Guest Post: India’s Criminal Process: Blind to the Rights and Plight of the Transgender Community

(This is a guest post by Daksh Kadian)

Transgender community in India, also referred to as Hijras and Kinnars, has been historically discriminated, deprived of their self-identity and subjected to intense stigma and violence. The criminal procedural law suffers from the same vice and fails to uphold the dignity of transgender persons. This marginalised community is forced to eke out a living from sex work and begging. This results in routine exposure to police action and criminal law where they are left without any protection. The Indian criminal law in general and the safeguards in particular only exist in a binary. They do not account for the concerns of other genders and changing contours of gender identity. In this piece, I shall restrict my analysis to law relating to search and custody of transgender persons.

Section 51 of the Criminal Procedure Code, 1973 [Cr.P.C.] specifies the procedure for search which is to be followed upon arrest of a person. As per the provision, while the person is kept in custody, he/she/they are only allowed to retain necessary items. As a safeguard, a woman can only be searched by a woman officer and with strict regard to decency. There is no such special protection for men.

We run into multiple difficulties when the person so arrested is a transgender person. First and foremost issue is the determining the gender. Many jurisdictions treat the self-identification of the arrestee as the premise for determining the custodial safeguards. A transgender person who identifies as a female is only searched by a female officer and vice versa. However, India’s transgender law follows a certification model to gender determination. An individual can be recognised as transgender only upon obtaining certificate of identity from the District Magistrate, which requires as person to mandatorily undergo a sex-reassignment surgery. Essentially, a major portion of the transgender population which fails to obtain a certificate due to bureaucratic hassles or does not wish to undergo a sex reassignment surgery or cannot afford such surgical processes is rendered without any protection.

In absence of the certificate, a transgender person who may identify as a female will still be searched by a male officer and put in custody with male inmates. The experience can be particularly agonising if the enforcement agencies choose to conduct a strip or intimate search. In Mumbai, a transgender woman despite producing the gender certificate and not being an arrested person, was insisted to undergo a medical examination for gender confirmation in order to determine her eligibility to make a molestation complaint. As per procedure in Indian jails, whenever “transgender individuals are brought to prison, they are sent to the chief medical officer. If they have female genitals, they are classified as women. So it goes for those with male genitals.” This runs contrary to the NALSA Judgment which gives the transgender persons the right to be recognized as ‘third gender’ if they don’t identify with the male-female binary and insofar the issue of gender determination is concerned, it held that “the gender to which a person belongs is to be determined by the person concerned”. In other words, gender identity must be based on self-identification and not on medical examination.

In the US, the police manual of multiple states like Seattle, Columbia and Philadelphia, treat self-identification by the individual as the ground for determining the gender identity of an individual. Under no circumstances the members of the enforcement agencies permitted to search any person solely for the purpose of determining that person’s gender. It is mandatory to use pronouns as requested by the individual (e.g., “she, her, hers” for an individual who self-identifies as a female; “he, him, his” for an individual who self-identifies as a male; and “they, them, their” for an individual who self-identifies as non-binary). The transgender persons are housed in transported and housed in separate detention facilities. In the event a transgender individual requires immediate medical care or medication, including hormone therapy, the individual is transported to the nearest medical facility.

Similar to the US, New South Wales in Australia follows the self-identification model and no importance is attached to the birth certificate per se. 

UK has a certification based model but the same is not adhered to in absolute strictness, unlike India. As per information disclosed by London Metropolitan Police pursuant to a Freedom of Information request, a person is asked what gender they consider themselves to be and what gender they would prefer to be treated as, if there is a doubt. If a person is unwilling to make such an election, efforts are made to determine the predominant lifestyle of the person. For example, if they appear to live predominantly as a woman, they should be treated as such. After the above steps have failed to yield conclusive outcome, birth certificate is relied upon.  

The absence of separate custody rooms puts the transgender persons to high risk of violence, sexual abuse and assault. Chandramukhi Muvvala, a transgender rights activist, stated that “when someone is forced into a prison with cisgender prisoners, that can lead to bodily harm.” The study conducted by Professor Valerie demonstrates that the practice of forcible allocation of transgender woman to men’s prison made them vulnerable to sexual assault and violence. Manoj, born a male but having feminine features, was sent to the male prison and “his cellmates stripped him the day he was imprisoned after being remanded in judicial custody.” Similarly, Shinoj was “shattered by the experience” of being forced to stay with male inmates and Shinoj left jail with AIDS contracted from cellmates who forced him into sex. As per the United States Transgender Survey 2015, transgender people are ten times more likely to be sexually assaulted by their fellow inmates and five times as likely to be sexually assaulted by staff. No similar studies has been conducted in India but it can be speculated that the results would be same, if not worse, given the complete absence of safeguards. Kerala is one of the only states in India that has endeavoured to set up separate prison blocks for transgender persons.

The second issue is protecting the identity of the arrested transgender person. A lot of transgender individuals do not reveal their real identity to the family and secretly follow their self-perceived gender identity. They tend to fear familial retaliation due to the social stigma associated with their identity. As per Section 50A of the Cr.P.C., the family members of the arrestee have to be compulsorily informed about the fact of arrest and the place of detention. In doing so and in further investigation, it is unclear if the law enforcement agencies should protect this alter ego of the arrested person. It has been observed that the relatives often turn hostile and disown those who assert their gender identity. Left without a support system, upon release such transgender persons are forced to take up sex work and begging to make the ends meet. Ideally, a choice to not disclose gender identity to the family members must be given to the arrested transgender person. However, the non-disclosure of the identity to the family members should not become the ground for depriving the transgender persons of the special protections linked to their gender. 

The third issue is lack of respect for the elements of transgender identity. India’s Criminal Procedure Code and police manuals are void of any guidance and regulations that govern the police interaction with transgender individuals. The police has a free hand to not address and refer to transgender individual by their adopted name and preferred pronouns. Vyjayanti Vasanta Mogli, a transgender woman and activist, stated that the police authorities threaten the community members by saying that “tum jaise log gair kanooni ho. Ladke hoke ladkiyon ke kapde pehenna gair kanooni hai. Ye dramebaazi, band karo warna andar kar denge.” (People like you are illegal. Men masquerading as women, wearing women’s clothing is illegal. Stop this pretence or we will arrest you.) The practice of ridiculing and embarrassing a transgender person by the police authorities invades upon the fundamental right to life, basic dignity, privacy, non-discrimination, and freedom of expression.

The fourth issue is the failure of the existing law to address the special medical needs of the community. As per Section 55A of Cr.P.C., it is the duty of the person having the custody of an accused to take reasonable care of the health and safety of the accused. The person so entrusted may be the police or the prison authorities. The above specified healthcare protection ought to encompass procedures such as hormone replacement therapy, sex-reassignment surgery and a well-equipped professional assistance. However, it has been observed that prison health-care machinery is handicapped when it comes to transgender persons. Ishu, a trans-woman, was lodged in Bangalore Central Prison where she developed an infection in Ishu's silicone implants. The prison medical officer only gave generic painkiller medicines instead of referring Ishu to an external hospital. As per Ramya Jawahar Kudekallu of the Alternate Law Forum, “It (Ishu’s case) was a great lapse in medical treatment. It stemmed from two reasons - general apathy and disregard for the well-being of transgenders, and more importantly lack of preparedness of medical officers within prison to deal with such cases.” The CLPR lawyer Jayna Kothari who intervened so to shift Ishu to an outside hospital, observed that “it (transgender health) is a thoroughly neglected area and one that results in a lot of abuse and harassment.” Presently, there are no guidelines to address the medical requirements of the arrested transgender person or those remanded to the custody.

Conclusion

The prevalent practices in India severely impinge upon the fundamental rights of a transgender person to non-discrimination, life with dignity and freedom of expression. The Indian criminal procedural law, in its present form, is marked by evasiveness to the real legitimate concerns of the community. Therefore, it is of paramount importance that the amendments are made in the domain of gender identification, search, and custody by taking inspiration from the gender sensitive policing instruments of other countries.

[Note: This post was updated on 30.07.2020 after different readers pointed out grave errors in some use of language. Sincere apologies for what were inadvertent errors, which have since been corrected.]

