Birla v. Adventz: A Snapshot of the Supreme Court and Criminal Law & Procedure

I happened to be in the Supreme Court in February when arguments were being addressed by parties in Criminal Appeal No. 875 of 2019, Birla Corporation Ltd. v. Adventz Investments & Holdings Ltd. & Ors. (Connected with Crl. Appeal Nos. 876 of 2019 and 877 of 2019). It was a great experience as some of the country’s most famous lawyers were addressing the Court, Not on a nuanced issue of constitutional law, but on whether a High Court had erred in quashing summons issued on a criminal complaint. Remarkably, the Supreme Court concluded hearings in just a few dates, and also passed a judgment — not an interim order — a few months thereafter. 

The Facts 

Who was before the Court, and what was at stake? Both parties in the connected matters were rival factions of the M.P. Birla family, running several business and part of the eponymous “Birla” industrial house in India. For this post, I’ll focus on the lead appeal — Birla v. Adventz, as mentioned above. Here, the rival factions had been fighting with each other for some time before different courts / tribunals. In one such proceeding (an oppression and mismanagement suit), Adventz filed a representation with documents that Birla Corp. believed it had kept under lock and key (metaphorically speaking) by them. The only way that Adventz could have gotten the papers, they believed, was by stealing them. 

A complaint was filed, alleging theft from the offices of Birla Corp., claiming that some persons had entered the office premises and taken the documents. While some of the documents had been copied and kept back, some originals were still in the possession of Adventz. It was also alleged that this was a well-planned affair, involving higher-ups in Adventz, as well as those in-charge for security in the building where the Birla office was located. The complaint by Birla Corp. was filed against many accused persons, including Kumar Mangalam Birla, and alleged offences under Sections 379 (Theft), 403 (Misappropriation), 411 (Handling Stolen Property) read with 120-B (Conspiracy) of the Indian Penal Code [IPC]. 

A Magistrate issued summons to all accused persons in 2010, but this order was partly set aside by the High Court in 2015 — mainly because it thought that the documents copied and returned could not have been the “movable property”, which is the subject of the theft offence in the IPC. Both sides had a grievance against the High Court order: The Appellants argued that the summons should not be set aside at all, while the Respondents argued that it should have been set aside in full. These grievances were taken to the Supreme Court, where the Respondents ended up winning. The next parts discuss the legal issues on which the fate of the petitions turned.

Summoning Accused Persons — Illegalities versus Irregularities 

Summoning an accused person in any case is a nascent stage in the proceedings. In challenging a summoning order and filing appeals on such preliminary issues, the underlying proceedings naturally suffer delays, which is why courts are often livid at parties for running to appellate courts challenging criminal proceedings at their inception. This is more so, because the Criminal Procedure Code 1973 [Cr.P.C.] contains inbuilt remedies allowing for courts to end cases before they reach a trial: (i) A court can refuse to take cognizance of a case finding no offence is spelled out, (ii) refuse to summon persons finding allegations are not made out prima facie, and (iii) discharge the accused persons finding that the allegations are groundless.

To ensure that immense time is not spent upon judging the veracity of proceedings right at the outset, even before hearing the accused, courts operate upon a logic of incremental scrutiny. Each successive stage of the proceedings permits the court to look deeper into the facts. Thus, while deciding whether to take cognizance of a case or not, the court is literally expected to see whether the allegations make out an offence. At the stage of summoning, we move beyond merely looking at what the allegations are to also test their soundness to determine whether they make sense. The minimal scrutiny at these stages makes sense, for till now the accused is absent from proceedings. Permitting the court to go too deep into the facts creates possibilities of prejudice against the accused even before a word might be spoken by her in court. Once the accused does appear — at the stage of charge — the scope for testing the matters is naturally greater. But there are still some limits, as courts refuse to look beyond the prosecution case and thus don't consider the defence version of the facts. That, is reserved for trial.     

