Errantry: Moot Problem

The 16th edition of the K.K. Luthra Memorial Moot Court Competition concluded this past Sunday. It is one of the few moot court competitions focused on criminal law as an area, and I was thrilled to have been able to author this edition's case for the Moot which can be seen here.

Broadly, the case concerned the law of theft, developing on both Indian law and judicial decisions as well as those from other Common Law jurisdictions (most notably, Canada). The substantive law of theft is a funny thing — all the pre-eminent decisions are not of recent vintage, and the only major case that did come through recently is one that I had profound disagreement with (Birla v. Adventz). Nevertheless, it still made for a compelling contest.

These issues on substantive law were meshed in a thicket of issues on the procedural side. Here, the idea was to bring in issues that might be commonly known amongst lawyers and law students — the idea of excluding illegally obtained evidence — and combining these with issues that are not so well-known but are of seminal importance — the issues surrounding the duty of disclosure placed upon the police / prosecutor, requiring that they share their papers with the defence.

Comments will be highly appreciated!

Criminal Procedure Reform: The Dangers of Overvaluing the Ends and Forgetting the Means

This Blog has consistently argued that changes to the laws that form the bedrock of India's criminal justice architecture — The Indian Penal Code of 1860, Indian Criminal Procedure Code of 1973, and the Indian Evidence Act of 1872 — are necessary. No legal system is, or can be, foolproof; but when the flaws end up defining the system then there is a real problem at hand. That, unfortunately, is how things stand at present — the Indian criminal process is notorious for a distrust of police agencies, for illegal and unnecessary pre-trial custody of persons, and for its unending delays that drain all hope without quenching the thirst for justice. 

Thus, it was a welcome surprise to read that the Union Government's was considering criminal justice reforms early on in its second term. The expectation diminished drastically when, in the immediate aftermath of reports alleging that a young lady had been raped and murdered in Hyderabad, it was reported that the Government's "reforms" to the criminal justice system consisted of eroding away the right to appeal by requiring everyone travels to the Supreme Court at New Delhi to file an appeal, among other things. 

The expectations have taken another blow, as on January 2, the Economic Times ran a report with quotes from unnamed government officials suggesting that amendments on the following lines are being seriously considered for India's criminal justice architecture: 

• Reducing the opportunities for accused persons to appeal against judgments, especially in cases involving crimes against women, towards ensuring speedy justice;
• Vesting judges with greater control over the criminal investigation, similar to the setup in jurisdictions such as France and commonly called an "Inquisitorial" system;
• Making forensic evidence "Compulsory" in cases where punishment is seven years or more; 
• Creating a new classification of offences to help police in their threat assessment for "internal security" purposes.

Since there is no White Paper or Draft Bill out yet, any such reports can only be treated with a certain level of seriousness for discussion. But, the repeated references to the idea that curbing the right of appeal is a "reform" measure towards securing "speedy justice", requires us to take it seriously. 

And once we do take that step, this idea gets exposed for what it really is: not a reform measure, but a pig-headed, anti-poor, and ill-considered move that will only worsen the existing state of affairs. It is an arm-chair fix from the Union for a complex problem of delays, which by just cannot be subjected to a one-size-fits-all solution.  

In fact, if there was a hypothetical menu of "reforms" that were on offer, then taking away the right of appeal against the judgment of a trial court (or substituting it with only having a right to challenge the judgment before the Supreme Court), would rank as the worst possible policy choice our legislators and bureaucrats could make for the Indian setting. This is for several reasons:

• From the due process perspective: Almost every aspect of society works on the basis that there can be errors in decision-making, and so our social processes incorporate means to remedy this by allowing a second chance. The consequences of errors in criminal cases are potentially life-threatening, and therefore, the need for a right to challenge the verdict of a court is essential to prevent travesties and gross injustice. Taking away the right to appeal against a judgment most directly upends this sense of fairness.       
• From the delays perspective: At the same time, efforts to completely eliminate errors can make proceedings inordinately long and end up causing delays. This requires every system to strike a balance between the commitments to fairness as well as achieving it within a reasonable timeframe. Is taking away the the right to file an appeal / limiting it to only the Supreme Court  justified, when considered through this lens? Absolutely not. Simply looking at the years it takes to decide appeals and concluding that they are prone to delays is farcical. A closer look at how appellate courts function would show that the long gaps between dates of hearing are the result of courts being overburdened by miscellaneous hearings, where people challenge interim orders or investigative processes, with a view towards avoiding a trial altogether. Thus, taking away appeals won't expand judicial time for other, more proper, hearings, and the free time is likely to be filled up with more miscellaneous hearings and little else. If anything, removing or reducing the scope of miscellaneous hearings may help. 
• From the justice perspective: Not everyone has the financial means to file miscellaneous cases to avoid trials — they take serious money. As a result, criminal appeals end up being the only chance for people having limited means to clear their name from a badly reasoned judgment of the trial court. For similar reasons, a system where everyone in India must travel to New Delhi to file appeals against their local judgments is, again, going to selectively hurt those who need the protection of laws the most. 

