(This is the first of a two part series. Read part two here)
This blog has often denigrated the Court's institutional position of activism in context of criminal law as suffering from a "White-Knight" complex. The Court takes up the work of other branches of State that are projected as being bogged down by corruption and politics, while the Court remains the last bastion of hope. Soon, this becomes a self-fulfilling prophecy and makes the Court take upon more of these tasks, making one branch overlord over others and slowly destroying that quaint idea called separation of powers.
An inherent structural limitation has limited the effects of this decades-long slide: the Court can't enforce its solutions without help from the other branches of State. Thus, the activism ends up being partially hollow; with the hollowness more pronounced if the concerned parties don't comply. This two-part series engages engages with the Supreme Court's intervention in the criminal justice system over the last three decades through this lens. I argue that apart from the inaction of the legislature and executive, judicial intervention has also played a major role in bringing about the crisis that engulfs the system today, where the independence and integrity of all the investigating agencies appears under question, and the courts cannot hope to keep up with the mountain of backlog.
The Court and Criminal Investigations
Let's return to the middle of the 1990s. The reputation of state police, steadily decreasing ever since independence, had seemingly hit rock-bottom and prompted the Court to note that "The increasing incidence of torture and death in custody has assumed such alarming proportions that it is affecting the credibility of the rule of law and the administration of criminal justice system." [D.K. Basu, (1997) 1 SCC 416]. Besides issuing directions curbing police powers to arrest [D.K. Basu; Joginder Kumar, (1994) 4 SCC 260], the Court did two other notable things during this decade that affected criminal investigations.
First, through Bhajan Lal [1992 Supp (1) SCC 335] it significantly expanded the kind of situations in which criminal investigations could be quashed by the High Courts and Supreme Court. Second, it broadened the horizon for aggrieved victims' to get justice by legitimising new judicial interventions into the investigative process before magistrates and constitutional courts. Thus, the Court called for greater scrutiny of the chargesheet by Magistrates and gave victims a right to be heard before the police closed a case [Bhagwant Singh, (1985) 2 SCC 537]. Further, in a string of petitions by victims the Court granted requests to transfer cases out of state police into the hands of a "neutral" and "impartial" agency like the Central Bureau of Investigation [CBI], at times even after the investigation had been completed [Gudalure MJ Cherian, ((1992) 1 SCC 397].
First, through Bhajan Lal [1992 Supp (1) SCC 335] it significantly expanded the kind of situations in which criminal investigations could be quashed by the High Courts and Supreme Court. Second, it broadened the horizon for aggrieved victims' to get justice by legitimising new judicial interventions into the investigative process before magistrates and constitutional courts. Thus, the Court called for greater scrutiny of the chargesheet by Magistrates and gave victims a right to be heard before the police closed a case [Bhagwant Singh, (1985) 2 SCC 537]. Further, in a string of petitions by victims the Court granted requests to transfer cases out of state police into the hands of a "neutral" and "impartial" agency like the Central Bureau of Investigation [CBI], at times even after the investigation had been completed [Gudalure MJ Cherian, ((1992) 1 SCC 397].
Unintended Long-Term Consequences?
All of this was necessary, the Court argued, for "doing justice" in the cases before it. This was telling: although the Court making interventions with lasting, systemic consequences, the considerations that guided this exercise were highly specific facts unique to that case. This short-term focus of giving the aggrieved victim remedy seemingly blinded the Court to the long-term consequences that its ruling might have. And there were inevitable downstream effects that the Court was setting in motion.
For starters, by giving stakeholders new rights to be heard in the criminal process the Court blessed more litigation in a system already struggling with delays - something that the Court itself often noted and took steps to curb. Crucially, rather than provide new post-conviction remedies and offer a more harmonious balance between fairness and finality, the Court sanctified pre-conviction intervention. This meant that the justice which the Court sought came at the cost of delaying the finality of the entire process. Both investigations and trials stood to become longer, and appellate courts got lesser time to decide appeals as they were burdened with new petitions in this mould.
Besides this, transferring investigations constituted an erosion of two long-held legal principles. The first was the idea that the functions of police and courts were complementary and not overlapping [Khwaja Nazir Ahmed, 71 IA 203]. Second, was federalism: policing was a core state function, with intervention by central agencies only possible with prior consent by the state. Because of these twin reasons, transferring investigations, and too from the state agency to a central one, had been an extremely rare occurrence before the 1990s. As the Court slowly unravelled the existing position, it naturally bolstered the perception of the state police as being incompetent and corrupt, and the central agencies being independent and much better at the job.
For starters, by giving stakeholders new rights to be heard in the criminal process the Court blessed more litigation in a system already struggling with delays - something that the Court itself often noted and took steps to curb. Crucially, rather than provide new post-conviction remedies and offer a more harmonious balance between fairness and finality, the Court sanctified pre-conviction intervention. This meant that the justice which the Court sought came at the cost of delaying the finality of the entire process. Both investigations and trials stood to become longer, and appellate courts got lesser time to decide appeals as they were burdened with new petitions in this mould.