In cases filed on private complaints such as Birla-Adventz, as against cases instituted after police investigations, the scope for ending cases before trial is even broader. This is because unlike cases instituted by the police involving a thorough investigation (in theory) that gives allegations an air of genuineness, private complaints are instituted by parties who are naturally biased. The scope for frivolous cases is higher, and so courts actively engage in deciding (i) whether or not to summon persons, and (ii) whether to discharge those persons who have been summoned. In fact, the scope for discharging persons is notably broader than cases instituted by the police. Here, not only does the complainant have to lead evidence to convince a court that charges should be framed, the Cr.P.C. empowers a court to end the case even before such evidence can be concluded, if it thinks that the case is baseless.

Therefore, since the Cr.P.C. is operating on a logic of incremental scrutiny at the successive stages of a proceeding, then it is only appropriate that litigants should be discouraged from jumping the gun and running to an appellate court. But this perspective is met by a powerful rebuke from accused persons stemming from a perception that they are being prosecuted unjustly. Given how court cases are often a painful slog across India, if, as an accused person, I am convinced that the case against me is baseless, why  should I suffer court proceedings for even a single minute? This sense of "perceived injustice" is a common occurrence in almost all accused / defendants and leads to several thousands of petitions being filed each year which challenge criminal cases at their inception. In several hundred of these, like Birla-Adventz, appellate courts do end up being persuaded by this perceived injustice argument, and agree to end the criminal case at the inception itself.

If you think that courts have some great method figured out by which they can cherry-pick the really bad cases where they must necessarily intervene, from the average ones where regular procedure can run its course, you are horribly mistaken. The test to decide when trial courts should not have proceeded further with a case are extremely vague and end up inviting the judge to resort to an "I know it when I see it" approach. The same naturally goes for the appellate courts. In this situation, then, it frequently happens that pre-trial orders on cognizance / summoning aren't thrown out because they're horribly wrong orders, but because appellate courts can, and often do, ignore the incremental logic that the Cr.P.C. is built upon. Basically, while the statute tells the trial court to conduct a limited scrutiny of the facts at the stage of summoning, appellate courts go ahead and review this order by testing facts as if the court was hearing arguments on charge. In a situation like this, our two forums are now dealing apples and oranges.

I am not saying that the appellate court actively starts to overstep its brief. Rather, I am saying that tests with fuzzy lines encourage ignorance of the incremental logic; either by allowing courts to conduct a deeper scrutiny without actually saying so, or with different courts unknowingly ending up  testing facts to different levels because nobody knows how much scrutiny is enough. The fact that in an appellate challenge, the accused is present and making submissions, might actually be contributing to a subconscious bias encouraging greater scrutiny.  

Birla-Adventz is a case where this problem—of balancing delays with perceived injustice—is on full display. The delay was manifest: a 2010 order was challenged in the High Court which passed a judgment in 2015, during which time the trial did not progress, and then that High Court order was challenged in the Supreme Court which took another four years to decide. Thus, for nine years, the underlying complaint case remained in suspended animation. In the Supreme Court, the focus of arguments on behalf of the Respondents — who wanted the summons to go completely — was that the magistrate had not scrutinised the allegations sufficiently enough, and a thorough scrutiny showed that the allegations are baseless. In effect, they were asking that the Court use a magnifying glass to view the case at a stage when the law only allowed to look at it with the naked eye. Or, to bring it in context of the Cr.P.C., they were asking for arguments on charge at the stage of summoning itself.  

Pause for a second here. A case in which the legal system had invested almost a decade of time and public money is ultimately thrown out because two people (the Supreme Court) are convinced that in issuing summons, the magistrate did not do his job properly, and they disagree with two other people (the magistrate and the High Court Judge) who did think that (to different extents) the magistrate did do his job properly. And during all this time, all that is guiding decision-making at all these three levels of the legal system is a test that calls upon judges to intervene when they know it is a good or bad case. I am all for procedural rights, but frankly, this is a cruel joke. The setting does not resemble the rule of Law but resembles the very rule by authority that a legal system is designed to replace.