News reports about the government's criminal justice reform agenda suggest that discussions have already become one-note and uninspired. Most of these proposals have been on the table for decades, now, and it seems that the exercise is now simply directed towards searching the old closet for decent options (even the inquisitorial process idea has been mooted in some respects). It will be difficult to change anything by adopting this approach. Instead, some core beliefs may need to be thoroughly re-examined: For instance, why should everything with a mere "pulse" (as Divyang Thakur put it while writing here) filed by the police trigger the trial process? Or, to go one step further, why should the default setting of our legal system be directed towards carrying out trials for all kinds of cases and why should parties need several months to get permission for withdrawing a case which would ease the courts' load? Maybe, rather than try and cut down on appeals, legislators and bureaucrats should spend some time redesigning the trial court processes as well — as I argue in a recent paper.        

Privileging the ends (speedy justice) is not a bad idea per se. But from an approach that considers the means but ultimately privileges the ends, which seemed the Government's approach back in August, the current mindset being revealed suggests that the single-minded focus on achieving specific ends will end up decimating all concerns about the "due process" means used to get there. What we will end up with are not courts of justice but bureaucracies, processing files at breakneck speed, all in a race to close them as quickly as possible.    

Supreme Court's Fact-Finding Priorities

[co-authored with Mansi Binjrajka]

Chief Justice of India, Hon’ble Mr. Justice Sharad Aravind Bobde, just yesterday, took suo moto cognizance of the working of the criminal justice system in relation to sexual offences. Highlighting how the amendments brought to criminal law after the Nirbhaya incident have not achieved the objective of speedy investigation and trial, the order passed by the Bench observes that:

“The delay in such matters has, in recent times, created agitation, anxiety and unrest in the minds of the people.” (emphasis supplied)

And therefore,

“We are, therefore, of the view that it is necessary to take stock of the implementation of provisions of criminal law, including the said amendments, relating to rape cases and other sexual offences. It is necessary to call for information with regard to status of affairs at ground level from various dutyholders like investigation agencies, prosecution, medico-forensic agencies, rehabilitation, legal aid agencies and also Courts to get a holistic view to make criminal justice system responsive in the cases of this nature.” (emphasis supplied)

Thereafter, the Court “considered it appropriate” to seek not one, but TWELVE separate status reports on a variety of issues pertaining to all police stations in the country. I request the readers to peruse the order (hyperlinked above) and form their own opinion on the Apex Court’s priorities. Please note the breadth of information sought for by the Supreme Court when only a few days ago, the same Bench had declared that they do not have time to waste on fact finding in relation to police brutality against peaceful student protestors in Delhi and elsewhere. Please also note that a Senior Advocate was promptly appointed as Amicus Curiae and, in addition, the Secretary General of the Supreme Court, as well as the Solicitor General, were requested to extend their co-operation.

To have a further idea on the kind of cases where the Supreme Court thinks it does have time for fact-finding, please see the table below. It contains details of cases that were registered as suo moto writs (‘SMW’) in the last 5 years at the direction of the Court itself.

S/N	CASE NO.	PARTICULARS
1.	SMW (C) 1 / 2019	In Re Matter of Great Public Importance Touching Upon the Independence of the Judiciary – mentioned by Sh. Tushar Mehta
2.	SMW (C) 2 / 2019	In Re Felling of Trees in Aarey Forest (Maharashtra)
3.	SMW (C) 3 / 2019	In Re Alarming Rise in Air Pollution in Delhi and Adjoining Areas
4.	SMW (C) 4 / 2019	In Re Severe Problem Being Faced by the Citizens in Delhi and Adjoining Areas Due to Acute Air Pollution
5.	SMW (Crl.) 1 / 2019	In Re Alarming Rise in the Number of Reported Child Rape Incidents Amicus curiae - Mr. V Giri, Sr. Adv.
6.	SMW (Crl.) 2 / 2019	In Re Missing of an LLM Student at Swami Shukdevanand Law College (SS Law College) from Shahjahanpur UP
7.	SMW (Crl.) 3 / 2019	Ghanendra Pal Singh Letter addressed to Secretary General of Supreme Court.
8.	SMW (C) 1 / 2018	RK Sareen v. RK Kulshreshtha SMW against order of Disciplinary Authority in relation to a bribe – due to prolonged period of litigation
9.	SMW (C) 2 / 2018	In Re Filling Up of Vacancies
10.	SMW (Crl.) 1 / 2018	In Re Kathua Jammu and Kashmir
11.	SMC (Crl.) 2/2018	In Re The Indian Express and The Tribune Dated 2nd May 2018 Regarding Kasauli Incident (regarding unauthorised hotels and guest houses in Kasauli) Orders seek status reports from Govt. on names of officers posted at the time of illegal constructions, guidelines to prevent such constructions, specific steps on how the problem is to be tackled, steps taken for demolition. Amicus curiae was also appointed.
12.	SMW (C) 1 / 2017	In Re Central Selection Mechanism for Subordinate Judiciary
13.	SMW (Crl.) 1 / 2017	In Re To Issue Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials Amicus curiae - Sidharth Luthra, Sr. Adv., Basant R., K Parmeshwar Reports sought from all States and UTs on their suggestions
14.	SMW (C) 1 / 2015	In Re Outrage as Parents End Life After Child’s Dengue Death Amicus curiae - Colin Gonsalves, Sr. Adv.
15.	SMW (C) 2 / 2015	In Re Muslim Women’s Quest for Equality
16.	SMW (Crl.) 3 / 2015	In Re Prajwala Letter Dated 18.02.2015 Videos of Sexual Violence and Recommendations (regarding blocking child pornography, gang rape imagery, videos and sites on content hosting sites)
17.	SMW (Crl.) 1 / 2014	In Re Harassment and Physical Abuse of Ms. ‘M’ v. State of Chattisgarh
18.	WP (C) 406 / 2013	Re Inhuman Conditions in 1382 Prisons Order dt. 08.05.2018 - directs all HCs to take up matters relating to prison conditions as suo moto writs.
19.	WP (C) 95 / 2012	Devika Biswas v. Union of India (regarding sterilisation procedures for women) Detailed directions passed in an Art. 32 writ. Order dt. 14.09.2016 requests certain HCs to take up the matter as suo moto writs - states which had given inadequate responses to SC.

