Diluting the Right to Silence: A Postscript

For those who missed it, Sregurupriya made a powerful critique of the recent Supreme Court decision in Prahlad v. State of Rajasthan [Crl. Appeal 1794-96 of 2017, decided on 14.11.2018], where a three Justices' bench upheld a murder conviction because the defendant failed to convincingly explain the incriminating circumstances in the case. Sregurupriya argued that the decision gravely dilutes the right to silence, constitutionally guaranteed to defendants under Article 20(3) which protects against compelled self-incrimination. In this short postscript, I offer two, very loosely related, points. First, I question the continued relevance of the statutory provision that allows for this judicial questioning of the defendant - Section 313 of the Criminal Procedure Code [Cr.P.C.] 1973. Second, I suggest that the right to silence was already extremely diluted in India, with the need for a relook starting much before the 313 stage which was the focus in Prahlad.

Do We Still Need Section 313 Cr.P.C.?

Let me make a brief detour to recount the ordinary trial procedure for offences punishable with more than two years imprisonment. After the court frames charges, the prosecution is asked to furnish its evidence wherein witnesses are called and documents / materials are exhibited. Once the prosecution has closed its case, we enter the Section 313 Cr.P.C. phase - where the judge, with the help of prosecutor and defence counsel, poses questions to the defendant who is required to answer them, even if only to tell the court "I do not remember" or "I do not know". 

This seems decidedly wrong. What about the defendant's constitutional right to silence, and all the rhetoric about the presumption of innocence with the prosecution shouldering the burden of proof? Section 313 Cr.P.C. is, purportedly, intended to support all of this by giving an opportunity to the defendant to explain the incriminating facts without swearing on oath. It is nothing more than actualising the great principle of giving the person a right to be heard - audi alteram partem [See, pages 45-46 of the 154th Law Commission Report (Vol. 1)]. Since the law treats the Section 313 Cr.P.C. statement as evidence, it means the court can rely on this explanation as well. As Prahlad illustrated, that reliance is clearly not restricted to acquittals alone.

The contradiction at the heart of this justification should be obvious: Why do courts need to call on explanations from defendants if they are presumed to be innocent until guilt is established beyond reasonable doubt, especially since defendants can take the stand and give the evidence themselves? There, I think, lies an important truth: Section 313 Cr.P.C. has been around from times when defendants had no right to give evidence. A verbatim provision was present as Section 342 in the 1898 Cr.P.C., and under that Code defendants had no right to testify up till the mid 1950s. In that setting, something like a 313 statement made sense as defendants had no other recourse to address potentially bogus theories of the prosecution. Once we confer upon defendants the right to speak at trial, the formerly benevolent provision begins to assume a more sinister role. 

As Sregurupriya illustrated in her post, Supreme Court decisions have repeatedly told trial courts to not use the Section 313 Cr.P.C. statement to fill gaps in the prosecution case, nor to draw adverse inferences against the defendant based on answers in that statement. What does that tell us? It shows that despite persistent reminders from the highest Court, trial court judges can't help but act like human beings: It's only natural to expect an innocent person to explain away circumstances and those guilty to remain quiet. Which is why scholars have also persistently reminded us that the entire idea of a right to silence is counterintuitive to most people. To put it bluntly, you can't tell judges that they can make defendants answer their questions and then expect the same judges to be selective in their appreciation of the responses. Section 313 Cr.P.C., thus, will always hinder the right to silence, if not in law then in practice. Maybe it's time to reconsider its utility.

Whither the Right to Silence?

News reported that India's Central Bureau of Investigation [CBI], the premier investigating agency [recently discussed here], successfully petitioned the trial court to extend the pretrial custodial remand of Christian Michel - at the centre of a big financial conspiracy case. The reason? Because of his "non-cooperation" and his "evasive answers" in the interrogation. For those unfamiliar with the Indian criminal process, it might take two seconds to digest this: in a system purportedly conferring a constitutional right to silence, how can pretrial custody be extended for "non-cooperation" with police investigations? And yet, that is the reality, common for defendants across the spectrum. 

Having experienced this reality first-hand for some time now, the decision in Prahlad did not come as a surprise to me. Even on the matter of judicial policy and precedent, Prahlad is only the newest page in a long, long chapter of Supreme Court decisions that have positively denuded the right to silence of any substance. Allow me to demonstrate this with a simple example. Imagine that the Delhi Police lodge a First Information Report alleging that Person X stole a car, thus committed theft and arrest her. Also imagine that a Customs Officer arrests Person Y on allegations of smuggling gold into India. Today, Person Y will have no right to silence till the start of trial. Replace the customs offence with any offence which is not investigated by the police and you get the same result, despite being arrested. Why? Because of the Supreme Court's consistent position to require a "formal" accusation, the absence of which is sufficient to ignore all substance — a position that I have strongly criticised earlier [see here, here, and here].

If the stakeholders in the Indian criminal process really do wish to honour the right to silence, then a lot of the existing law must be reconsidered. Section 313 and statements at trial will come much later in that process, which first requires taking a long hard look at how investigations are conducted. This is not something radical — India has been crying out for "scientific" investigations since the mid-1950s. But with each passing year, as decisions like Prahlad are rendered which further diminish the scope of a right to silence, the guarantee of Article 20(3) might well be rendered an ignoble epitaph for our transformative Constitution itself.  

Diluting the Right to Silence? The Supreme Court's Decision in Prahlad v Rajasthan

(I am delighted to present a guest post by Ms. Sregurupriya Ayappan, a Fourth Year student of the B.A. LL.B. (Hons.) program at NLSIU, Bangalore)

Recently, a three Justices’ bench of the Supreme Court rendered its decision in Prahlad v. State of Rajasthan [2018 SCC OnLine SC 2548] that could potentially be a dangerous precedent for the years to come. The facts, simply put, were this: The accused was alleged to have raped and murdered an eight-year old girl child. The child was last seen with him as he purchased sweets for her from a shop, shortly after which she went missing and her corpse was found next morning. The Trial Court convicted the accused for offences under Section 302 of the Indian Penal Code [IPC] and Section 4 of the Protection of Children from Sexual Offences Act 2012 [POCSO]; a verdict confirmed by the High Court, an appeal against which ended up before the Supreme Court. 

Lack of Evidence and a Specious Leap in Reasoning 

The evidence was purely circumstantial and the prosecution could establish little beyond the fact that the accused had, at some point on the same day the child went missing, taken her to a shop and bought her sweets [Para 5]. The medical examination revealed 5 injuries which, the medical expert stated on cross-examination, were “simple in nature and they are likely to be caused by falling.” [Para 11]. 