Are we doomed to forever remain in this land of hopeless arbitrariness where the Birlas of the world can hire the right lawyers and convince courts of their perceived injustice to end trials, while many other cases with equally serious kinds of injustice, are allowed to continue to trial? Of course not. There are many solutions that one can think of — and I have argued in favour of some elsewhere — but one solution exists within the Cr.P.C in Chapter 35 which discusses "Irregular Proceedings". Sections 460 to 464 explain the kinds of issues which can, and cannot, lead to termination of proceedings. And on top of this, there is Section 465 Cr.P.C., which says that no order by a competent court can be reversed unless the party challenging it can show that it occasioned a "failure of justice". Though this is also a vague notion, but at least it makes everyone aware that there must be something beyond a pure technical flaw that must subsist to throw out a case. Repeated use of this provision will also end up giving courts the chance to give "failure of justice" more definite contours as well. 

The Issue of Theft — Was it Better Left Alone?

In Birla-Adventz, there was really no reason whatsoever for the Supreme Court to say anything further after it had decided to set aside the summoning order because it found the magistrate had not inquired into the case properly. Yet, true to form, the Court went on to the other issue — whether or not documents copied and returned could be the subject of theft. Reading the passages beyond page forty-six of the judgment, one thinks it would have been best had the Court left this alone.

The Court gave an unequivocal ruling on the most obvious of the issues — that documents can be the subject of theft. But then, it floundered on the question of whether there was theft in this case. The offence, as defined under Section 378 IPC, requires very little in terms of actual conduct: A person must move some movable property without consent of the person in whose possession the property is. But this movement must be in order to take it, with an intent to dispossess that person dishonestly. "Dishonestly" is a technical term in Indian criminal law. It is defined in the IPC as conduct that either causes wrongful loss to someone, or wrongful gain to someone [Section 24 IPC].  

If a person takes my papers without my consent, and let us assume that there is no doubt over my right over the papers and the absence of my consent, then that naturally results in causing wrongful loss to me. The same conclusion makes sense in the facts of Birla-Adventz. But the Court did not reach this conclusion, because it found that the ultimate purpose of this taking of papers was to use them for defence in a litigation. In confusing the dishonest intention that guides a person's conduct with the larger motive for which that conduct was performed, the Court made an elementary error of confusing motive with intention. Remember, Jean Valjean stole the bread to feed his sister's starving children, and yet he was branded 24601, all because motive does not replace intent.     

Fortunately, this is obiter, and should not be relied upon in subsequent decisions. But given how the most irrelevant of utterances from up-high in New Delhi end up being used authoritatively in courts below, I really worry about the kinds of problems this little excursion into the law of theft causes on the ground. 

Conclusion

Birla-Adventz offers a snapshot view of many of the problems that affect Supreme Court litigation, especially on matters of Indian criminal law and procedure. It reminds us how the Court can get the most basic things wrong—conflating motive with intention in this case. But more importantly, the judgment focuses attention on the broad standards installed in criminal procedure to regulate judicial discretion at various stages. The vast space for argument afforded by the broad standards in criminal procedure, does not end up being filled up by legal principles that can be applied consistently across the board, but by hollow words that allow judges to do as they please by clothing it with sufficient legalese.

To put it bluntly, the vagueness of the standards often ends up getting concretely defined across class-lines, with the propertied, moneyed, politically correct persons getting a different kind of justice from minorities, persons without means, or persons who are politically, incorrect. The former class ends up getting summoning orders set aside to avoid trials and go home peacefully, while poor Muslims / anti-national intellectuals stay in jail while being accused of crimes that almost always end up in acquittals at trial. And in all of these cases, it is the people who are the victims in this entire scheme, as taxpayers bear the costs brought about by lengthy pre-trial delays and trials in cases that should have been thrown out much before.