Apart from seeking information directly from Union / State Government(s) by way of status reports, it is very common for the Supreme Court to appoint Special Investigation Teams (‘SITs’) for fact finding purposes. In Ram Jethmalani v. Union of India, the Petitioner’s prayer for appointment of an SIT to investigate unaccounted monies allegedly stashed abroad was allowed and the Court observed:

“45. The resources of this court are scarce, and it is over-burdened with the task of rendering justice in well over a lakh of cases every year. Nevertheless, this Court is bound to uphold the Constitution, and its own burdens, excessive as they already are, cannot become an excuse for it to not perform that task. In a country where most of its people are uneducated and illiterate, suffering from hunger and squalor, the retraction of the monitoring of these matters by this Court would be unconscionable.”

47. The merits of vigour of investigations, and attempts at law enforcement, cannot be measured merely on the scale of what we accomplish with respect to what has happened in the past. It would necessarily also have to be appreciated from the benefits that are likely to accrue to the country in preventing such activities in the future. Our people may be poor, and may be suffering from all manner of deprivation. However, the same poor and suffering masses are rich, morally and from a humanistic point of view. Their forbearance of the many foibles and failures of those who wield power, no less in their name and behalf than of the rich and the empowered, is itself  indicative of their great qualities, of humanity, trust and tolerance. That greatness can only be matched by exercise of every sinew, and every resource, in the broad goal of our constitutional project of bringing to their lives dignity. The efforts that this Court makes in this regard, and will make in this respect and these matters, can only be conceived as a small and minor, though nevertheless necessary, part. Ultimately the protection of the Constitution and striving to promote its vision and values is an elemental mode of service to our people

48. We note that in many instances, in the past, when issues referred to the Court have been very complex in nature, and yet required the intervention of the Court, Special Investigation Teams have been ordered and constituted in order to enable the Court, and the Union of India and/or other organs of the State, to fulfill their constitutional obligations. The following instances may be noted: Vineet Narain v Union of India, NHRC v State of Gujarat, Sanjiv Kumar v State of Haryana, and Centre for PIL v Union of India.”

It is possible to create a similar table as the one above for situations where the Supreme Court has actively sought information to be placed before it. It is also possible to list out innumerable instances where the Supreme Court has exercised its jurisdiction even where the petitioner did not first move the High Court. But the point of this post is not to create an exhaustive glossary of such instances, but to highlight that the Court’s observations on their inability to undertake fact-finding exercises borders on disingenuous.

Whether or not one agrees with these policy choices of the judiciary is besides the point, for today we are at a place where fact-finding by Courts is practically a norm, and as the Supreme Court’s orders confirm, it is still true today. Unfortunately, despite the normalising of this practice, there has been no formalising of the process that governs how the Supreme Court chooses to exercise its discretion, rendering it subject to the vagaries of an individual judge’s idea of justice.

There was a time when the Supreme Court was lauded for its activism when the other branches of government failed. The historic move by sitting Justices to physically proceed to inspect prison conditions in Delhi, or to go and inspect the working conditions of bonded labourers, were the foundations upon which a people based their faith in the Court and relied on it to do justice rather than merely apply the law. At a time where people’s faith in the judiciary is at a trough, and there has been vocal support for executive killings of suspects owing to frustration with judicial delays, the judges would do well to bear in mind that all their choices convey a message. Judicial intervention cannot come to resemble the executive arbitrariness it was designed to protect against.

Can Constitutional Courts Really Not Do Much About Police Brutality?

India's constitutional courts have won deserving acclaim for intervening to save forests, put curbs on pollution, fearlessly address corruption in government, usher in prison reforms, drive governments to pass anti-lynching laws, and strike down patently unconstitutional laws and practices to enable the expression of individual freedom. So to read a news article reporting that a bench of the Indian Supreme Court observed that "courts can't do much" in response to a request that it take notice of the widespread police brutality in Delhi this past weekend came as a rude shock. 

