Impartiality in Investigations - The Three Justices' Decision in Mohan Lal v. Punjab

Yesterday, a Three Justices' Bench of the Supreme Court delivered its decision in Mohan Lal v. State of Punjab [Criminal Appeal 1880 of 2011, decided on August 17, 2018]. The Appellant successfully challenged his conviction and sentence - 10 years in prison + Rs. 1,00,000 fine -  under Section 18 of the Narcotics Drugs and Psychotropic Substances Act, 1985 [NDPS Act]. This post discusses the judgment. Readers who've already read the case can skip consideration of the facts and an overview of the judgment and directly jump to the critique.

The Facts and Arguments

The facts take us back to 1997, when on 03.02.1997 Sub-Inspector Chand Singh of Balianwali Police Station lodged an FIR. In it, he stated that while on patrol together with Darshan Singh (Sarpanch), and Asst. Sub-Inspector Balwant Singh, they saw the Appellant Mohan Lal and seized him. Having doubts, they called a gazetted officer in whose presence Mohan Lal was searched, "leading to recovery of 4 kg of opium in a bag carried by him." A "consent memo" was drawn and signed by the Sarpanch Darshan Singh and S-I Chand Singh, and the seized opium separated into two samples (20 gms and 3.98 kgs). A "rukka" was handed over to AS-I Balwant Singh who then returned to the police station to register the FIR. An investigation was conducted, which ended in a Final Report being filed under Section 173 Cr.P.C., and ultimately led to Mohan Singh's conviction.

Counsel for the Appellant raised a multitude of grounds as per the judgment. He argued that evidence was insufficient; both the Sarpanch and AS-I Balwant Singh were not examined as witnesses. The chain of custody for the seized opium was dubious, as it was never deposited in the official police storage facility (Malkhana). Further, there was an unexplained delay of 9 days in sending the sample for chemical analysis. On top of which counsel relied on decisions in Bhagwan Singh v. Rajasthan [(1976) 1 SCC 15], Megha Singh v. State of Haryana [(1996) 11 SCC 709] and State v. Rajangam [(2010) 15 SCC 369] to argue that "the investigation was fundamentally flawed" as S-I Chand Singh could not have been the investigating officer after being the informant. Counsel for Punjab responded that the evidentiary lapses were inconsequential as those witnesses were relevant for facts already proved sufficiently. Further, she relied upon the NDPS Act casting the burden of innocence on an accused, under Sections 36 and 54, to argue that this had not been discharged. Lastly, she cited State of Punjab v. Baldev Singh [(1999) 6 SCC 172], Bhaskar Ramappa v. Karnataka [(2009) 11 SCC 690], and Surender v. Haryana [(2016) 4 SCC 617] to argue that the police investigation is not flawed or illegal merely because the informant continued as investigating officer.

The Decision in Mohan Lal

Justice Sinha delivered the judgment for the bench. Having heard the arguments, he noted that 

The primary question for our consideration in the present appeal is, whether in a criminal prosecution, it will be in consonance with the principles of justice, fair play and a fair investigation, if the informant and the investigating officer were to be the same person. In such a case, is it necessary for the accused to demonstrate prejudice, especially under laws such as NDPS Act, carrying a reverse burden of proof.

The judgment doesn't jump right to this "primary question" but deals first with other arguments first. Justice Sinha zeroes in on the many gaps in the prosecution case: (i) an illiterate person (Darshan Singh) has signed the consent memo, (ii) the seized narcotics were never sent to the Malkhana (the illegality of which he elaborates on further), (iii) non-examination of key witnesses, and (iv) delay in sending samples for analysis. None of these lapses were explained by the prosecution. For Justice Sinha, all these appear to be the result of that "primary question". He notes that: "had the investigator been different from the complainant, the issues for consideration may have entirely been different."

