A person should not be condemned without knowing why. One would think that this precept is not a point of debate in the legal system of a constitutional, democratic, republic. After all what personifies the shift from a culture of impunity and subservience to one of justification than the ability of individual citizens to ask questions and demand answers from those in power. This does not stop at the ballot box, but pervades deep into the fabric of how things are done, and ought to be the unshakeable cornerstone of how criminal law with its censure and punitive sanctions is administered.
Yet, time and again, we are politely reminded to not take anything for granted. Slotting in nicely within this bucket is the recent decision of the Delhi High Court in a batch of appeals concerning the application and interpretation of Section 43D(2)(b) of the Unlawful Activities Prevention Act 1967 [UAPA] [Zeeshan Qamar v. State of NCT Delhi, Crl. Appeal No. 405 / 2021 and other connected petitions, decided on 24.02.2023 ("Zeeshan Qamar")].
Time Limits on Investigations and their Consequences
What was the issue? Let's read the provision:
(2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub-section (2), --
(a) the reference to "fifteen days", "ninety days" and "sixty days", wherever they occur, shall be construed as references to "thirty days", "ninety days" and "ninety days" respectively; and
(b) after the proviso, the following provisos shall be inserted, namely:--
"provided further that if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days."
[Emphasis mine]
In a previous post on the blog, we discussed Section 167 of the Criminal Procedure Code 1973 [Cr.P.C.] and its time limits for investigation. The logic behind having these limits was an implicit recognition by Parliament that custodial detention was an integral part of investigations and the status quo allowed for persons to be detained for prolonged periods during an investigation, and bail in non-bailable cases was not easy to get. The time limits were supposed to act as a means to speed up investigations, by sending a message that failure to complete investigations on time would entitle a person to release. The move came with a clear-eyed recognition that giving these time limits may send the wrong signal and suggest that the law treated pre-trial detention of up to sixty (and later also ninety days) as acceptable, and a hope that the police and courts would not get the wrong idea.
Section 167 was possibly one of the most radical interventions made in the administration of criminal law yet. It was only natural for it to have its detractors. In 1975, the Supreme Court in Natabar Parida [AIR 1975 SC 1465] made its displeasure apparent when it observed that such a law "may be a 'paradise for criminals', but surely it would not be so, as sometimes it is supposed to be, because of the courts. I would be so under the command of the Legislature." Hardly a year later the Gujarat state government had taken steps to increase the time limits, and a few years after that we had Parliament itself amend Section 167 to provide for the ninety day limit for certain crimes. It was no longer obvious as to whether the idea of sixty / ninety days being an acceptable pre-trial detention was a wrong one or not.
The introduction of Section 167 Cr.P.C. and its swift amendment suggests the sense of unease within the state machinery which naturally accompanied such a radical departure from the norm. It was unsurprising for further, and significant departures to be made to Section 167 when Parliament sought to confront armed separatist movements in the 1980s, and suggest to the world that it took its international obligations on enforcing drug laws seriously. Detention up to a year became permissible if it could be shown that the investigation could not be concluded within the time period, and unsurprisingly, it also became the norm as these special laws made getting bail even harder than what was possible in ordinary circumstances.
The issues and conclusions in Zeeshan Qamar
In this context is how we must view introduction of safeguards for how this extension of the permissible maximum period of pre-trial detention could occur. The law introduced a requirement for a report to be filed by the public prosecutor indicating the progress of the investigation and giving clear reasons why the further custodial detention of an accused was required.
What was in issue before the Court in Zeeshan Qamar — and not for the first time as such — was whether this report by the public prosecutor ought to be shared with the accused at the time when a court is hearing the request for extending the period of maximum permissible pre-trial detention under Section 43D(2)(b) of the UAPA. The batch of appeals were all filed at separate points of time challenging the extension, and in most of them the accused were denied a copy of the prosecutor's report. This led to them being clubbed together for hearing, and the High Court framing and deciding issues on the process of Section 43D(2)(b) extensions besides deciding on the validity of the extensions in these specific appeals.
These issues which the High Court framed were as follows (Para 4):
- Whether the prosecutor's report should be shared with the accused at the time of extension of time for a further period beyond 90 days?
- Whether the court "should satisfy three requirements" at the time of extension of remand i.e. (i) what is the progress of investigation, (ii) whether further investigation is required, and (iii) whether continued detention is required for this further investigation?
