The Constitution Bench Reference in Sushila Aggarwal v. State

A Constitution Bench of the Supreme Court decided a reference made in Sushila Aggarwal & Ors. v. State (NCT of Delhi) & Anr. [SLP (Crl.) 7281-82/2017, decided on 29.01.2020], where two questions had been posed for consideration:

(1) Whether the protection granted to a person under Section 438 Cr.P.C. should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail.

(2) Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court. [Para 1, Shah, J.]

Two separate opinions, and 133 pages later, we find that the five Justices unanimously answered the Reference (which is, frankly, just one question broken up into two) as follows: There is no statutory time limit on the protection of "Anticipatory Bail" given under Section 438 Cr.P.C., and nor does this protection automatically expire when an accused is summoned to Court. Such a limit can be imposed by the Court if it thinks fit, but should not be normally done. The Bench also went beyond the Reference, and "clarified" the law and practice on Section  438 Cr.P.C., by issuing 12 pointers for all courts to consider [See the section bearing signatures of the entire Bench].     

What led to the Reference?

The Reference made in Sushila Aggarwal seems to have been the result of two conflicting streams of opinion in past precedent. One line of cases, symbolised by the decision in Mhetre [(2011) 1 SCC 694] had held that there can be no limit as to the time duration of an order granting Anticipatory Bail. The second line of cases, symbolised by Salauddin [(1996) 1 SCC 667], had instead held that any order passed under Section 438 Cr.P.C. must be of a limited duration. And, at the heart of it all, was an old decision in Gurbaksh Singh Sibbia [(1980) 2 SCC 565], which had been interpreted and relied upon in both lines of cases [See Para 7.4 (Shah, J.)].

The Reference — Reaffirming Judicial Discretion in S. 438

It is a shame that the concise manner in which the issues were framed for the Reference (Yes, I am taking a dig here), did not contribute to a similarly concise set of opinions. Both opinions, of Shah, J. & Bhat, J., carry lengthy extracts from statutory provisions and prior precedent which unnecessarily burdens the reader. 

On cutting through the prolixity, one finds that both opinions are premised on the same logic — ensuring that judges have near-total room for discretion in considering any requests for Anticipatory Bail under Section 438 Cr.P.C [Para 7.5 (Shah, J.); Paras 68, 76 (Bhat, J.)]. While the opinion of Shah, J. answers both questions on this basis alone, Bhat, J. also offers independent bases to refute arguments to limit anticipatory bail simply because the investigation was over. As he observes, that an investigation stands complete is, by itself, a factor towards granting bail and not taking persons into custody [Paras 70, 76]. 

Both opinions view the conflicting decisions as having incorrectly interpreted Sibbia, insofar as they sought to create mandatory rules for courts in the realm of Anticipatory Bail. This discussion goes beyond rules imposing time limits, to also mention opinions suggesting that entire categories of offences should be outside the ambit of Section 438 [Paras 65, 68 (Bhat, J.)]. Through the opinions, we are repeatedly reminded that the sole basis for limiting judicial discretion in this realm of bail is an express provision in statute — anything less is, at best, a point of guidance for judges to help them exercise the weighty discretion that they wield [Para 56, 59, 62, 64, 68, 80 (Bhat, J.)]. 

Thus, at the end, it is confirmed that there is nothing warranting an outright refusal to consider an application under Section 438 Cr.P.C., except what may be specifically provided for in statute. Everything else, be it the nature of the offence, or the particular needs of the investigation, is part of the factors that courts must consider while deciding the fate of an application.

Appraisal — The Perennial Victory of Standards over Rules 

As discussed, at the heart of the Reference in Sushila Aggarwal is the Supreme Court's affirmation of standards over rules — enabling judicial discretion rather than curtailing it in any manner at all. If we look at the issue with this lens, then the choice appears almost like a foregone conclusion. Take up any branch of criminal procedure law in India, and it will show that similar conflicts between having strict rules versus malleable standards always end in victory for the standards. After all, since having standards implies more power for judges, who have more discretion, it is counterintuitive to expect a ruling that clamps this discretion in favour of bright line rules. 

But the problem is that in criminal procedure, sometimes clear rules are actually more useful than broad standards, and I fear that the Supreme Court in Sushila Aggarwal may just have compounded the pre-existing vagaries that cripple the practice of bail cases across most parts of India. Even though rules curtail wriggle-room for doing justice in exceptional situations, they provide a measure of certainty, consistency, and predictability that remains elusive when dealing with standards. And, at some level, this choice between rules and standards must also be cognizant of the system in which the choice is being made. Enhancing discretion implies a degree of trust in the ability and capability of the officers entrusted with that discretion, while rules ensure that the fate of an individual does not disproportionately hinge upon the peculiar attributes of any judge. 

It is unsurprising to read that the Supreme Court trusts judicial officers with discretion. But, can it be said that the trial courts across India, criminally overburdened as they are, have the capability to sit and consider the umpteen number of factors that the Court in Sushila Aggarwal suggests should be looked at while considering applications under Section 438 Cr.P.C.? I am not so sure.