Guest Post: Revisiting the Term, "Reason to Believe", in Section 8(1) of the PMLA

(This is a guest post by Ishita Khurana)

Introduction

The Prevention of Money Laundering Act, 2002 (hereinafter, ‘PMLA’ or ‘the Act’) is a Special Statute enacted by the Legislature for the purposes of, inter alia, penalising the offence of money-laundering and confiscating the proceeds of crime projected as untainted money, traceable directly or indirectly to a scheduled offence. A mixture of civil and criminal provisions, its special stature is upheld with the aid of sections of reverse burden of proof, presumption in inter-connected transactions and the creation of quasi-judicial bodies with a rigorous system of inter-act appeals. Due to its special status, the internal safeguards become all the more vital to maintain its integrity and smooth functioning, with an emphasis on accountability of its adjudicatory bodies, traceable throughout the act, characterised with provisions demanding mandatory formation of ‘reason to believe’ prior to initiating its power of attachment, search or seizure of property, etc.

One such provision is that of Adjudication as under Section 8 of the Act, wherein the Adjudicating Authority (hereinafter, ‘AA’), on receipt of a complaint under Section 5(5) post-attachment of certain properties, or applications made under Sections 17(4) or 18(10), firstly, issues a show cause notice (hereinafter, ‘SCN’) based on the formation of ‘reason to believe’, secondly, pass an order regarding whether the said properties are involved or not in money laundering after considering the prescribed materials and testimonies, and thirdly, confirm the attachment, retention or freezing of such properties or perform related functions as laid down in the Act.

For the purpose of this article, the author will be limiting her discussion to sub-section (1) of Section 8, wherein we are concerned primarily with the occurrence, need and implication of the expression, ‘reason to believe’ with respect to the scheme of the Act, and whether a non-inclusion of the explicit need to record and communicate the said reason to the concerned noticee strips the teeth off its intended purpose.

Traditional Approach: Reasons Not Recorded 

Section 8(1) states that when the AA receives either a Section 5(5) complaint or an application under Section 17(4) or Section 18(10), if it has reason to believe that any person has committed an offence under Section 3 or is in possession of proceeds of crime, he may serve a SCN of not less than thirty days on such a person to justify his acquiring the concerned properties attached, seized or frozen under the respective provisions, along with relevant evidence or documentation, such that the said properties aren’t involved in money-laundering, liable to be confiscated. The term, ‘reason to believe’, unlike other sections, isn’t followed by the requirement of it being recorded in writing, neither is it indicated as to what shall be the basis of forming such reason (unlike the expressions, ‘material’ or ‘information’ in possession, found in other sections). Traditionally, it has been interpreted to mean a procedural formality wherein the only material available is the unilaterally sent complaint/application and the attached documents, by the concerned ED officers, spinning a one-sided story, and therefore, an order under Section 8(1) is not typically an adjudication order separately worthy of being challenged under Section 26, but rather a procedural notice to initiate involvement of the other side in the proceedings.

The AA is the competent authority to raise grievance pertaining to SCN issued under Section 8(1), which may be appealable under Section 26 in exceptional circumstances of great hardship involving abuse of law, injustice, irreparable loss and great prejudice on the face of the record and material available. A mere non-recording of fresh reasons, however, has been held to not qualify as a viable ground for appeal, until the AA fails to decide such a contention as per law, upon which the final order then be challenged in appeal.

While many a times various High Courts have mentioned the issuance of the said notice on reasons conceived by the AA, most either equated these as a rightful reproduction of the reason recorded in writing at the stage of provisional attachment [or under Sections 17(1) or 18(1)], or completely omitted mentioning the said reasons. In Brizo Reality Co. Pvt. Ltd. v. Aditya Birla Finance Ltd. [2014 (4) Mh. L.J. 849], the Court held that a notice under Section 8(1) incorporating the complaint in its entirety (including attached documents), along with the reasons recorded at the previous stage, is in itself sufficient ‘reason to believe’, warranting an SCN to be issued. Furthering the reasoning, one could argue that if, on the basis of the facts disclosed in the said enclosures, the AA isn’t convinced of valid reasons existing, he has the discretion to not issue the notice at all, when read in light with the words, ‘if’ and ‘may’ used in the provision. The very act of issuing indicates a formulation of such reason, as required. Recording it, in this case, isn’t a requirement of the said provision of a special act, carefully worded differently from its other provisions, and therefore, stating the fulfilment of this condition is sufficient compliance in itself.

Explaining how the importance of ‘reason to believe’ isn’t compromised while doing away with the need to record it, the Madras High Court has previously observed that the AA should not issue a notice automatically as an obligation, but after ensuring the existence of one of the two conditions as stipulated in the provision. An absence of such a reason shall result in no notice being issued, and a consequent lapse of provisional attachment order within the statutory time-limit. This ensures an application of mind on part of the AA, irrespective of its subsequent recording and communication or not. An enclosed attachment order incorporating most of such reason to believe is sufficient.

The most recent precedent confirming this line of thought appears to be G. Gopalakrishnan v. The Deputy Director. The Court drew a distinction between the interpretation of ‘reason to believe’, as occurring in Section 8(1) vis-à-vis Section 5(1), since the latter provides for an explicit recording of reason in writing unlike the former. The notice of Section 8(1) is based on the subjective satisfaction derived from the previously recorded reasons found in the complaint and its enclosures, which are self-explanatory. When R/w the procedure contemplated under the Adjudicating Authority (Procedure) Regulations 2013, no mandatory requirement of recording reasons afresh is contemplated at this stage and the notice so issue is legally sound; the subsequent failure to record and communicate reasons to the noticee thereof would not, therefore, vitiate proceedings, as per the traditional approach.

Understanding the Roots of Reason to Believe 

The term, ‘reason to believe’, is not defined anywhere in the PMLA. To understand its interpretation when read with the provisions of the Act, its origin, meaning and evolution over the years through judicial precedents needs to be understood. It is defined in Section 26 of IPC, as a sufficient cause to believe a thing and not otherwise. Such a belief is expected to be bona fide and based on information or material available on record, which in turn has a rational nexus or a live link to the formation of the requisite belief. Further, the Apex Court has held in plethora of cases that it is equally the duty of a quasi-judicial authority, as that of a judicial court, to always record reasons in support of its conclusion, especially whenever such authority is exercising some sort of a discretionary power. Moreover, ‘reason to believe’ has to be distinguished from mere suspicion. Recording of reasons reassure an application of mind in exercising discretion, as well as fulfils the sought-after objective of justice not only being done, but appearing to have been done as well.

The prima facie formation of belief should be rational, coherent and not ex facie incorrect or contrary to what is on record. Extended in the context of Section 8(1), it doesn’t mean the said reason has to be in agreement with the complaint/application it is relying on, it rather indicates a thorough perusal of the said documents with an application of mind so as to not act as a mere rubber-stamp, but to derive its reasoning from the content, irrespective of the earlier conclusion arrived at by the concerned authority. Further, issuing of notice in a standard pro forma manner has been decried and it is expected to include material particulars and a distinguishable application of mind. A notice issued without delving into the material and recording valid reasons has also been held as invalid in law, capable of vitiating proceedings.

The evolving affect the term has in practice when used in similarly drafted special acts can be traced through judgements like Biswanath Bhattacharya v. UOI [(2014) 4 SCC 392], wherein with respect to an absence of a statutory need to communicate reasons recorded, a distinction was made between the cases of Ajantha Industries and S. Narayanappa, the former holding communication mandatory, and the latter holding otherwise, which was preferred due to various appeal and review provisions safeguarding the rights of an aggrieved, not warranting a mandatory requirement being read into a lacuna. Similarly, the case of Dr. Partap Singh held, when a search warrant was issued without recording ‘reason to believe’ under Section 37, FERA, 1937, that it is not mandatory to state the grounds inducing reasonable belief in the warrant as long as enough material was relied on. Moreover, such a duty to record reasons, when absent from the section itself, and the general provisions of the Act, cannot be read into it as mandatory. In Aslam Mohd. Merchant v. Competent Authority, while judging upon the validity of an SCN issued under Section 68-H, NDPS Act, the Court observed that a mere requirement of formulating ‘reason to believe’ calls for such reasons to appear on the face of the notice or available through the materials being relied upon. The latter half of the observation, therefore, allows for incorporation of said reason through attached documents, such as a POA in a parallel PMLA matter.

