In his Hamlyn Lecture titled The Common Law in India delivered in 1960, MC Setalvad argued that the Indian criminal process contained several similarities with the British system. For him, India had adopted the Adversary System of Trial (page 45-47), which was a core precept of the Common Law. He went ahead to observe: "Equally rigorous is the application in India of the rule of Common Law which is said to put justice before truth. The decision, whether in a civil or a criminal trial, has to be rendered solely on the evidence put forward by the tribunal." To recap, this Adversarial system is in contrast with the Inquisitorial system that was a hallmark of Continental Europe. There, the judge has a far more active role to play towards eliciting the truth rather than merely administer justice.
Contrast his observations with those in the Order dated 26.08.2016 in CC No. 01/2016 titled 'CBI v Gondwana Ispat Ltd & Ors' passed by the Court of the Special Judge appointed for the 'Coal-Block Allocation Scam Cases'. Throughout this 27 page order, the Court is at pains to remind us that "the ultimate quest of a trial is to ascertain truth and this journey of ascertaining the truth cannot be defeated merely on the whims and fancies of an accused." This rhetoric is in place to support logic relied upon by the Court to conclude that the fundamental right against self-incrimination under Article 20(3) of the Constitution is not available during the process of admission-denial in a criminal trial. Though the Special Judge does not invoke the term 'inquisitorial', the extract would snugly fit into the court orders from Continental Europe where countries adopt the inquisitorial method.
So, what is it to be for India, the adversarial or inquisitorial? The Criminal Procedure Code 1973 [Cr.P.C.] and the Indian Evidence Act 1872 [IEA] offer our criminal process a convenient shape-shifting ability. So the only answer is, well, either that India has a unique method that combines bits of both worlds. This intermixing is quite thorough and can be found in the investigation stage as well. When the police are investigating the courts are not supposed to interfere and decisions since the Privy Council verdict in Nazir Ahmed [AIR 1945 PC 18] offer support for this view. But together with this we have Section 156(3) in the Cr.P.C. which empowers a Magistrate to direct the police to investigate. This was extended to include a power to monitor investigations by the Supreme Court in Sakiri Vasu [(2008) 2 SCC 409] to further bump the shift away from an Adversarial System. One might argue that the views of Mr Setlavad were restricted to trials and so this is an unfair criticism. But even in trials, we have devices such as Section 165 IEA, which allow a court to ask any question from a witness or summon any document, regardless or relevance. Since this had always been on the statute-book, we can rightly question whether Sakiri Vasu is nothing but a restatement of inquisitorial tendencies that have always been around.
The Coal-Block Allocation Scam Cases
If an outside observer, akin to Professor Hart's companion throughout The Concept of Law, came to India and only looked at the trials before the Court of the Special Judge appointed for the Coal-Block Allocation Scam Cases then I am quite certain she would go home with a view that we are steeped in the inquisitorial tradition. The proceedings have explicitly and / or impliedly carried further the views of decisions such as Sakiri Vasu to bring about some very interesting consequences. As I have argued above, this is something that is bound to happen owing to the inherently ambiguous stance in our laws, and isn't a problem in itself. Ambiguity in law generally nourishes problems though, and it has so happened on a few occasions in these proceedings. I focus on two of these here, one from the realm of investigations and the other based on the trial.
First, is the device adopted by the Court of refusing to accept Chargesheets / Closure Reports filed by the CBI if it thinks certain areas have not been covered. Effectively, the Court tells the CBI to further investigate and then come back with a fresh report. In some cases, the Court has rejected multiple Closure Reports before it took cognizance once the CBI had filed a Chargesheet that it deemed acceptable (just search "coal closure reject cbi" in Google). Given that the same court is going to hear the case, issues of bias naturally arise. If the court thrice rejected the CBI view that certain persons had not committed any offences, would a trial before the same court not give rise to the appearance of a reasonable apprehension that the court is biased against the accused persons and they would be denied a fair hearing? In my opinion it would certainly give rise to a reasonable apprehension, warranting the case be tried by a different judge. In fact, this problem is also present when a Magistrate rejects a Closure Report to summons the accused persons for trial. These proceedings can perhaps be seen as nothing but the logical conclusion of that process in a world where Sakiri Vasu allows Magistrates to monitor investigations.
