Tuesday, June 28, 2022

Guest Post: Understanding the Interface between Statutory and Constitutional Powers of the Executive to Remit, Commute, or Suspend Sentences

(This is a guest post by Pradhyuman Singh)

Introduction
On 18th May 2022, the Supreme Court ordered the release of A.G. Perarivalan, a conspirator in the assassination of former Prime Minister, Rajiv Gandhi by exercising their inherent power under Article 142 of the Constitution. Perarivalan having been found guilty on a number of charges, the State of Tamil Nadu wished to issue a pardon in his favour. To this effect, the Council of Ministers of Tamil Nadu advised the Governor to issue a pardon. The power of the Governor of a State to issue pardons is traceable to Article 161 of the Constitution. As granting pardons is a function of the Governor, it is also pertinent to read this power/function with Article 163 of the Constitution. Article 163 requires the Governor to exercise her functions on the aid and advice of the Council of Ministers. Therefore, the Governor is mandated to act on this advise being the nominal Executive Head of the State. 

In this case, the advice of the Council was tendered on September 9, 2018 and no action was taken by the Governor. Instead, the Governor submitted the matter to the President for his consideration. The Governor used this reason as a justification for the delay in implementing the mandatory advice of the Council. The Supreme Court held that such abstinence was in violation of the Governors duty under the Constitution. Thus, to do complete justice the Supreme Court itself ordered the grant of pardon in favour of Perarivalan, resulting in his release. 

Predictably there has been considerable publicity on this order of the Supreme Court. Amongst the various opinions on the order, (Retd.) Justice V. Parthiban, an erudite judge of the High Court of Madras has also expressed his criticism on many fronts. One particular criticism was that the Supreme Court did not consider the attraction of Section 435 of the Code of Criminal Procedure, 1973 (“CrPC”) to the case. This specific contention will be the focus of this post.

Sections 432-434 of the CrPC provides a statutory power to the President/Governor to remit, commute or suspend punishment of offences. Section 435, provides that if the State Government (i.e. the Governor, as per Section 3(60), General Clauses Act, 1897) wishes to exercise power under Section 432 or 433, and-

1. The offence in question has been investigated by the Central Bureau of Investigation; or 

2. The offence involved damage to property of the Central Government; or

3. The offence was committed by an employee of the Central Government, 

the Governor would be obligated to exercise such powers only after “consultation” with the Central Government. “Consultation” here has been interpreted to mean concurrence by the Supreme Court (Union of India v. V. Sriharan). In the facts of this case, the investigation of the offences was carried out exclusively by the Central Bureau of Investigation, thus attracting Section 435 of the CrPC.

At first sight, it may seem that such powers of the Governor under the Constitution stand on a different footing from the statutory power. In no manner can the provisions of the CrPC control the ambit of Article 161 of the Constitution (which stipulates no such requirement of consulting/concurring with the Central Government). However (Retd.) Justice Parthiban emphasises that the decision rendered by the Supreme Court in Sriharan (by a Constitution Bench nonetheless) requiring mandatory concurrence of the Central Government would then be rendered completely nugatory. All that would be required is for the Governor to claim that her power is being exercised under the Constitution and not the CrPC. The entire scheme of statutory powers of the Governor/President to remit, commute or suspend sentences would become redundant. 

Further, the Supreme Court in another occasion (K.M Nanavati v. State of Bombay) has also held that Articles 72 and 161 embody the “prerogative power” of the President/Governor. Since there is no express provision in the Constitution saving these provisions from legislative interference, the English common law as to Prerogatives applies to the pardoning power under our Constitution. As a result of this, these powers may be fettered and controlled by legislation. Thus, what would otherwise be a simple matter of examining the relationship between statute and the Constitution becomes complex. This is due to the scheme of the CrPC historically having analogous powers of remission, commutation and suspension of sentences ever since its recognition in the Code of Criminal Procedure, 1898 (the predecessor to the present CrPC). 

This post will enquire into the context with which parallel powers of remission, commutation and suspension exist in our statutory framework, despite our Constitution exhaustively providing for the same. Accordingly, we may determine the relationship between these laws and the legal implications that follow.

History of the Code of Criminal Procedure

The Code of Criminal Procedure, 1898 (“Code”) first recognised the power of the Governor General of British India to remit, commute and suspend punishments of offences. This power found expression in the form of Section 401 and 402 of the said Code. At the time, there existed no grundnorm resembling the Constitution, and so the power of the Governor General was exclusively governed by the aforementioned provisions of the Code. 