Changing Dynamics around the Concept

The landmark judgement of the Delhi High Court, J. Sekar v. UoI [2018 SCC Online Del 6523], changed the understanding of the term, ‘reason to believe’ in the PMLA in an unprecedented manner. It observed that the inclusion of the term in Section 8(1) casts an equally important onus as envisaged under Section 5(1), for the AA to independently apply its mind while issuing SCN. Only when these reasons are expressed clearly can their legality and validity be tested by a reviewing authority, unlike in case of a mere mechanical reproduction of the words in the statute. An SCN is incomplete without the AA adding its own reasons as to how one of the two conditions laid down in the sub-section are being prima facie fulfilled. A subsequent communication of the said reasons to the noticee is also vital since a failure to disclose would amount to an illegality, unfixable vide Section 68 of the Act, rendering the entire proceedings illegal. This, read in light with Section 8(2) which provides for seeking a reply from the aforementioned noticee, shall also vitiate his right to natural justice, since a lack of access to the said reasons will hamper the noticee filing an effective reply.

Despite J. Sekar being stayed by the Supreme Court, it continues to hold precedential value, and is arguably binding in similar cases in future (of third parties), since the order is of an interim nature, not undermined unless finally set aside in appeal. 

In another case, Advantage Strategic Consulting, the Court briefly held that ‘reason to believe’ has to be recorded and communicated at every stage, including under Section 8(1), as a legal requirement, which when violated, will render the proceedings illegal. The term casts an onerous duty on the AA, for which it should be held accountable.

Shedding new light on the relevance of the term’s inclusion in the provision, a February 2020 Calcutta HC judgement, Excel Powmin [2020 SCC OnLine Cal 384] held that a recorded ‘reason to believe’ also forms part of the ‘materials on record and relevant information’ that the noticee relies upon while filing a reply in defense. Recording the same without AA applying its mind, or an absence of recording it altogether, is a factor strengthening the noticee’s defence. This becomes all the more relevant since the noticee has no remedy in law against the illegality of the notice itself until the culmination of trial, whereas this issue affects the very root of the proceedings. Moreover, unlike other statutes, PMLA has the principle of reverse burden of proof, making it impossible for the noticee to discharge the burden unless it has access to the allegations and said reason to believe. Therefore, to fulfill the intent and purpose of the Special Act, the recording and subsequent communication of ‘reason to believe’ has to be read into the provision. A mere adoption of the reason attributed at the stage of §5(1) is improper, defeating the objective of ensuring an independent application of mind and exercise of discretion as per jurisdiction vested under law.

Conclusion: Identifying Some Issues and Suggesting Some Answers

The recent evolution in the interpretation of the term, ‘reason to believe’ as found in Section 8(1) is nothing short of a game-changer. Seemingly trivial, this technical development of having to record and communicate reasons when not explicitly provided for in the section, has the power to vitiate proceedings in totality, on failure to abide by it. When talking in context of a Special Act where time is of the essence to ensure justice and the rightful protection of the nation’s wealth, it is of great consequence. It also raises the important issue of the conformity with principles of natural justice and the rights of a noticee who may eventually be innocent of a grave offence penalised under the Act.

As opposed to the traditional approach, the newly conceived reasoning is better embedded and substantiated in the contemporary dynamics of the relevant fields of law, however, in an attempt to tie loose ends, it is appropriate to discuss possible roadblocks at this juncture.

Firstly, as briefly discussed in Excel Powmin, the defect of not recording reasons may be construed as a mere irregularity, fixable when read with §68 of the Act. Turning to the keywords of the argument, ‘in conformity with the intent and purpose of the Act’, it may be argued that the mere omission fails to vitiate the operation of the notice, going by the bare text of the Act, which doesn’t cite it as a legal requirement. That, failure to comply with a technicality shouldn’t be allowed to deny the Enforcement Directorate to initiate proceedings against a potential offender and/or confiscate laundered property. On the other hand, it is contended that not recording and subsequently communicating the ‘reason to believe’ to the noticee thereof is in itself what defeats the intent and purpose of the Act, not curable under Section 68 PMLA adheres to the principles of natural justice, therefore, the noticee’s right to be heard under natural justice gets vitiated if (s)he’s denied access to the said reason at this stage. Hence, the omission is too grave to be treated as a mere irregularity, and holds greater consequences.

Secondly, if reasons are to be recorded and communicated under Section 8(1), the noticee shall also get the opportunity to challenge it while filing its defence under Section 8(2). However, the authority hearing the matter will be the same as the one issuing the notice, therefore, it is incompetent to question its own application of mind and hold the reasons arrived by it as prima facie defective. This violates the second principle of natural justice, nemo judex in causa sua. Legally indisputable, there may lie a procedural solution, wherein the SCN under Section 8(1) is issued by a separate Bench than that hearing the matter and passing the requisite order under Section 8(2), as has been previously directed by the Mumbai Appellate Tribunal. Although, for its effective implementation, an amendment in the appropriate Rules and Regulations providing for the same is required, until which it remains a powerless suggestion. Considering it an independently appealable order won’t resolve the issue in totality, while being cumbersome.

The current position remains captured in a sea of uncertainty, until there’s a conclusive judgement on the point by the Apex Court. In the recent times, the waves seem to suggest an inclination towards the newer interpretation of the provision in favour of the rights of the noticee and to promote greater accountability of the adjudicating body, yet, the practice isn’t uniform among subordinate courts. However, the true essence of a Special Act remains toothless if the value carried by expressions like ‘reason to believe’ isn’t realised and implemented with all its force. The mention of the term in Section 8(1) remains a mere formality if not supplemented by its recording and communication, creating a doubt on the wisdom of the legislature in including it in the first place while drafting the provision. On the other hand, if its interpretation is widened, it’ll also add an additional internal safeguard, to protect and forward the intent with which the PMLA was enforced. Any further confusion regarding the same should be resolved in the near-future, since the issue remains sub-judice in the Supreme Court, as an SLP against the judgement initiating these waves of change.

Criminal Law Reform — Many Misgivings, and the Long, Uncertain, Road Ahead

The Indian law school experience revolves around the idea of submitting "projects" or "assignments". At the start of the 5 year marathon, many of us used to be petrified about the idea of failing to submit the assignment beyond the "Last Last Day" — the last permissible date for handing in the project, after the stipulated deadline. I found it quite strange that the senior students displayed little or no trepidation at the thought of the impending deadline, while the rest of us rushed to print and submit. Why? Because the seniors knew that if many students asked for more time, for some reason or another, surely the University is not going to flunk them all. So the "Last Last Day" could easily be extended, and it was.  

True to form, citing the many requests for extension of time, the Committee for Reforms in Criminal Law (incidentally operating out of a Law School) just went ahead and extended a deadline for submissions, on the date of the deadline. Lest we forget, this is a Committee that has been tasked with possibly one of the most burdensome mandates ever — suggesting reforms to the entire landscape of India's criminal process, within the sweet time span of six months. 

This extension of time by the notice of July 17 is just the most recent chapter in what has thus far been an extremely turbulent start to the life of this committee and the consultations it has sought to initiate. Within the few weeks that have passed since the first announcement was made by the Committee about how the consultations will proceed, and from the release of its first Questionnaire on July 4, several representations have been issued expressing serious misgivings about the whole process. These representations (some of which I have been a part of) have, amongst other things, called for (i) abandoning this effort at least while India struggles with Covid-19; (ii) reconstituting the Committee which, in its current form with 5 men sitting in New Delhi, embodies the worst tendencies of prior "reform" efforts and appears akin to the same colonial mindset that the Committee explicitly has set out to remove.

But at least for me, what has been particularly galling and difficult to stomach, is the consultation process itself. And that is the focus of my ire.

From Moving the Goalposts, to Removing Them

The Committee presently has a sleek website which, unfortunately, does not manage to distract attention long enough for one to not see the big bundle of fluff that has been offered to us at present. There is no White Paper or Consultation Paper on offer telling us what are the specific areas that have been identified as needing reform and the specific issues that the Committee thinks require consideration. This is not to ask for the moon and the stars, but this is only to highlight what is standard practice for any efforts to carry out law reform in any functioning democracy.  

What we do have, is an "Aims and Guiding Principles" tab, and other separate tabs outlining "Objectives" for substantive law, procedural law, and the law of evidence. The former is nothing but a collection of the best homilies that one could give for any criminal justice system. The second at least outlines some issues (finally some specifics) but, alas, it does not tell us what is the problem in the first place. And of course, the few specific objectives are couched between wonderfully vague ones such as "Revising foundational definitions and classifications in order to bring the Cr.P.C. in line with modern legal developments". 

Basically, while the Committee has suggested that it is time to move some goalposts, what it has actually done is to temporarily remove the goalposts altogether. There are no positions held, no beliefs about what is good or bad about the law. Conveniently, the goalposts shall reappear one day when the Committee so chooses, and we can only hope that do not appear straightaway in the form of draft legislation itself.