The gamut of examples that I began with can be multiplied almost endlessly and, the longer that list grows the more inane the ultimate relief becomes. What must be flagged, though, is that a number of remarkable interventions also include efforts by the same Supreme Court to help usher in police reforms to curtail police brutality, leading a foreign scholar to comment that the Supreme Court has been the only agent of change in this arena among all branches of State. This glowing praise came while referring to landmark decisions of the Supreme Court in Joginder Kumar and D.K. Basu, which took steps to curtail the vast discretion that police officers have on using their coercive powers. If we shift the focus to High Courts, we find that the Delhi High Court has been building on these foundations through orders such as those passed in Amandeep Johar and Court on its Own Motion, which prescribe detailed guidelines that police must comply with before effecting arrests. 

So, let's be very clear: Indian constitutional courts can do a lot about police brutality and have already been doing a fair bit, when they choose to. In the multiple cases mentioned above, the judiciary chose to do something. Does that mean that the orders in Joginder Kumar or D.K. Basu are unwaveringly obeyed by the police forces? Of course not. But the very pronouncement of such an order empowers a citizen, because it confers upon her the right to invoke an authority against state oppression that she did not have before that moment. A Court order is, therefore, as much an act of faith as it is an act of governance. Today, when petitioners knocked on the two Courts' doors seeking that they intervene after a day of maddening violence, the Justices spoke and expressed sympathy, but they chose not to empower citizens and restore their faith in law, at a time when this balm was sorely needed. 

Surely, when the courts choose to face the facts, in due course if not urgently, they will remember that a lot can be done about police brutality. But rather than simply go for low-hanging fruit by passing, say, another judgment regulating arrests and preaching reporting requirements to curb the flouting of rules, it's time to take things to the next level and really face the monsters lurking within our criminal justice system. And trust me, there are several such Frankensteins in the system — principles that are birthed by judicial orders which have ended up having a life of their own, singularly destroying the very fabric of individual freedom and personal liberty that a constitutional order aspires to secure. 

The first of these monsters is the lip-service paid to the idea of legal assistance within the criminal justice system. To prevent a lawyer-police nexus, the Supreme Court, in Nandini Satpathy, went ahead and spoke harshly against the idea of permitting a lawyer within the confines of a police station. The 2008 amendments to the Criminal Procedure Code gave accused persons the right to request for a lawyer during questioning, but this was still made subject to police consent [Section 41-D Cr.P.C.]. 

When police violence is so deeply entrenched in society, how does it make sense to have a law that, as a default position, leaves individuals at the mercy of police officers and restricts their ability to seek legal assistance? Besides the innumerable false confessions, what such a regime contributes to is situations like the night of December 15 when, after all the horrible violence, lawyers were simply refused entry into the police stations which prevented any determination of who had been detained, let alone the opportunity to offer legal assistance.

The second of these monsters is the very idea that the individual accused or suspect is an equal in her dealings with the police. Let's unpack this a bit. It is stating the obvious to say that the police are the most visible agents of state power, and the very sight of an angry policeman can send a person shaking in her boots. This unique ability to inspire fear is why the law treats both statements by witnesses and confessions by suspects / accused persons with immense skepticism when made to police officers [Section 161 Cr.P.C.; Section 25 IEA].

But at the same time, our legal system permits courts to rely upon these statements and confessions where they consequently lead to the recovery of any material [Section 27, IEA]. The incentive this regime creates for "planting" evidence and "making" persons sing the police's tune is obvious, especially when coupled with the fact that within the confines of a police station, a person is entirely at the mercy of the police officer. But here's the thing: Rather than carry on the legal logic of skepticism to which confessions are subjected and extend it to interrogations at large, the law instead reverses the logic to hold that in the context of "mere questioning" by the police, the law will not even remotely suggest that a person could have been coerced into giving a statement. Instead, it considers this an exchange between equals. The law, thus, willingly ignores the hours of waiting, the aggressive posturing and tone, the repeated badgering, and all coercion, except that which leaves visible marks on the person, to sustain a fiction of voluntariness around the statement by an accused person. This is designed to sanitise our doubts about the purportedly unbelievable recoveries of material that the police might secure on the strength of the statement. All this is done under the gaze of the Indian Constitution that secures a fundamental right against self-incrimination.

In a way, isn't the same logic being perpetuated by the Supreme Court right now, when it asks both sides to maintain peace before it takes up petitions that are seeking intervention to check violence? Is it not insidious to even remotely suggest equality between the police who are tasked with enforcing the state's monopoly of violence with a band of students, and selectively singling out the latter by making them responsible for peace and suggesting that they can't bully the court? Bully how? By the strength of being beaten mercilessly by countless lathi blows and responding by pelting stones in the face of tear gas shells? By being singled out and being held responsible for damage to public property that occurred and was arguably the fallout of violent madness all around? 

To repeat, then: Our constitutional courts can do a lot when it comes to police brutality, much like many other problematic areas of life in India. Besides the tangible change it brings to society, these acts of intervention carry enormous symbolic value, reinforcing a belief in the rule of law in times when there is very little reason for keeping the faith. But at the end of the day, all judicial intervention is an expression of choice. Thus, unlike other days when to hear a matter of "national importance" the Supreme Court's doors were open even on a holiday without any petition being filed, today, courts chose to refuse an urgent hearing of pleas made by hundreds who were hoping for a restoration of faith after facing a night of horror, even though a lot could have been done.