Having better standards to regulate judicial discretion, and better remedies to decide what happens if there are errors, is therefore another critical component to consider while thinking about how to make our criminal justice system work better for the future.

Snippet: New Report on Judicial Delays for Delhi

With the help of DAKSH, a Bangalore-based organisation which has been involved in some amazing work on the judicial system, the Delhi High Court ran a "Zero Pendency Project" to gather data towards solving the seemingly insurmountable problem of backlog and judicial delays. Having spent almost two years running this Pilot Project, the Report of the Zero Pendency Project has recently been made available. 

Contrary to some news articles, the Report does not say that all pending cases in Delhi can be cleared by appointed 43 more judges. The Pilot Project was only examining a select group of courts — Sessions Courts on the criminal side, District Courts, Motor Accident Courts, and Labour Courts on the civil side. The estimates for the "ideal" number of judges needed to clear pending cases is only in reference to these courts (Page 62 of the Report). To read them as anything else is, well, wrong.

In fact, the recommendations part of the Report is, according to me, the least significant. What the Report does recommend is, frankly, not very new. Like many earlier reports, we are told that delays are caused by bogus adjournments, missing witnesses, and missing parties. But what is different in this Report is the granular data collection by which these problems are identified, and that is what makes the study a great contribution to the field of work examining the Indian legal process.

In short, make sure to read the Report!

Guest Post: The History of Conspiracy: How Thinking about a Crime, Became a Crime

(I am delighted to host a guest post from Nishant Gokhale. Nishant studied law at NUJS and Harvard Law School, practised law in Delhi in between, has been doing field-work across India, and is now enrolled to pursue his Ph.D. at the University of Cambridge. Views expressed are personal)

Thinking of committing a crime is vastly different from committing it. Expectedly, the law treats these two situations of ‘offending by thinking’ and ‘offending by doing’ differently. Any failure to do so, brings us perilously close to Orwellian “thought crimes”. 

But, criminal conspiracy is a crime under section 120-A of the Indian Penal Code, 1860 (“IPC”). It was however, not a crime till well over half a century after 1860. Conspiracy was punishable as a form of abetment and required doing a criminal act pursuant to conspiracy. In 1870, a very narrow exception was introduced into the IPC making it a crime to conspire about “waging war against the government” by introducing section 121-A. This limited exception to criminal law principles requiring a criminal act to follow criminal thought survives even today. Criminal conspiracy as a distinct offence however, did not exist till 1913. The trigger for this change was an incident a few days shy of Christmas, 1912. 

The year 1912 was a turbulent time for the British in India. Just a year before, a decision was taken to shift the capital of British India’s government from Calcutta to Delhi. This decision was resented by Calcutta merchants who saw the shift as adversely affecting their fortunes. Some British officials, including Lord Curzon who oversaw the painful partition of Bengal, feared this would make the British Indian seat of government even more remote from Rangoon and Madras. What prompted the decision to shift capitals, apart from the Calcutta weather and demands for self-rule, was a spate of murderous assaults on prominent British officials in the preceding years. The move to Delhi however, would not provide any measure of respite as the then Viceroy Lord Hardinge, would soon discover--- nearly at the cost of his life. 

On 23rd December, 1912 Lord Hardinge and his wife rode into Chandini Chowk on elephant as part of a state procession to the new capital. Huge crowds had gathered to witness the pomp and splendour of the British Empire in India. What the crowd would witness however, would soon be known infamously as the “Delhi Conspiracy Case”. A bomb was hurled from a nearby building housing a branch of the Punjab National Bank. It exploded right behind Lord Hardinge instantaneously killing an Indian attendant, and leaving the Viceroy bloodied and unconscious. Lady Hardinge was unconscious, though unhurt. This audacious attack on the head of the British Empire in India, would not go unpunished. 