The Questionnaire Process

The removing of goalposts is a problem that has paled into insignificance once we moved into the process of consultations itself. The "Expert Consultation" process was announced, in which there would be two questionnaires each on the three areas of the criminal process flagged above. Responses to each of these questionnaires were due in two weeks time, completing this part of the exercise in twelve weeks. As of July 17, the duration is now four weeks per questionnaire, completing the exercise in 24 weeks, i.e. around four months. Now, as before, all the questionnaires have not been released together. Instead, they will be released in tranches — first substantive law, then procedure, then evidence.

The breaking up of the criminal process into silos through these questionnaires is plainly inexplicable. If anything, what is required is a consolidated approach that considers, at the same time, what effects might be borne by the system by tweaking one of its components. So, for instance, how can we be entering into a conversation about defences without having a conversation how any of these defences might be proved in court? But since the former is substantive law and the latter get covered by procedural and evidence law, in this bizarre consultation process we will only ever look at the picture piecemeal and never as a whole.   

I will try and capture my anguish and frustration at this process with the following image. On July 4, when the first questionnaire was released, it was like the start of a long cycling tour (Tour de France kinds). The race was divided into stages, which came non-stop one after the other. But, here's the twist: Nobody in this tour knows what will happen at the end of each stage; I might go sideways, or up the mountains, or maybe do hardly anything except flat-track sprints. Nobody even knows where the race will eventually end (since there are no goalposts and they will conveniently appear). And every stage is compressed to make it seem like it is legal to now run the Tour de France on steroids. 

What made the nightmare particularly harrowing for me (yes, there is still room for things to get worse) is the questionnaire itself. It does not systematically proceed from laying a foundation on general issues to then move into specifics, it does not systematically go through the list of objectives outlines on the website for substantive law. There is not even indication of the broad themes to be covered within the two sets of questionnaires to be released. Instead, it is a scattershot mix of general queries of principle, with clearly loaded questions designed to favour certain answers, and some very pointed questions (the only ones I had the gumption to attempt to answer) such as should marital rape no longer be a defence to rape. 

All of which we must answer in tiny little boxes of space which keep-expanding. While the 200 word limit has been removed (again, after the questionnaire was released), it is still difficult to not be left feeling that the questionnaire and its overarching undefined consultation process had reduced the task of reforming criminal law to the banality of customer satisfaction forms asking for my opinion on the quality of service. Note, that the Committee has declared that an "Open Consultation" process will also be launched (not yet live), where people can write anything and do not need to feel bound by the questionnaires. The way I see it, the cat comes out of the bag with this one. Tell us, dear Expert, what is the problem with general defences and do our work for us. For a vast majority of the questions, and indeed with the open consults, one is not being asked to consult on a position that the Committee has identified, inasmuch as one is being asked to opine about the desirability of taking a position itself. Will the reform agenda now be determined based on which aspects of the law receive the most criticism in the questionnaire? Is that not the worst kind of majoritarianism on display? I simply do not understand.

The Long, Uncertain Road Ahead

This is not law reform, it is a nightmare that is going to continue for nobody knows how long. Considering the pathetic publicity that the activities of the Committee have thus far received in the national and local media, it is bound to be a nightmare that only the select few who are invested in the process will have to knowingly suffer through. What does one do? One could choose to participate in this process and salvage what can be salvaged, or fight the process tooth and nail to ensure it receives no legitimacy whatsoever, or do a mixture of both. There is, as always, no right answer. 

This blog has, and remains in favour of, the argument that the criminal process requires serious attention and consideration. But that consideration cannot be in the nature of an opinion survey asking whether X or Y aspect should go and A or B should come instead in one questionnaire, and later turning attention to the other parts, all of which happens without any clarity about the positions adopted by the Committee which is running the consultation process. A holistic approach which considers the criminal justice "system" will need integration and clarity, not these tranches of questionnaires. 

It is remarkable that the Committee thinks that it can deliver on its principles within 6 months when a look at India's history suggests that delivering on those principles, such as primacy of the constitution, is task that we still have not managed to fully achieve. I ask myself, if the country has supposedly suffered with this colonial baggage for over 150 years, why not we spend a few more to try and make sure we don't end up under a different kind of ideological baggage this time? The impetus for reforming the criminal law has not come very often. It gives a chance to improve the life of each and every citizen and secure the promise of liberty. It is a chance that cannot be squandered.

The Supreme Court, 65-B Certificates, and Electronic Evidence

A Three Justices' Bench of the Supreme Court delivered a much-awaited decision in Arjun Panditrao Khotkar v. Kailash Kushanrao & Ors. [Civil Appeal Nos. 20825-26 of 2017, decided on 14.07.2020 ("Arjun Panditrao")]. The issue referred to the Three Justices was an apparent conflict that had emerged in the position of law on the point of Section 65-B of the Indian Evidence Act, 1872 [IEA]: It appeared that the legal position, as expressed by a bench of Three Justices in P.V. Anvar v. P.K. Basheer [(2014) 10 SCC 473 ("Anvar")], had been changed by a bench of Two Justices in Shafhi Mohammad v. State of H.P. [(2018) 2 SCC 801 ("Shafhi Mohd.")]. 

[For a background into the issues, see this post, and for various posts on Anvar, see here]  

The Holding in the Reference

The order of 26.07.2019 making the reference was as follows:   

We are of the considered opinion that in view of Anvar P.V. (supra), the pronouncement of this Court in Shafhi Mohammad (supra) needs reconsideration. With the passage of time, reliance on electronic records during investigation is bound to increase. The law therefore needs to be laid down in this regard with certainty. We, therefore, consider it appropriate to refer this matter to a larger Bench. Needless to say that there is an element of urgency in the matter.

The reference itself has now been decided by a unanimous verdict (Justice Ramasubramanian has penned a separate opinion; more on that later), which I understood as holding that:

1. Anvar continues to be the correct position of law and the observations in Shafhi Mohd., and some other decisions, have been declared per incuriam. 
2. Thus, admissibility procedures set out in Sections 65-A and 65-B, IEA control the field completely when it comes to electronic evidence, and the regular procedures of Sections 62 to 65, IEA do not apply. 
3. It is mandatory to file a certificate as per Section 65-B(4), IEA in all cases where a person cannot bring the computer device upon which "original information" is stored to court. 
4. The person giving a certificate need only be able to attest to the requirements of Section 65-B, IEA to the best of her knowledge and belief.
5. Where a party cannot produce the certificate, she must file an application before the court to direct the concerned persons to furnish the certificate as under Section 65-B(4). This process seems to be located during the trial itself when evidence is recorded. 
6. Only where a certificate is not forthcoming despite these directions can the requirement be waived. 
7. Section 65-B, IEA does not speak of the stage at which the certificate must come in. Anvar's view that the certificate must accompany the material when adduced in evidence is correct, but only in the cases where a party can produce a certificate. In other cases, the court conducting the trial must take steps to get the certificate by issuing necessary directions.
8. In criminal cases, the certificate should ordinarily be filed at the outset to enable full disclosure. At the same time, it is open for a court to allow the certificate to be filed later during the trial if there are good reasons explaining the failure to file the certificate at the outset.  
9. For data in the nature of call records that has been seized during an investigation, ISP’s and other service providers must store that data for a period longer than 1 year and do so in a “secure” manner.