Besides this, transferring investigations constituted an erosion of two long-held legal principles. The first was the idea that the functions of police and courts were complementary and not overlapping [Khwaja Nazir Ahmed, 71 IA 203]. Second, was federalism: policing was a core state function, with intervention by central agencies only possible with prior consent by the state. Because of these twin reasons, transferring investigations, and too from the state agency to a central one, had been an extremely rare occurrence before the 1990s. As the Court slowly unravelled the existing position, it naturally bolstered the perception of the state police as being incompetent and corrupt, and the central agencies being independent and much better at the job.
Vineet Narain and the First Crisis
The premise of the central agencies being independent and competent was a major cog in the new justice-oriented jurisprudence that the Supreme Court was spawning. This premise was exposed as a myth in the Vineet Narain litigation, where the CBI was accused of dragging its feet in bringing allegedly corrupt politicians to book. Initially slow to react, once the Court got going it took the unprecedented step of "monitoring" CBI investigations. During the years of monitoring the Court received updates on the investigations in sealed covers and in camera hearings: steps ordinarily anathema to the idea of open justice but justified as a set of necessary "innovations" to ensure justice was done.
The Vineet Narain saga ended with the Court issuing a string of directions designed to secure greater autonomy for the CBI and other central agencies [(1998) 1 SCC 226]. Significant among these was ridding the executive notification that protected certain classes of bureaucrats from investigations; giving the Central Vigilance Commissioner [CVC] oversight duties over the CBI; and asking the federal government to bring in appropriate laws to secure autonomy of all agencies. Thus, it seemed that the CBI was back from the brink. So was the new remedial jurisprudence of constitutional courts, with a new arrow in the quiver to boot. Not only could the High Courts and Supreme Court continue to end state police investigations or transfer them to the CBI, but they could now also monitor the investigations itself if the case so warranted.
Conclusion: Identifying Patterns
Thus, after almost half a century of being committed to an adjudicatory role, within a decade the Court had cast an indelible stamp on the daily functioning of the Indian criminal justice system. Most of the judicial intervention was framed as an exercise in "doing justice", often in cases alleging failures of justice being occasioned by other state actors. Since the costs of this intervention were of a kind to only become visible in the long-term, it made it easy to ignore them in the face of the short-term gains at stake. And these gains were substantial. Sold on the narrative of pervasive corruption, the public could rest easier knowing that the Supreme Court was still untainted and committed to justice, a notion the Court itself repeatedly invoked. This helped to widen the popular appeal of an otherwise-elitist Court, and legitimised the many derogations from classical legal positions as necessitated by the failings of the other branches of State.
As the next post elaborates, the Supreme Court continued to perpetuate this narrative since the turn of the millennium, operating the same playbook of remedial justice in which the system was constantly malleable to the whims of "doing justice" in individual cases. By 2018 though, it appears that the sum is surely greater than the sum of its parts: giving succour in the many individual cases has helped to usher in the present collapse.
The Vineet Narain saga ended with the Court issuing a string of directions designed to secure greater autonomy for the CBI and other central agencies [(1998) 1 SCC 226]. Significant among these was ridding the executive notification that protected certain classes of bureaucrats from investigations; giving the Central Vigilance Commissioner [CVC] oversight duties over the CBI; and asking the federal government to bring in appropriate laws to secure autonomy of all agencies. Thus, it seemed that the CBI was back from the brink. So was the new remedial jurisprudence of constitutional courts, with a new arrow in the quiver to boot. Not only could the High Courts and Supreme Court continue to end state police investigations or transfer them to the CBI, but they could now also monitor the investigations itself if the case so warranted.
Conclusion: Identifying Patterns
Thus, after almost half a century of being committed to an adjudicatory role, within a decade the Court had cast an indelible stamp on the daily functioning of the Indian criminal justice system. Most of the judicial intervention was framed as an exercise in "doing justice", often in cases alleging failures of justice being occasioned by other state actors. Since the costs of this intervention were of a kind to only become visible in the long-term, it made it easy to ignore them in the face of the short-term gains at stake. And these gains were substantial. Sold on the narrative of pervasive corruption, the public could rest easier knowing that the Supreme Court was still untainted and committed to justice, a notion the Court itself repeatedly invoked. This helped to widen the popular appeal of an otherwise-elitist Court, and legitimised the many derogations from classical legal positions as necessitated by the failings of the other branches of State.
As the next post elaborates, the Supreme Court continued to perpetuate this narrative since the turn of the millennium, operating the same playbook of remedial justice in which the system was constantly malleable to the whims of "doing justice" in individual cases. By 2018 though, it appears that the sum is surely greater than the sum of its parts: giving succour in the many individual cases has helped to usher in the present collapse.
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