There was an uproar in the British Parliament and MPs demanded to know “what steps are being taken to hunt down anarchists in India, in view of the fact that the Viceroy has publicly stated that the recent outrages are the outcome of organised conspiracy?” 

The British Government’s response came in the form of the Criminal Law (Amendment) Act, 1913. The statement of objects of the act noted that “Experience has shown that dangerous conspiracies are entered into in India, which have for their object aims other than the commission of the offences under section 121-A and that the existing law is inadequate to deal with modern conditions. …The Bill makes criminal conspiracy a substantive offence...”. 

Under this new law which introduced section 120-A punishable by section 120-B into the IPC, it was a crime when two or more persons agreed to (i) commit an illegal act or (ii) commit a legal act by illegal means. Of these, only (ii) required any overt act to be done. A bare agreement to commit an illegal act without any further steps being taken became punishable. 

Criminal law theorists wrote about the 1913 Amendment with an acid pen. Generally, crimes are believed to have four stages. The first involves forming criminal intent. The second involves preparation to commit a crime. The third involves actually attempting and the fourth, actual completion of the crime. Crimes are generally punishable when they reach the stage of attempt. Only two are punishable at the stage of preparation due to the danger that stage itself poses. These are preparation to commit dacoity, and preparation to commit depredations against Asiatic allies. The only crime which was punishable at the stage of intention itself, until 1913, was conspiring to waging war against the Government. 

Syed Shamsul Huda, in his celebrated Tagore Law Lectures found the changes “rather drastic” and felt they sacrificed the 1860 penal code’s consistency wherein conspiracy was only made punishable as abetment only if followed by an overt act. Huda remarked that “…law can only deal with matters and not merely with mind save as manifested by action.” He concluded that “There probably would have been no danger and no inconvenience if the law in India were left exactly where it was before the Conspiracy Act (1913 Amendment) was passed.” This criticism is especially courageous, for at the time, it may have itself amounted to an offence of causing “disloyalty” against the British government, if broadly interpreted, in the IPC or other laws meant to muzzle criticism of the government. In 2005, the Indian Law Institute’s Essays on the IPC noted that the 1913 Amendment was “hurriedly enacted and inconsistent and unintelligible principles of law were put into action. It may be suggested that the sweeping provision of S.120-A, IPC needs re-examination and irrationality which has imperceptible crept into the Indian law may require elimination.” 

While conspiracy was widely used to supress the nationalist movement by the British, conspiracy has survived into Indian independence and the adoption of the constitution relatively unscathed. The Supreme Court, in many cases, including the Rajiv Gandhi assassination case, embraced it. It recognized that conspiracies are often secretly hatched and no direct proof may be available. Conspiracies could themselves shift shape mid-way as both objectives and members could change. It also noted that like umbrella-spokes different conspirators need to know others and only have one central point of contact. The court however cautions that conspiracy “is exception to the general law where intent alone does not constitute crime”. It also notes that the accused, tried as co-conspirators, may be prejudiced since all and sundry could find themselves in the dragnet without regard to their relationship with the main offender. 

The seemingly boundless scope of criminal conspiracy is something that is liable to be misused since all that is required to be proved is a bare agreement to commit illegal acts. Since direct evidence in many complex crime is rarely obtained, weaker forms of evidence such as approver testimony and circumstantial evidence routinely take its place to prove this agreement. This de facto lowering of evidentiary standards, has resulted in conspiracy charges proliferating and becoming, as described by American Judge Learned Hand, “the darling of the modern prosecutor’s nursery”. While no statistics on conspiracy in India are published by the National Crime Records Bureau (“NCRB”), experience suggests that it remains a popular charge. 

While the media may revel in disclosing lurid details of “plots” ranging from the genuinely frightening to the absolutely fantastic, it is important to remember that the law related to criminal conspiracy needs urgent re-examination. Despite its current popularity to crush political dissent, its history reveals itself to be little more than a reactionary and colonial-era measure to supress the nationalist movement. When freedoms of speech and expression, assembly and association are constitutionally guaranteed, the offence seems overly broad. 