[Based on Paras 30—63 and 72 of the judgment]

Three Points of Critique

There is a lot to unpack in the decision and the separate opinion which suggests that perhaps it is time to reconsider Section 65-B, IEA as a whole. Rather than enter a longwinded discussion with lengthy excerpts (and subject myself to the fallacy of the decision itself, which is bloated with copious extracts), below are some points of critique:

• Two wrongs don't make a right (yet again): Anvar had made a mess of Section 65-B, IEA by making a certificate mandatory when it was never the case as per the statute, and Arjun Panditrao has gone ahead and repeated that error with aplomb. On both occasions, the Supreme Court has conflated the mandatory nature of Section 65-B, IEA for the specific kinds of material it covers, with the separate issue of how the conditions in that provision be established by a party during trial. The text of Section 65-B, IEA, principles of evidence which support ease of admissibility, and just plain logic, all support a reading that a party has the option to either have a witness come in or to furnish a certificate. In Arjun Panditrao, the Court has not confronted the clear leaps in Anvar which had led that decision to introduce the need for mandatory certificates, and has thus assured that Indian law retains its position of being a discordant exception to global best practices when it comes to the admissibility of electronic evidence [A point hammered home nicely by the Separate Opinion].
• Peculiar Add-Ons to the Anvar Regime: As referred to above, the reference in Arjun Panditrao was the result of apparent conflicts between Shafhi Mohd. and Anvar. In my view, it would be a stretch to say there was a "conflict" — Shafhi Mohd. had filled in a gap that existed within the Anvar regime by fairly suggesting that mandatorily requiring parties to furnish certificates might adversely affect the cause of justice. Arjun Panditrao has actually upheld this kernel of truth, but rather than adopt the "interests of justice" formulation of Shafhi Mohd. what we have now is a higher yardstick and parties have to file applications for courts to compel production of certificates, which the court will consider during the trial [Para 50]. Is that really a better answer to the issue though? Consider the costs of this approach — 
• The Court has now made the entire trial setup slightly bizarre. If I don't have a certificate for the material, I can still bring it to court. But what next? I file applications seeking directions against the concerned person to file the certificate. But what about the progress of the trial? Do courts "mark" and not "exhibit" the material and continue the trial, or do they stop and get this issue sorted first? Will that not be in the teeth of an earlier Supreme Court verdict which had recommended deciding all objections during the evidence stage at the end of the process in a bid to save time? Further, what if I do not know who the concerned person ought to be, or what if the person comes ahead and disputes the factual basis (as an adverse party might very well do)? Does the court then enter into a mini-trial on the application? Either way, there is bound to be greater delay in the process as all these applications necessarily take time; 
• The Court has suggested that the deficiency of a certificate can be rectified by making proper applications before court. But, the Court puts the cart before the horse here, because it does not consider just what is the nature of the failure to tender a certificate. If Section 65-B, IEA compliance is a mode of proof issue — as was held in Sonu v. Haryana — then it means that courts should not exclude material on this ground unless that objection is raised by a party. If so, then isn't the entire mandatory nature of the certificate requirement a little bit of a hollow promise?  
• A Worrying Blind Spot in the Criminal Process: Arjun Panditrao helpfully notices the different kind of pressures in a criminal trial and the necessity of securing a fair trial for an accused. Towards this, the Court recommends that a certificate be filed at the outset, so that it can be shared at the stage of disclosure [Section 207 Cr.P.C.]. All this is great, till you stop to think: Wait, what happens if it's a complaint case? These constitute a big chunk of criminal prosecutions, and more importantly, complaint cases are the ones where issues about a lack of certificate can arise rather frequently. On law as well, it is not a clear position that Section 207 applies in this context, and so we are left in a strange lurch where it becomes unclear at what stage certificates must be placed on record. 

Conclusion — Frustrating Justice

A reference was made to clarify the law on Section 65-B, IEA. Arjun Panditrao answers this by telling us that Anvar is the correct position insofar as the certificate requirement is still mandatory. But that is the limited extent to which any clarity has been offered. There were many other legal issues that had arisen in the years since Anvar that required clarity, chief among them being the observations made in Sonu about the nature of any 65-B, IEA objections. But the Court has turned a Nelson's eye to these issues. Instead, what the Court has done is to leave its mandate to clarify the law and step into suggesting the practical ways in which the certificate requirement is given effect. It would appear that the Court chose to make further changes without fully appreciating the nuances of the existing architecture, where many of the "nuances" are the result of similar forays by this Court in the past. What is left behind is the wasteland of criminal procedure, which someday a different bench of Justices will hold responsible for delaying the delivery of justice itself.    

[This post was edited on July 16 to insert point 9 in the section on the holding.] 

Guest Post: Re-Form the Criminal Laws Committee

(This is a guest post by Lakshana Ramakrishnan and Arshdeep Singh)

The Ministry of Home Affairs vide Notification 1-2-19 Judicial Cell (Part I) of 04.05.2020 constituted a Committee to “recommend criminal reforms in India”. The aim of the committee, as per its own website, is “to recommend reforms in the criminal laws of the country in a principled, effective, and efficient manner which ensures the safety and security of the individual, the community and the nation; and which prioritises the constitutional values of justice, dignity and the inherent worth of the individual.” We submit that the committee’s composition, its objectives, and its functioning till date act as a barrier to fulfilling its own aims.

Many objections as to the composition and functioning of the committee have already been highlighted by ex-judges, senior lawyers, and women lawyers particularly. The committee has also released a public notification responding to some of the objections stated. The Bar Council of Delhi had written to the committee as well, asking for members of the bar to be included.

This piece tends to raise some new objections, revisit some of the already highlighted objections, while responding to the public notifications released by the committee.

Composition

1. Lack of gender diversity

The committee as it stands today comprises Dr Ranbir Singh as Chairperson, Dr G S Bajpai, Dr Balraj Chauhan, Mr Mahesh Jethmalani, and Mr G P Thareja as members. There are admittedly no women or persons belonging to the LGBTQIA+ community in the committee. The two consultants listed on the committee’s website happen to be men as well. A questionnaire was released by the committee on July 4 for initiating the public consultations process. The third section of Part C of the questionnaire has been dedicated to sexual offences. The questions raised pertain to the standards of consent, offences amounting to sexual harassment, the marital rape exception, alteration in scope of rape laws to include gender-neutral definitions, and factors to be considered in sentencing. If persons with relevant lived experiences were to engage with these questions, concrete and beneficial change could be brought about in law pertaining to sexual offences. Engaging women, queer persons, and those advocating their rights in a merely consultative capacity reeks of tokenism. The committee's clarification that registrations for the consultations were open to everyone irrespective of sexual orientation, sex, gender, and other social denominators belittles women & queer persons as legal experts in their own rights, and is not a valid explanation to the lack of gender diversity in the committee itself. The concerns that this lack of gender diversity raises have been highlighted in detail in a letter written to the committee by women practitioners.

2. Lack of regional diversity

Apart from the lack of gender diversity, the committee is currently represented by persons whose experience in criminal law does not go beyond parts of Northern and Central India. The two non-academicians in the committee have had a majority of their exposure to the criminal justice system in metropolitan-cosmopolitan cities like Delhi and Mumbai. The reforms forthcoming from the committee’s recommendations would have impacts across the country, a fact that demands adequate regional experience be brought to the table. Going beyond the high-profile or headline making cases, there is a vast majority of citizen interaction with criminal law that has remained unseen and unaddressed. Including persons with experience in the insurgency affected regions of Kashmir and the north-east, the naxal-affected areas such as Chhattisgarh and Jharkhand, and the southern states in the committee would bring the rarely heard narratives to light in so far as these reforms are concerned. Additionally, there is no religious and caste diversity in the committee, which goes to show how far from social realities the committee in its present form is, especially since the questionnaire released has questions pertaining to mob-lynching and honour-killing.

3. Lack of practitioners and civil-society groups

The committee consists of three academicians, one retired judge, and one lawyer. Sweeping reforms in criminal law as a whole should not be spear-headed by academicians alone, without active involvement of practitioners who deal with these laws on a daily basis. With due respect to the members of the committee, more practitioners will bring diverse experiences about the functioning of the justice system, which would ensure a meaningful discourse and practical solutions. The involvement of civil-society groups and practitioners should go beyond mere consultation, to determining the nature and scope of the reforms itself. Adding more members that have experience with crime-investigation, prison-system and law-enforcement in general is also desirable, given that the police force plays a primary role in invocation and execution of the criminal justice system.

We understand that it is not administratively practical to have a large number of members in the committee. However, a balanced representation in form of academicians, police officers, members from the bar, judges of the constitutional courts, judges from the lower courts, and members of prominent civil-society groups would go a long way in ensuring that the committee meets its aim of suggesting “effective” and “efficient” reforms, that take into account the practical goals alongside academic aspirations.

Another addition worth mentioning is that of law-makers. In a parliamentary democracy, it is only fair that experienced parliamentarians can contribute to committees such as this, especially since a major problem with committees have been that their suggestions are often not implemented by legislature. This may bring to the table the much-needed considerations of law-makers. This is especially important given the fact that members of the legislature often criticise courts for their interventions in legislative matters, but ironically, are not included in committees discussing reforms.

It is also recommended that medical professionals, especially mental health professionals, be represented in the Committee. This is important as one of the questionnaires released by the Committee engages with issues of age of consent, intoxication and insanity as defences, etc. A very significant aspect that is often overlooked in so far as criminal justice system is concerned is link between substantive & procedural aspects and issues of mental health. Experts from this field could provide key insights to interplay of mental health and the criminal justice system.