This changed with the eventual enactment of the Government of India Act, 1935 with the enactment of Section 295. Section 295 was the template for the drafting of Article 72 and 161 of the Constitution, which vested the power to suspend, remit or commute a sentence with the Governor General as well. The phraseology adopted by Section 295 is as follows-

“Where any person has been sentenced to death in a Province, the Governor-General in his discretion shall have all such powers of suspension, remission or commutation of sentence as were vested in the Governor-General in Council immediately before the commencement of Part III of this Act…” [Emphasis Supplied] 
Thus, the Government of India Act, 1935, a legislation passed in the British Parliament gave deference to ordinary laws to regulate the powers of the Governor General in this respect. The intent behind such a provision in the Government of India Act, 1935 was to merely give passive recognition to the power of the Governor General (which was to continue to operate through the statute, i.e. The Code of Criminal Procedure, 1898) and to make clear that such powers would not interfere with the Kings power to issue pardons or remit, commute or suspend sentences (as provided in Section 295(2)). In this manner, the statutory framework of the Code had a functional purpose in recognising the power of the Governor General. The provisions of the Code worked in perfect harmony with the Government of India Act, 1935. 

Such was the arrangement until the enactment of our Constitution. Section 295 of the erstwhile Government of India Act, 1935 was significantly changed to give us what we have as Article 72 and 161 today. As is clear from the language of these Articles, the power of the President/Governor to remit, commute or suspend sentences was expressly recognised in the Constitution itself. Marking a clear departure from the previous position, there was no deference given to any statutory framework that would determine the powers of the President/Governor. However, the makers of the Constitution chose to still passively recognise the statutory powers of the Governor to remit, commute or suspend sentences. This was in the form of Article 72(3) which provides- 

“Nothing in sub-clause (c) of clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force.” [Emphasis Supplied] 

The purpose of this clause is to clarify that the power of the President conferred by Article 72(1)(c) should not be construed to exclude the power of the Governor in any manner. However, in stating so, the makers chose to express that the power of the Governor under “any law” was not to be affected. It was equally open for the draftspersons to make a direct reference to Article 161 of the Constitution in this provision. Rather, a conscious decision was made to also recognise any statutory powers vested in the Governor. The implications of this will be examined in the following section of the post. 

Moving along, once the Constitution was brought into force, the provisions of the Code were also amended. Article 72(1)(c) of the Constitution recognised the power of the President to remit, commute or suspend the sentence of death.Ordinarily, the President exercises powers with respect to offences in the Union List and the Governor in the State List respectively. An exception is made in the case of death where both the President and Governor exercise concurrent powers. To accommodate this concurrent power, Section 402A was introduced in the Code vide an amendment. This Section too recognised the concurrent powers of the President and Governor in line with the Constitution. 

The next important milestone in the development of law on this issue came in the year 1969. The Law Commission of India was tasked to review the entirety of the Code and recommend comprehensive changes to the law of criminal procedure. This took shape in the form of the 41st Law Commission Report published in September 1969. This report examined Section 401 and 402 of the Code. It expressly noted how the statutory powers of the Government were ancillary to the Constitutional powers (Refer Page 248, Para 29.1). Interestingly, it also opined that it would be legally impermissible for the Code to be inconsistent with the Constitution (Refer Page 249, Para 29.4). However despite these findings, they expressed a concern with the State Governments power to remit, commute and suspend sentences. It was felt that certain offences significantly affected the interest of the Central Government (offences involving the employees and property of the Central Government and offences investigated by the CBI). If a free hand was given to the State Government to exercise powers in respect of such offences, it would result in “difficulties of administration” for the Central Government, according to the Report (Refer Page 252, Para 29.13).

This formed the basis for them to recommend the insertion of a draft Section 402B in the Code. This Section would require the State Government to consult the Central Government if it wished to remit, commute or suspend sentences in the offences described above. This recommendation was accepted by the Parliament when the Code was replaced with new CrPC enacted in the year 1973 in the form of Section 435 of the CrPC. 

Having a brief idea of the context of this provision, we may now examine the relationship between the CrPC and the Constitution.