The line between culpability for thought and culpability for action is an easy one to unwittingly cross. We must, however, repeatedly remind ourselves of this line for this may be the demarcation between a tolerant democracy and a totalitarian state. 

Links to Sources Reporting Some Perspectives of the Delhi Conspiracy Case: 

https://timesmachine.nytimes.com/timesmachine/1916/05/20/104675740.pdf

https://blogs.wsj.com/indiarealtime/2011/11/11/why-delhi-the-move-from-calcutta/

https://www.thehindu.com/mp/2004/08/02/stories/2004080200420200.htm

From Complainants to Consumers — A Perversion of the Criminal Process

(This is a long post, the title of which was changed on May 4, 2019)

Consider a scenario. Geetha loaned her friend Swati a sizeable sum. A year on, Geetha starts asking her friend to repay the loan. She sends many texts, but Swati doesn't reply to a single one. Frustrated, Geetha comes to you, her friendly neighbourhood lawyer, for some advice on how to proceed and says she wants to take this to court. What do you do? It is possible to think of many responses, but that's not the point. The point, is, that there is no clear answer on how a dispute is presented in law. This process, and the ultimate result, is a function of the client's means, demands, and a lawyer's imagination. This post explores the process of going to court through the lens of a hypothetical client, Geetha, with modest means and a lawyer's assistance. 

The Realities Facing Consumers of the Legal Process

What is Geetha's trouble? She wants her money back. One way to do this is by filing a civil suit for recovery. This requires that Geetha go to court with a written plea (plaint) explaining what happened, disclosing all the material she can muster to support her claim, and then call upon the court to decide whether or not it should be granted. If the court agrees with Geetha, she gets her money back, probably with interest. How would this scenario play out in real life? Every different step that I flagged above — filing a plaint, getting your evidence, going through trial, and arguing the case — will take at least a few months to complete because of the high pendency plaguing our courts. This means that even a basic suit for recovery drags on for at least a couple of years. Because of this, the probability of having to repay the principal loan amount with interest some years down the line creates very little pressure for Swati to try and resolve the dispute with Geetha.  

There is another way to present Geetha's case: Allege that Swati had never intended to repay the loan, and Swati dishonestly induced Geetha into giving her the money. Now the issue is no longer a simple recovery, but a case of cheating which is a crime, where the consequences go beyond money and threaten to take away Swati's liberty. How might Geetha start a criminal case? Either by going straight to court, like her civil suit, or by asking the police to look into the matter. As we now know, going to court for the recovery suit is a long and painstaking process. The same is true for a criminal complaint, and so the threat of imprisonment becomes too remote for anyone to care about. But, if Geetha can convince the police to look into her case, then we get a drastically different scenario. For starters, it is the State that becomes in-charge of pursuing the case against Swati — Geetha is only a witness now. More importantly, the threat of coercive action — a decree or a guilty verdict — which seemed like a distant dream in a court case, becomes very imminent when the police is involved. This is because the police officer can arrest persons suspected of committing crimes. The recalcitrant Swati might begin to have doubts about her stance knowing that there is a likelihood of her being arrested, and might take the steps needed to resolve the dispute.   

Systemic Incentives to Pursue Criminal Proceedings

The previous section explained why, when presented with a choice, consumers like Geetha might be inclined to portray their problems as criminal cases for police to investigate: The relative advantages of this kind of setup are substantial when compared to a situation where someone goes to court directly. Given the relative advantage, it is not impossible to imagine some consumers will be motivated to paint all their disputes as criminal cases. Equally, it is quite possible that police might go ahead and arrest people for flimsy reasons — something hinted at in the glaring disproportion between the rates of arrest and the rates of conviction. 