POST SCRIPT: After the Supreme Court refused any urgent hearing in the matter and indicated that the High Court should be approached first, several petitions came to be filed before the Delhi High Court in relation to incidents surrounding the alleged police violence suffered by students. After hearing the arguments for several hours in a packed courtroom, the Delhi High Court today refused to grant any of the interim reliefs sought by the Petitioners. This included reliefs such as appointing an independent fact-finding commission, protecting students against arrest, passing orders to preserve CCTV footage, and providing funds for students to foot their medical bills after being brutally beaten up by persons wearing uniform. On top of which it fixed the next date of hearing in February 2020.

Compare this with what happened outside Tis Hazari Courts in Delhi at the start of November, 2019. After heated arguments between some lawyers and policemen, the scuffle became violent and led to destruction of public property (burning of a police vehicle no less) and police officers opening fire on some advocates. The very next day, on a court holiday, the Delhi High Court entertained a petition that sought orders to protect lawyers from any arrests etc. by police, and also for appointing an independent commission to inquire into the incident. The requests were granted. In spite of this there continued to be reported incidents of sporadic violence by lawyers / people dressed as lawyers across the district courts of Delhi, where the victims of this violence were often police officials but also litigants. There were no observations rebuking the lawyers or asking them to stop the rioting before courts took any actions. In fact, the Court refused government requests to modify the initial orders granting protection from arrests.

Justice is deemed to have been done in both cases.

[The post was amended on 19.12.2019 to add the post script]

No Censure and Total Sanction: A Recipe for Disaster

Below are some random quotes that I've extracted from news reports in the aftermath of the horrible incident of alleged rape in Telangana: 

• Andhra Pradesh Chief Minister YS Jagan Mohan Reddy has promised to bring in a law to punish rapists within 21 days of a crime. [Article dated 09.12.2019 from News Minute];
• Thank you Hyderabad Police. This is the way to deal with rapists. Hope Police of other states will learn from you [Tweet by a politician dated 06.12.2019 as seen here];
• What will the police do if rapists try to escape. That is exactly why we are requesting the Centre to create a strong system in the country so that rapists who are committing such heinous crimes need to be given death penalty after all kinds of court procedures. [DCW Chief quoted in an article dated 06.12.2019];

[Emphasis is mine in all the above]

There are tons of other, similar, quotes that can be extracted, and there is already substantial discussion surrounding the two separate crimes that occurred at the same spot within the space of a week. So what is the point of plugging these quotes? The purpose behind extracting these quotes was to give concrete examples of the kinds of conversations that newspapers, TV channels, dinner-tables, metro cars, sidewalks, canteens and restaurants are inundated with at the moment, all decrying "these rapists", or, "these criminals". And then, to ask you to take a step back and consider: Does being arrested on the suspicion of a crime make you a criminal? If not, then why does being arrested for allegedly committing rape make anyone a rapist?

I apologise if this sounds like an attempt at being clever, for this is far from it. Instead, I am trying to flag how loose talk about criminality, of the kind referred to above, contributes to the certain erosion of two cherished principles in our society. These principles are, first, that the condemning of a person as a criminal is a serious consequence, a punishment in and of itself; and second, presuming every person as being innocent and an equal member of society, until proven as being unworthy of such equal treatment for having broken the system of laws. 

For centuries, society has been taught to despise a criminal, causing those who were so labelled to carry a badge of shame. And this was not even a purely metaphorical badge, for often criminals were physically branded (24601), to completely deprive them of a chance at redemption through a normal life, a normal employment, and a family. This act of being labelled a criminal, which conveys to a person the censure of his fellow citizens and potentially banishes him from their effective company, is acknowledged by most to be the real part of punishment. And yet, somehow, popular discourse in India routinely ignores just how serious this label is. In fact, in this constant hyperbole of increasing sanctions for the offence of rape, hardly anyone acknowledges that a large part of the punishment is in being called a rapist for the rest of your life.

The seriousness of this label of criminality, and the consequences it entails for those who are so labelled, is what propels the other, cherished feature: a presumption of innocence. It might not have been true a couple of hundred years ago, but today, the idea that all humans are inherently equal beings is one that the law demands we respect. Even the most flagrant breaches of this equality principle that you can spot today (such as a recent legislation passed in the Indian Parliament) are still paying lip-service to the principle, being unwilling to risk the backlash of being too honest about their intentions. Thus, a society of equal persons demands that we secure this idea of equality, by refusing to remove anyone from society's fold by means of incarceration, unless their breach of the social contract can be established to a level that is "beyond reasonable doubt". To put it even more simply, because you yourself would not want to be labelled a criminal and condemned to prison at a mere accusation, you are willing to confer the same treatment upon others who might be so accused. In this way, the idea of a presumption of innocence lies at the heart of a society that respects equality.