Based on this, the Supreme Court acquitted the accused of the POCSO charges as it found no “reliable material” to conclude otherwise [Para 11]. At the same time though, the Court found “ample material” against the accused to sustain a conviction for murder. What was this ample material? It was not anything that the prosecution offered as evidence. Instead, the Court found support in a different source – the statement of an accused tendered without oath under Section 313 of the Criminal Procedure Code 1973 [Cr.P.C.]: 

“No explanation is forthcoming from the statement of the accused under Section 313 Cr.P.C. as to when he parted the company of the victim. Also, no explanation is there as to what happened after getting the chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, leads to an adverse inference against the accused.” [Para 9, emphasis mine] 

In this post, I posit that this treatment by the Court of the statement under Section 313 Cr.P.C. has effectively equated silence of the accused to guilt and is problematic on several grounds. 

What is Section 313 Cr.P.C.? 

According to the legislative scheme of the provision, the accused can be examined at any stage of a trial or inquiry. All the incriminating material gathered against him are shown and he is given an opportunity to provide explanations and put forth his defence. Crucially, the accused is not put on oath at any point during this examination. He shall also not be liable to punishment for refusing to answer or even providing false answers. The answers may then be produced as evidence of record by either prosecution or defence and may be taken into consideration. In other words, the statute itself expressly provides for the right of accused to remain silent. Nowhere does it state that the accused is “expected to come out with an explanation”, as the Court in Prahlad required. [Para 9] 

Judicial Bolstering of Section 313 

Courts too have interpreted Section 313 Cr.P.C. in line with the legislative intent and have even strengthened the rights of the accused under this provision. They have clarified that the statement under Section 313 Cr.P.C. is not substantive evidence and is merely an aid for the Court to examine the evidence on record. It can neither be made the sole basis for conviction, nor can it be used to complete the missing links in the prosecution’s evidence. [Raj Kumar Singh v. State of Rajasthan, (2013) 5 SCC 722, Para 36] It has also beneficially interpreted it to observe that a court is bound to examine whether the defence, if any, put forth by the accused is a plausible narrative given the evidence on record. [M. Abbas v. State of Kerala, (2001) 10 SCC 103, Para 10] Further, courts have also read in the ‘rule against adverse influences’ and stated that no adverse inferences can be drawn from the silence of the accused in the examination under this provision. This has in fact been considered conjunctively with Article 20(3) of the Indian Constitution and is, hence, a facet of the fundamental right against self-incrimination. [Selvi v. State of Karnataka, (2010) 7 SCC 263, Paras 84, 126] This position has been reiterated time and again in a catena of cases. It is then evident that if even the answers of accused cannot be used as evidence against him, it is inconceivable that the silence of the accused, when he is constitutionally and statutorily guaranteed that rights, can be relied on to concoct a narrative that convicts him. 

Undoing ‘Trite’ Law and the Rights of Accused in a Single Blow 

As we can see, the object of the examination under Section 313 Cr.P.C. is to benefit the accused by providing him an opportunity to defend himself. He has the right to remain silent and the only way in which the provision can be used against the accused is if he has made a statement supporting the prosecution which the court may then use as aid while appreciating the evidence. The Court in Prahlad, however, has: (i) abridged the fundamental right to remain silence and reversed the burden of proof, (ii) overlooked the important fact that the accused is not put on oath when he is subjected to inquiry under this provision and (iii) finally, has exacerbated the divide between those who can and cannot afford good counsel. 

Firstly, under Indian law, the accused has a right to silence and can remain silent through the entire process and furnish no evidence of his own. It is the duty of the prosecution to discharge the burden of proving that the accused is guilty beyond reasonable doubt. The prosecution must “stand or fall on its own legs and cannot derive any strength from the weakness of the defence.” [Sharad Birdhi Chand Sarda v. State Of Maharashtra, (1984) SCC 4 116] This is provided for in Section 101 of the Indian Evidence Act, 1872 [IEA]. Mere silence cannot shift the onus upon the accused even under Section 106, IEA unless the prosecution has first established a case against him. If not, the benefit of doubt must be given to the accused due to the presumption of innocence which works in favour. By drawing adverse inferences from the silence during the examination under Section 313 Cr.P.C., the Court in Prahlad has decreased the scope of the right against self-discrimination and is effectively asking the accused to prove his innocence. 

Secondly, the statement under Section 313 Cr.P.C. is taken without administration of oath to the accused. Oath is an integral element for the statement to be relied on as evidence since it puts the maker of the statement on notice that s/he can be prosecuted for perjury. This increases the reliability of the evidence considerably whereas in this provision, the inverse is true given the statutory leeway to lie. Further, the accused is not subject to cross-examination for the statement made under Section 313 Cr.P.C.. This effectively means that two out of the three safeguards, the last being demeanor, which the Court can rely upon to ascertain the truth is absent in the case of a Section 313 Cr.P.C. statement. It is for this reason that the Supreme Court has itself observed that this statement “cannot be treated as evidence within the meaning of Section 3 of the Evidence Act, as the accused cannot be cross-examined with reference to such statement.” [Sujit Biswas v. State of Assam, (2013) 12 SCC 406, Para 12] 

Lastly, how advantageously the accused uses the opportunity afforded to him in Section 313 Cr.P.C. and what statements he makes to point out his innocence depends on whether he has access to effective counsel. Given the large number of cases in which accused with poor means have to rely on disinterested and negligent legal aid lawyers, more often than not, they squander away this right – either by remaining silent where they have a cogent alternative explanation for the evidence on record, or by making incriminatory statements when they should have exercised this right to silence. It is then incumbent upon the Court to beneficially interpret Section 313 Cr.P.C. so that the accused is ensured a fair trial instead of using it as a tool to implicate the potentially innocent. 

Reena Hazarika and the Precedent Problem 

In stark contrast to the disappointing decision in Prahlad, a two Justices’ bench of the Court in Reena Hazarika v. State of Assam [2018 SCC OnLine SC 2281] interpreted Section 313 Cr.P.C. in consonance with the precedents and legislative intent I discussed above. In this case, a woman was had allegedly murdered her husband and the evidence of record, entirely circumstantial, only established the presence of the accused with the deceased the night he died. The Court relied on the statement of the accused under Section 313 Cr.P.C. which presented a plausible alternative and explained her presence with the deceased to acquit her. The Court reiterated that Section 313 Cr.P.C. enshrined the constitutional right to fair trial under Article 21. It was faithful to the text of the provision as it reiterated that the accused could put forth a defence under Section 313 Cr.P.C. at any stage of the trial, even after the prosecution evidence is closed. It went on to state that if the defence of the accused is not considered at all by the Court, then the conviction itself stands vitiated. [Para 16] 

Unfortunately, Reena Hazarika and the many cases before which have safeguarded the rights of the accused are rendered by smaller benches and could stand overruled by Prahlad. Even Selvi, also by a 3 Justices’ bench, does not come to our rescue given the lack of judicial clarity regarding what would be considered precedent when there are conflicting decisions rendered by co-equal benches (discussed here). 