In Paragraphs 10, 11 and 12, the judgment seems to return to the "primary question", and reminds us how harsh the NDPS Act is with its minimum 10 year prison term and reverse burden of innocence. It notes that a fair trial, "a constitutional guarantee" to an accused, "would be a hollow promise if the investigation in a NDPS case were not to be fair or raises serious questions about its fairness apparent on the face of the investigation." He notes that a fair investigation is imperative, and then gives us a hint on how he will answer the question he framed: 

If the investigation itself is unfair, to require the accused to demonstrate prejudice will be fraught with the danger vesting arbitrary powers in the police which may well lead to false implication also. Investigation in such a case would then become an empty formality and a farce. Such an interpretation therefore naturally has to be avoided. [Paragraph 12]

In the circumstances, if an informant police official in a criminal prosecution, especially when carrying a reverse burden of proof, makes the allegations, is himself asked to investigate, serious doubts will naturally arise with regard to his fairness and impartiality. It is not necessary that bias must actually be proved. It would be illogical to presume and contrary to normal human conduct, that he would himself at the end of the investigation submit a closure report to conclude false implication with all its attendant consequences for the complainant himself. The result of the investigation would therefore be a foregone conclusion. [Paragraph 14] 

After sharing with us excerpts from the decisions cited by counsel, and others given by the Supreme Court and other High Courts, the judgment suggests the prior cases are contradictory. Megha Singh and other cases cited by the Appellant seem to conclude that an investigation carried out by the same officer who was the informant is illegal, while others such as Bhaskar Ramappa hold that this alone is not enough and the Appellant must show bias. This lasting controversy is resolved in Paragraph 25 of Mohan Lal for clarifying the law as the present situation "may not only lead to a possible abuse of powers, but more importantly will leave the police, the accused, the lawyer and the courts in a state of uncertainty and confusion which has to be avoided." The answer is as follows:

It is therefore held that a fair investigation, which is but the very foundation of fair trial, necessary postulates that the informant and the investigator must not be the same person. Justice must not only be done, but must appear to be done also. Any possibility of bias or a predetermined conclusion has to be excluded. This requirement is all the more imperative in laws carrying a reverse burden of proof.

Some Points of Critique

It is with some regret that I have to critique a judgment that confers more rights on accused persons in the Indian criminal process, especially because I will certainly be trying my best to use it to further that cause. But it must be said that for a decision resolving a controversy, Mohan Lal contains nearly no legal reasoning and instead is built almost entirely upon assertions, to create a rule that might well be useless. In no order of importance, I have listed out the points of critique below.

First, was deciding the appeal on a constitutional issue necessary here? It is a standard legal rule that the court avoids broad constitutional arguments if a case can be decided on narrower grounds. Here, the judgment engages with the many fundamental flaws in the prosecution case. Perhaps most notable was the police failure in securing the custody of seized narcotics. In a narcotics case, Mohan Lal did show that the police illegally kept custody of the drugs, that cast doubt on whether the eventual items sent for sampling were in fact what was seized from him. Isn't that enough grounds for acquittal? The judgment seems to think so. Moreover, it also thinks the other lapses are crucial. If so, why decide a constitutional issue?

Second, the Court notes in Paragraph 24 that "a fair investigation and fair trial guaranteed under Article 21" will be negated if the FIR is treated as gospel truth, and again in Paragraph 25 says that "fair investigation from the point of view of an accused (is) a guaranteed right under Article 21". But when and how did a "fair investigation" become part of Article 21? Although there are some earlier decisions of the Court where something to the effect of "fair investigation is implicit in Article 21" is said, I am not aware of any case where this was the central issue. In any event, none of those cases are cited. Thus, a Three Justices' Bench of the Court simply asserts that a fundamental rights exists. This lack of reasoning extends to why the Court thinks that the informant continuing as investigating officer is not a fair investigation. In arriving at this conclusion, the Court contradicts itself. On the one hand, it tells us that by definition the police is not partisan and must ferret out the truth. But on the other, it says that such cases carry a presumption of bias. Why? Is there an inherent distrust of the police? If so, why continue with the fiction of them working towards getting any truth at all?

Third, the Court held that the accused does not have to "demonstrate prejudice" from the informant and investigating officer being the same and that it is unnecessary that "bias be actually proved". But was an accused required to do so earlier? Not at all. In this regard, the Court's failure to fully engage with the decision in V. Jayapaul [(2004) 5 SCC 223] costs. The Court in Mohan Lal conveniently noted that the case dealt with corruption offences to move on, but Jayapaul is perhaps the only decision that really engages with the issue at hand and also explained the law on alleging "bias". It held that the accused must show a "real likelihood of bias", and that the mere fact of the informant and investigating officer being the same was not enough. By no means did this mean showing actual prejudice, as the Court in Mohan Lal seems to have thought.  Rather, it required an accused to show a Court that any reasonable person looking at the investigation might think the officer was biased towards a certain conclusion. At some level, even the Court in Mohan Lal engages in this reasoning where it notes that the many lapses in investigation would not have happened with a different officer. But rather than stick to this fact-specific rule, the Court chose an absolute rule that requires nothing further to be shown. [For more on the Indian position on "bias", see here].   

