Can our past behaviour serve as a guide for predicting future conduct? The intuitive answer, is yes. Cutting-edge behavioural science research adds substance to this intuition and demonstrates that there are identifiable links between our past and future choices, helping policymakers to design better systems for ease of living (and companies to make more money through better advertising). This notion of prediction is at work almost everywhere, but not in the law of crimes and evidence in most Common Law countries. Instead, here we find that the law has strict rules that greatly limit the ability to rely on this link for prosecuting crime. Indian law is no exception: Sections 14, 15, 52-55 of the Indian Evidence Act 1872 [IEA] show that evidence of a defendant’s bad character is not generally relevant to prove that she was guilty of the offence in question.
The Shift from Character to Responsibility in Criminal Law
In Making the Modern Criminal Law, Professor Farmer argues it was not always like this, and until the mid-19th Century it was routine for evidence of bad character to be the basis for court decisions. Things took a turn between 1870-1920 due to a multitude of factors, and the relevance of character was slowly replaced by a focus on responsibility in criminal trials. Two factors were arguably more important than others.
First, responsibility came to fore as it became impossible for juries to arrive at judgments of character with any certainty for it to be used as a basis to render judgments. A fixed local context in a village meant everyone was well-known and judgments of character had resonance. But industrialisation gradually uprooted this idea of a fixed local context, and meant that the law had to look away from character for criminal trials to keep running.
Second, the question "Why criminal law?" began getting different answers in this period. Till now, criminal law was seen as the tool to help ruling classes exclude certain undesirable types of persons from regular society. In this period between 1870-1920, this determinism in criminal types gradually lost out (as did the notion of ruling classes) and new opportunities were seen in the signalling effect of criminal law. Subjecting persons to censure and sanctions for what they intentionally or knowingly did, as opposed to who they were or what they did accidentally, was seen as a better way to send the message to persons on what kind of conduct was acceptable to maintain a desirable civic order.
Sir James Fitzjames Stephen was a prominent part of the intellectual movement that supported these changes to the Common Law of crimes. He was also the main draftsman of the Indian Evidence Act of 1872, which explains why the statute adopted some of these ideas rather early. In the years since, Indian law has not moved away from these precepts. Much like the rest of the Common Law world, evidence of bad character continues to be generally irrelevant towards proving guilt or innocence in India, but it can become relevant in certain exceptional cases specified by statutes. Today it is difficult to find many people disagreeing with the idea that nobody should be sent to prison only based on the bad reputation they harbour, for what if it might happen to you?
Note, that the above discussion is about proving guilt or innocence through character evidence. If we find proof of guilt on completing trial, character evidence comes right back into the spotlight when courts are deciding punishment. Prior convictions can mean higher punishments, and having none can entitle a defendant to probation instead of jail time. This shifting of focus from the offence back to the offender at this stage is standard practice, especially so in a system like India, where trial judges have vast discretion at the sentencing stage and can award sentences anywhere between zero and the prescribed maximum.
The Hidden Salience of Character Evidence Today
On paper, this is perhaps the end of the matter when it comes to evidence of bad character, but in practice it is not so. Consider a phenomenon that has been demonstrated in India, in context of the limits placed on use of character evidence to question the credibility of victims testifying in rape trials [Proviso to Section 146, IEA]. The rule was designed to curb decision-making based on ideal stereotypes of rape victims: it can’t be rape since the victim had an active sex life, etc.
In his book, Professor Satish demonstrates that, in practice, the rule only displaced such inquiries about a victim’s character from the guilt-determination phase to the sentencing phase. His empirical study demonstrated that sentences were higher in cases where the victims fit the stereotype of vulnerability, as against cases where they did not. Admittedly, the text of the rule does not bar the judge from considering the evidence of a victim’s character at the sentencing phase. But surely this indirectly perpetuates the same stereotypes that the rule was intended to eliminate.
In his book, Professor Satish demonstrates that, in practice, the rule only displaced such inquiries about a victim’s character from the guilt-determination phase to the sentencing phase. His empirical study demonstrated that sentences were higher in cases where the victims fit the stereotype of vulnerability, as against cases where they did not. Admittedly, the text of the rule does not bar the judge from considering the evidence of a victim’s character at the sentencing phase. But surely this indirectly perpetuates the same stereotypes that the rule was intended to eliminate.
This example nicely illustrates the hidden salience of character evidence today. Although the last century saw limits being placed on the relevance of character for questions of guilt or innocence, it is becoming increasingly apparent that notions of character — who you are — are still very pertinent in how criminal law is administered. While the example above was about victims’ interests, the same issue also exists when we consider the position of defendants: character evidence plays a big role in how persons are targeted as suspects and defendants in the criminal process.
The argument is simple: None of the changes introduced to restrict the use of character evidence puts a handbrake on how crimes were investigated. To understand this better, imagine criminal law as a funnelling exercise. It is impossible to discover all instances of crime. Out of reported instances, it is again impossible to prosecute each of them for want of resources. Enforcement of law has a necessary selectiveness; an exercise of discretion by the police decides which cases merit the use of precious government resources.