What happens when you say that you will punish rapists quickly? By conferring a label upon another equal member of society based on a mere accusation, the premise behind the presumption of innocence is flipped. If the social contract is imagined as being made of invisible bonds, then I imagine these unwise and hasty declarations as knives that cut those bonds loose and, consequently, leading to breeding a culture of difference rather than equality. We might still be uncomfortable prejudging our guilt, or our brother's guilt, but we are fine with prejudging the guilt of those "shifty looking", "poor folk" who are always "up to no good". And slowly, these different groups of "us" and "them" come to see a society which forces people to live together with disdain rather than delight.

Nobody is born a criminal, and nobody becomes a criminal merely on the strength of suspicions or accusations. Rather, ordinary persons end up doing things that are punishable under laws made by society, and they might end up doing so for a multitude of reasons. In some cases those reasons may be brutal, but in others, they may just be the embodiment of the worst mistake in a person's life (to use a metaphor that Bryan Stevenson might employ). To foist fearsome labels of criminality upon a person and permanently alter his life, even posthumously, without giving any of this a thought, can surely satiate the heat of the present. But it is also steadily leading us towards a far bleaker, and much more divided, future. 

[This post was updated on December 12 with minor edits, and changing the reference to law passed by India's Parliament]

Supreme Court Grants Bail in the P. Chidambaram Cases — Some Thoughts

[This is a long post discussing both the CBI and the ED Bail Orders]

Readers may recall that at the end of August 2019, the Delhi High Court dismissed the petitions of P. Chidambaram for anticipatory bail in connection with what has become popularly known as the "INX Media Scam", which was the subject matter of investigations being conducted by the Central Bureau of Investigation ["CBI"] as well as the Enforcement Directorate ["ED"]. Mr. Chidambaram was arrested by the CBI almost immediately after this order, and so he moved the Supreme Court for anticipatory bail in the ED case. The petition in the ED case was also dismissed on 05.09.2019, since the Supreme Court agreed that necessary custodial interrogation would suffer if bail were granted.

Mr. Chidambaram's bail pleas in the CBI case made their way to the Supreme Court, and around two months after his initial arrest, the Supreme Court held in his favour, directing that he be released on bail in the CBI Case [Crl. Appeal No. 1603/2019, decided on 22.10.2019]. However this did not lead to his release since, around a week before the order, the ED had sought, and was granted, permission to arrest Mr. Chidambaram [Note that the ED had not made any efforts to secure his custody, let alone arrest Mr. Chidambaram, till 11.10.2019]. This triggered another set of bail petitions, which resulted in the order passed today in P. Chidambaram v. Enforcement Directorate granting him bail in the ED case [Crl. Appeal 1831 of 2019, decided on 04.12.2019].

The slew of orders passed by courts in Mr. Chidambaram's petitions has made distinct contributions to the law in this field — some desirable, others not so. Having discussed previous orders at the stage of anticipatory bail, this post discusses the two orders of October [Crl. A. 1603/2019] and December [Crl. A. 1831/2019]. I first discuss their contributions to the law, and then make some observations on the proceedings at large to highlight the seriousness of certain issues that are given criminally negligible attention by courts while considering the grant or refusal of bail.

P. Chidambaram v. CBI — Focusing on the Particulars       

The posture of proceedings before the Supreme Court in this case was slightly peculiar: The High Court had held that there was no basis to apprehend that Mr. Chidambaram would tamper with evidence, or that he was a "flight risk". Nevertheless, it rejected his bail plea, considering the probability that he could influence other witnesses. Both parties filed cross-appeals in the Supreme Court where the accused sought bail, and the CBI sought to challenge the High Court's observations that Mr. Chidambaram was not a flight risk.

In a pleasantly short order, the Supreme Court held that bail ought to be granted. Besides helpfully culling out five relevant principles for considering bail pleas for future courts [(i) Gravity, (ii) Threat of Tampering with Evidence, (iii) Threat of Absconding, (iv) Status / Personal factors of the Accused, and (v) Public / State interest (See Paragraph 22)], the Court also repeatedly insisted that the specifics of each case be looked at and, in doing so, chided the State for asking the Court to treat the "flight risk of economic offenders [as] a national phenomenon".

How is a Court to consider the above factors, then? The Supreme Court did not approve of a full-blown analysis of the merits of the prosecution. Instead, it advocated an approach that focused on the identified factors primarily, along with a minimal consideration of the prosecution's case itself. Judicial analysis of these bail factors had to be rigorous — something apparent in how the CBI submissions were rejected for being vague, generic, and totally unsupported by the actual facts of the case [Paragraphs 27 ("Flight Risk"); Paragraphs 28—31 ("Tampering")]. Thus, as the Court points out: 

Mere averments that the appellant approached the witnesses and the assertion that the appellant would further pressurize the witnesses, without any material basis cannot be the reason to deny regular bail to the appellant; more so, when the appellant has been in custody for nearly two months, co-operated with the investigating agency and the charge sheet is also filed. [Paragraph 31. Emphasis supplied]

I suspect that the Paragraph extracted above might end up being cited in subsequent bail petitions and judicial orders. But the real takeaway is the judicial approach on display here: The Court's refusal to be cowed by rhetoric and hyperbole while remaining keenly focused on an appreciation of the facts as they are relevant to the issue of bail. This is something that merits emulation, especially in cases where public glare is the harshest.