Fourth, the absolute rule neither helps the police nor the accused, and might be rarely used by courts. It is impractical for a police which has a limited number of officers on hand to fully implement such a mandate and will therefore try and find loopholes rather than actually conduct fairer investigations. The easiest being a fudging of the initial documentation upon arrest and seizure (which often already happens) to have that separation of officers. This means that the rule confers an empty promise on the accused person and in some ways might only worsen the present scenario as the police resort to illegal means to avoid the rigours of Mohan Lal. Given the absolutely awesome nature of the remedy - the prosecution is vitiated if the informant and investigating officer are the same - courts are bound to be hesitant in frequently throwing out cases on a technicality of this sort and so will possibly treat the accused' claims of fudged records with more suspect than otherwise warranted. 

Fifth, in Paragraph 15 of Mohan Lal, the Court notes that "the discussion in the present case may not be understood as confined to the requirements of a fair investigation under the NDPS Act only carrying a reverse burden of proof." But nearly every other aspect of the decision seems driven by the fact that this is an NDPS Act case with a reverse burden of proof:

• Paragraph 5: " ... is it necessary for the accused to demonstrate prejudice, especially under laws such as NDPS Act, carrying a reverse burden of proof"; 
• Paragraph 11: the fair investigation guarantee "would be a hollow promise if the investigation in a NDPS case were not to be fair ..."; 
• Paragraph 14: "in the circumstances if an informant police official in a criminal prosecution, especially when carrying a reverse burden of proof ... serious doubts will naturally arise ...";
• Paragraph 24: "The right of the accused to a fair investigation ... will stand negated ... with arbitrary and uncanalised powers vested with the police in matters relating to the NDPS Act and similar laws carrying a reverse burden of proof.";
• Paragraph 25: (After giving the holding) "This requirement is all the more important in laws carrying a reverse burden of proof."       

Could this lead to further controversy later, with this rule being watered down to only these kinds of cases?

Conclusion

In 2015 [(2015) 3 SCC-J 24, "Investigations and Impartiality: Only Confusion Here Supreme"], I had argued that a higher bench of the Supreme Court must clarify the legal position on the consequences of the informant continuing as investigating officer in criminal investigations. The decision in Mohan Lal does exactly that. But as suggested above, there are some gaping holes with respect to how the Court arrived at its holding and the ultimate rule itself might not be very useful for accused persons as it might encourage deception by the police. 

This is not all that Mohan Lal does, though, which brings me to the good parts. Potentially the more lasting impact of this decision is not this elaboration on the right to fair investigations, but the remedy for its breach. 

Seemingly unknowingly, the Court has opened a brand new gateway for defence-oriented litigation based on the result in Mohan Lal. In Paragraph 26 the Court held that "the prosecution was vitiated because of the infraction of the constitutional guarantee of a fair investigation." (emphasis mine). Thus the remedy for violating the right to a fair investigation under Article 21 is to throw out the prosecution. In the hands of inventive lawyers and willing courts, this remedy can be used to achieve some significant results to help transform criminal investigations. I say this, because the scope of "fair investigation" is quite broad. In Mohan Lal, the Court relied on its earlier decision in Babubhai v. Gujarat [(2010) 12 SCC 254], which said that "fair investigation" protects defendants against "any kind of mischief or harassment" by the police. This phrasing carries a much more robust meaning than merely imposing procedural limitations on who conducts investigations, to addressing the substance of what goes on during investigations as well to curb police brutality, illegal detention, and the forging of records that are a frequent cause for concern.  

Delhi HC Decriminalises Begging - An Outlier or the Start of Nationwide Reform?

Within the first decade of India becoming a constitutional republic, the erstwhile State of Bombay passed the Bombay Prevention of Begging Act, 1959 ["anti-begging law"]. This was extended to the national capital in 1960 and has been operational since 1961. Nineteen other states and another Union Territory followed suit, either with their own versions of the law or by extending the Bombay Act as well. Yesterday, a Division Bench of the Delhi High Court decided a 2009 writ petition challenging the constitutionality of several parts of the anti-begging law [Harsh Mander & Anr. v. UOI & Ors., W.P. 10498/2009 decided on August 8, 2018. Hereafter, "Harsh Mander"]. Central to the petition was a challenge to several provisions of the law which criminalised begging. On her last day in office as Acting Chief Justice of the Delhi High Court, Justice Gita Mittal delivered a judgment holding that these 25 provisions criminalising begging were indeed, unconstitutional. 

