The Delhi High Court Order in P. Chidambaram v. ED: Three Thoughts

This week saw the arrest of a former Union Minister, P. Chidambaram, in connection with allegations of corruption and money laundering in what has popularly been called the "INX Media" case. In this post, I'm not interested in the arrest itself — the pageantry of which has already attracted much discussion — but the initial order of the Delhi High Court on 20.08.2019 which dismissed Mr. Chidambaram's plea for Anticipatory Bail and set the ball rolling [more on anticipatory bail generally, here].

Please read the order when you can, and if you can't read it in full, then make sure to read Paragraph 21 onwards. This section of the order discusses three different sets of arguments / judicial choices that I want to bring into sharper focus through this post.

Custody and Cooperation

The High Court relied upon an old decision of the Supreme Court in CBI v. Anil Sharma [(1997) 7 SCC 187] to re-iterate that custodial interrogation should be granted when an accused, who has prior judicial protection from arrest, refuses to "cooperate" with the investigation and renders it a "mere ritual". This is good as an abstract principle: people should not be allowed to frustrate legal processes. But what about the specifics? 

The verb "cooperate" means to work jointly towards the same end. Taking this to its logical end in the setting of criminal investigations would entail a total negation of the right to silence, which is certainly not what any court could agree to. So, then, it is a question of how much cooperation is enough? In this case, the prosecution argued that the accused appeared for questioning but then gave "evasive" replies, and the Court agreed that this was frustrating the investigation. But it did so without shedding any light on what "evasive" meant, and thus left us in the dark about our spectrum. 

We need to figure out where should an accused person fall in the spectrum of total submission to police, and evading investigation, to satisfy the judicial conscience. Supplying this clarity will not only help future courts make better decisions while dealing with complex problems and give greater certainty to the law. Narrowly tailoring the need for arrest and custody also foster an interpretation of criminal procedure in line with the constitutional commitment to personal liberty.  

Gravity of Offences and Bail 

One of the reasons for rejecting Mr. Chidambaram's bail application was the gravity of offences that are alleged to have been committed by him. Factoring in the gravity of the alleged offence to decide whether or not the accused should be granted bail is today part of the judicial fabric on the law of bail in India, and I do not argue that courts should not consider the gravity of allegations. Rather, the problem is that while this argument might operate well in the realm of abstraction, it does not enjoy smooth sailing when we descend into the particulars [discussed from another angle, here]. 

Let's take an example. If it's a case of alleged murder, then well, it is very difficult to disagree about the basic allegation of someone having died. Some elements of the allegation are, therefore, beyond doubt even at the investigative stage. This logic also works in cases where, say, a public servant is caught taking a bribe red-handed. But this does not work when we infer criminality from neutral facts. To rely upon gravity in those situations is to basically invite the police to create good stories and level serious charges, with a view to ensure that bail is harder to get. 

To make judicial decision-making better, and limit the denial of personal liberty, perhaps courts could interrogate this distinction a bit more and put prosecutors and police officers to stricter scrutiny where the allegations are inferential before relying upon gravity as a ground to deny bail. Maybe this could help prevent cases from ending up in smoke as well, rather than arresting persons and asking them to make statements that will ultimately be inadmissible in court. Just a thought.

Prosecutorial Courts: Economic Offences and the White-Knight Syndrome

The High Court in Paragraph 21 indicates that one reason for dismissing the bail application was that it could not "permit the prosecution in this sensitive case to end up in smoke like it has happened in some other high profile cases." Once the political cheerleading subsides, we should take a long hard look at this claim. Leaving aside everything, it is extremely worrying, and possibly illegal, for a court to subject an individual to arrest and custodial remand because of past prosecutorial failures. Surely we can have better solutions than locking people up to fix lapses in how state agencies investigate and prosecute crimes. 

What is on display here is a trend of the court turning prosecutor, and it is something that has often been on display in the context of economic crimes in the past. The High Court is only following the trends that the Supreme Court has been setting since the 2-G Scam days, when it closely monitored a CBI investigation and found a deprivation of the habeas writ under Article 226 to be constitutional. This "White Knight" syndrome has been discussed on the blog at length, and Paragraph 21 of the High Court with its surface-level anguish about the problem of economic offenders is just the latest variant of that syndrome on display. It will be very interesting to see what the Supreme Court does when it hears the cases in the coming week.

