Monday, November 26, 2018

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

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

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

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

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

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

  • First, they show that the Court's distrust of police together with its commitment to fairness has deprived the police of functional autonomy even during investigations. Today, trial judges can guide investigations, either based on their own assessment of the facts or on an application by a litigant. While the criminal procedure and evidence statutes always encouraged active judicial participation during trial, the Court has expanded this logic into investigations paying little heed to the long-held beliefs of minimal judicial intervention into this space. In doing so, the Court has cast grave doubts over some core tenets of our system of criminal law: can it still be called an adversarial system if the trial judge can guide the police to investigate a case in a manner that satiates a "judicial conscience"? While the Court has continued to insist that the adversarial system is a bedrock of the Indian system, these questions remain unaddressed [See here, for an earlier discussion on the Blog]. 
  • SecondSakiri Vasu and Vinay Tyagi are illustrative of exactly just how fractured the Court's jurisprudence of doing justice and seeking fairness has become. On the one hand, the Court admitted that judicially created time-limits were unconstitutional because of the possibility that undue expediency could harm a defendant's right to a fair trial [P. Ramachandra Rao, (2002) 4 SCC 578]. But on the other, in Sakiri Vasu and Vinay Tyagi, the Court paid little heed to how heightened judicial involvement in investigations could also harm that fair trial right. The double-standards were glaringly apparent when the Court concluded that the rights of defendants were curtailed by its intervention - by which the Court had made itself the court of first and last resort for any challenges to any aspects of the investigation or trial. But, it justified this curtailment of constitutional rights to file writ petitions before the High Court as necessary for public interest [Shahid Balwa, (2014) 2 SCC 687; Girish Kumar Suneja, (2017) 14 SCC 209] [See here, and here, for earlier discussions on the Blog]. 
  • Third, and finally, Sakiri Vasu also suggests that besides this bunking the idea of trial court deadlines, the Court began to treat trial court delays as qualitatively different from those in appellate courts. For according to the Court, one of the reasons for broadening Section 156(3) Cr.P.C. was to curb petitions for such reliefs clogging the docket of High Courts, implying that the resulting delays in trial courts were more palatable.
Investigative Agencies and False Dawns
The previous post discussed how the distrust of the police led to sweeping directions for reform in D.K. Basu. But as the Court found out soon enough, the issuance of directions did not translate into change. Despite knowing about this non-compliance with D.K. Basu, the Court went ahead and took an even bolder step in Prakash Singh [(2006) 8 SCC 1]. It is one of the rare instances where the Court directed states to implement a draft legislation. Unsurprisingly though, compliance with the Prakash Singh directions has been woeful.    

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

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

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

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

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

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

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

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