The Crime of Begging and its Punishment

Before going forward, let's take note of what was being criminalised. Begging. The statute defined it as "having no means of subsistence and wandering about or remaining in any public place in such condition or manner as it makes likely that the person doing so exists by soliciting or receiving alms." It also defined it as "soliciting or receiving alms in a public place, whether or not under any pretence such as singing, dancing, fortune-telling, performance or offering any article for sale." [Section 2] What happened to those found begging? They were to be taken off the streets and the law required they be sent to detention centres. Section 6 of the Bombay Act declared that persons found begging for the first time be detained for at least one year in a Certified Institution, which could extend to three years. Second-time offenders faced a mandatory detention period of ten years, with a possible prison sentence. 

The state saw the main problem being addressed through the law as one of organised crime - rackets being run by rich people who forced people to beg for a living. The anti-begging laws were driven by a deterrence logic to put an end to these rackets. But, a look at the definition makes it apparent that it covered a very wide category of persons. It did not even need any specific act to invite criminality; dire poverty that was visible and witnessed in public places was enough. Thus, people were made criminals not because of what they did, but for showing the rest of us who they were. No matter: this is where the rehabilitative logic of the anti-begging law came in. Those who were deprived and forced to beg would be helped by the Certified Institutions. These Institutions were not prisons, but places offering vocational training to help make persons capable of providing for themselves without begging.

As with most laws, the main problems with the anti-begging law came in enforcement. The state did not attempt any systematic approach at solving the problem. Instead, the law became a convenient tool at the hands of law enforcement to clean up city spaces of people who "looked" poor, as had recently happened in Delhi before the Commonwealth Games in 2010. The people most often caught and brought before courts were rarely part of criminal gangs, but people forced to beg out of extreme poverty and lack of employment opportunities. Courts justifiably refused to institutionalise them by exercising pardon powers conferred by the statute [Section 5]. The Certified Institutions themselves had come to be mired in controversy over time. Social activists and researchers complained that detention centres were no better than prisons and had no functional vocational training facilities. The state disagreed, and instead complained that courts did not send convicted beggars to Certified Institutions to facilitate rehabilitation. Ultimately, in 50 years of being on the statute books in Delhi, neither the deterrent nor rehabilitative potential of anti-begging laws had been realised.

The Constitutional Case

The Delhi High Court decision of 2018 was not the first serious discussion on anti-begging laws in India. In an earlier paper, Usha Ramanathan documents significant parts of the advocacy against such legislation. She notes that Delhi was the site of serious debates on the validity and usefulness of this law in the 1980s, based on pioneering work done by a team at the Law Faculty of Delhi University. The team studied the operation of anti-begging laws to point out various problems in enforcement, arguing that it was doing much to harm rather than help the poor. Subsequently, a writ petition was filed in the Bombay High Court in 1992, challenging the constitutionality of the anti-begging law. A Committee was setup in pursuance of that petition, which conducted studied the law to recommend it be radically re-shaped, as those forced to beg "ought not to be treated as offenders of the law. They need a healing touch of the protective law, not the deterrence of criminal sanction."

In Delhi itself, in 2006 a single judge of the High Court mused about constitutional arguments while deciding a revision petition in Ram Lakhan [137 (2007) DLT 173]. Justice B.D. Ahmed came down heavily against the order of the lower court challenged before him where the Metropolitan Magistrate had described the beggar as "raising his front paws" rather than hands. Justice Ahmed also tempered the force of the anti-begging law but could not rule on its constitutionality in revision proceedings. This did not stop him from discussing the topic, though, and he noted how criminalisation of begging seemed contrary to the right to freedom of speech and expression guaranteed under Article 19(1), as well as a clear violation of the right to life safeguarded by Article 21. 