The 2-G Spectrum Case

(This post first appeared on the Global Anticorruption Blog) 

It all started in May 2009 with a report filed by an NGO, Telecom Watchdog, with India’s Central Vigilance Commission. The NGO claimed that there were gross irregularities, likely due to corruption, in the allocation of licenses to operators for the 2nd Generation mobile communication standard spectrum (2G spectrum for short). By October 2009, India’s premier investigating agency, the Central Bureau of Investigation (CBI), had opened an investigation into the allegations, and in November 2010, the Comptroller and Auditor General of India estimated the losses to the government from the alleged misconduct at a whopping US$29 billion. Indian media called it the “biggest scam in the history of Independent India.” Time Magazine put it just behind Watergate as the second worst case of abusing executive power.

Petitions were filed in the Supreme Court of India pressing for cancelling the allocation and making sure that those behind the corruption would be held responsible. In 2012, the Supreme Court obliged, canceling all 122 licenses and imposing huge fines. The Court declared that the then-Minister for Communications and Information Technology, A. Raja, had used an inappropriate allocation procedure (first-come-first-served rather than an auction) to “favour some of the applicants … at the cost of the exchequer.” In an unprecedented move, the Court also ordered the creation of a “Special Court” to try the cases, and modified regular criminal procedure by curbing intermediate challenges, in order to ensure a speedy trial. The first case was instituted against the former Minister, senior bureaucrats, and prominent businessmen for conspiring to rig the allocation process and cheat the government of revenue.

On December 21, 2017, the Special Court announced its verdict—and it was not what many had expected: The Special Court acquitted all the accused, declaring that “a huge scam was seen by everyone when there was none,” and that “some people created [the perception of] a scam by artfully arranging a few selected facts and exaggerating things beyond recognition to astronomical levels.” The Court also found that, notwithstanding the earlier 2010 report (which others had already suggested was methodologically problematic), the actual losses to the government were marginal at most.

Many commentators were stunned and dismayed by the Special Court’s decision, denouncing it as “shocking” and “flawed.” But after reading the Special Court’s decision, I find myself in agreement with the Special Court’s reasoning. While it’s impossible, in a short blog post, to wade through the merits of the Special Court’s analysis for each of its conclusions, here I want highlight some of the most important arguments in support of the Special Court’s controversial decision.

• First, it’s worth addressing the apparent conflict between the Special Court’s ruling and the 2012 Supreme Court decision. The latter had quite clearly ruled that wrongdoing had occurred. But it’s a mistake to say that these two decisions are at loggerheads, for two reasons: For one thing, in 2012 the Supreme Court was dealing with an omnibus petition that put the allocation of 2G spectrum under a cloud and only sought initiation of prosecutions. At that stage, all one needs are grounds for suspicion of wrongdoing (something akin to probable cause). In fact, even the Special Court thought the material presented in to the Supreme Court had created a valid basis for suspicion, as it emphasised in a lengthy order refusing to discharge the cases back in 2012. But suspicion is not proof, and it was only after a careful examination of the evidence that the Special Court came to the conclusion that there was no proof beyond a reasonable doubt to convict the accused persons. Rather than condemn the Special Court’s decision, we should laud the Special Court for confirming that a trial court can function independently in spite of the strong preliminary observations made by the Supreme Court.

• Second, the Special Court’s verdict strongly suggests that the controversial government decisions were mistakenly depicted as corrupt, when in fact the controversy was due to the inefficiency and opacity of the bureaucracy. A review of the official records led the Court to conclude that the decisions allegedly initiated and pushed through by the disgraced Minister had hardly ever been taken by him alone. Other officials, who ended up as key prosecution witnesses, were fully involved in the decision-making process. The record revealed these officials were passive and happy to pass the buck rather than take responsibility at the appropriate time. Further, the Court also faulted badly-drafted government policies, and found that bidders had not acted wrongfully in exploiting gaps that the government had created. Remarkably, the prosecution could not prove that the accused companies were ineligible under the policy governing the spectrum allocation process, despite strong suspicions of this being the case, because none of the government’s witnesses could testify that the relevant words in the policy carried a definite meaning.