Relationship Between the CrPC and the Constitution 

The Constitutions passive recognition of the statutory power of the Governor may have one of two implications- 

A. The Statutory Power is merely a formal recognition of the power of a Constitutional authority. It stands on a different footing from the Sovereign power of the Executive Head. As a consequence, it does not dilute or affect the Constitutional powers of the Governor in any manner. Any statutory provision that would be inconsistent with the Constitution would be void. 
B. The Constitutional power is an expression of the Prerogative power of the Executive. Finding its origin in English Common Law, Article 72 and 161 may still be controlled and subject to legislative provisions that may be made to this effect. (This was the reading adopted by the majority in Nanavati)

The first of these two readings would result in the statutory powers of the Governor being completely redundant. If it would be open to the Governor to exercise the exact same powers to remit, commute or suspend sentences in its Constitutional capacity, any restrictions or mandatory procedures imposed in the statute (such as Section 435, CrPC) may be bypassed. Despite such redundancy, reading “A” would still be a more suitable reading of the law. This is due to the following reasons-

  1. It is correct that historically, the power of remission, commutation and suspension of sentences lies with the Executive Head. These are Prerogative powers that identify the source of authority from English Common Law. However, these conventions have been crystalised in the form of express Constitutional provisions. There are various other examples within the Constitution, where principles of common law find express mention. For instance, Article 129 of the Constitutions declares the Supreme Court as a Court of Record. The powers of a Court of Record in English Common Law would include the power to punish for contempt of itself. Despite this, the framers chose to expressly also recognise the Supreme Courts power to punish for contempt in Article 129. The consequence of this express recognition of common law norms is that such principles get the status of Constitutional law. It would follow that such principles/law are granted the protection of the highest law of the land which could only be altered by a Constitutional amendment. Therefore, Articles 72 and 161 are by themselves sources of power for the President/Governor to exercise power. It would not be correct to state that they are a reflection of the Prerogative powers which find their authority outside the Constitution. 
  2. Article 245 of the Constitution confers power on the Legislature to make laws. The provision begins with a subject clause stating, “Subject to the provisions of this Constitution…”. This makes it abundantly clear that any ordinary law cannot be in contravention of any Constitutional provision. Further, there is nothing in the context of Articles 72 or 161 that would suggest that is straightforward interpretation of Article 245 should not be followed in reading them. 
  3. The language of Article 72 and 161 marks a clear departure from their predecessor in the form of Section 295 of the Government of India Act, 1935. The regime before the Constitution in express terms gave deference to the statutory regime of the Code which dictated the extent of powers exercisable by the Governor General. This position no longer stands after independence where the prerogative power has been given Constitutional status. If ordinary legislations may be allowed to control Articles 72 and 161, it would result in the said provisions themselves becoming redundant. 
  4. As mentioned earlier, Article 74/163 requires the President/Governor to exercise their functions only on the binding aid and advice of the Council of Ministers. The powers under Article 72/161 being one such function, would also have to be performed only on the aid and advice of the Council. 

If reading “B” of the law is adopted and ordinary laws could independently guide the power of the President/Governor, it may not be necessary to act on the aid and advice of the Council of Ministers. The statutory framework under which the President/Governor would function, would then allow them to act in their personal discretion free from their Constitutional obligations. This would be in clear violation of the mandate of Articles 74 and 163 of the Constitution which are a reflection of the principles of Executive accountability. The violation of these provisions in this manner would be contrary to the role of the President/Governor envisaged by the framers as nominalExecutive Heads of State. 

For these reasons, the decision of the Supreme Court in Nanavati is incorrect. The passive recognition of the Governors statutory powers in Article 72(1)(c) is only indicative of a parallel legal framework within which the Governor may operate. It cannot be construed to mean that it would be open to the Legislature to dilute and control Article 72 and 161 by an ordinary legislation. Indeed, at the time of commencement of the Constitution, the Parliament made efforts to ensure that no provisions in the Code conflicted with the Constitution. To this effect, Section 402A recognising concurrent powers of the President and Governor to remit, commute or suspend sentences of death was introduced. 

Despite the view of the Court in Nanavati, the Supreme Court has subsequently moved away from this approach. In the case of Maru Ram v. Union of India, a Constitution Bench considered the validity of Section 433A of the CrPC, 1973. This provision disallowed the President/Governor to exercise powers under Section 432 and 433 (for convicts sentenced to a certain class of sentences) if the convict had not served at least fourteen years of imprisonment. The Court held that Section 433A would not be attracted when the Governor exercised powers under Article 161. Both provisions stood on a different footing and it would not be open for a statute to control the Executive Power conferred by the Constitution in absolute and unqualified terms. 