- Whether the court can extend remand for ninety days in one go, or should it be in a truncated manner to oversee the progress of investigation.
- The report is not required to be provided at the stage of extending remand, but the accused should be "informed" about the same to ensure she is not a "silent spectator" and the court must consider the submissions on behalf of the accused.
- The "essential requirements" to be considered are: (i) reasons for the prosecutor's satisfaction about progress of investigation, (ii) reasons why 90 days are not enough, and (iii) details of what further investigation is required for which further time is sought. These three considerations must be part of the prosecutor's report.
- The court must consider the report carefully and can grant 90 days in one stretch, and if it does not then the agency can re-agitate its demand for the remaining period if need be.
I will turn to the first conclusion, which is the focus of this post, in the next section. But before that, a word on the other two answers offered. The discussion on issue (ii) suggests that the court did find that the prosecutor's report must also indicate why continued detention is necessary, although the conclusion itself is somehow silent about that aspect. What is perhaps unsurprising is that the High Court offers a rather low threshold of just what must be shown to satisfy a court that the completing the investigation was not possible. On issue (iii), the High Court in its discussion encourages courts to carefully peruse the facts and determine just how long an extension is necessary and not grant blanket extensions for a further 90 day period. This is not captured fully in the conclusion, which merely focuses on it being legally permissible for a court to indeed grant 90 days in one stretch if it feels this is necessary.
The 'Silent Spectator' Paradox
Which now brings us to the first issue, on sharing a copy of the report. To its credit, the High Court did not try and avoid a discussion but gave its own independent reasoning for why the report ought not to be shared (Paras 6.11 to 6.14).
This logic is straightforward — the report must necessarily have details about the investigation which if shared with the accused could prejudice the ongoing probe and, in any event, this material would be inextricably linked to material in case diaries that the accused has no right to see in the first place. The main plank for the court's reasoning, therefore, was that an accused "has no right to know the progress in an investigation."
With due respect, this is deeply flawed at multiple levels. At the most fundamental level, if we assume that India is a constitutional republic recognising and guaranteeing the right to personal liberty (arguably an acceptable assumption) then while a person may not have any independent right to know the progress of an investigation, she certainly has a right to know about it if this investigation is the basis for keeping her in pre-trial custody when she is presumed to be innocent.
It would be different if my custody was independent of the merits of an investigation. But the very nature of Section 43D(2)(b), UAPA makes it clear that it is only because of the merits that my further custody is being sought. Pre-trial detention is the most obvious and glaring deprivation of personal liberty, and my right to contest it is meaningless if I do not know on what grounds am I being kept behind bars. Being able to question deprivations of liberty and demand justifications cannot be de-linked from being a constitutional republic. Its non-negotiable.
It is equally flawed at one level removed from this most basic argument. Accused persons are regularly given some kind of update as to the investigation every time police oppose bail applications by way of filing a response during the pendency of the investigation. Similarly, the accused is also given update on the investigation when police seek custodial remands (and not judicial custody). It is nobody's case that the contents of these replies and applications are not derived from case diaries, but this linkage only means that it is incumbent upon the agency to walk that tightrope between securing its sources and giving enough of a clear answer to the accused whose fundamental rights are being deprived with each day in custody.
If we accept the logic in Zeeshan Qamar, then the nature of remand and bail hearings (where bail is filed during investigation) stands irrevocably and disastrously transformed by taking out the most affected party — the accused in custody — from the equation by which we expect the court to make a fair decision on whether or not custodial detention should be extended further. Remand becomes a fiefdom of the State — one arm (executive) talks to the other (judiciary) to decide what's best and the citizen should sit back and accept her fate as a collateral consequence.
One senses that the High Court recognised this was a problem when it agreed that an accused cannot become a 'silent spectator' to the process by which her liberty is being decided. But the court answers this problem by tying itself in knots rather than offering any meaningful safeguard, for the only real safeguard had already been denied.
Facing the Facts
We can view Zeeshan Qamar as an aberration and continue preaching the gospel of India's transformative constitution and its dharma of fairness. Or we can face the facts, that criminal justice was and continues to be deeply entrenched in a feudal mindset where the perceived brightness of the constitution is yet to shine all too brightly. An accused has a qualified right to get a copy of the first information report, does not have the right to a lawyer during questioning, does not have the right to a lawyer even during custody for some kinds of cases (PMLA), and now does not have the right to know the basis upon which the state wants to extend the permissible period for his custodial detention.
Transformative indeed.
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