How do we curb this? I can think of three ways. First, reduce the scope of what all can be called a "crime". In doing so, you reduce the scope for persons to try and contort their disputes into criminal cases. Second, and far more useful, is to restrict the powers of arrest for police. This power is the game-changer when we consider the relative attractiveness of the criminal process today, as the police can arrest without conclusive proof and only based on suspicions. So, it would make sense to regulate this power tightly, making sure that the bludgeon of arrest cannot be wielded arbitrarily. Third, and linked to the second, is to make police decision-making more transparent. Make guidelines that the police have to consider before deciding to take up a case, and render it necessary to justify every departure from the mandate.

Unfortunately, the Indian criminal process incorporates none of the above. The routine manner in which every statute today seems to carry an "offence" provision, and the damning refusal by successive governments to reconsider the archaic Indian Penal Code of 1860, ensures that a whole lot of seemingly ordinary conduct can be labelled as "criminal" to trigger the process. Nor is there any transparency over police decision-making. There are many internal circulars etc. which regulate how cases are to be taken up — something I saw in the recent 66-A litigation — but none of these are voluntarily published online or elsewhere. What makes the over-criminalisation and non-transparency much worse, though, is the daft manner in which the criminal process confers, and regulates, the powers of arrest vested with police. There are three different systems of regulation on arrest powers in place today, and as I demonstrate below, all three are in pretty bad shape.  

The first regulation is by way of the cognizable / non-cognizable divide — certain offences have been labelled "cognizable" in the Criminal Procedure Code 1973, and for only those can the police arrest persons without needing prior judicial permission. However, nothing in the law offers any guidance on how to decide which offences should be called cognizable. There is no provision in statutes, nor any judicial test, that governs this critical restraint on police power. What results is manifest arbitrariness. For instance, consider the current sets of offences dealing with sexual assault. While "outraging the modesty" of a woman is a cognizable offence, "sexual harassment" conduct is not. How to distinguish between the two is anyone's guess, and thus the theoretical "restraint" of calling some offences non-cognizable becomes redundant.          

The second regulation on arrest powers is the level of suspicion that police officers must have before deciding to arrest. This is found in Section 41 Cr.P.C., which unhelpfully tells us that a police officer can arrest if she has reason to believe a cognizable offence has been committed. Allowing the police to arrest on an "I know it when I see it" approach is pointless, and perhaps this is why the judiciary has stepped in to construct an additional test of "necessity" to regulate arrests. Basically, courts tell police not to arrest persons unless there is a need to. The most prominent example from the Supreme Court was the decision in Arnesh Kumar [(2014) 8 SCC 273], which created strict rules of necessity to restrict arrests in cases where the suspected crime was punishable up to 7 years. However, the overlapping scope of different offences where similar kinds of conduct are punished differently — as seen in the sexual assault example above — has also undercut this reform measure. It is becoming increasingly common to lump in an allegation regarding an offence punishable with 10 years only with a view to avoid the rigours of Arnesh Kumar.          

The third regulation on arrest powers, more indirect than the others, is the law on bail. By subjecting the police to strict scrutiny during bail hearings, courts send a clear signal that flimsy arrests won't be tolerated. Pop-culture wants us to believe this is true — with all that verbiage about "bail is the rule and jail is the exception". A hard look at India's prison statistics is all you need to see through this deception. In a system where undertrial prisoners populate over 65% of prisons, bail is the exception, and jail the rule. Because bail is granted at a premium, normally ensuring that the person remains in jail for at least some weeks and also with stringent conditions upon release, consumer demand for the criminal process and arrests remains high.  

Perhaps because they are aware that none of these regulations working very well, courts in India have also proved willing to judicially terminate pending cases or investigations where a "purely civil case" is masquerading as a criminal one, by calling such proceedings an "abuse of process". This purported solution is a non-starter, sadly. To ask a court, or any reasonable person, to decide if a dispute is a "purely civil case" when the matter is still being investigated / inquired into, is to put the cart before the horse. Naturally, this renders the entire setting arbitrary, where what is sauce for the goose might not prove to be sauce for the gander.  