• Finally, the Special Court’s decision strongly suggests that the investigators and prosecutors simply botched the case. Some vital records were never collected or produced. For instance, no records of any kind were presented to show the Minister and private persons were meeting very frequently at the Minister’s office, which was a key government allegation in connection with the conspiracy charges. Even more problematic was how witnesses were examined, both by the investigators pre-trial and by prosecutors in court. As the Special Court emphasised (and illustrated with a helpful chart), although the investigation began in 2009, the CBI did not examine the most important witnesses until 2011 or 2012, in some instances doing so merely a few days before filing the dossier in court. Star witnesses often gave deposition testimony that contradicted the official record, which led the Court to reject their testimony as unreliable. The Special Court also lamented the failure of the prosecution to lay proper evidentiary foundations for its main arguments, noting that “arguments alone do not prove a case … For proof, legally admissible evidence is required.”

Once the dust settles, it is highly likely that an appeal will be filed, as acquittals can be challenged under Indian law. Overturning acquittals in appeals carries a tougher standard than challenging convictions, and it will be interesting to see how the government chooses to attack the Special Court verdict. One suspects that the speed of governmental action over the case might hinge on the upcoming national elections in 2019, as the verdict is bound to become an election issue. While ordinarily appeals continue slowly through the Indian judicial system, the government could push for a speedier resolution, and these special circumstances might yet see more twists in the 2G spectrum saga.

India Needs to Rethink how we Prosecute Crime

In December 2017, the special court appointed to hear the 2-G Spectrum cases delivered a verdict - each of the defendants was acquitted. Not because of some arcane technicality, but because the court examined the evidence, and at the end of a nearly 1600 page long decision said that where the world was being asked to see a huge scandal, there was none. Little has been said about the verdicts: I doubt many people except criminal lawyers are ever going to actually finish 1600 pages, and then, the entire episode seems like it happened so long ago making it not very newsworthy. In the few days immediately after the verdict though some websites were carrying excerpts out of the decision which contained a stinging rebuke to the manner in which the prosecution was conducted (I am referring to paragraphs 1810-1812 for those interested). The court lamented the disjointed stand put up by those in the government's corner; the Special Public Prosecutor appointed by the Supreme Court, the Senior Public Prosecutor who normally works in court, and the CBI Inspector who had handled the case.

This raises an important question, albeit indirectly: how do the prosecutors and investigators work together in the Indian criminal justice system and whether this is the best way to run things? Speaking to those outside the court system, I found it interesting that not many people knew how things worked to begin with, which gave this post some purpose.

Prosecutors and investigators do not normally work together. Investigations are usually entirely in the hands of the police and once a chargesheet is filed in court, the prosecutor comes in the picture and functions as the voice of the government's case. The police takes a backseat and moves on to the next case while the prosecutor takes charge, and the investigating police officer comes whenever possible to give help. Who are these prosecutors? They have been described as a' limb of the judicial process' and are appointed by government either from a cadre of officers (like most of Indian bureaucracies) or in consultation with the local judiciary, with different states having their own rules for selection etc. Most of this procedure came in with the 2006 amendments to the Cr.P.C. Since the average lifespan of most criminal cases is beyond two years, it is rare for prosecutors to continue with the case from start to finish because administrative transfers happen much more frequently. For instance, while I am personally unaware of the 2-G scam cases, I do know that the prosecutor changed in the ongoing Commonwealth Games cases. This means they have relatively little skin in the game. If we are thinking about comparative examples then Indian prosecutors would seem much closer to prosecutors in civil law systems as against those in common law countries. And extremely far from American prosecutors: to call them apples and oranges would be understating the differences.

Was this strict separation between police and prosecutor always the case? No. In fact, at the time of independence, prosecutors fell under the control of the police rather than the local government or judiciary. While I am unaware of qualitative contributions made by prosecutors during investigations, it is likely that there was still greater synergy in how cases were investigated and prosecuted. But the problems seem to have outweighed the benefits. The Law Commission since the 14th Report onwards is considered to have consistently argued that the police and prosecutor should be separate, and the current legal regime reflects how the Law Commission's ideas have been accepted by successive governments (I say considered, because there is some variance between what the 14th Report says and what the 197th Report thinks it says). Has this helped the Indian criminal process? I would argue that it hasn't and, in fact, is bad for the system. Time and again we get high-profile examples like the 2-G scam which show us that if the police had a keener eye for what might be evidence in a case then the outcome might have been different. Or if the prosecutor knew the facts then she could have presented them better. But we don't need high-profile examples like the 2-G scam to tell us that the system is messed up: the data is right there. Since the 1990s, the police have been filing cases far more regularly than the system can handle them. This reflects that the incentives of police do not include what happens to cases once they reach court. Should that be so? Not at all. Enough studies have shown that if persons know their cases will languish in courts for years, the deterrent effect of sending anyone to prison takes a bit hit. So, one of the key goals of having criminal prosecutions gets defeated.