This position was reiterated by the Supreme Court in the case of State of Punjab v. Joginder Singh which involved the interpretation of paragraphs 516-B and 631 of the Manual for the Superintendence and Management of Jails in Punjab. These provisions required Jail Superintendents to submit applications for remission to State Governments after the convict served fourteen years of imprisonment. In the course of interpretation, the Court enquires into the relationship between the said Rules and Section 433A of the CrPC. By relying on Maru Ram, it too came to the conclusion that no legislative scheme (in this case, the Prison Manual) may be inconsistent with the Governors powers under Article 161. 

For these reasons, the Constitutional powers must be read to exist independent of the CrPC. The statutory powers may not serve any functional purpose by existing parallelly and ought to be understood in the historical context with which they find their place. At the time of the commencement of the Constitution, the provisions of the Code were modified to perfectly align with the Constitution. Thus, it was always the intent of Parliament for both these powers to harmoniously co-exist.

Accordingly, Section 435 of the CrPC too cannot be construed such that it controls the absolute powers of the Governor under Article 161. The Governor would not be required to concur (or even consult) the Central Government for the purposes of issuing any pardons in furtherance of Article 161. In this light, the Supreme Court was correct to not consider the involvement of any provisions of the CrPC in the case of A.G Perarivalan.

Thursday, June 16, 2022

Guest Post: Criminal state of Mind and Strict Liability in Rape

(This is a guest post by Adi Narayanan Mamandur Kidambi)

The Criminal Law Amendments in 2013 led to a conundrum surrounding the nature of the offence of Rape as defined under Section 375, of the Indian Penal Code, 1860 (IPC). The confusion was whether the provision constitutes a ‘strict liability’ offence or one that carries an element of ‘mens rea’, i.e., proof of a guilty mind. Presently, Section 375 IPC proscribes penetrative sexual activity beyond the traditional ‘peno-vaginal’, in the absence of the will or consent of the woman, and under specific circumstances in the presence of consent, when it is vitiated. The provision has been interpreted by different High Courts as both a strict liability provision and indirectly as an offence requiring the presence of some (arbitrary) form of mens rea.

Through this post I argue first that the amended provision is silent with respect to a mens rea requirement but does not necessarily imply the exclusion of the same. Consequently, I argue second that in the absence of legislative intent to amend the provision, the courts should read into this silence a suitable ‘mens rea’ requirement.

Echoes of Silence
In Indian criminal legislation, specifically Macaulay’s IPC, provisions are usually structured in any of the following phraseologies:

  • First, provisions have an express inclusion of mens rea through insertion of words such as “intentionally”, “knowingly”, “voluntarily”, “reason to believe”, etc.
  • Second, there may be an express exclusion of mens rea through the phrase “Whoever voluntarily or otherwise…” this is also called the strict liability conception. 
  • Lastly, and most importantly, a third construction of provisions which are silent with respect to mens rea, such as Section 361, Section 375 & Section 292 of IPC, ‘possession’ in TADA, etc. as they are not worded in either of the above manners.

With regards to interpreting the construction of provisions that do not explicitly or impliedly include the element of mens rea (read: are silent), the Supreme Court in Nathulal v. State of Madhya Pradesh held that there is a general presumption of the presence of a mens rea requirement in a penal statute unless the provision itself expressly excludes or necessary implies its absence. Further, such ‘no-fault' provisions must be subject to strict and literal interpretation, and judges do not have liberty to qualify such statutes to restrict their ambit, as it would defeat the purpose of the statute.

In the context of Section 375, there is neither an express exclusion of mens rea nor is there any necessary implication of the same. However, owing to drafter’s intent, the silence in the provision has increased the propensity for inconsistent interpretation of Section 375 as both a strict liability provision and a provision with mens rea. 

On Strict(er) Tides
Going by the patterns of construction followed in Indian criminal law (referred to in the previous section) it becomes difficult to comprehend why a construction excluding mens rea explicitly, was not chosen. In my opinion, clarity in this matter would have helped declare the legislative intolerance of rape, forcing individuals who engage in sexual intercourse, to not only follow the ‘upgraded’ consent provision but to additionally obtain awareness from their partner as to what passes for responsible sexual behaviour within their relationships.