Conclusion 

As we can see, the ramifications that this decision could potentially have given its interpretation of Section 313 Cr.P.C. are grave. Not only has Prahlad transferred the burden of proof from the prosecution to the accused and violated the principle of presumption of innocence, but it has gone against the text of the provision concerned itself and abridged the right against self-incrimination under Article 20(3) of the Constitution. 

It bodes ill that Prahlad may not be considered per incuriam and could be the law binding on all courts as stipulated by Article 141 of the Constitution. What is even more ominous is that this trend of doing away with the ‘rule against adverse inferences’ in the Supreme Court seems likely to continue with Justice Lokur recently making remarks similar to the reasoning in Prahlad in a matter reserved for judgment. This could result in yet another 3 Justices’ bench decision affirming the dilution of the right against self-incrimination under Section 313 Cr.P.C.

Guest Post: The Contours of a Victim's Right to Appeal

(I am happy to present a Guest Post by Prashasthi Bhat and Arshdeep Singh, both fourth year students in the B.A. LL.B. (Hons.) program at National Law University, Delhi)

The statutory framework of the Indian criminal process did not always cater well to victims of crime. Originally, the Criminal Procedure Code 1973 [Cr.P.C.] provided that victims (i) could ask for initiation of police investigations [Section 156(3), Cr.P.C]; (ii) could file appeals in cases instituted on private complaints if they were the complainants, if leave to do so was granted by the court [Section 378(4), Cr.P.C.]; (iii) could challenge orders through revision petitions or by invoking the inherent powers of High Courts [Sections 397, 482, Cr.P.C.]. This narrow perspective changed dramatically with amendments in 2008 that inserted a slew of victims rights. One of these - the right of victims to file appeals - is the subject of this post. We discuss the recent decision by a Three Justices’ Bench of the Supreme Court in Mallikarjun Kodagali v. State of Karnataka [(2018) SCC OnLine SC 1914, ‘Mallikarjun’] and argue that the majority opinion fails to strike the correct balance between interests of victims and defendants in the criminal process.

The New Victims' Right to Appeal

As mentioned above, before 2008 victims could pursue appeals only in complaint cases, and where they were the complainants. But as the 2008 amendments gave a much broader definition for victim [Section 2(wa), Cr.P.C.], this original right became quite limited. How did the law cater to the victims who were not complainants? A new proviso was inserted in Section 372, Cr.P.C. to confer upon a victim the right to prefer an appeal against acquittal, conviction for a lesser offence and/or awarding inadequate compensation. 

However, it was unclear whether the victim’s right to appeal was dependent on the date of judgment of the trial court or the date of commission of the alleged offence. In other words, should the alleged offence have taken place after 31.12.2009 (the date when the amendment came into effect), or should the judgment of the trial court have been passed after 31.12.2009? Another uncertainty was whether the requirement of obtaining leave to appeal from the High Court - imposed on the State for all appeals against acquittals under Section 378(3), Cr.P.C. and also on complainants as mentioned above - was dispensed with for victims. The question had in fact been already addressed by a Two Justices’ Bench of the Supreme Court in Satya Pal Singh v. State of Madhya Pradesh & Ors [(2015) 15 SCC 613, ‘Satya Pal’] where the Court held that a victim would require prior leave from the High Court for an appeal against acquittal, but uncertainty had crept in owing to differing interpretations by High Courts. These two issues were at the heart of Mallikarjun, which we turn to next. 

The Ruling in Mallikarjun

In Mallikarjun, the High Court of Karnataka had dismissed the appellant’s appeal as not maintainable because the date of commission of the alleged offence was prior to 31.12.2009 (the acquittal was dated 28.10.2013). The majority judgment authored by Lokur J., on behalf of himself and Nazeer J. sought to confer "realistic, liberal, progressive" interpretation to Section 372 and fruitfully recognise the victim's right to appeal. In doing so, the majority opinion laid down two important points. First, that the relevant date for determining the maintainability of appeal was the date of the trial court judgment as opposed to any other date such as the date of commission of the offence or the date of registration of the FIR. Second, that there is no procedural fetter placed on the victim’s right under the proviso to Section 372, Cr.P.C., thus marking a shift from the Court’s earlier position in Satya Pal to hold that victims did not need to seek prior leave of the High Court before filing an appeal. 

Gupta J., agreed with the first conclusion, but filed a dissent on the second issue of victims requiring prior leave to appeal. He held that an appeal against acquittal by the victim would require leave from the High Court. This was because the presumption of innocence of an accused is further strengthened by an order of acquittal, and requiring prior leave to appeal adequately respected this principle by allowing High Courts to prima facie satisfy themselves that only if arguable points are involved should the presumption of innocence be disturbed. In this, he relied on Supreme Court precedent, and also plain logic: there was a reason why every other kind of appeal against acquittal had required prior leave. Gupta, J. thus supported a combined reading of Sections 378(3), 378(4) and 372, Cr.P.C. which for him unambiguously warranted for a similar requirement to apply in cases of victims filing appeals against acquittals.

The Balancing Act

We argue that, on the issue of requiring prior leave to appeal, the majority opinion in Mallikarjun is based on an incorrect and incoherent reading of the decision in Satya Pal and is contrary to the settled principles of criminal law jurisprudence. The Court in Satya Pal had held that the full bench decision of the Delhi High Court in Ram Phal v. State [(2015) SCC OnLine Del 9802] was incorrect in holding that there was no need to seek leave of the High Court when preferring an appeal under the proviso to Section 372, Cr.P.C. Rather than solely focus on the proviso, the Court turned to the clear text of Section 372 that no appeal could be filed “except as provided for by this Code”. This meant that the procedure under Section 378, Cr.P.C. - the provision governing appeals against acquittals - would also have to be followed when victims filed such appeals. The majority suggests that it is differentiating and not overruling Satya Pal, but it is unclear how this has been done.

Further, what the majority opinion overlooks and the dissenting opinion addresses, is that offences are considered to be harms against the State, and it is still the State that nominally represents crime victims. Therefore, the procedure to appeal against an acquittal should not be different for the State and the victim. As articulated in the dissenting opinion, the concept of leave to appeal ensures that the High Courts can filter appeals to safeguard to presumption of innocence by ensuring that persons acquitted at trial are not dragged to face rigours of an appeal as a matter of course. By taking away this requirement for all appeals against acquittals where preferred by victims of crime, the majority opinion disturbs the delicate balance. 

Conclusion

The Court in Mallikarjun correctly settled the conflicting positions of various High Courts as to the relevant date for the victim’s right to appeal to accrue. However, in deciding the issue of requiring leave to appeal, we argue that the Court did not reach the correct outcome. Although there is a need for more participation by victims in the criminal process, the majority opinion is incorrect to the extent that prior leave to appeal is not required for appeals against acquittals filed by victims under the proviso to Section 372, Cr.P.C. The dissenting opinion offers a more holistic appreciation of the problem, and offers what we think was the correct solution to the problem of maintaining that delicate balance between the interests of a victim and the accused in the criminal process. 