A suggestion that would go a long way in this regard was suggested in the letter written to the committee by a group of ex-judges, senior lawyers and bureaucrats. It recommended creation of sub-committees dealing with specific areas, consisting of members having relevant experience.

Functioning

1. Timeline

The committee was first instituted in December 2019 by Home Minister Amit Shah and was subsequently constituted by the Ministry of Home Affairs in May 2020. Since then, the committee has released a notice containing a schedule through which it plans to have separate consultations with experts on the substantive and procedural aspects of criminal law and the law of evidence. The process, which will last for a mere three months, has been divided into 6 two-week periods. The method and timeline of the consultation process have been criticised by those who have objected to the committee’s functioning and composition. The first consultation was initiated by the committee on 30.06.2020 by releasing a questionnaire comprising 46 widely worded questions on crucial issues plaguing our criminal law framework. Experts have been provided with a woefully inadequate two-week period to engage with these questions after no more than five days of advance notice.

This series of disconnected two-week consultations removes any scope for effective engagement and defeats the entire purpose of the consulting with experts. The committee intends to complete the task allotted to them within a period of six months. It is alarming that such sweeping reforms with a potential to create an extensively deep and wide impact are expected to be developed in such a hasty fashion within a limited period of time.

2. Questionnaire

A questionnaire pertaining to the first round of consultations regarding substantive laws was released on 04.07.2020. A bare reading of the questions excited law students such as ourselves, given its resemblance to our question-papers. One of us having attempted to answer some of them, the exercise seemed no different that writing a short note on the widely debated issues such as marital rape, sedition, death-penalty, etc. On a much more serious note, the questions seem pre-determined, narrow in the areas that they cover, and intended to merely seek endorsements for predetermined conclusions. Working backwards will not do any justice to the process as well as the result. Notwithstanding the concerns with the short timelines, a six-stage consultative process through questionnaires (two stages each for substantive, procedural, and evidence laws) overlooks the manner in which these three core areas are interlinked with each other. A trifurcated exercise, not taking into account intersectional concerns, is inadequate and inefficient to say the least. There has been no indication of how these questions have been arrived at, and nor has any context pertaining to the questions been specified.

As an example, a question reads: “Do you have any suggestions with regards to addition/omission/modification of provisions dealing with kidnapping and abduction?” The question is open-ended and does not contextualise the scope of responses elicited. Another example is: “Which strict liability offences should be included within the I.P.C.?” Apart from being open-ended, the question assumes a conclusion. Moreover, there is no corresponding question on whether or not (and why) strict liability offences ought to be introduced in the first place. At the same time, there are questions that are extremely narrow, seemingly geared towards forgone conclusions.

The questionnaire makes no accommodation for responses beyond the questions already posed, rendering the exercise limited, in-exhaustive, and certainly inefficient. Submissions of the completed questionnaire can only take place online and this excludes a large swathe of persons from participating.

3. Clarificatory Public Notices

Two public notices, seemingly clarificatory in nature, were released by the Chairperson of the committee in response to some of the objections noted herein. We duly acknowledge the same and wish to discuss them.

Notice dated 08.07.2020

Vide this notice, the Committee clarified that its functioning is completely autonomous and is willing to respect all suggestions made. The notice also emphasises that the Committee is ‘conscious’ of the social categories requiring ‘prioritization’. It was also clarified that registrations for the expert consultations would be open to everyone irrespective of their views, ideologies, preferences, sexual orientation, religion, etc.

In doing so, the Committee has have failed to recognise the adverse effects that could arise from its lack of diversity and narrowness in perspective which will not be solved by simply consulting with persons of varying opinions and social identities.

It was also clarified that the 200-word per answer limit is merely suggestive so that participants exercise ‘self-restraint’ for the ‘sake of brevity’. The committee has also justified the short timelines for consultation citing a lack of time, viz., six months to complete the process. It is humbly submitted that large-scale reforms in a system like ours ought not be weighed against brevity and verbal-restraint.

On a positive note, the committee seems to be inclined to receiving external inputs and has made a promise of transparency in its working. However, the notification does not engage with the need to look at the substantive, procedural, and criminal law aspects as a whole.

Notice dated 11.07.2020

In this notice, the Committee has notified the schedule for the open consultation process. Through this notice, the committee has also attempted to respond to objections regarding the scope of its questionnaire. It has been clarified that the circulation of these questions does not signify that the Committee has decided on any of the issues, and the inclusion/non-inclusion of certain questions is not intended to limit the Committee’s mandate, and that they are inclined to consider any issue that is aligned with their mandate. To this end, ‘open consultation’ mechanism has been developed, where any suggestion, advice, opinion, recommendation, knowledge, and experience relevant to the mandate may be submitted to the Committee.

The introduction of open consultations in the manner provided, in addition to the questionnaire system, is a welcome step. However, key concerns regarding short timeline and diversity remain unaddressed.

Suggestions

To cut to the chase, the committee ought to be re-formed, taking note of the various suggestions received. Being overambitious, we appeal to the Ministry of Home Affairs to at least add members to the committee so as to ensure adequate representation of women, queer persons, dalits, adivasis, and religious minorities. As highlighted above, the lack of practitioners of criminal law, representatives from police and other agencies, and civil society groups also needs to be addressed. It is trite to mention that any addition to the committee should also address representation of people having experience in different regions, especially non-urban areas.

If administrative considerations make this difficult, the least that can be done is formation of sub-committees for specific issues, with the membership being considerate of adequate representation. It is also suggested that the timeline and the structure of the consultations be overhauled, so as to ensure a wider and holistic range of perspectives, keeping in mind the implications of engaging with a complex system such as ours.

A top-down approach in reforming systems has its shortcomings, and the present committee will not be able to fulfill its mandate effectively. While working from the grassroots might prove to be an arduous exercise, great reforms require greater efforts. The principle of “Fiat justitia ruat caelum” (Let justice be done though the heavens fall) should guide the functioning of the committee.

Snippet: The Delhi High Court Order In Sharjeel Imam's Case

Yesterday, on July 10, the Delhi High Court delivered its judgment and final order in a petition filed by Sharjeel Imam [Crl. M.C. 1475/2020] challenging the order passed under Section 43-D(2) of the UAPA, by which the police have been granted additional time to complete the investigation in a case filed against him. The extension order was upheld.

The Order itself and the law on Section 43-D(2) are bound to receive close attention in the coming days. But what caught my attention upon reading the order was a specific observation passed by the Court at Para 51:

"Having heard the learned counsel for the parties and perused the record, at the outset I may state that the petitioner has not challenged the addition of Section 13 of UAPA to the list of offences, he is accused of. ..." [Emphasis mine]

This observation seems to be in response to a submission made by the Additional Solicitor General, which is recorded at Para 24 ["Mr. Lekhi submitted that Ms. John did not challenge the addition of Section 13 of the UAPA to the list of offences of which the petitioner is accused of ..."]. In turn, this entire exchange seems to have been a result of submissions made on behalf of Imam, where Senior Counsel argued that the invocation of UAPA offences on the 88th day of the investigation displayed the bad faith of the police.

This exchange is interesting because, seemingly inadvertently, it reveals a very serious problem within the Indian criminal justice system. This is the near-absolute discretion vested with police for adding offences to an ongoing investigation and the limitations upon aggrieved persons to challenge these decisions. 

To appreciate this, let's take a step back. Normally the criminal process begins with lodging a "First Information Report". This not only summarises the initial allegations, but also notes the various kinds of offences made out by the allegations. As an investigation proceeds and more material is gathered, it is not uncommon for police to add more offences to the case. 

All this seems pretty tolerable. But things get a little tricky when we consider that the same set of factual allegations can make out many different kinds of offences. For instance, someone raising slogans against the unity of India can seemingly fit the definition of Sedition (Section 124-A IPC), and at the same time it can fit the crime of engaging in "Unlawful Activities"(Section 13 UAPA). 

The kind of offence that is invoked by police during an investigation is a choice which carries serious substantive issues. Continuing with the above example, Section 124-A IPC and Section 13 of UAPA have different possible punishments upon conviction and, arguably, a prosecution for "Sedition" carries greater stigma. At the same time, this choice also carries serious consequences from a procedural standpoint. Not only is the procedure for trial of offences different, depending on the maximum possible punishments, but this is a factor which also affects valuable procedural rights of persons who are being accused of crimes. There are some offences for which police can arrest without warrant (cognizable) and where the person so accused does not have a right to bail (non-bailable). 