The Complex World of Bail in India's Criminal Justice System

On January 24, 2020, a bench of the Supreme Court comprising Rastogi & Malhotra, JJ, delivered its judgment in State of Kerala v. Rajesh [Crl. Appeal Nos. 154-57 of 2020]. The State of Kerala had challenged an order of the High Court granting bail to persons in a case under the Narcotics, Drugs & Psychotropic Substances Act of 1985 [NDPS Act], arguing primarily that the order was bad since Section 37 of that statute had been ignored by the High Court. The Supreme Court agreed, and set aside the High Court's order.

This Blog has discussed the provisions which impose a burden on an accused to prove innocence at the bail stage, such as Section 37 of the NDPS Act, in some detail (See: here, here, here, and here). Our view is clear: such provisions are a blot on any legal system, let alone a system that purports to guarantee a right to personal liberty and professes a belief in the presumption of innocence. 

Given that the NDPS Act itself takes away that presumption and replaces it with a presumption of guilt, the results in Rajesh should not appear as very surprising. But even so, what is truly remarkable is how the Supreme Court took a legal provision that made it very difficult to get bail, and read it in a way that made it even harder, to a point where the idea of bail is rendered almost illusory in statutes containing such a provision. This scandalous burial of the presumption of innocence takes merely one paragraph (Paragraph 21) and, by the end of it, one wonders whether the Court really considered the consequences of its eagerness to add the veritable bite to the law's bark.

In a scathing assessment, Gautam Bhatia argues that this legal approach reflects the Supreme Court's support for blend of "punitive constitutionalism" that he sees reflected in other areas of the Court's recent work. Reading Rajesh, I would also argue that the decision is a reflection of another tendency of the Supreme Court which is of an older vintage. 

This is the tendency to overemphasise the allegations by considering the "gravity" of the offence and treat them as controlling while deciding an application for bail. Thus, when faced with a case involving allegations of a serious offence, one finds that the rhetoric often becomes eerily reminiscent to conversations people end up having on the lines of "How can you release murderers / rapists / etc. out on bail?", completely ignoring that at the bail-stage what we have are only allegations, and not proof of guilt. Rajesh, for me, is symptomatic of this approach. The moment you read that the case involved a haul of over ten kilos of drugs, and over Rs.13 lakhs in cash, there seems extremely little chance of any other outcome in a bail application, especially where the investigation was still ongoing. 

I wholeheartedly support the position that this approach of the law on the subject of a person's liberty is improper, privileging, as it does, allegations of criminal conduct, and rendering them sufficient to hold persons in custody almost indefinitely. But, at the same time, one must also acknowledge that these features of our "broken" criminal process end up taking a toll on those who knock on a court's door as victims. Indeed, as has been discussed elsewhere, in many instances we find that because the courts know that a conviction is lightyears away, they end up using the bail stage as a way to render justice to the victim by playing up the retributive tendencies. 

In fact, today, in an era of economic crime, there are many prominent examples of courts using the bail stage to secure compensation for a victim. Take, for instance, cases where a court rejects bail to the promoters in various Builder Companies that are being prosecuted by aggrieved homebuyers, unless the accused take steps to compensate the aggrieved victims (as in the case of Unitech). Or, of a person arrested on allegations of having duped countless persons into parting with their savings, where the court makes bail conditional on the accused depositing 50% of the allegedly cheated amount in a fixed deposit to ensure that the ultimate conviction of an accused does not bring a hollow sense of justice. 

How does one understand these cases? Is a court's willingness to go beyond the "alleged" nature of the facts at the bail stage always an instance of the judiciary behaving like executive courts rendering "punitive constitutionalism" and burying liberty? Or, are these actually instances of courts carefully doing justice to litigants in a broken criminal justice system? For me, you cannot look at a decision like Rajesh without also considering these questions, to which there are no easy answers.

Errantry: Moot Problem

The 16th edition of the K.K. Luthra Memorial Moot Court Competition concluded this past Sunday. It is one of the few moot court competitions focused on criminal law as an area, and I was thrilled to have been able to author this edition's case for the Moot which can be seen here.

Broadly, the case concerned the law of theft, developing on both Indian law and judicial decisions as well as those from other Common Law jurisdictions (most notably, Canada). The substantive law of theft is a funny thing — all the pre-eminent decisions are not of recent vintage, and the only major case that did come through recently is one that I had profound disagreement with (Birla v. Adventz). Nevertheless, it still made for a compelling contest.

These issues on substantive law were meshed in a thicket of issues on the procedural side. Here, the idea was to bring in issues that might be commonly known amongst lawyers and law students — the idea of excluding illegally obtained evidence — and combining these with issues that are not so well-known but are of seminal importance — the issues surrounding the duty of disclosure placed upon the police / prosecutor, requiring that they share their papers with the defence.

Comments will be highly appreciated!