Indian politicians bemoan low conviction rates (hovering around 50% for IPC offences), and cases like the Arushi murder trial help whipping up sentiment against the supposedly primitive ways of the police. But as the numbers show, blame should also be apportioned to how cases are prosecuted in courts. Prosecutors in the district courts often function on extremely meagre resources, having no office but only a space reserved inside the courtroom they are appointed to serve, and ordinarily handle a complex docket that has upwards of thirty matters, consisting of bail hearings, arguments for arraignments, recording evidence, and final arguments on guilt or innocence. They are often not paid on time as well. The previous lines are describing New Delhi, the capital, so one can only imagine the situation in non-metro cities. Where prosecutors are able to compete effectively in cases where clients cannot afford to put up a good case, the mismatch in cases like the 2-G scam becomes painful to watch. While those defendants may win, there are still casualties in the system, because then we find judges try and make up the handicap by diluting the presumption of innocence and ask defendants to do more than they need to for establishing reasonable doubt. Or they want more from the defence lawyers simply because they get used to the low standards of contribution from prosecutors because of the systemic problems I described. Whatever be the case, the process suffers.

For years India has been gaining infamy for a tediously slow judicial system. If anything, data suggests that things won't change by simply having more judges and more courts as we might be led to believe. This is a complex problem, and has many parts that need to be addressed. Reforming how we prosecute crime needs to become one of these parts, and urgently.

(This post was amended on January 28, 2018 to correct references to the 14th Report of the LCI)

Special Offences: The White Knight and Heroes we Deserve

[This is the fifth post in a stop-start series discussing issues arising from the Prevention of Corruption Act, 1988. For earlier posts, see here, here, here and here]

[A slightly different version of this post first appeared on the Indian Constitutional Law and Philosophy Blog]

Last week a Single Judge of the Delhi High Court decided Girish Kumar Suneja v CBI (Crl. M.C. 3847/2016 decided on 27.10.2016), dismissing a petition under Section 482 Cr.P.C. read with Article 227 of the Constitution as non-maintainable. The petition challenged an order framing charges in one of the many Coal-Block Allocation Scam related matters being tried before a Special Judge in New Delhi (this particular case also had the industrialist Naveen Jindal as a co-accused). It forms part of our series on the Prevention of Corruption Act, 1988, and can be seen as tying in with the third post in the series on appellate jurisdiction. This post begins with some much needed background before going to the decision in Girish Kumar Suneja, with some mild comments to close.

The Genesis – Shahid Balwa and the 2-G Trial

I’ve written earlier about a tendency to idolise the Supreme Court as a White Knight cleaning up the corrupt governance of India. This was in full view in 2010-2011 as the telecom spectrum allocation scandal hit the country, seriously questioning the integrity of the Executive and Legislature. Approval ratings of the Supreme Court automatically skyrocketed while it quashed license-allocations, and, most importantly for this post, monitored a CBI investigation and then vetted the entire set-up (from the particular judge to the special prosecutor) for trial of the offences allegedly arising out of this ‘2-G Scam’. Before ridding itself of the matter, it also directed that any challenge to orders passed by the Special Judge trying the 2-G Scam cases had to be made before the Supreme Court and access to the High Court had been completely barred for anyone aggrieved. This was labelled an exercise of the Court’s extraordinary powers to do ‘complete justice’ under Article 142 of the Constitution.

Procedural rights of accused persons had been restricted before by both Federal and State legislatures [the legality of which came up before the Supreme Court way back in State of West Bengal v Anwar Ali Sarkar (AIR 1952 SC 75)]. But for the first time we saw the Supreme Court itself go ahead and take up the reins. And since the Supreme Court was seemingly handling everything at that point this evoked little criticism. Naturally, though, it was challenged by the accused in the first 2-G Scam case and this was decided in Shahid Balwa v Union of India & Ors. [(2014) 2 SCC 687]. The Supreme Court took the opportunity to rubber-stamp its actions with approval while giving little legal justification. Instead, it turned to coffee-table conversation and served up ‘Larger Public Interest’ as the answer. Larger Public Interest demanded a speedy trial. This meant denying the accused their constitutional remedies to challenge judicial orders, because these challenges were mostly fraudulent abuses by these ‘better-heeled litigants’ of the ‘openings’ offered by the criminal justice system and delayed the trial. In fact, the Court thought the accused owed it to this Larger Public Interest to forego their rights to appeal and challenge decisions to ensure the smooth progress of the trial.