The Supreme Court and The Crisis of India's Criminal Justice System - Part 2

(This is the Second Post in a Two Part Series. Read part one here)

The 1990s are considered by some to be the heyday of the governance avatar of the activist Supreme Court. Impatient with the teeming corruption, incompetence, and lethargy in other branches of State, the Court went beyond merely telling them how to do their job and began doing their job itself. The previous post in this series highlighted that the Court's interventions into criminal justice could also be explained along these lines. It suggested that a trend was revealing itself by the end of the 1990s: Guided by the premise of "doing justice" in the cases before it, the Court did not shy away from changing the rules of the game itself. It resulted in a remarkable increase in the court's powers to bring about the desired results, and an expansion of the opportunities for litigants to be heard beyond those provided by the Criminal Procedure Code 1973 [Cr.P.C.]. This concluding post charts the Supreme Court's interventions in the criminal justice system since that decade.   

Trial Courts and the Erosion of an Adversarial System

Over the course of this millennium the Court has developed its remedial jurisprudence for writ courts to intervene in pending cases. In 2010, the Court concluded that separation of powers could not limit its duty of doing justice and thus the Court had powers to transfer cases to the CBI even if the statute suggested otherwise [Committee for Protection of Democratic Rights, (2010 3 SCC 571)]. The Court has suggested broad categories of cases that can merit a transfer of investigations, and has almost always agreed to requests where allegations involve interference by holders of public office [See, KV Rajendran, (2013) 12 SCC 480]. But, more importantly, the Supreme Court has buttressed this jurisprudence by also recognising similar powers in trial court judges. It is to the latter that I turn. 

The legal footing for this innovation was found in Sections 156(3) and 173(8) of the Cr.P.C. In Sakiri Vasu [(2008) 2 SCC 409] the Court recognised implied powers within the power of magistrates to "direct" investigations under Section 156(3), Cr.P.C. Directing, the Court held, also implicitly included an ability to monitor investigations to ensure they are "proper". Later, in Vinay Tyagi [(2013) 5 SCC 762], the Court recognised even further supervisory powers under Section 173(8), Cr.P.C., as it held that a magistrate could herself direct police to conduct further investigations to clear any doubts that she has and to satisfy her "judicial conscience". These new supervisory powers had their limits though. Unlike writ courts, magistrates could never direct a specific agency to investigate the case when it directed investigations to be conducted [CBI v. State of Rajasthan, (2001) 3 SCC 333], and nor could they call for fresh investigations to take place [Vinay Tyagi].

Sakiri Vasu and Vinay Tyagi rarely make it to discussions about criminal procedure in India. But in the cacophony of judgments that emerges from the Supreme Court, they demand our attention and offer valuable insight on the Supreme Court's engagement with the criminal justice system. 

• First, they show that the Court's distrust of police together with its commitment to fairness has deprived the police of functional autonomy even during investigations. Today, trial judges can guide investigations, either based on their own assessment of the facts or on an application by a litigant. While the criminal procedure and evidence statutes always encouraged active judicial participation during trial, the Court has expanded this logic into investigations paying little heed to the long-held beliefs of minimal judicial intervention into this space. In doing so, the Court has cast grave doubts over some core tenets of our system of criminal law: can it still be called an adversarial system if the trial judge can guide the police to investigate a case in a manner that satiates a "judicial conscience"? While the Court has continued to insist that the adversarial system is a bedrock of the Indian system, these questions remain unaddressed [See here, for an earlier discussion on the Blog]. 
• Second, Sakiri Vasu and Vinay Tyagi are illustrative of exactly just how fractured the Court's jurisprudence of doing justice and seeking fairness has become. On the one hand, the Court admitted that judicially created time-limits were unconstitutional because of the possibility that undue expediency could harm a defendant's right to a fair trial [P. Ramachandra Rao, (2002) 4 SCC 578]. But on the other, in Sakiri Vasu and Vinay Tyagi, the Court paid little heed to how heightened judicial involvement in investigations could also harm that fair trial right. The double-standards were glaringly apparent when the Court concluded that the rights of defendants were curtailed by its intervention - by which the Court had made itself the court of first and last resort for any challenges to any aspects of the investigation or trial. But, it justified this curtailment of constitutional rights to file writ petitions before the High Court as necessary for public interest [Shahid Balwa, (2014) 2 SCC 687; Girish Kumar Suneja, (2017) 14 SCC 209] [See here, and here, for earlier discussions on the Blog]. 
• Third, and finally, Sakiri Vasu also suggests that besides this bunking the idea of trial court deadlines, the Court began to treat trial court delays as qualitatively different from those in appellate courts. For according to the Court, one of the reasons for broadening Section 156(3) Cr.P.C. was to curb petitions for such reliefs clogging the docket of High Courts, implying that the resulting delays in trial courts were more palatable.

              

Investigative Agencies and False Dawns

The previous post discussed how the distrust of the police led to sweeping directions for reform in D.K. Basu. But as the Court found out soon enough, the issuance of directions did not translate into change. Despite knowing about this non-compliance with D.K. Basu, the Court went ahead and took an even bolder step in Prakash Singh [(2006) 8 SCC 1]. It is one of the rare instances where the Court directed states to implement a draft legislation. Unsurprisingly though, compliance with the Prakash Singh directions has been woeful.    

This open defiance of judicial authority would not have bothered the Supreme Court too much. None of it would've been surprising: the Court made a similarly bold attempt to fix India's prisons in the 1980s and struggled. In fact, I argue that in this context the non-compliance helped the Court: the problems of alleged corruption and incompetence that reform failure generated continued to supply justifications for the Court to use its powers to transfer cases altogether, either to a different police station, or to the CBI, or take it up themselves. But by the mid 2000s the cracks in this scheme had begun to appear: Almost a decade had passed since Vineet Narain but the reforms suggested for the CBI had not been implemented. Faced with this situation, in hindsight, the Court could've done many things. It could have taken up the issue itself (a step that it did take up in other contexts). Or, it could perhaps address it in any of the several transfer cases that continued to be filed. But it did none of this and kept transferring cases to the CBI where it deemed fit. Thus, the Supreme Court chose to actively build a myth of the CBI being a premier, independent, investigating agency despite the absence of adequate structures to warrant this label.  

In this decade, though, the problems first identified in Vineet Narain have begun to make themselves visible again through all the myth-building. I'd say the bubble burst in the Aarushi case, when the indefinite and inconsistent position of the CBI attracted much negative publicity. The cracks, now visible, worsened with allegations of political interference in the agency's functioning made in many high-profile cases. 