P. Chidambaram v. ED — Of Triple Tripods and Gravity of Offences

The Delhi High Court had denied bail in the ED case primarily due to the seriousness of allegations while holding that there was no threat of Mr. Chidambaram either absconding or tampering with evidence. Its order had attracted a stream of press coverage for reportedly copying portions of the State's submissions as part of its "findings", as well as discussing the facts of an entirely unrelated case as being related to the case against Mr. Chidambaram [Paragraph 11].

The Court relied upon its own earlier orders from October in Crl. Appeal No. 1603/2019 to outline the factors relevant for deciding a bail petition. But, curiously, the Court completely failed to mention that this was a case where, besides Section 439 of the Criminal Procedure Code 1973 ["Cr.P.C."], the provisions of Section 45 of the Prevention of Money Laundering Act 2002 ["PMLA"] would also have to be considered. 

That provision itself had been struck down as unconstitutional in 2017. But since then, there was an amendment to the PMLA in 2018, which sought to cure the defects in the provision and render it constitutional. In fact, the legal effect of the changes to Section 45 through the 2018 amendments has been the subject of judicial scrutiny before some High Courts but it is an issue that hasn't yet been considered by the Supreme Court. Given this position, I find it extremely peculiar that the judgment completely fails to mention Section 45, and wonder if this fact may form a valid ground for review.

After the Supreme Court simply assumed that the legal considerations for bail in a PMLA case would be the same as in any other case [Paragraphs 15—17], it also impliedly rejected the submission made by Dr. Singhvi, appearing for the appellant, that the gravity of an offence needn't be a factor for consideration at the stage of bail and the only relevant factor was the "Triple Test" of evasion, tampering, and influencing witnesses (or "Triple Tripod" as the order notes at one place) [Paragraphs 15—17, 21]. 

Having said so, the Apex Court disapproved of the manner in which the High Court had gone about considering the merits of the prosecution case for assessing the gravity of allegations. This criticism was of a threefold, and partly contradictory, nature: (i) the extensive nature of scrutiny, (ii) the apparently uncritical assessment of facts (by copying the State's submissions), and (iii) relying upon the material supplied in sealed covers to arrive at a conclusion [Paragraphs 23—24]. Considering the ubiquity of sealed covers in the practice of law today, it was refreshing to read the Court refraining from opening the sealed cover [Paragraph 24] and observing that: 

In that circumstance though it is held that it would be open for the Court to peruse the documents, it would be against the concept of fair trial if in every case the prosecution presents documents in sealed cover and the findings on the same are recorded as if the offence is committed and the same is treated as having a bearing for denial or grant of bail. [Paragraph 23. Emphasis supplied]

The Supreme Court did not agree with the finding that the seriousness of allegations was a sufficient reason to deny Mr. Chidambaram bail. In arriving at this conclusion it also strongly rejected the State's claim that his custody was required to confront him with witnesses, recalling that the ED had  had several months to do so since the rejection of Anticipatory Bail on 05.09.2019, and that Mr. Chidambaram's cooperation with the investigation could be secured through appropriate bail conditions. One of these, which is bound to attract some controversy in the coming days, is a condition prohibiting him from speaking publicly in "connection with this case" [which may or may not extend to the CBI case].   

The Chidambaram Cases, Arrests, and Custody — Unexplored Issues

The legal aspects of the Chidambaram cases have thus been explored. But it would be naive to think that these cases were all about the law — far from it. This is why it becomes important to consider some of the other issues that remain unexplored in these orders. Foremost among these issues is the need for greater scrutiny while evaluating the State's perceived need for a person's custody and alleged non-cooperation by an accused person with the investigation.

While discussing the 05.09.2019 order rejecting Mr. Chidambaram's plea for anticipatory bail in the ED case, this Blog had criticised the "hands-off" approach of the Supreme Court in engaging with the arguments about the lack of cooperation by the accused. The order reflected a complete refusal to test the claims by ED of the need for Mr. Chidambaram's custodial interrogation, uncritically accepting the submission about there being a "qualitative" difference in the kind of questioning that might be conducted with a person on bail. The bail order of 04.12.2019 does narrate the failure of the ED in conducting any significant interrogation or confrontation with witnesses, but it sorely missed an opportunity to revisit this critical issue which crops up in almost every other bail hearing. 

In fact, the Chidambaram cases confirm how agencies often seek custody without ever having any intent to conduct thorough questioning, and repeatedly seek further extensions of custody by promising that a very important phase of questioning is on the horizon. Thus, while the Supreme Court did well to call out the ED on its bluff of future questioning in the 04.12.2019 order, it still remains possible for state agencies to merely claim that an accused person is not cooperating with the probe without ever having to substantiate this allegation to a reasonable degree of scrutiny. Surely this cannot be the position of law in a constitutional republic that claims to be very protective of a person's right to life and personal liberty. 