Criminal Procedure Reform: The Dangers of Overvaluing the Ends and Forgetting the Means

This Blog has consistently argued that changes to the laws forming the bedrock of the Indian criminal justice architecture — The Indian Penal Code of 1860, Indian Criminal Procedure Code of 1973, and the Indian Evidence Act of 1872 — are necessary. No legal system is, or can be, foolproof; but when the flaws end up defining the system, then there is a real problem at hand. That, unfortunately, is how things stand at present — the Indian criminal process is notorious for a distrust of police agencies, illegal and unnecessary pre-trial custody of persons, and unending delays that drain all hope without quenching the thirst for justice. 

Thus, it was a welcome surprise to read that the Union Government's was considering criminal justice reforms early on in its second term. The expectation diminished drastically when, in the immediate aftermath of reports alleging that a young lady had been raped and murdered in Hyderabad, it was reported that the Government's proposed "reforms" to the criminal justice system would erode away the accused's right to appeal and instead require everyone to travel to the Supreme Court at New Delhi to file an appeal, among other things. 

The expectations took another blow — on January 2, the Economic Times ran a report with quotes from unnamed government officials suggesting that amendments on the following lines are being seriously considered for India's criminal justice architecture: 

• Reducing the opportunities for accused persons to appeal against judgments, especially in cases involving crimes against women, towards ensuring speedy justice;
• Vesting judges with greater control over the criminal investigation, similar to the setup in jurisdictions such as France and commonly called an "Inquisitorial" system;
• Making forensic evidence "Compulsory" in cases where punishment is seven years or more; 
• Creating a new classification of offences to help police in their threat assessment for "internal security" purposes.

Since there is no White Paper or Draft Bill out yet, any such reports should not be treated with a high degree of seriousness. But, the repeated references to the idea that curbing the right of appeal is a "reform" measure towards securing "speedy justice" requires us to take it seriously. On doing so, this idea gets exposed for what it really is: not a reform measure, but a pig-headed, anti-poor, and ill-considered move that will only worsen the existing state of affairs. It is an arm-chair fix from the Union for a complex problem, which just cannot be subjected to a one-size-fits-all solution.  

In fact, if there were a hypothetical menu of "reforms" on offer, then taking away the right of appeal against the judgment of a trial court (or substituting it with only having a right to challenge the judgment before the Supreme Court), would rank as the worst possible policy choice our legislators and bureaucrats could make for the Indian setting. This is for several reasons:

• From the due process perspective: Almost every aspect of society works on the basis that there can be errors in decision-making, and so our social processes incorporate means to remedy this by allowing a second chance. The consequences of errors in criminal cases are potentially life-threatening, and therefore, the need for a right to challenge the verdict of a court is essential to prevent travesties and gross injustice. Taking away the right to appeal against a judgment most directly upends this sense of fairness.       
• From the delays perspective: At the same time, efforts to completely eliminate errors can make proceedings inordinately long and end up causing delays. This requires every system to strike a balance between the commitment to fairness and undue delay. Is taking away the the right to file an appeal / limiting it to only the Supreme Court justified when considered through this lens? Absolutely not. Simply looking at the number of years it takes to decide appeals and concluding that they are prone to delays is farcical. A closer look at how appellate courts function would show that the reason behind long gaps between two dates of hearing is courts being overburdened with miscellaneous hearings, where people challenge interim orders or investigative processes, with a view towards avoiding a trial altogether. Thus, taking away appeals won't expand judicial time for other, more proper, hearings, and the free time is likely to be filled up with more miscellaneous hearings and little else. If anything, removing or reducing the scope of miscellaneous hearings may help. 
• From the justice perspective: Not everyone has the financial means to file miscellaneous cases to avoid trials; they take serious money. As a result, criminal appeals end up being the only chance for people having limited means to clear their name from a badly reasoned judgment of the trial court. For similar reasons, a system where everyone in India must travel to New Delhi to file appeals against their local judgments is, again, going to selectively hurt those who need the protection of laws the most. 

News reports about the government's criminal justice reform agenda suggest that discussions have already become one-note and uninspired. Most of these proposals have been on the table for decades, now, and it seems that the exercise is simply directed towards searching the old closet for decent options (even the inquisitorial process idea has been mooted in some respects). It will be difficult to change anything by adopting this approach. Instead, some core beliefs may need to be thoroughly re-examined: For instance, why should everything with a mere "pulse" (as Divyang Thakur put it while writing here) filed by the police trigger the trial process? Or, to go one step further, why should the default setting of our legal system be directed towards carrying out trials for all kinds of cases and why should parties need several months to get permission for withdrawing a case which would ease the courts' load? Maybe, rather than try and cut down on appeals, legislators and bureaucrats should spend some time in redesigning the trial court processes — as I argued in a recent paper.        

Privileging the ends (speedy justice) is not a bad idea per se. But from an approach that considers the means but ultimately privileges the ends — which seemed to have been the Government approach back in August — the current mindset being revealed hints at a single-minded focus on achieving specific ends which will end up decimating all concerns about the means used to get there. What we will end up with are not courts of justice but bureaucracies, processing files at breakneck speed, all in a race to close them as quickly as possible.