• First came Narmada Bai [(2011) 5 SCC 79]: Contesting transfer of a case which had already been investigated by the Gujarat Police to the CBI, counsel for Amit Shah argued that the CBI had "lost all its credibility as an independent agency and is being used the political party in power in the Central Government". The Court still transferred the case, perhaps brushing aside the insinuations as political bombast. 
• Then in 2014, counsel for the states of West Bengal and Odisha resisted transferring cases in the Saradha Chit Fund Scam to the CBI arguing that the agency had "in a great measure lost its credibility and is no longer as effective and independent as it may have been in the past." Interestingly, there was no stern rebuke from the Court. Rather, after curtly stating that these apprehensions were baseless, it noted that "a lot can be said about the independence of CBI as a premier Investigating Agency but so long as there is nothing substantial affecting its credibility it remains a premier Investigating Agency. Those not satisfied with the performance of the State Police more often than not demand investigation by the CBI for it inspires their confidence." [Subrata Chattoraj, (2014) 8 SCC 768]
• In a horrible case of be careful what you wish for, less than a year after this order the Court was presented with that something "substantial". A petition filed by Common Cause claimed that the-then CBI Director Ranjit Sinha had allegedly met persons accused in the Coal Block Allocation Scam that was being investigated by the CBI, but for no apparent reason. The CBI pleaded that "any adverse order that [the Court] may pass in this regard would irreparably damage the credibility of CBI". But this plea was rejected, and the Court ordered an independent inquiry [Common Cause, (2015) 6 SCC 332]. 

Today, less than three years after this episode which ended in a corruption case being registered against Mr. Sinha, the Supreme Court finds itself dealing with the punches and counterpunches being thrown by the two senior-most officers of the CBI. It would be an understatement to suggest that the CBI's sheen has been lost. No matter how these proceedings conclude, one wonders how the Court will handle the next request for transferring investigations to the CBI. Will it still make loud declarations about its status as a premier agency? Or will this decade mark an inglorious end to the Court's maverick remedial jurisprudence of opportunity in favour of more sustainable approach? 

Conclusion: A Criminal Justice System with little "System" or "Justice"?

Ultimately, these posts highlight that the Supreme Court's noble pursuit of justice has brought us to a point where there is left a semblance of a system, helping to achieve a very strange kind of justice in the context of criminal law. I would be stating the obvious in saying that any policy interventions to improve existing systems would first require considering data to evaluate possible benefits or drawbacks of any intervention on many parameters. Instead, the Supreme Court has done exactly the opposite: selectively shooting from the hip as and when it deems fit. 

It mattered little to the Court if this pursuit of justice came at the cost of subverting core institutional concepts, like a separation of powers between the branches of State. In the same vein, it did not matter if it came at the cost of the criminal justice system itself. As the reticence with which the Court had first approached this topic of altering the existing criminal procedures in Vineet Narain gradually disappeared, the system became little more than clay putty in a child's hands, subject to any tweak for hasty fire-fighting purposes. The slow-burning embers of such an intervention lay hidden for a while, but have finally made themselves brightly visible this millennium. Today, it is becoming clear that the Court's intervention has brought more work to an already overburdened judiciary, and invited blatant disregard for judicial orders by successive governments which refuse to support structural reforms in investigating agencies at both central and state levels.

What makes all the short-sighted compromises much worse is an appreciation of the kind of justice that the Court is helping to realise through its work. Yes, the new remedial jurisprudence of the Court opened doors that were once closed to litigants left feeling short-changed by local authorities. But take a moment and ask yourself: who are the litigants standing to gain? Can anyone afford to go to New Delhi and knock on the doors of the Supreme Court, or even a High Court? Can anyone afford lawyers to navigate this complex area of law and present their case? Of course not. There aren't even enough legal aid lawyers to help defendants take benefit of the prisons' jurisprudence that the Supreme Court developed, forcing the Court to periodically intervene to ensure compliance with existing laws. And yet, the Court has pressed through on an agenda which not only makes it more difficult to get relief from the trial courts, but implicitly undermines the quality of that relief. All of which suggests that while justifying its interventions for purported benefits to the have-nots, a closer look suggests that the Court has perhaps ended up only worsening their lot. 

If the 1990s were the apogee of the promise of reform that judicial intervention held in the field of criminal justice, this millennium has confirmed that the promise was a hollow one. Yet, the need for reform remains urgent as ever. Perhaps one lesson to be learnt is that quiet, yet effective pursuits of justice, will undeniably achieve a lot more than a slew of unenforceable or irreconcilable orders. Thus, any interventions directed towards reforms in criminal justice must represent the co-equal will of the Indian State, rather than an isolated action forced upon the rest by one branch that causes more harm than good.

The Supreme Court and The Crisis of India's Criminal Justice System - Part 1

(This is the first of a two part series. Read part two here)

This blog has often denigrated the Court's institutional position of activism in context of criminal law as suffering from a "White-Knight" complex. The Court takes up the work of other branches of State that are projected as being bogged down by corruption and politics, while the Court remains the last bastion of hope. Soon, this becomes a self-fulfilling prophecy and makes the Court take upon more of these tasks, making one branch overlord over others and slowly destroying that quaint idea called separation of powers.

An inherent structural limitation has limited the effects of this decades-long slide: the Court can't enforce its solutions without help from the other branches of State. Thus, the activism ends up being partially hollow; with the hollowness more pronounced if the concerned parties don't comply. This two-part series engages engages with the Supreme Court's intervention in the criminal justice system over the last three decades through this lens. I argue that apart from the inaction of the legislature and executive, judicial intervention has also played a major role in bringing about the crisis that engulfs the system today, where the independence and integrity of all the investigating agencies appears under question, and the courts cannot hope to keep up with the mountain of backlog. 

The Court and Criminal Investigations

Let's return to the middle of the 1990s. The reputation of state police, steadily decreasing ever since independence, had seemingly hit rock-bottom and prompted the Court to note that "The increasing incidence of torture and death in custody has assumed such alarming proportions that it is affecting the credibility of the rule of law and the administration of criminal justice system." [D.K. Basu, (1997) 1 SCC 416]. Besides issuing directions curbing police powers to arrest [D.K. Basu; Joginder Kumar, (1994) 4 SCC 260], the Court did two other notable things during this decade that affected criminal investigations.

First, through Bhajan Lal [1992 Supp (1) SCC 335] it significantly expanded the kind of situations in which criminal investigations could be quashed by the High Courts and Supreme Court. Second, it broadened the horizon for aggrieved victims' to get justice by legitimising new judicial interventions into the investigative process before magistrates and constitutional courts. Thus, the Court called for greater scrutiny of the chargesheet by Magistrates and gave victims a right to be heard before the police closed a case [Bhagwant Singh, (1985) 2 SCC 537]. Further, in a string of petitions by victims the Court granted requests to transfer cases out of state police into the hands of a "neutral" and "impartial" agency like the Central Bureau of Investigation [CBI], at times even after the investigation had been completed [Gudalure MJ Cherian, ((1992) 1 SCC 397]. 