Currently, the silence allows courts to completely negate the perspective of the accused, as was done at the level of the Trial Court in Farooqui’s case. The Trial Court held that the uncorroborated statement of the prosecutrix was sufficient to prove that the proscribed act occurred, and that her statement by itself was sufficient for holding the accused guilty. But it made no enquiry as to the state of mind of the accused, at all, effectively reading the provision as being devoid of a mens rea requirement. My concern with this interpretation is that it sounds like a ‘presumption of guilt’ being imputed onto even that accused who may have acted in ‘good faith’ and had reason to believe the act to be consensual, without so much as an opportunity being afforded to them to prove their non-culpability prior to being incarcerated. 

This further implies that the state of mind of men, in interactions that determine the agreement to consent, is completely irrelevant. In that case, the question that comes to mind is, that in developing clear metrics for what passes for affirmative consent between two intimate partners, one must also be aware of what men may comprehend to be an affirmative consent on part of a partner who they share a sexual history with, so as to negate all those inferences that men make, that are not actually an affirmative consent on part of their female partner. This extreme stance makes it unlikely that an exercise of determining affirmative consent standards within intimate relationships may take place within reason.

On the other hand, scholars have defended the present construction and argued that the silence does not leave anything to imagination. Professor Mrinal Satish, one of the scholars who worked with the Justice Verma Committee which made the recommendations that resulted in the 2013 amendments, has argued that the offence does not include a defense of “mistaken belief” or “assumed consent”, and the courts must only investigate the presence, or lack thereof, of consent, without regard to the accused’s perception or claim as to mistake of consent. The effect of Professor Satish’s argument is to interpret Section 375 with strict liability, for it calls for exclusion of mens rea in general, as opposed to excluding an investigation of the accused’s state of mind in only some specific circumstances.

While I agree with Professor Satish to the extent that no arbitrary mens rea argument can be applied under the provision, I disagree that the crime of rape must be interpreted as a ‘no mens rea’/strict liability offence, and back the presumption of mens rea for two reasons: First, mens rea and consent in rape are intertwined, and as the text of the statute stands, it does not seem absurd to foresee an accused claiming lack of some arbitrary mens rea by raising a contention that he was under a presumption of, or had reasonable belief of, or honestly mistook the presence of, consent from his intimate partner (especially in case of a shared sexual history) and that he did not have either the knowledge or intent or foresight or desire, etc. to proceed with sexual intercourse in the absence of affirmative consent. Lastly, the possibility that a strict liability interpretation allows for the incarceration of even that one accused who acted in good faith with the ‘reasonable’ belief that his partner had affirmatively consented.

To qualify my claim, while I support a need to presume a mens rea requirement, I do not seek presumption of any arbitrary mens rea, which the courts currently have the discretion to choose (as the Delhi High Court had chosen in the Farooqui appeal, discussed below). The above claims render this silence hugely problematic due to the extreme and contradictory interpretations it enables the courts to make. 

All in the Mind 
Another devastating interpretation of Section 375 IPC, that gave us a glimpse into a regime of rape adjudication with some arbitrary mens rea requirement, is in the High Court judgment in Mahmood Farooqui v. State (Govt Of NCT Of Delhi), one of the first instances where a High Court engaged with the amended provision. The court in the pursuit of including the state of mind of the accused to ‘fairly’ assess the circumstances of the case, completely disregarded the claims by the prosecutrix in her testimony, as to a clear denial of consent given explicitly to the accused, on account of her faking an orgasm out of fear to make the ordeal end. The court remarked that, “Instances of woman behavior are not unknown that a feeble no may mean a yes. If the parties are strangers, the same theory may not be applied ... mere reluctance would also amount to negation of any consent. But same would not be the situation when parties are known to each other, are persons of letters and are intellectually/academically proficient, and if, in the past, there have been physical contacts. In such cases, it would be really difficult to decipher whether little or no resistance and a feeble no, was actually a denial of consent.” In the space of a few words, years of progress made in creating a feminist shift of consent to equalise the woman as a participant to the sexual conduct as was sought by the 2013 Criminal Law amendment Act, was undone. 

Although this case occurred in the absence of a specific mens rea requirement, the creation of the defence of ‘assumed consent’ and with reiteration of the perverse ‘no means yes’, the adjudication of rape became indifferent towards the prosecutrix, converting the proceedings into a kaleidoscope of events from the perspective of the man dominantly. 

