Therefore, usage of the cable metaphor might help to reduce the costs incurred in obtaining appellate reversals.

Having said that, it has to be understood that determining which metaphor applies to which case is not an easy task and sometimes, a case can be an amalgamation of the two metaphors — testimonies of fact would be under the chain metaphor and then other facts can be added to this fact using the cable metaphor. Keeping the issues in mind, it would be prudent that the Test should include not only the chain logic but the cable logic as well, to include every possible situation within the realm of circumstantial evidence and draw proper conclusions from the same.

The Question of Proof Beyond Reasonable Doubt

In Chamberlain v Queen, it was stated that all the constituent facts have to be proved beyond a reasonable doubt and this came to be known as the ‘Chamberlain direction’ which is also followed in India as can be seen in Sathya Narayan v State.

Contrary to this understanding, it is suggested that the Test should state that for the individual facts that make up the links of the chain or the strands of the cable, the standard of proof should be based on the requirements of Section 3 IEA and not necessarily beyond reasonable doubt. When the ultimate inference is to be drawn from the total set of facts and not these individual facts, it does make much sense to subject the individual facts to such a high degree of proof. It does nothing but make the entire situation unreasonably difficult from the side of the prosecution. The ultimate inference which would decide the question of guilt should be an independent stage where it should be necessary to subject the inference to the standard of proof beyond reasonable doubt. As a word of caution, it can be said that nothing much can be proved if each and every detail will have to be proved beyond reasonable doubt. Hence, it should be made clear in the Test that the standard of establishing the individual facts may not necessarily be the standard of beyond a reasonable doubt.

The Judge Judging Too Much – The Problem of Inference

The degree of inferential reasoning involved in circumstantial evidence is problematic as there are no yardsticks mentioned in the Test to judge the parameters of inferences drawn. The ‘Hodge warning’, which discussed the apprehension of conflation of conjecture with inference, has also been taken into consideration by Indian judgements in cases like Hanumant v State of Madhya Pradesh and this substantiates the claim that unchecked inferences can be dangerous.

While it is true that inference is at work even in the case of direct evidence, the journey from evidence to the fact-in-issue is longer in the case of circumstantial evidence, as presented below:

Figure 1:

Figure 2:

The personal biases of judges play a big role in the kind of inferences that they draw from a particular situation. ‘General experience’, ‘common sense’, ‘society’s knowledge’, etc. are all misnomers as basis of this knowledge or experience would vary according to the judge. Why this becomes an issue especially in circumstantial evidence cases is because in such cases the very basis of determining guilt is a story from which an inference has to be drawn and based on such inference that the judge might have already chosen, facts only bolstering these inferences would be allowed. I would argue that this phenomenon can be seen at play in Sharad Birdichand. The majority seems to have already drawn the inference that it was a case of suicide and then went on to infer other facts in light of the inference of suicide. For instance, it was held that the door was not closed from inside because the deceased wanted her husband to come into the room once she had committed suicide. This is nothing but a bootstrapping technique at play. The problem of inference in this case did not begin here actually, the very understanding of the facts have taken place from a dominantly male perspective which impacted the manner in which rest of the facts were understood as links in the chain of circumstantial evidence for suicide.

Conclusion

The issues mentioned above show that the Panchsheel test is in need of a revamp to set a definite standard to be used in cases of circumstantial evidence. The Test can be modified into its simpler yet more definite version as follows:

1. The circumstances (facts) from which the guilt is to be drawn should be relevant to the fact in issue, under Chapter II of the IEA, 1872;
2. Such facts must be proved using admissible evidence;
3. The standard of proof of such facts should be as per Section 3 of the IEA, 1872;
4. Depending upon the case in hand, the facts can make up links in the chain of circumstantial evidence or could act as strands in the final cable of circumstantial evidence, and;
5. The inference derived from the cumulative effect of the above mentioned facts must be such that it only leads to the inference of the inference of the guilt of the accused and does not leave any reasonable ground for an alternative hypothesis of the innocence of the accused.

It is true that such redefining of the Test still does not deal with the problem of inferences but the same can be regulated to some extent if the facts that are introduced as the links in the chain or strands in the cable are relevant and proved as required by the IEA. This would at least ensure that such facts enter the realm of circumstantial evidence, which are not randomly accepted by the judge. In any circumstance it cannot be said with certainty that inferences can be regulated. But there could certainly be systemic efforts to try and reduce the impact of biases on decision-making, bolstering the existing training for judges that already takes place. The need for it cannot be over-emphasised — for in several of these cases, a person's liberty is at stake.