Unintended Long-Term Consequences? 

All of this was necessary, the Court argued, for "doing justice" in the cases before it. This was telling: although the Court making interventions with lasting, systemic consequences, the considerations that guided this exercise were highly specific facts unique to that case. This short-term focus of giving the aggrieved victim remedy seemingly blinded the Court to the long-term consequences that its ruling might have. And there were inevitable downstream effects that the Court was setting in motion.

For starters, by giving stakeholders new rights to be heard in the criminal process the Court blessed more litigation in a system already struggling with delays - something that the Court itself often noted and took steps to curb. Crucially, rather than provide new post-conviction remedies and offer a more harmonious balance between fairness and finality, the Court sanctified pre-conviction intervention. This meant that the justice which the Court sought came at the cost of delaying the finality of the entire process. Both investigations and trials stood to become longer, and appellate courts got lesser time to decide appeals as they were burdened with new petitions in this mould.
          
Besides this, transferring investigations constituted an erosion of two long-held legal principles. The first was the idea that the functions of police and courts were complementary and not overlapping [Khwaja Nazir Ahmed, 71 IA 203]. Second, was federalism: policing was a core state function, with intervention by central agencies only possible with prior consent by the state. Because of these twin reasons, transferring investigations, and too from the state agency to a central one, had been an extremely rare occurrence before the 1990s. As the Court slowly unravelled the existing position, it naturally bolstered the perception of the state police as being incompetent and corrupt, and the central agencies being independent and much better at the job. 

Vineet Narain and the First Crisis

The premise of the central agencies being independent and competent was a major cog in the new justice-oriented jurisprudence that the Supreme Court was spawning. This premise was exposed as a myth in the Vineet Narain litigation, where the CBI was accused of dragging its feet in bringing allegedly corrupt politicians to book. Initially slow to react, once the Court got going it took the unprecedented step of "monitoring" CBI investigations. During the years of monitoring the Court received updates on the investigations in sealed covers and in camera hearings: steps ordinarily anathema to the idea of open justice but justified as a set of necessary "innovations" to ensure justice was done.

The Vineet Narain saga ended with the Court issuing a string of directions designed to secure greater autonomy for the CBI and other central agencies [(1998) 1 SCC 226]. Significant among these was ridding the executive notification that protected certain classes of bureaucrats from investigations; giving the Central Vigilance Commissioner [CVC] oversight duties over the CBI; and asking the federal government to bring in appropriate laws to secure autonomy of all agencies. Thus, it seemed that the CBI was back from the brink. So was the new remedial jurisprudence of constitutional courts, with a new arrow in the quiver to boot. Not only could the High Courts and Supreme Court continue to end state police investigations or transfer them to the CBI, but they could now also monitor the investigations itself if the case so warranted.

Conclusion: Identifying Patterns
Thus, after almost half a century of being committed to an adjudicatory role, within a decade the Court had cast an indelible stamp on the daily functioning of the Indian criminal justice system. Most of the judicial intervention was framed as an exercise in "doing justice", often in cases alleging failures of justice being occasioned by other state actors. Since the costs of this intervention were of a kind to only become visible in the long-term, it made it easy to ignore them in the face of the short-term gains at stake. And these gains were substantial. Sold on the narrative of pervasive corruption, the public could rest easier knowing that the Supreme Court was still untainted and committed to justice, a notion the Court itself repeatedly invoked. This helped to widen the popular appeal of an otherwise-elitist Court, and legitimised the many derogations from classical legal positions as necessitated by the failings of the other branches of State.

As the next post elaborates, the Supreme Court continued to perpetuate this narrative since the turn of the millennium, operating the same playbook of remedial justice in which the system was constantly malleable to the whims of "doing justice" in individual cases. By 2018 though, it appears that the sum is surely greater than the sum of its parts: giving succour in the many individual cases has helped to usher in the present collapse. 

Article 22(3): A Constitutional Paradox?

(This post first appeared on the NLSIR Online Blog)

Of late, the transformative nature and potential of the Indian Constitution has been placed under the spotlight thanks to attention from both scholars and courts. The contours of this argument are contested, but according to most versions, the Constitution is an instrument designed to realise an India where the ideals of liberty, equality, and fraternity are fully expressed and protected against arbitrary deprivation. Amidst the focus on India’s transformative Constitution, this post takes a look at Article 22(3). The clause provides that if persons are arrested and detained under preventive detention laws, or are enemy aliens, then the basic protections against arrest and detention provided by Article 22(1) and (2) do not apply. Here, I attack the resulting deprivation of the right to counsel brought about by Article 22(3).* 

Content and Origins 

Article 22 can be understood as consisting of two parts - clauses (1) and (2), and clauses (3) to (7). The first part tells us that all persons are guaranteed certain rights upon arrest: the right to be immediately informed of grounds for arrest, to be produced before a magistrate within 24 hours if detained upon arrest, and to consult and be defended by a counsel of choice. The second part begins with clause (3) telling us that the first part isn’t actually applicable to all persons. Clauses (4) to (7) then detail minimum criteria that any preventive detention law must satisfy: it must inform persons of grounds for detention, enable them to make representations against detention, create Advisory Boards which must approve all detentions longer than 3 months, and fix a maximum period of possible detention. 

I’ve discussed the origins of Article 22 at length elsewhere. It suffices here to state that the first part of Article 22 was intended to salvage what the Constitution lost by deletion of “due process” from Article 21. The second part was guided by the same intentions - since the Constituent Assembly had already decided to grant powers to enact preventive detention laws to both the Union and states, the excision of “due process” theoretically meant that there were no limits to what kind of laws are passed. Clauses (3) to (7) were meant to soften the blow and ensure that state interests are protected by laws that facilitate quick arrest and detention, without completely trouncing individual liberties. 

In this attempt to strike a balance, the right to legal assistance was sacrificed entirely. I say entirely, for while the other rights provided in clauses (1) and (2) are still present in a watered-down form in clauses (4) to (7), the right to legal assistance fails to find any mention. Why? The consistent answer one gets upon consulting the Constituent Assembly Debates is an argument of efficiency. The Assembly feared that letting lawyers into the preventive detention system would invite delays of the kind that the ordinary criminal justice system suffered from, undermining the very swiftness that made preventive detention attractive in the first place. 

Legislative Adaptation and Judicial Treatment 

India’s Provisional Parliament passed the Preventive Detention Act, 1950 [PDA] less than a month after the Constitution came into force. Since this body comprised almost the entirety of the Constituent Assembly, one imagines that the statute closely followed the Assembly’s vision of preventive detention. What kind of proceedings did the PDA envisage? Section 7 obligated communication of grounds without fixing a time limit, and permitted non-disclosure wherever necessary in public interest. Section 10 laid out the procedure of hearings before Advisory Boards and specifically stated that detenus were not entitled to either personal appearance or appearance through counsel. Section 14 went so far as to render grounds of detention entirely confidential, denying even constitutional courts the right to know why a person had been detained. 