The Reasonable Mens Rea Requirement
In line with my analysis (and with immense qualitative superiority), Professor Barry Wright, a noted scholar who has written on Macaulay’s IPC, argues that the provision is silent on the requirement of mens rea, however, he argues that Macaulay constructed consent provisions in the IPC in the pursuit of individualistic liberalism which placed individual autonomy above competing interests, implying that the imputation of culpability would require proceedings to assess the accused’s state of mind as part of his defence. The question then becomes which out of the multiple standards of mens rea such as knowledge, intent, recklessness, malice, reasonable belief, honest mistake, etc. Would be appropriate for Section 375. Let us consider two thresholds:

First, Kumaralingam Amirthalingan, takes a nuanced approach that accepts strict liability interpretation, but accommodates for mens rea, using Section 79 of the IPC, which defines ‘mistake of fact’, which they feel can be applied to strict liability offences. Under this section an accused who, after exercising due diligence in doing anything proscribed under law in carrying out the action that constituted the strict liability offence, may be deemed morally innocent, and to have been acting in good faith. 

Second, Professor Latika Vashisht argues in her essay that Section 90 of the IPC provides for a reading of mens rea and consent that would imply that the liability will arise only “when an accused is aware that the victim is not really consenting as her decision is guided by fear or fraud”. 

It is fair to say that both these interpretations of possible mens rea defenses are useful given that these will force the court to assess whether due diligence was undertaken by the accused, by not solely relying on the man’s subjectivity, but assessing whether he sought to get affirmative consent, preventing a scenario like Farooqui.

I prefer Professor Vashisht’s conception given that it engages head on with Farooqui and nullifies its ratio (and any arbitrary mens rea it stands for) while also mitigating the likelihood of even that one accused, who lacks the requisite guilt, from being punished because her reading does not allow one to construe the provision as a strict liability provision and inserts into it the requirement of conducting due diligence prior to commencing intercourse. Lastly, her reading of Section 90 with Section 375, seeks to retain the importance of the prosecutrix’s perspective as any analysis of consent being guided by fear or fraud is bound to take her (prosecutrix’s) perspective into account. 

Escaping the Silence 
While the justification for strict liability in rape is that it will deter morally culpable conduct, it poses the inherent harm of punishing those who may not have the same moral culpability. Deterrence is not a sufficient metric to determine the inherent value of a provision, considering the mere existence of a ‘deterrent’ does not deter, unless it allows people to assess through their own moral calculus as to whether something is good or objectively bad under any and all circumstances. 

Considering the same, a mens rea requirement that places the burden of proving due care on part of the accused, would require intimate partners to actively engage with each other’s state of mind, forcing them to be outspoken during the process of reaching consent to indulge in sexual activity rather than settling for a Bollywood like “no means yes”, which will ultimately help them determine an affirmative standard of consent that operates dynamically throughout intercourse. Adopting such a standard of consent may prevent the prosecution of those that lacked the requisite criminal state of mind. 

If the provision is construed to contain a strict liability by the courts, it invites the risk of the classic ‘what about false rape cases’ narrative, and indicates tacit acceptance of the narrative of women being powerless, which can lead to the insurgence of the stereotype that women are incapable of being equivalent, rational, and objective participants to intercourse who can reason and present their values and beliefs. Implying that while feminist reforms are important in the law, these can neither exist nor be appreciated, but in a bubble. 

On the other hand, misplaced tolerance for ‘assumed consent’ post Farooqui, will likely hinder individual desire for introspection and efforts to educate the self and to be responsible participants in sexual activity and treat each other on an equal footing. This kind of a mens rea requirement would create the avenue for the subjective interpretation of circumstances by the accused to become the most relevant part of the proceedings, and what is possibly worse, is the likelihood that the courts may regress towards adopting the horrid standards of the ‘ideal victims’ that resist to protect their chastity and virginity, as was laid down in past judgements such as in the case of Bharwada Bhoginbhai Hirjibhai v. State Of Gujarat

Therefore, a mens rea requirement ought to be read into the definition of rape, and preferably one which requires men to have taken due care and diligence in obtaining consent for the reasons highlighted in the previous section. 

Escaping the silence in Section 375 this way not only helps us mitigate the curbing of liberty of those who do not have a guilty mind, but it also allows us to give specific direction to that provision which yields a desirable and socially optimal outcome, as "the law can (either) bind us to the past or help push us into the future. It can continue to enforce traditional views of male aggressiveness and female passivity, (and) continue to uphold the 'no means yes' philosophy as reasonable...." or pave the way for holistic (and) feminist interpretations of the law.