The Division Bench decision in Harsh Mander v UOI builds on these cues. It held the provisions criminalising begging contrary to Article 14 and Article 21 of the Constitution. It notes that failure to distinguish between voluntary and involuntary begging renders the classification arbitrary, the wide definition of begging made the law over-inclusive in scope, all of which made the provisions "manifestly arbitrary" and contrary to Article 14 [Paragraphs 14-19]. The Court then moves on to Article 21: detention of persons to "ascertain the cause of poverty" is held contrary to Article 21 [Paragraph 20]. This is followed by a long exposition of the "contours" of that right [Paragraphs 21-26], possibly to make the claim that as the state is responsible for alleviating poverty, criminalising it is not the right answer [Paragraphs 27-31]. Finally, it reiterates that legislation penalising persons "compelled" to beg is in the "teeth of Article 21" [Paragraph 33]. The Court also claimed another reason for reading down these provisions - the wastage of public funds as Certified Institutions were lying unused [Paragraph 39]. 

Notably, in striking down the several portions of the anti-begging law, the High Court faced no real opposition from the government - both the erstwhile Congress regime and the current Aam Aadmi Party government agreed that the law was outdated and could go. Perhaps this is responsible for the paltry reasoning on display in the judgment which could have just been a consent decree. I highlight two problems. First, the decision does not discuss Article 19(1) claim even though it was made before the Court. In doing so, does the Court indirectly support the idea of begging itself not being protected speech? By refusing to discuss the argument altogether, we are left to wonder. Second, there is much to be considered on the aspect imposing constitutional limits on criminalisation of conduct per se, as the Supreme Court had been considering recently in petitions challenging the validity of Sections 377 and 497 of the Indian Penal Code, 1860. As was discussed in context of the adultery hearings, the legal challenge can be solely based on arbitrary classifications, or can be about whether the underlying conduct should be criminal, and courts must be clear in how they treat these separate issues. The High Court does not provide this clarity, and its lack of analysis is even more problematic in light of the remarks made by the Court at the end, where it stated that a well-crafted legislation criminalising "specific types of forced beggary" and for curbing the "racket of forced begging" might survive constitutional scrutiny [Paragraphs 36, 46]. 

Conclusions

Compare this decision in Harsh Mander to the 2009 decision in Naz Foundation, where contested claims helped the Delhi High Court to fully explore various arguments, in a decision which continues to be celebrated for its visionary approach. Perhaps because there was no real contest at the bar, and the speed at which the verdict came (judgment reserved on August 7 and delivered on August 8), the decision in Harsh Mander does not scale the heights of Naz Foundation, and I highlighted how the High Court failed to fully discuss the legal issues at the heart of the case. Even so, the decision in Harsh Mander does share the truly awesome transformative potential that Naz Foundation also had. Since criminalisation of begging is done in 20 states, and the underlying legal provisions are either identical or nearly-identical to all of them, the Delhi High Court's decision in Harsh Mander is poised to either stand out like a sore thumb, or spark nationwide reform. I sincerely hope it is the second.

[updated on August 8, 2018 at 13:30 to add the reference to the earlier adultery post and mention the speed at which the decision in Harsh Mander came]

Adultery Goes to the Supreme Court, Again

(This post first appeared on the Indian Constitutional Law and Philosophy Blog)

The Supreme Court of India is currently hearing a petition filed by Joseph Shine questioning whether the offence of "adultery", defined and punished under Section 497 of the Indian Penal Code, 1860 [IPC], and associated procedural rules under Section 198(2) of the Criminal Procedure Code 1973 [Cr.P.C.], are constitutional. The hearings are in full swing, and recent media coverage suggests that the Court is keen on definitely doing something, unlike the previous occasions when the offence was challenged and its validity upheld. The question then is, what might the Court do? This post draws on an article I published some time ago discussing the legality of adultery laws and poses the choices before the Court, discussing the potential pros and cons of going down any of those paths. But first, a quick recap on the law itself.

The Law on Adultery

Section 497 IPC says: 

Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.

It criminalises marital infidelity, but not all kinds. The criminal kind needs sexual relations between a person (commonly a man) and the wife of another man, without his consent or connivance. It is not a crime if you cheat on your spouse with an unmarried woman. Further, if you do cheat on your spouse with a married woman, that wife is deemed to be a victim whatever the circumstances. This separate treatment goes further and becomes more problematic when we consider the special procedural rules installed for registering adultery cases. 