The Consequences of Commodification

This commodification of our criminal process, with its long delays and lack of effective regulation on what kinds of cases can be called "criminal", is not without consequences. In the zone of consumer choice that this post identified and discussed, this commodification is slowly coming to define how the criminal process is considered by all stakeholders.  

The most visible example of this is, again, the law on bail. I mentioned before that this has proved to be an ineffectual regulation on excessive arrests. But to think that this is because our courts love to keep people behind bars is a bit of a stretch. Instead, as has been argued elsewhere, courts have come to attach a premium to granting bail largely because they also acknowledge the need for some kind of pre-trial justice. Aware of the high pendency, courts view the issue of pre-trial custody not merely as one of preventing an accused from tampering with evidence or absconding, but as a matter of doing justice by the victim of a crime. Because of this, today it is part of standard practice to consider the "gravity" of offences while deciding the issue of bail. At the same time, courts are encouraged not to dwell too much on the probity of these allegations at the pre-trial stage. Ultimately then, we are back to square one, with police arrests sanctified on allegations and little else.

Not only this, but in financial fraud matters, it has become increasingly common for courts to require that the accused deposit a chunk of the alleged criminal gains in order to be released on bail. In their quest to do justice by the consumers, it somehow stops mattering to courts that they are effectively decimating the presumption of innocence by demanding a pound of flesh from the accused on the strength of unproven allegations. In this manner, even the courts end up reinforcing the motivation that consumers might have to portray their disputes as criminal cases. All the while decrying other such instances as an "abuse of process". The absurdity is, indeed, remarkable.

Besides eroding the presumption of innocence theoretically guaranteed to all persons, the unabated commodification of the criminal process also promotes corruption. Basically, the system is holding out the promise of a fast-tracked dispute resolution model through the police. But there are just not that many police officers out there, to cater to the demand for their services. This is not only the case for India but anywhere in the world. This demand-supply mismatch means that persons are willing to give a higher price for such services, and the police have to exercise some discretion on what cases they choose to investigate. Since there is minimal transparency in this context, how do we know that the police are picking the cases where they are needed most, and not based on some arbitrary factors? Such an environment fosters corruption and gravely damages this valuable public service.   

Conclusion: An Identity Crisis

Most often, this blog adopts the perspective of a defendant, or that of an outside observer critiquing the law. In adopting such a consumer-centric lens, my objective was to present the criminal process — comprising both the police and courts — from another perspective. In this context, the law is a service for people to make use of. Looking at the criminal process through this lens, its many facets appear in a different light. The reviling over-breadth of the criminal law becomes a welcome feature, because it gives litigants more choice in how to frame their disputes in law. Similarly, in this context, the wide powers of arrest with police officers are not only abhorrent but also desirable, as they help exert pressure to get persons at the negotiating table and resolve disputes quicker. 

This perspective helps to understand the disappearing presumption of innocence, as today even courts seem to be on board with a notion of using the pre-trial stage to dispense generous dollops of justice without having proof of guilt or innocence. But, since our system is not designed to sponsor this "pre-trial justice" and remains committed, at least in theory, to ideas like the presumption of innocence, this commodification of the criminal process creates serious contradictions. Today, it is justifiable to keep someone in custody for "not-cooperating" with investigation. It is legally proper to keep persons in jail for refusing to simply bend over and accept the allegations against them, and remedy whatever alleged wrongs have been suffered by a complainant. But all of this is in the shade of a fundamental right against compelled self-incrimination. 

Solving this identity crisis in the criminal process is a task beyond our fractious legislatures. What they can do, is take steps to limit the existing systemic incentives for consumers to file police cases and trigger the criminal process only to exert pressure on the other side. Hopefully, tighter and more transparent regulation can help restore some clarity on the larger values that our criminal process subscribes to as well.