Saturday, June 4, 2022

Why the Delhi High Court is Wrong to Deny Satyendar Jain his Right to Counsel

It appears that by an interim order passed on 03.06.2022, the Delhi High Court has stayed operation of a portion of an order passed by the Trial Court whereby it had directed that Satyendar Kumar Jain, who has been arrested by officers of the Enforcement Directorate and remanded to their custody for ten days, was entitled to have counsel present within visual range while he was being interrogated. The reasoning adopted by the High Court to grant interim relief is straightforward: the directions in the Trial Court's order are seemingly contrary to judgments of the Supreme Court and the Delhi High Court, and so it was appropriate to stay their operation. 

The High Court was swayed by the decision of the Supreme Court in Poolpandi & Ors. v. Superintendent, Central Excise & Ors. [(1992) 3 SCC 259 ("Poolpandi")] and an order of a Division Bench of the Delhi High Court in Sandeep Jain v. Addl. Director, DRI [Rev. Petition 387 of 2019 (Order dated 10.12.2019) ("Sandeep Jain")], pressed into service by the Enforcement Directorate. All the Supreme Court judgments relied upon by the Respondent Satyendar Jain were distinguished simply because they, apparently, do not consider Poolpandi; the Bombay High Court judgment cited by his counsel was not relied upon due to the existence of Sandeep Jain which according to the High Court held a contrary view.

This admirably straightforward argument, which the High Court has accepted, has one small problem — it is wrong in law. A careful reading of the two main planks of the Enforcement Directorate's contentions, viz. the judgments in Poolpandi and Sandeep Jain, were entirely inapplicable to the facts before the High Court in this case of Satyendar Jain. Importing Poolpandi and Sandeep Jain to this factual matrix is worse than comparing apples to oranges.

In Poolpandi the pure issue presented to the Supreme Court was this: do the persons summoned for being questioned under the Customs Act 1962 or the erstwhile Foreign Exchange Regulation Act 1947 have a right to presence of counsel while they are questioned. It was contended that the source for this right was Article 20(3) which protected accused persons against compelled self-incrimination, and alternatively in Article 21 as the questioning by agencies was necessarily coercive. The Supreme Court disagreed, primarily on that (incorrect) technical objection that persons being questioned under Customs Act etc. were not 'accused' thereby failing to trigger the Article 20(3) guarantee. As for Article 21, the Court refused to accept a presumption that questioning by agencies was necessarily coercive.

In Sandeep Jain, a review petition was filed challenging the dismissal of a writ petition by a single judge on entirely new grounds. This was, patently, outside the scope of review jurisdiction of the High Court, and the Division Bench rightly observed that the petition deserved an outright dismissal. In light of this, whatever followed was obiter dicta, and that is what has been treated as binding by a Single Judge in Satyendar Jain's case. Be that as it may, what were the facts in Sandeep Jain? Again, it did not concern an arrested person; it involved a person who had avoided summons under Section 50 of the Prevention of Money Laundering Act, but now sought presence of counsel, within visual range, during his questioning. The Court declined to grant this indulgence, citing that no allegation of any threat existed justifying presence of counsel. The contrast with a case in which the person is arrested and remanded to ten days custody of the law enforcement agency could not be starker.

Critically, the issues before the Supreme Court in Poolpandi and the High Court in Sandeep Jain did not extend to considering whether persons who have been arrested and are undergoing custodial detention are also without any right to counsel during questioning. The scenario was purely about a set of people who had only been summoned, which is why none of the petitioners resorted to Article 22(1) of the Constitution which, plainly, guarantees to all persons who have been arrested the right to be defended by counsel of their choice. Since 2008, with the enactment of Section 41-D of the Criminal Procedure Code 1973, this aspect of Article 22 rights have been given clear and unambiguous statutory footing. Nothing in the Prevention of Money Laundering Act 2002 prevents the application of Section 41-D, and in any event, nothing in a statute can ever override the constitutional mandate of Article 22. 

The position of a person at liberty cannot be compared with a person under arrest. In doing so, and by ignoring the letter and spirit of Article 22(1), the High Court has unfortunately erred and has potentially set a rather dangerous precedent, perilously tilting an already skewed balance between rights of arrested persons and the powers of investigators even more in favour of the latter. There is more which can be argued to contest the legal soundness of the view taken by the High Court here, but it warrants a second look on this primary ground itself.