The core issue in Imam's case was also a procedural one — a UAPA case carries a possibility for extending time-limits on custody during investigation by ninety days, in addition to the regular ninety days that police get for serious crimes such as Sedition. Here, on the 88th day of the initial ninety, police had chosen to add UAPA offences in the case and immediately sought an extension for his custody while they completed their investigation. The Senior Counsel for Imam argued that this belated addition of the UAPA offence was a clear indication of bad faith. But, as pointed out by the State, Imam had not challenged this decision.

Which brings me to the issue — how do accused persons challenge this decision of police to add offences to an ongoing investigation? Some thoughts are below: 

• There is enough and more judicial rhetoric which has held that the domain of investigations is solely that of the police and courts mustn't interfere with that process. At the same time, there are very recent decisions (the most recent being from 2019) which blur these lines and actively invite trial courts to "monitor" investigations. Should one take the High Court's observations in Sharjeel Imam as an indirect suggestion to accused persons, that they should explore this option in respect of the decision of police to add offences in a case, by asking the trial court to examine the basis for adding offences during an investigation?
• The more conventional route for challenging any aspects of investigations has been to move a High Court under its extraordinary jurisdiction (the alacrity with which this was happening, in fact, had prompted one Supreme Court judgment to suggest monitoring by trial courts). Normally though, the High Court is invited to quash the investigation altogether (quash the FIR as it is called). So should we read the observations in Sharjeel Imam as a suggestion that accused persons could perhaps move the High Court against the invocation of specific offences?  
• The observations in Sharjeel Imam are made in the nature of an aside (thankfully). Still, it makes one think about how should courts test arguments of bad faith in this context. I say this because the Court in Sharjeel Imam did not say that a bad faith argument was misplaced. If that is the case, then we certainly need some clarity to help adjudicate such pleas. Will my claim appear more genuine if I have pursued independent remedies? Should it matter?
• If either of these avenues does exist, then what does this mean for the general way in which criminal law works in India? I say this because, normally, an accused person is not really an active "subject" in an investigation. Instead, the accused is an "object" to whom things may happen as the police go about their job of unearthing the truth. Are we witnessing a change in judicial attitudes where courts are themselves encouraging more participation from the side of the accused, perhaps recognising this is necessary towards securing the promise of an adversarial system of justice like India's claims to be?

It will be interesting to see whether this innovation happens in the near future or do these observations in Sharjeel Imam get lost to the pages of history.

[This post was updated at 5:30 PM on July 11, to add the point about adjudicating bad faith pleas]

Guest Post: Lessons From Abroad — R v Tran and Provocation in India

(This is a guest post co-authored by Varshini Sudhinder and Jibraan Mansoor)

SATURNINUS: Because the girl should not survive her shame, And by her presence still renew his sorrows; 

OTHELLO: I will chop her into messes! Cuckold me?; 

Introduction

Shakespeare’s cuckold has been a prominent theme in various works such as, The Merry Wives of Windsor, Cymbeline, and The Winter’s Tale. But what was supposed to be a literary feature has often made inroads into the halls of justice. For instance, in R. v. Mawgridge [(1707) Keil. 119], Judge Holt wrote,“[A] man is taken in adultery with another man's wife, if the husband shall stab the adulterer, or knock out his brains, this is bare manslaughter: for Jealousy is the Rage of a Man and Adultery is the highest invasion of property”. It is not uncommon to find Indian courts reaching the same conclusions. For instance, when in C. Narayan (1958 Cri LJ 476) a wife was strangled to death by her husband after she confessed her adultery, and in Murugian (AIR 1957 Mad 541) when a husband killed his wife in response to her defiance about her adultery, in both these cases courts agreed that this was not murder as the accused had acted under provocation.

In this post, we attempt to re-complicate some of these conclusions. Borrowing from the Canadian experience we argue that at the heart of the “provocation for adultery” question rests a need to carefully balance human frailty with considerations of sexual autonomy. The post broadly covers four aspects. First, we briefly explain how Indian law has come to understand provocation and we identify certain issues which remain unanswered. Second, having identified the issue, we discuss the Canadian case of R v. Tran (2010 SCC 58) [Tran], to understand how the Canadian Supreme Court has made attempts to resolve these issues. The third section showcases a possibility of using the Canadian decision to good effect in the Indian Context. Finally, we discuss how Indian courts might consider changes to granting provocation in cases of adultery at a time when adultery is no longer a crime per se. 

Indian Courts, and Provocation as an Exception to Section 300

The statutory text of provocation needing to be “grave” and “sudden” tells us barely half the story; judicial decisions have added a great deal of nuance in applying this test. Stanley Yeo, in his paper, Gravity Of Provocation Revisited, having analysed the Indian experience, suggests that the judicial inquiry into a provocation plea involves first analysing if a “reasonable man” would be so provoked, when placed under a similar situation, to lose his self-control like the accused. After such an examination, and seeing if the accused did the same, we need to trace the fatal blow to the “influence of passion” which arose from the provocation, and not after having sufficient time to “cool down”, to prevent any scope of premeditation.

However, as R.V. Kelkar in his paper, Provocation as a defence in the Indian Penal Code notes, the judiciary has not always clarified things. One of the main reasons for this is the acceptance of the objective standard, that of a reasonable man, to analyse the defence of provocation. Using the “reasonable man” standard can lead to a lot of problems because the associated characteristics of a reasonable man have not remained consistent over time, as courts have acknowledged that obviously no person is ideally reasonable, and in fact is associated with “mistakes” and “defects”.

The canonical Nanavati (AIR 1962 SC 605) highlighted the need for the “reasonable man” to belong to the same class category and social realities, as the accused, to bring within it the “emotional background” of the social class to which the accused belongs. The court associates this reasonable man with certain characteristics, customs, manners, ways of life, etc. Some courts over the years have reinterpreted “reasonable man” to be an “ordinary” or “normal” one. Yeo stresses on the relevance and the importance of doing something like this because all persons are differently placed and come from diverse backgrounds. According to him, an accused’s characteristics may be of relevance either if the provocation was directed at particular characteristics of himself/herself; or, if the accused belonged to a class of persons who tend to possess self-control which is less than others.

Even though the above discussions are important as they recognise the need to account for human frailty, yet they also raise concerns about not allowing sexual autonomy to women. More broadly, they make one wonder that if we allow for the “sudden and grave” provision to be exercised by those in power, then do we completely dismiss the normative horizons that criminal law seeks to achieve by altering individual behaviours? So, will the Indian Jurisprudence allow a defence of provocation to an ultra-conservative Hindu belonging to a culturally sensitive class who murders a Muslim offering Namaaz in front of them? Further, to what extent can psychological factors which do not directly harm one, can become justification for the person to employ the defence of provocation? In order to address some of these questions, at least in the context of adultery, we undertake a comparative jurisdiction analysis, or “lessons from abroad”, by analysing the Canadian Supreme Court in Tran, and try to analyse the applicability of the Canadian Court’s decision in the Indian context.

R v Tran and New Beginnings 

The facts of R v Tran (2010 SCC 58) are straightforward. A man estranged from his wife snuck into their former home to discover her in bed with her new lover. He then flew into a rage, fatally stabbing his estranged wife’s lover with a knife, while also harming his estranged wife with that weapon. While there were various aspects in the decision which have interesting implications — how the court read the facts to understand “sudden” — for our purpose, the court’s assessment of what constitutes as a harm enough to allow for provocation is central. 

The court explains that the “… ordinary person standard must be informed by contemporary norms of behaviour…”, but these must not derogate the fundamental values of equality (the court refers to the Canadian Charter of Rights and Freedoms) and the “accused must have a justifiable sense of being wronged”. The court gives examples of how it would be apposite if the “ordinary person” included the relevant racial characteristics, had they been at the receiving end of a racial slur, but not homophobic characteristics had they been the recipient of a homosexual advance. Furthermore, it held that “there can be no place in this objective standard for antiquated beliefs such as ‘adultery is the highest invasion of property’ nor indeed for any form of killing based on such inappropriate conceptualizations of ‘honour’.”