The Coal Scam and Girish Kumar Suneja

The Coal-Block Allocation Scam is the latest opportunity for the Supreme Court to reprise its White Knight act and go through the repertoire of corruption-cleaning remedies. Barring access to the High Court for criminal defendants figured as a part of this and became the focal point in Girish Kumar Suneja. The Petitioner argued a challenge to the order framing charges was maintainable before the High Court and could not be barred by the Supreme Court’s orders. This seemed obvious it was argued, for of course the Supreme Court could never have intended to take away substantive rights, or limit the High Court’s writ jurisdiction under Articles 226 & 227. The focus of those orders was to prohibit challenges that sought a stay against trial court proceedings, and there was no problem here as no stay was sought.

The Delhi High Court disagreed. It did not merely recite Shahid Balwa but gave a lengthy order with three main planks of reasoning. The first was to distinguish the right of appeal and the right of revision/exercise of inherent powers by the High Court. There was no problem in denying the latter, the High Court held, because it was discretionary as opposed to a statutory right of appeal. The second plank was to conclude that no problem arose by denying writ remedies under Articles 226 & 227 as the Supreme Court remained accessible to those aggrieved. And finally, the High Court observed that orders passed under Article 142, such as the one barring access to the High Court in the present case, were binding on all courts and thus had to be complied with here.  

Comment – An Odious State of Affairs

Girish Kumar Suneja leaves much wanting. For starters, if the High Court thought it was bound by Article 142 then this renders the other planks of reasoning entirely superfluous. Those planks, in any event, are made of termite-stricken wood. In distinguishing the right of appeal with revision / inherent powers the High Court missed the point entirely. The issue here was not about the exercise of power but about whether access to court through this means could itself be barred completely for particular litigants. On this point the Petitioner cited Anur Kumar Jain [(2011) 178 DLT 501 (DB)] (which I discussed earlier). A Division Bench of the High Court held that while Section 19 of the Prevention of Corruption Act, 1988 barred a revision against orders on charge, this could not prohibit invoking Section 482 Cr.P.C. and / or Articles 226 & 227 of the Constitution, as such a denial would be unconstitutional. Girish Kumar Suneja tries to side-step the issue of unconstitutionality in denying writ remedies [held contrary to the basic structure in L. Chandra Kumar (1997) 3 SCC 261] by wrongly equating the Supreme Court and High Court as fungible forums which is contrary to the text of the Constitution itself. I would go so far as to argue that reliance on Article 142 was also misplaced here. Because orders passed on 25.07.2014 by the Supreme Court in the Coal Block Allocation Scam did not specifically invoke Article 142 unlike the orders passed at the time of the 2-G Scam.

The biggest problem remains the decision in Shahid Balwa. In Anwar Ali Sarkar (supra) the Court struck down a West Bengal Special Courts Act as it did not provide any principles for the executive to decide which cases could be tried by special procedures that took away some rights of the accused. Larger Public Interest is as bad, if not worse, as that untrammelled executive discretion the Court warned against. The rhetoric about ‘better-heeled litigants’ reminds me of the criticisms levelled by Professor Hart in his exchange with Patrick (later Lord Devlin, where he questioned his conclusions on the relationship between law and morals for lacking any empirical basis. But since Article 142 of the Constitution does not prescribe how the Court must go about dispensing ‘complete justice’, we are expected to keep calm and carry on knowing that our constitutional rights may be withdrawn based on what the Court feels is the Larger Public Interest. One can argue that Shahid Balwa has limited applicability by relying upon the observations of the Three Judge Bench decision in State of Punjab v Rafiq Masih [(2014) 8 SCC 883] which noted that orders under Article 142 are not binding precedent [a paragraph that was cited in Girish Kumar Suneja]. This would prevent blind reliance on Shahid Balwa to pre-empt any debate on the validity of such orders excluding access to justice in subsequent cases. One can only hope that the decision in Shahid Balwa has been cut down to size before the next time the White Knight makes a reprisal.