This, then, is the ideal vision of preventive detention: proceedings that involved acting first and explaining later, with explanations hardly beyond the bare minimum, with paper pushing and no oral hearings. From A.K. Gopalan onwards, this ideal vision was gradually demolished by the Supreme Court. Judicial engagement with preventive detention followed an accepted script: while the ultimate legality of preventive detention measures was beyond question, the harshness of the regime was not. Towards this, several judicially crafted innovations were made to enhance the fairness component, all the while operating within the bounds of Article 22. 

The Emergency of 1975 - 1977 saw targeted amendments to undermine these innovations and curtail judicial review. This curtailment, though initially resisted by High Courts, was ultimately accepted by the Supreme Court itself in A.D.M. Jabalpur. As the popular narrative suggests, that Court began to restore the content of fundamental rights and its own institutional legitimacy, once the Emergency ended. This led to the opinions in Maneka Gandhi which expanded the scope of Article 21. In a flurry of subsequent decisions, the Court recognised that this expanded Article 21 contained an unenumerated right to counsel, broader than the Article 22(1) guarantee. While Article 22(1) granted a right to counsel of choice, Article 21 carried a right to counsel, thus prohibiting deprivation of life and personal liberty made in absence of legal assistance. 

This belated recognition of the importance of legal assistance and its fundamental link to the right to personal liberty was also soon felt in the sphere of preventive detention. Different benches of the Court in Gopalanachari, Kavita, and Nand Lal Bajaj - all consisting at least of either Justices Krishna Iyer, Sen, or Islam - held that the denial of legal assistance in preventive detention was not absolute. Relying on Article 21, these decisions emphasised the importance of counsel, especially where persons were detained without trial. They held that a detenu still had a right to request for legal assistance, which then had to be adequately considered by authorities. This consideration was ultimately subject to judicial review, providing some measure of oversight. One of these cases, Nand Lal Bajaj, found it “incomprehensible” that the regular criminal justice system granted legal assistance but preventive detention didn’t. But since it was not asked to decide this issue, these remarks remained obiter dicta . 

A.K. Roy and the Current Legal Position 

Maneka Gandhi, an expanded Article 21, and a fundamental right to counsel: this was the context in which the Supreme Court heard a batch of petitions challenging the National Security Act, 1980 [NSA]. The Constitution Bench assembled for this purpose delivered its decision late in December 1981, reported as A.K. Roy v. Union of India, and it almost entirely upheld the validity of the NSA. The controlling opinion was authored by Chandrachud CJ to which three judges signed on, while Gupta J and Tulzapurkar J dissented in part. Analysing the entire decision is beyond the scope of this post. Rather, the focus here is on how the Court unanimously saved Section 11(4) of the NSA, the provision which disentitled detenus from legal representation before Advisory Boards. 

What did the Court do? It relied upon Article 22(3)(b), and held that the right under Article 22(1) to consult and be defended by counsel of choice is inapplicable in the context of preventive detention. The Court acknowledged that preventive detention laws were not only subject to Article 22, but were also open to scrutiny under Articles 14, 19, and 21. Did depriving persons of their liberty without legal assistance satisfy this scrutiny? 

The Court rejected the go-around offered by petitioners: since Article 22(3)(b) only excluded Articles 22(1) and (2), the right to counsel contained in Article 21 was still applicable. The controlling opinion labelled it “impossible” to find that what one part of the Constitution had denied, another provided. It then offered a positive answer as well, holding that the original text of the Constitution was per se “just, fair, and reasonable” and so could not fall foul of Articles 19 or 21. Simply put: since the original constitutional text said detenus don’t get lawyers, there was no question about laws implementing this mandate being unconstitutional for violating rights contained in other provisions of the Constitution. 

Before parting, the Court tried to mollify the harshness of this conclusion which it had arrived at “regretfully”. It held that where the government engaged counsel, a detenu must also be afforded a similar chance, and further, that nothing denied detenus the ability to ask for assistance from a “friend” in proceedings before the Advisory Board. 

A Veneer of Legality 

Preventive detention laws have never been tested by a Constitution Bench since A.K. Roy, and that decision still remains the final word on the issues it considered. In this section, I demonstrate that the controlling opinion’s handling of the issue of denying legal assistance to detenus was flawed and promoted a constitutional vision irreconcilable with the idea of a transformative Constitution. 

The primary basis for upholding Section 11(4) of the NSA in A.K. Roy was that Article 22(3)(b) permitted deprivations of the right to counsel and since it formed part of the original Constitution, it is bizarre to say that the framers themselves had inserted unconstitutionally unreasonable clauses. Though the opinion did not cite Golaknath, this distinction between the original text and amendments had been propounded since then: while the Court happily reviewed amendments, it kept the original text in a hermetically sealed box. This distinction was also accepted by the Court in Keshavananda Bharati as a limit to the basic structure doctrine as well. 

But this privileging of the original test does not make sense. Gautam Bhatia exposed the logical fallacies in this view some time ago, arguments that I adopt and expand here. As he argued, if we think of the basic structure test as promoting faithfulness to values, then how do we justify this separate treatment for the original text? Moreover, the idea that the original text is uniquely faithful to “we, the people” is also flawed: the Constituent Assembly was barely representative of “the people”, nor was it subjected to a ratification process. Also, nothing in the constitutional text itself supports this separate treatment of the original text and subsequent amendments to it. 

The flaw with this approach gets magnified in A.K. Roy because of the context: Articles 21 and 22. The Court in Maneka Gandhi had gone so far as to rewrite the original Constitution by re-inserting “due process” into Article 21. Whatever significance this had for the rest of Indian jurisprudence, the effect of this shift was tectonic in context of Article 22. After all, Article 22 was birthed because the Constituent Assembly had removed the “due process” phrase. Once due process came back into Article 21, it unmoored Article 22 from its very foundations, and directly questioned the adequacy and reasonableness of the limited guarantees that Article 22 provided. 

Accepting that an expanded Article 21 contests the earlier minimums set by Article 22 is the only sensible way that the two can be read together, rather than privileging the original text. This was the direction the Court seemed to be heading in as well. It quickly resolved one issue: the minimum set by Article 22(1) in terms of the right to counsel was insufficient, and was thus expanded by Article 21. This was easy, since Article 22(1) could be argued to be silent about legal aid and not explicitly against it. Article 22(3) was much harder because it expressly excluded certain rights. Fidelity to a basic structure doctrine that focuses on values would then evaluate whether this exclusion was contrary to these values, and give us an answer. 