Indian criminal law follows a principle that anyone can start the criminal law machinery. This rule has exceptions, found in Sections 190-199 of the Criminal Procedure Code, 1973 [Cr.P.C.] (in respect of IPC offences). Section 198 Cr.P.C. creates an exception by restricting persons who can start cases about "Offences against Marriage", that are defined and punished in Chapter 20 of the IPC. Perhaps respecting the private nature of the underlying conduct, Section 198(1) needs complaints by persons aggrieved by the offence to start cases. It goes on to then tell us who the law considers as aggrieved, and Section 198(2) says:

For the purposes of sub- section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the [IPC]: Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.

The wife is deemed to be the victim of adultery in Section 497 IPC. But she isn't aggrieved by the offence to be able to trigger the legal machinery. That aggrieved person will be her husband, and if he isn't around, his nominee. That is the strange reality of the law on adultery: a victim isn't aggrieved to exercise her right of launching private prosecution. It is a reality that has survived judicial scrutiny on three prior occasions, but is now again in the spotlight, perhaps for the last time.

The Different Ways of Framing the Problem

Having seen what the law on adultery says, it's time to turn to what are the problems it seemingly poses. There are different ways to frame this problem, and broadly one could frame the question thus:

• Type I: Is Section 497 IPC illegal because adultery shouldn't be a crime at all? 
• Type II: Are Section 497 IPC and Section 198(2) Cr.P.C. illegal because they perpetuate unconstitutional gender-based discrimination? 
• Type III: Is Section 497 IPC illegal because it differentiates within adulterous relationships without any rational basis for that classification? 

Historically, the Supreme Court has dealt with the adultery laws on three different occasions. None of these involved a broad Type I Challenge. Instead, the Court has mostly faced Type II Challenges. In Yusuf Abdul Aziz [1954 SCR 930], the petitioner argued that Section 497 IPC was unconstitutional because it unfairly discriminated between men and women - exempting women from punishment. In Sowmithri Vishnu [(1985) Suppl. SCC 137], the petitioner argued that both Section 497 IPC and Section 198(2) Cr.P.C. were bad for unfairly discriminating on the basis of sex. There was a Type III challenge too, where the petitioner argued that Section 497 IPC didn't have any basis to only punish one kind of adulterous relationship. In V. Revathi [AIR 1988 SC 835], again only a Type II Challenge was made as the petitioner argued that Section 198(2) Cr.P.C. was unconstitutional for unlawfully discriminating against women by not considering them "aggrieved" to trigger the legal process.           

Why? Why did nobody make it their primary claim that the Supreme Court should Section 497 and Section 198(2) down because adultery should not be a crime? It was because, at some fundamental level, all these petitioners and their counsel accepted that the Supreme Court is not the place to make these arguments. It is not the Court's business to decide whether or not certain conduct should be a crime. The decision to criminalise is ultimately a reflection of what conduct the society considers bad enough for it to warrant censure and sanctions. Since society elected a legislature to reflect these, and other choices, the decision to criminalise is traditionally identified as a legislative choice. Parliament decides whether the conduct should be criminalised. When it expresses that will through a statute, the courts are bound to examine the validity of that legislative measure against the minimum barometers set out by the Constitution. 

Thus, the previous challenges to the adultery provisions were reflective of this traditional approach: petitioners approached the Court to argue that the manner in which conduct had been criminalised did not pass constitutional muster. The present petition in Joseph Shine is also framed as a traditional Type II Challenge. It argued that the adultery laws perpetuate unconstitutional discrimination, seeking a review of the previous cases where the Court had held otherwise. The Supreme Court issued notice last year and agreed to go down this path primarily because it had a problem with the provisions not being gender neutral (discussed by Dr. Tarunabh Khaitan on ICLP recently, and by Gautam Bhatia last year). But, going by news coverage, the Supreme Court now seems to be mulling about whether it wants to engage in a Type I Challenge instead and consider why adultery should be a crime at all. Notice the assumption underlying the question itself: there is a kind of conduct which a legislature cannot make a crime, and the Court can identify this category.  

While adultery cases did not involve Type I Challenges, such Challenges to penal statutes themselves are not totally absent from the history of Indian constitutional law. In fact, a number of cases were filed in the 1950s against new social welfare legislation which used criminal punishments against those violating licensing laws, arguing that such conduct could not be a crime. The Court agreed that a category of conduct beyond the scope of criminalisation does exist, and it located this within the Constitution itself in Article 19 rights to freedom read together with its many restrictions. Thus, in Harishankar Bagla [1955 SCR 313], the petitioner unsuccessfully argued that licensing laws on cotton were unconstitutional as they violated the rights guaranteed under Article 19(1)(g) and (f). Beyond Article 19, what else might be identified in the category of conduct that can't be penalised? The intuitive answer is the "right to life and personal liberty" guarantee under Article 21. While the Maneka Gandhi reading of Article 21 only did this indirectly by requiring laws to be "just, fair, and reasonable", the recent recognition of a right to privacy within Article 21 surely works as a basis to make Type I Challenges.     