Second, is the use of Section 294 Cr.P.C. by the Court, which was referenced at the beginning of this post. This provision concerns the process of admission-denial of documents, and was the issue at hand in Gondwana Ispat. It was argued there that accused persons could not be forced to make any statement under Section 294 Cr.P.C. as it contravenes the guarantee against self-incrimination. The Court held otherwise and concluded that Section 294 Cr.P.C. consciously excluded a right to silence for accused persons. The Court reasoned that allowing an accused to remain silent would defeat the very purpose of Section 294 Cr.P.C., and the Legislature was aware of Article 20(3) but intended to exclude it from this area. This conclusion was largely driven by drawing an analogy with Section 313 Cr.P.C. (which deals with the statement of an accused, given without oath), which expressly speaks of an accused choosing to remain silent when faced with a question. This argument is incorrect for it holds a statute can be interpreted to exclude the application of Part III of the Constitution. This is contrary to the very idea of Part III. Whether or not there are specific allusions to a right to silence within the Cr.P.C., it nonetheless remains subservient to Article 20 of the Constitution.
The other logic employed by the Special Court is more interesting for this post - that allowing an accused to remain silent and possibly adopt different stands would not only "lead to an unending trial but it will rather cause impediment in the course of justice as it will be extremely difficult for the Court to render justice based on truth." I have read this a few times and yet, I cannot appreciate the genesis of this concern. When, if ever, would an accused willingly adopt multiple stands in a case in respect of evidence? But assuming such an example does exist, and the accused is happily changing stands as frequently as players change football clubs, from where is the Court deriving an obligation on the accused to help render its justice based on truth? Historically, an accused was not a competent witness till the late 19th, early 20th century. And even then, it is only if the accused chooses to come in the witness box. Given that answers under Section 294 Cr.P.C. are also made under oath, the Court has done indirectly what could not have been done directly.
What's in a Name?
A lot, clearly. MC Setalvad was not entirely accurate to state that India wholeheartedly adopted the Adversarial System. On a deeper scrutiny, it is clear that our criminal process has always had traces of both, the Adversarial and Inquisitorial Systems. Such an equivocal position is far from ideal, and the problems with having backdoors are being realised in the litigation that is currently taking place in the Coal-Block Allocation Scam cases, and to an extent occurred before in the 2G Scam as well. There is one common element between these settings, and that is the pervasive involvement of the political with the judicial branch of the State. Could it be that the court is more willing to resort to its inquisitorial powers because it is pressurised to deliver results? We may never know. What we do know is that in its efforts to deliver truth-based justice, the judiciary is clearly cutting far too many corners. The 2G Scam cases saw the rights of accused persons being traded for nebulous values of 'public interest' and 'speedy justice'. These have been further employed in the Coal-Block Allocation Scam hearings to achieve new results. As things stand, all of these issues are pending before the Supreme Court which means nothing is settled. But, with the speed at which cases are being heard before the Special Court in Patiala House, it may be that 'speedy justice' comes at a cost too dear.
Contrast his observations with those in the Order dated 26.08.2016 in CC No. 01/2016 titled 'CBI v Gondwana Ispat Ltd & Ors' passed by the Court of the Special Judge appointed for the 'Coal-Block Allocation Scam Cases'. Throughout this 27 page order, the Court is at pains to remind us that "the ultimate quest of a trial is to ascertain truth and this journey of ascertaining the truth cannot be defeated merely on the whims and fancies of an accused." This rhetoric is in place to support logic relied upon by the Court to conclude that the fundamental right against self-incrimination under Article 20(3) of the Constitution is not available during the process of admission-denial in a criminal trial. Though the Special Judge does not invoke the term 'inquisitorial', the extract would snugly fit into the court orders from Continental Europe where countries adopt the inquisitorial method.
So, what is it to be for India, the adversarial or inquisitorial? The Criminal Procedure Code 1973 [Cr.P.C.] and the Indian Evidence Act 1872 [IEA] offer our criminal process a convenient shape-shifting ability. So the only answer is, well, either that India has a unique method that combines bits of both worlds. This intermixing is quite thorough and can be found in the investigation stage as well. When the police are investigating the courts are not supposed to interfere and decisions since the Privy Council verdict in Nazir Ahmed [AIR 1945 PC 18] offer support for this view. But together with this we have Section 156(3) in the Cr.P.C. which empowers a Magistrate to direct the police to investigate. This was extended to include a power to monitor investigations by the Supreme Court in Sakiri Vasu [(2008) 2 SCC 409] to further bump the shift away from an Adversarial System. One might argue that the views of Mr Setlavad were restricted to trials and so this is an unfair criticism. But even in trials, we have devices such as Section 165 IEA, which allow a court to ask any question from a witness or summon any document, regardless or relevance. Since this had always been on the statute-book, we can rightly question whether Sakiri Vasu is nothing but a restatement of inquisitorial tendencies that have always been around.