We see in this decision that the court is making a conscious attempt to limit the attribution of certain characteristics in determining whether provocation took place. More specifically, the Court is acknowledging that they have to balance between accounting for human frailty and justice. It is trying to denude the power differentials that are ascribed to people just by virtue of their birth and belonging, as opposed to individual choices. Furthermore, the court by recognising that the “accused must have a justifiable sense of being wronged”, seeks to highlight that there ought to exist some legitimate harm, wherein legitimate has to be understood as a normative exercise constrained by institutional principles — which was accrued to the accused for the partial defence to be granted. But can we reconcile this approach with the manner in which we historically understand provocation as a category, i.e., if provocation is to be understood as a psychological question accounting for human frailty in the Indian experience, would placing social normative values be a plausible exercise? 

Is R v Tran possible in India?

Botswana’s High Court in State v. Segana Seleke [1974 (1) BLR 102 (HC)] made certain interesting observations about the Indian experience. While the court recognised that the English experience has applied “considerations of social morality to what in the final analysis is a psychological problem”, but in “many jurisdictions in India such a distinction, [issues] based wholly on the question of whether or not a relationship sanctioned and approved by the law exists between the accused and the other party to the adultery, is not countenanced.”

This observation of Botswana's court can be re-affirmed by (Kota) Potharaju [AIR 1932 Mad 25]. Here the accused found his “mistress ... in the arms of a former lover, lest control of himself and stabbed her”. The Madras High Court accepted a plea of provocation and held: “One cannot supply considerations of social morality to a purely psychological problem. The question is not whether the appellant ought to have exercised, but whether he lost control over himself. When a man sees a woman be she his wife or his mistress, in the arms of another man he does not stop to consider whether he has or has not the right to insist on exclusive possession of her person … she is a woman, of whose person he desires to be in exclusive possession and that is, for the moment, enough for him”.

This case was contested in Murgi Munda [(1939) ILR 18 Pat 101], where prevalent custom dictated that any unmarried man and woman may cohabit with each other, but if the woman is impregnated by a man, he must marry her. In this case, the deceased, Gansa, used to be in that kind of a relationship with Bandai, and when he moved away, she and Murgi entered into a relationship. The night when Murgi found Bandai and Gansa together, he killed the latter in rage, and then pleaded provocation in the Court.

Justice Fazl Ali and Justice Agarwal held that they disagreed with (Kota) Potharaju, since, “the mere fact that a person’s desires are thwarted does not in law justify him killing the person who is thwarting him. The provocation which is mentioned in the 1st exception to section 300, Penal Code, is something which is recognized as provocation in law and not merely something which arouses the uncontrollable anger of a particular individual.” Further, “In the case of a wife the position is entirely different. The law recognizes that a husband is entitled to expect fidelity from her”. And in the present case, their relationship was not one where Bandai owed him any form of fidelity. 

Murgi Munda further cited Palmer [(1913) 2 K.B. 29] to justify the need for fidelity in order to explore the nature of relationships which legitimately allow the defence of provocation. Palmer is important since the Court of Criminal Appeal held, “… the relation between the parties was not that of husband and wife, nor was it a case of unmarried persons living together as husband and wife. They were simply persons who were in the position of being engaged to be married. Under those circumstances if the effect of the summing up was to leave the jury under the impression that they could not properly find a verdict of manslaughter we think that it was right.” In both Murgi Munda and Palmer, we notice how the courts are eager to distance themselves from the kind of reasoning seen in Potharaju, as the courts are highlighting that there are certain relations which aren’t socially perceived as being as sacrilegious as others, and hence shouldn’t be entitled to the defence of provocation. Immediately, one suspects of whether the Indian courts are completely treating provocation as a psychological issue to begin with or not. Further, one wonders how Murgi Munda’s decision which relied upon the law recognising the husband’s entitlement of fidelity from his wife, would change after Joseph Shine [AIR 2018 SC 1676].

The second engagement between the High Courts which is relevant for the current issue can be seen by analysing Murugian and Jairam Chandrabhan. In Murugian [AIR 1957 Mad 541], Basheer Ahmed Sayeed J. observed, "But it should be noted that these decisions apply to the society in England and countries of western culture and civilization. It is well known that in western societies, marital laws and violations thereof are looked upon with such (sic) greater latitude and the award of damages in Civil Courts would constitute sufficient redress. Adultery is not made punishable as it is in our country where a more serious view is taken of offences against marital rights." However, in Jairam Chandrabhan [AIR 1959 Bom 463], where the accused murdered his wife as he saw her enter someone else's house and when confronted told the accused that she'd continue engaging in the relationship, the court disagreed with Murugian. The court held that “In our opinion, it would be extremely hazardous to apply the First Exception to Section 300 to a case of the kind we have here merely on the ground that offences against marital rights are made punishable by the law in India ... Bearing in mind the fact that adultery though frowned upon in our country is not uncommon in the village community and bearing also in mind the fact that even before the law made a provision for obtaining a divorce, a customary form of divorce has prevailed in the village communities, it would not be right to hold that the reaction of an Indian spouse from such a community would be different from that of one in the western countries.”

The court subsequently held that the offence would not constitute “grave and sudden provocation” for the accused to be given the partial defence from 300. Even though the court in Jairam Chandrabhan does not explicitly denounce adultery, it is anxious to allow violation of marital rights from becoming the sole ground for allowing for the partial defence to be granted. So instead of following the reasoning seen in R v Tran, the court tried to ignore the Indian courts’ approach of “cumulative provocation” and held that mere exchange of words between the accused and his formerly deceased wife—completely ignoring the act of adultery itself—couldn’t constitute as “grave and sudden” provocation. Even though Jairam Chandrabhan could be accused of compounding the confusion as it erodes “cumulative provocation”, the importance of this case is a) in its ability to recognise that violation of marital rights might not be enough to constitute provocation and b) given the widespread norm of adultery, the anxiety of male heterosexual violence which might be perpetuated if the partial defence is guaranteed. [Note: Jairam Chandrabhan also becomes important for it subtly challenges the assumption about the various attributes of the “ordinary person” (by questioning the distinction between village communities and western countries), while Indian courts attempt to be sensitive to cultural contexts. However, the implications of this observation are beyond the scope of this post.]

Indian courts have not resolved these questions directly and have more often than not continued to allow for adultery to be a ground for provocation. But from the above discussions, if there is a possibility of social morality becoming the guiding force of what we consider as “provocation” enough, it might be so that today when adultery is no longer a crime following Joseph Shine, instances of adultery in some cases might not be enough to be treated as an exception to 300.

Joseph Shine’s impact on Provocation

The main focus in Joseph Shine was constitutional questions posed by the adultery offence (Section 497 IPC) Even so, the various opinions made some extremely important remarks about how questions of adultery are in essence gendered questions concerning monogamy, sexual subjugation and treatment of women as property. For instance, Chandrachud J. noted that, “throughout history, adultery has been regarded as an offence; it has been treated as a religious transgression, as a crime deserving harsh punishment, as a private wrong, or as a combination of these”, and further, ”To fully recognise the role of law and society in shaping the lives and identities of women, is also to ensure that patriarchal social values and legal norms are not permitted to further obstruct the exercise of constitutional rights by the women of our country.”

While Section 497 IPC operated in clear gendered differentia, it might not be too difficult to claim that provocation as a defence in cases of adultery has empirically more often than not been used by men. By the court recognising that adultery being treated as a harm enough is an impediment to constitutional rights of women, one cannot help but wonder whether allowing adultery to be a provocation “grave” enough, ends up embedding the same stereotypes which allow for exercising control and dominion over a woman’s body? 

We are even more afraid when we take into account the importance that the judiciary has attributed to notions of property over the years. For example, in a case like Muthu, [(2007) 12 SCALE 795] where the victim was killed for merely throwing garbage into the property of the accused, we see the Court allowing provocation to be granted to the defence. Just like Muthu, we are worried that the courts are yet again placing undue premium on conception of property, especially from a man’s perspective, as opposed to recognising or at least deliberating the question of a woman’s control over her autonomous body. 

Framed otherwise, the above discussion leads to two questions: (1) While historically adultery had connotations of property, can we now move to a place wherein we recognise adultery as an autonomous private decision, and thereby limit the attribution of psychological provocation that courts have historically undertaken, and (2) Keeping in mind Palmer, Jairam Chandrabhan, Murgi Munda line of cases and R v Tran, do Indian Courts need to re-assess the question of provocation by recognising the need to balance human frailty with the normative horizons that criminal law wishes to achieve by altering human behaviour? These are both questions which the courts have to engage with seriously, for us to be able to have a just, clearer and more concrete understanding of provocation, as seen in exception to 300.