The Implications of a Narrow or Broach Approach

A Type II Challenge in Joseph Shine would mean considering whether or not the statutes perpetuate illegal discrimination. This would involve testing the law on the basis of Article 14, and also the Maneka Gandhi version of Article 21 to see whether the adultery laws are "just, fair, and reasonable". But if the Court sticks to its guns and makes the adultery petition a Type I Challenge, then it must do more. It must decide whether consensual sexual relationships between adults can be criminalised, even if they involve marital infidelity. It cannot answer this question by testing the mechanics of the statute under Article 14, but will have to make a substantive inquiry, turning to Article 19(1)(a) or perhaps the right to privacy under Article 21, and the reasonable restrictions to these rights. Thus, the Court would have to decide whether criminalising adultery to protect the "sanctity of marriage" as the Central Government seems to argue, is a purpose falling within the "decency of morality" clause of Article 19(2). Similarly, it would have to engage with Puttuswamy and the separate opinions therein to establish how it will test the state intervention into this sphere of conduct. The statutory provisions on adultery can arguably be found constitutionally wanting in both scenarios. So what should the Court do in this situation? Play it safe and stick to a traditional approach based on the equality clause, or enter the substantive debate on criminalisation. There are pros and cons to both options. 

If the Court decides to play it safe, then it can set the record straight on the previous cases. Moreover, it can avoid a debate about what the Court thinks is conduct worthy of criminal sanctions; an expression of societal mores traditionally expressed through elected representatives. But since there are constitutionally protected spheres of conduct, the Court can't fully avoid that question. If it does, then, decide to go ahead and address the substantive issue fully, it can lead to a Constitution Bench of the Supreme Court clearly identifying a set of basic principles that legislatures must adhere to while drafting criminal statutes, and locate these principles within the constitutional text. For instance, if the Court holds consensual sexual relations between adults are beyond the pale of criminal law, it can do so by locating this conduct within the scope of Article 19(1)(a) [right to freedom of speech and expression], or Article 21. Arriving at these basic constitutional minimums would potentially affect many other offences which involve similar conduct, as litigants get emboldened to file petitions. For instance, the principle would extend to excluding this entire category of conduct from the realm of Section 377 IPC, the provision currently criminalising "unnatural sex", even if it might be consensual and between adults. Ultimately, in the long run, the Court can trigger a fruitful late-spring cleaning of the Augean Stables that are the variety of crimes punishable under many statutes across India. 

But there is another side to that coin: the Court will now invite litigation challenging the legality of substantive crimes and further trample upon traditionally legislative functions. Already, the Court has broadened its jurisdiction to assume plenipotentiary powers and don the role of the White Knight in this horribly corrupt India. As Anuj Bhuwania argues, the Court has increasingly become inscrutable in carrying out this role, rendering poorly reasoned judgments or not rendering judgments at all or governing by a stream of non-reasoned orders, to slowly become part of the problem itself. This recent history suggests that opening up the gates for litigation will only lead to more chaos. And there is more basis for worry in this particular sphere of judicial review of substantive criminal law issues. The last major opportunity the Court had to engage in this kind of analysis was when it was asked to decide the constitutionality of the defamation offence, but it failed to address core legal issues and hid behind a veil of prose, rendering that decision only fitfully useful in future cases. The consequences of judicial intervention in Joseph Shine - regardless of the verdict - are not going to be so unremarkable given its status as a Constitution Bench decision.  