The Coal-Block Allocation Scam Cases
If an outside observer, akin to Professor Hart's companion throughout The Concept of Law, came to India and only looked at the trials before the Court of the Special Judge appointed for the Coal-Block Allocation Scam Cases then I am quite certain she would go home with a view that we are steeped in the inquisitorial tradition. The proceedings have explicitly and / or impliedly carried further the views of decisions such as Sakiri Vasu to bring about some very interesting consequences. As I have argued above, this is something that is bound to happen owing to the inherently ambiguous stance in our laws, and isn't a problem in itself. Ambiguity in law generally nourishes problems though, and it has so happened on a few occasions in these proceedings. I focus on two of these here, one from the realm of investigations and the other based on the trial.
First, is the device adopted by the Court of refusing to accept Chargesheets / Closure Reports filed by the CBI if it thinks certain areas have not been covered. Effectively, the Court tells the CBI to further investigate and then come back with a fresh report. In some cases, the Court has rejected multiple Closure Reports before it took cognizance once the CBI had filed a Chargesheet that it deemed acceptable (just search "coal closure reject cbi" in Google). Given that the same court is going to hear the case, issues of bias naturally arise. If the court thrice rejected the CBI view that certain persons had not committed any offences, would a trial before the same court not give rise to the appearance of a reasonable apprehension that the court is biased against the accused persons and they would be denied a fair hearing? In my opinion it would certainly give rise to a reasonable apprehension, warranting the case be tried by a different judge. In fact, this problem is also present when a Magistrate rejects a Closure Report to summons the accused persons for trial. These proceedings can perhaps be seen as nothing but the logical conclusion of that process in a world where Sakiri Vasu allows Magistrates to monitor investigations.
Second, is the use of Section 294 Cr.P.C. by the Court, which was referenced at the beginning of this post. This provision concerns the process of admission-denial of documents, and was the issue at hand in Gondwana Ispat. It was argued there that accused persons could not be forced to make any statement under Section 294 Cr.P.C. as it contravenes the guarantee against self-incrimination. The Court held otherwise and concluded that Section 294 Cr.P.C. consciously excluded a right to silence for accused persons. The Court reasoned that allowing an accused to remain silent would defeat the very purpose of Section 294 Cr.P.C., and the Legislature was aware of Article 20(3) but intended to exclude it from this area. This conclusion was largely driven by drawing an analogy with Section 313 Cr.P.C. (which deals with the statement of an accused, given without oath), which expressly speaks of an accused choosing to remain silent when faced with a question. This argument is incorrect for it holds a statute can be interpreted to exclude the application of Part III of the Constitution. This is contrary to the very idea of Part III. Whether or not there are specific allusions to a right to silence within the Cr.P.C., it nonetheless remains subservient to Article 20 of the Constitution.
The other logic employed by the Special Court is more interesting for this post - that allowing an accused to remain silent and possibly adopt different stands would not only "lead to an unending trial but it will rather cause impediment in the course of justice as it will be extremely difficult for the Court to render justice based on truth." I have read this a few times and yet, I cannot appreciate the genesis of this concern. When, if ever, would an accused willingly adopt multiple stands in a case in respect of evidence? But assuming such an example does exist, and the accused is happily changing stands as frequently as players change football clubs, from where is the Court deriving an obligation on the accused to help render its justice based on truth? Historically, an accused was not a competent witness till the late 19th, early 20th century. And even then, it is only if the accused chooses to come in the witness box. Given that answers under Section 294 Cr.P.C. are also made under oath, the Court has done indirectly what could not have been done directly.
What's in a Name?
A lot, clearly. MC Setalvad was not entirely accurate to state that India wholeheartedly adopted the Adversarial System. On a deeper scrutiny, it is clear that our criminal process has always had traces of both, the Adversarial and Inquisitorial Systems. Such an equivocal position is far from ideal, and the problems with having backdoors are being realised in the litigation that is currently taking place in the Coal-Block Allocation Scam cases, and to an extent occurred before in the 2G Scam as well. There is one common element between these settings, and that is the pervasive involvement of the political with the judicial branch of the State. Could it be that the court is more willing to resort to its inquisitorial powers because it is pressurised to deliver results? We may never know. What we do know is that in its efforts to deliver truth-based justice, the judiciary is clearly cutting far too many corners. The 2G Scam cases saw the rights of accused persons being traded for nebulous values of 'public interest' and 'speedy justice'. These have been further employed in the Coal-Block Allocation Scam hearings to achieve new results. As things stand, all of these issues are pending before the Supreme Court which means nothing is settled. But, with the speed at which cases are being heard before the Special Court in Patiala House, it may be that 'speedy justice' comes at a cost too dear.
(Disclaimer: The author has assisted in proceedings arising out of the Coal Block Allocation Scam cases, arguing for the accused)
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