The unrelated, and more thorny issue, is the role played by the "gravity" of an offence. This was one of the main grounds for critiquing the Delhi High Court's initial orders of August 2019. Again, it is unfortunate that the Supreme Court did not make some attempts at clarifying the legal position through the multiple orders it passed in the Chidambaram cases. 

To recap, the problems with considering the gravity of the offence as a factor for deciding bail petitions are twofold. The first problem is a lack of nuance while considering the issue: Simply looking at the maximum possible sentence and the best case of the police is too uncritical an approach, especially in offences where criminality is inferred from neutral facts [fraud, corruption] and is not apparent as in cases of bodily harm [murder, dacoity]. 

But there is also a second, related problem with treating gravity as a factor for deciding bail petitions. Considering the fact that a case is at its infancy when a bail petition is being heard, courts have consistently held that there mustn't be an in-depth examination of the merits, which is something reserved for the trial. At the same time, there must be some examination of the merits to determine the gravity of allegations, since a court cannot blindly accept every averment that the police makes. Drawing this fine line between what is too little and what is too much scrutiny of the facts is the problem, and we saw how the High Court's approach was criticised in both the CBI and ED cases as having gone too far in its analysis. But this criticism was hardly scientific, and the arbitrariness of this line-drawing is apparent upon a random sampling of bail orders and on reading the submissions made before courts. 

Considering that the Supreme Court specifically rejected Dr. Singhvi's submissions on the factors for deciding bail, and unequivocally held that "gravity" must be seen as a factor for determining the bail petition [Paragraph 21 of the 04.12.2019 order], it is singularly unfortunate that while it criticised the Delhi High Court's analysis, it did so without offering any guidance for courts which undertake this difficult line-drawing exercise on a daily basis. Greater certainty in this realm would not only help reduce the arbitrariness that plagues bail hearings at present, but would also arguably make them proceed faster, with everyone having a clearer picture of what is relevant and what isn't.      

Dear Minister, There Are No Silver Bullets — Of Speedy Trials and the Criminal Process

The 47th All India Police Science Congress recently concluded in Lucknow, Uttar Pradesh, and it has been reported that the Union Minister for Home Affairs has once again spoken of this Government's desire to carry out amendments to the Indian Penal Code 1860 [IPC] and the Criminal Procedure Code 1973 [CrPC]. This, according to me, is the second such public statement made by this Government. While this may not itself be of any significance, I would argue it assumes immense significance considering that this is the second such statement to have come within the first six months of this Government's tenure. 

It is highly probable, then, to expect these proposed amendments to be released for public discussion within the next year. In the build-up, the Minister has made fairly moderated remarks about the process of legislative reform, as well as about the objectives that the proposed reforms will seek to pursue. One of these objectives is the idea of a speedy trial for criminal cases. That delayed disposals of cases is a problem plaguing the Indian legal process is a fact nobody can dispute — in fact, some might argue it is the problem of our legal process. 

Given this enormity of the problem, and the public statements of moderation and deliberation made by the Union Minister, it was quite surprising to read the Minister of State for Home Affairs to have reportedly stated that the proposed amendments might include provisions that restrict the right of an accused person to appeal against a conviction, in case of offences such as rape. As per the report, the proposed amendment will only permit an appeal to the Supreme Court, and in doing so ensure that an accused undergoes his sentence rather than remains at large by prolonging an appeal.

With the greatest respect, it is exactly this tendency of enacting horribly myopic changes to the law displayed by successive governments, that not only worsens the problem of case delays, but also compounds various other problems with the criminal process. Consider this proposal seriously for a minute: Sure, in theory, taking away one stage of appeals may speed up the ultimate disposal of a case. But stop here and think about what will happen to all those appeals that currently end up before the High Court. Sure, not everyone will chase the appeal to the Supreme Court, but in light of the stakes involved (the shame of conviction and the lengthy sentence) it is fair to assume a lot of people will still want to go to Court. So, then, what ends up happening is that there are worse delays at the level of the Supreme Court. Delays which will take valuable time away from the judges to decide matters of constitutional importance. 

Thus, such myopic "reform" to the law to get "speedy trials" end up worsening the very problem it set out to resolve. Besides which, it compounds the many other problems that are a part of the criminal process. I mentioned above that many persons may choose to not pursue appeals if the only option is to go to the Supreme Court. Only a fool would argue that this is the result of a fair choice presented to the accused person. Rather, considering the profile of an ordinary convict as per the government data, far more likely is the probability that the convict just cannot afford to fight that litigation. The legal process can't be made to run so fast that it crushes the very persons it is meant to serve.

There is no doubt that the criminal process has many problems in its current state. There is, again, no doubt that the causes of these problems are manifold, the outcomes of complex interactions between different parts of the process, that have been going on for decades (even centuries). The need for slow and careful deliberation in the process of attempting a resolution of these knotted problems cannot be overstated. It will do us well if our Ministers abandon the search for silver bullets. 

P.S. — While I appreciate the criticism mounted by the Union Minister against the "colonial" nature of the criminal law statutes, we mustn't forget that some of them, such as the Cr.P.C., are not colonial but the product of extensive deliberations made by legislators of an independent India.