Conclusion: 

Recently, my friend and fellow skeptic Gautam Bhatia in an op-ed laid out a rival approach to the "narrow approach" where the Court sticks to the legal issue to avoid the "real" ones. This is what he called the "transformative approach", where the Court is fearless enough to "erase and remedy long-standing legacies of injustice". I have reservations in how Bhatia imagines the Court should go about this task, but Bhatia is right in his underlying premise, that if the Court has already broken down the barriers in terms of traditional power-relations between the different branches of government in India, it might as well do something useful. What holds me back from cheering him on is that there is too much to show that the manner in which the Court carries out its core function of answering legal issues - if it still is the core function - makes a transformative approach a double-edged sword. By inviting the Court to widen its range of targets, litigants run a risk that the Court is not going to stick to the identified targets. It will pick and choose which ones it wants to address, how to address them, and whether it wants to bring in new targets which you only find out while reading the judgment. Thus, at heart I yearn for more principled criminalisation of conduct in India, something that the Constitution Bench decision in Joseph Shine can help realise. But history often repeats itself, and that history tells me that the kind of reasoned decision needed to help realise this objective is unlikely to emerge. As I was reminded seeing the recent England-India test match: it is the hope that kills you.  

No Swords, But an Absolute Shield: India’s Overbroad Judicial Immunity Against Corruption Prosecutions

(This post first appeared on the Global Anticorruption Blog) 

Over the past four decades, India’s “activist” higher judiciary (the state High Courts and the federal Supreme Court) has significantly altered the balance of power between branches of government. This has been done by liberalising the rules on who can petition the court for relief, as well as expanding the scope of the judicial relief that can be provided. Today it is entirely normal for the Court to take up the task of monitoring the execution of government policies as well as the progress of criminal investigations. But this expansion of judicial power has not been matched by a coequal expansion of oversight mechanisms to ensure that judicial power is not abused—a significant problem given the serious corruption problem in India’s courts (see also here). Certain problems with the court system have attracted the attention of both commentators and the Parliament, including the Chief Justice’s unfettered power to assign cases to different judges and the system for appointments and impeachment. Surprisingly, far less attention has been paid to another instance of no oversight over the judicial branch: the doctrine of judicial immunity. 

Across countries, judicial officers are conferred broad judicial immunity to allow courts to fearlessly perform their functions. Significantly though, in most countries this protection applies only to acts in furtherance of the “judicial function”; for acts outside that scope, judges are subject to the law just like ordinary citizens. Not so in India. In 1991, the Indian Supreme Court created a rule that no criminal investigation whatsoever could begin against a member of the higher judiciary without first “consulting” the Chief Justice of India (or, if allegations are against the Chief Justice, consulting with any other Supreme Court Justice). According to the Court, this rule was needed to protect judges from “frivolous prosecution and unnecessary harassment.” 

Such a broad judicial immunity rule makes no sense, either generally or in the Indian context. While it’s reasonable to prevent a judge from being prosecuted for how she decided a case, it makes no sense to protect her for having murdered somebody, or taking a bribe. Indeed, in addition to its other obvious problems, this broad judicial immunity rule creates serious difficulties for efforts to fight endemic judicial corruption in India. 

Most straightforwardly, the “consultation” requirement delays proper investigation of corrupt judicial officers, and may sometimes block investigations altogether. The most recent example came in December 2017, when the Chief Justice denied permission to investigate a judge of the Allahabad High Court for corruption, though the Chief Justice found the material sufficient to recommend the judge’s removal. By shielding officials in this fashion, the system engenders corruption by fostering a lack of transparency and accountability. Even if one accepts that investigative agencies can be manipulated to bring about frivolous cases in India, the law already protects public servants—including judges—from prosecutions for their official acts by imposing a need for administrative consent. The additional judicial immunity protections only burden the investigative process. 

In other contexts, the Indian Supreme Court has sharply criticised legal provisions that require consent of a higher official before proceeding with a prosecution, given the tendency of such a system to delay or derail corruption prosecutions. Yet the Court refused to recognise the potential for similar abuses in its own case. It’s also telling—and troubling—that India’s special judicial immunity rule applies only to higher court judges, not to trial court judges. One struggles to find a reason behind this limitation except for the status that the higher judiciary occupies. Again, the Court’s doublespeak while dealing with other branches of government and itself is striking: In 2014 the Court did not hesitate to nullify similar protections for senior bureaucrats, finding that a similar status-based classification was arbitrary. But when a petition concerning the judicial immunity came up last November, it was re-affirmed by the Court. 

The 1991 rule should be eliminated. Even if a complete rescission of the rule does not come to pass, at the very least some exclusions to the blanket rule are urgently needed. For instance, judicial immunity should not apply in cases where a judge is charged with taking bribes for exerting influence outside beyond her judicial role. India should take firm steps to remind its citizens and the world that merely donning the robe does not automatically render any individual above scrutiny.