Rather than resolve this crucial issue of harmonising an expanded Article 21 and Article 22(3), A.K. Roy simply told us that the latter was correct because it was there for longer. And it did so by trying to minimise the significance of this conflict. While the Court privileged the original text, the controlling opinion carries no mention of the peculiar history behind Articles 21 and 22. Further, it either distinguished the recent decisions on the expansion of Article 21 and a right to counsel, or amazingly did not mention them at all where they pertained to the preventive detention regime. 

Conclusion 

A.K. Roy subscribes to a view that the Constitution offers forever static minimum protections to safeguard life and liberty. Currently, the Supreme Court finally acknowledges that constitutional protections are meaningless in abstract, and must be tailored to the unique harms that different generations face. The harm from preventive detention is very different today from what it was in 1950. It is far from an exotic tool to deal with threats to public order, and instead is used to arrest persons on suspicions of copyright violations, video piracy, and cow slaughter. Even more importantly, the very basis for the original minimum constitutional rights secured by Article 22 has ceased to exist ever since the Court re-inserted due process into the Constitution, where it has flourished since. Thus, if the entire milieu has changed so dramatically, is it sufficient to tell us that persons, who can be arrested and jailed without knowing why and kept in jail for months on end, have no right to counsel simply because the Constitution said so from the start? I strongly disagree.

*This post is focused on preventive detention, largely because there has been no instance of applying Article 22(3)(a) that I could trace. Nevertheless, the arguments here, made in the preventive detention context, would also apply to Article 22(3)(a).   

Guest Post: A Minor Issue or a Fatal Flaw? Reading Amended Section 176 Cr.P.C.

(I am proud to host this guest post by Ms. Pawani Mathur, an advocate practising law in New Delhi)

I had an opportunity to attend a conference on Torture, organised by the Working Group on Human Rights of the United Nations and other prominent groups in Siri Fort, New Delhi. The conference threw up an important issue in Section 176 of India’s Code of Criminal Procedure 1973 [Cr.P.C.] that seems to have crept in after the Amendment Act of 2005 (ultimately brought into force in 2006). That provision, to remind readers, is one that details the procedure to be followed for conducting ‘inquests’ on corpses to determine the cause of death, where the person died in police custody. 

The issue raised at the conference was that in this context of deaths due to suspected police violence in custody, the Indian statutory framework is still permitting inquests to be conducted by possibly biased police officers and Executive Magistrates, rather than facially neutral Judicial Magistrates. This short post examines the validity of the criticism. 

Section 176 Cr.P.C. – Before and After the Amendments

As mentioned above, the Cr.P.C. requires authorities to conduct inquests to determine the cause of death. As per Section 174 Cr.P.C., it is the police who normally conduct inquests. However, for certain kinds of deaths the law also empowers a magistrate to conduct the inquest. 

Before the Amendment Act in 2005, Section 176 Cr.P.C. stated many kinds of cases in which a magistrate could conduct inquests. For none of these cases did the magistrate replace the police power to conduct an inquest, importantly. Further, these inquests could be conducted by both Executive and Judicial Magistrates alike.

As per the Lok Sabha Debates, the need to amend this section was felt to address the growing crisis of custodial torture and rape. The Amendment Act thus changed this regime dramatically by creating a category of cases where an inquest must be conducted by Judicial Magistrates. Section 176(1A) Cr.P.C., labelled as “one of the most important things” done by the Amendment Act, lists two such cases, namely: (i) custodial deaths or disappearances of any person, (ii) custodial rape. It stated that for these cases, “in addition to the inquiry or investigation held by the police, an inquiry shall be held by the Judicial or Metropolitan Magistrate”. The reason is not hard to imagine. If a case involves suspected offences by police, any inquiry into done by other police officers would suffer from doubts of bias and prejudice. Since Executive Magistrates are part of the Executive Branch – and often police officers – the same issues arise in any inquiries conducted by them in such kinds of cases involving custodial violence.

Bogged by Internal Contradictions?

We know what Section 176(1A) Cr.P.C. says and can now appreciate the issue raised at the start of the post. For this purpose, it is necessary to consider Section 176(5) Cr.P.C.: 

“The Judicial Magistrate or the Metropolitan magistrate or Executive Magistrate or police officer holding an inquiry or investigation, as the case may be, under Sub-section (1A) shall, within twenty-four hours of the death of a person, forward the body with a view to its being examined to the nearest Civil Surgeon or other qualified medical man appointed in this behalf by the State Government, unless it is not possible to do so for reasons to be recorded in writing.]” (Emphasis supplied)

If the inquest under Section 176(1A) must be conducted by Judicial Magistrates / Metropolitan Magistrates, why is Section 176(5) talking about police officers and Executive Magistrates?

I could not find any decisions directly on the point. In its celebrated decision of PUCL v. State of Maharashtra [(2014) 10 SCC 635], the Supreme Court says nothing about this issue. Some High Court decisions did discuss Section 176(1A), and assumed that the correct approach was what is only stated in Section 176(1A), without noticing its contradiction with what is stated in Section 176(5) in the classes of cases mentioned therein [See, e.g., State of Gujarat and Anr. vs. Union of India (UOI) and Ors, MANU/GJ/0506/2010 (Gujarat High Court); A.P. Civil Liberties Committee (APCLC) and Ors. v. Government of A.P. and Ors., MANU/AP/0031/2009 (Andhra Pradesh High Court)]. Since these discussions are obiter dicta and not binding, it means the question is potentially still an open one. 

The National Human Rights Commission is aware of the issue, though. It issued a clarificatory notification on how to interpret Section 176(1A) as far back as 2013. Problematically, it created a new test that is nowhere in the provision itself, stating that an inquiry by a Judicial Magistrate / Metropolitan Magistrate is required only “in those cases of custodial death where there is reasonable suspicion of foul-play or well-founded allegation of commission of offence”. For all other cases, the inquiry could be conducted by Executive Magistrates as well as police officers. 

Conclusion – A Need for Clarity

This post highlighted how there is clearly an open issue in how to interpret Section 176(1A) Cr.P.C. I am not arguing for any particular interpretation of a conjoint reading of clauses (1A) and (5). The point of writing this is only to bring out this contradiction and argue that this is a question of significant importance for the courts to decide on. 

By all accounts, Parliament inserted that provision to create a new class of cases where an inquiry by Judicial Magistrates was mandatory. While I have not argued in favour of any view as being the correct one, it seems that this method of undermining Section 176(1A) is probably not it. 

Section 176 is by no means a sexy topic like many others that criminal law has, which makes it such a staple for news headlines. Yet, inquests are perhaps the single most important set of legal proceedings that help unearth the truth in the worst kinds of cases – where the authority designed to help the people ends up hurting them instead. By clarifying Section 176 Cr.P.C. to ensure that India’s legal regime on inquests is as fair and transparent as possible, the system will help to reinforce accountability where it matters most: in cases of life and death.