How does the police exercise this discretion? They do so by employing a strategy of “rounding up the usual suspects”, i.e., on the basis of the very notions of bad character that the law has deemed improper for use at the trial. As a result, across the world, the data on persons arrested and prosecuted for crime appears skewed. Persons who are poor or from minority and / or immigrant groups are far more likely to be targeted by the police as suspects while choosing which cases to prosecute. In India, this has been witnessed in the disproportionate numbers of Muslim men being arrested in custody.
Character Evidence and Prosecuting Terror
A lack of effective checks on the discretion of law enforcement agents is at the heart of the hidden salience of character evidence in the criminal law today. This is true for India as well. There is no set of rules or standards that guides which offences are classed as cognizable (offences allowing arrests without judicial warrants) leading to an unprincipled growth in cognizable crimes over time. A wide array of cognizable crimes gives legal sanction to the police for pretextual arrests and prosecutions and an opportunity to enforce character-based prejudices rather than the pursuit of genuine threats or suspects.
Broadly defined criminal laws also give wide, unchecked discretion to the police. These can be very deceptive as they often have a mental element like “knowledge” or “intention” clearly set out, as if the lawmakers are telling us that this is a proper crime and not a regulatory offence that criminalises without any need of showing culpability. But once we move past this, it is quite common to find a broad definition of the conduct that is being criminalised. Since the police cannot be expected to prove existence of the culpable mental element when they initiate the criminal process by arrest, effectively, through broadly defined criminal laws the law confers a license on the police to arrest anyone they desire.
To see this in play, imagine a statute that makes it a crime to knowingly offer financial support to an organisation banned by the government. Now, imagine another law that makes it a crime to “associate” with a banned organisation with an “intention to further its activities”. Remember that the police will normally initiate the process based on observable conduct and not the mental element that accompanied it. Keeping this is mind, it is evident that the first example offers a degree of clarity: the criminal conduct is specified, and consequently helps confine the compass of suspicion for the police to justify arrest and investigation. The second is like clay putty in a child’s hands, as permitting police to arrest for suspected “associations” means, according to the dictionary, they can arrest for suspicions of any connection between two entities.
These are not imaginary crimes but part of India’s main anti-terror statute, the Unlawful Activities Prevention Act 1967 (UAPA) [Sections 40 and 38, respectively]. Another example of an offence that has a clearly stated mental element, coupled with a broad range of conduct that can trigger the crime is Section 15 of the UAPA. This provision criminalises "Terrorist Acts" by first specifying the mental state, but then expands the range of proscribed conduct to include damage to any property. What this translates to is a vast ocean of unregulated discretion with the police to target persons who “look like” trouble, or are “anti-national types”, or “urban maoists” through the UAPA without any hard proof of conduct that justifies the kind of fear that the label of terrorism generates.
Is this why an overwhelmingly large number of prosecutions under the UAPA not bring convictions? Perhaps. But the problem is that the trial stage, where an improper and possibly a character based prosecution can be screened out after being tested for proof and reasonable doubt, comes after an excruciatingly long wait in UAPA cases. Trials under the UAPA involve a long waiting period that is usually spent by defendants in custody, since the UAPA adopts a much harsher set of rules for granting bail and also allows for longer pre-trial custody during investigations [Section 43-D, UAPA]. Thus, even though the rule of law mandates that individuals must not be targeted and tried simply because of who they are, the prosecution of anti-terror crimes in India actively perpetuates these consequences.
Conclusion
Criminal trials counteract the intuitive notion that our past acts can serve as a predictor of future conduct. But it would be a mistake to assume that the rules of criminal trials spread consistently throughout the legal system. A cursory look confirms that character evidence remains relevant in the stages of sentencing with express legal support. But a closer look reveals the existence of a hidden salience of character evidence, often working to undermine the very goals that the exclusion of such evidence at trials was designed to achieve.
Ending this haphazard nature of regulation for character evidence will certainly help to bring any legal system in alignment with its professed aims. Thus, if Indian legislators really do think that the evidence of character is useful for determining guilt or innocence, then they should effect such changes. The limited legislative engagement with these issues in recent decades suggests that India’s professed values support the opposite conclusion, however, which then means that steps must be taken to reduce the role character evidence plays through the criminal process.
An obvious point of reform would be placing stricter checks on the enforcement of laws by police by arrests. It is something that the Indian Supreme Court has supported, albeit in a haphazard manner itself through cases like Joginder Kumar, DK Basu and Arnesh Kumar, and so is arguably a point of intervention that can gather broad consensus. But this will take time, and in that time, hundreds of persons will remain in custody awaiting a trial in their cases, having been prosecuted under vague offences such as the UAPA.
Perhaps the first point of intervention, then, is to reform the process of pre-trial custody in this context. Given the high probability of character-based prosecutions which do not withstand the test of "beyond reasonable doubt", should the law stick to a process which not only allows for upto six-months of custodial detention during an investigation, but also makes it virtually impossible to grant bail till conclusion of the case? If the trial cannot follow in a conviction, we must ensure that the process is not a proxy for the same punishment.
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