The Prem Prakash Bail Order

The verdict is out on what is to be made of the judgment by the Supreme Court in Prem Prakash v. Union of India [SLP (Crl.) 5416 / 2024, decided on 28.08.2024 ("Prem Prakash")]. The reason it is attracting so much attention is because of the Court's views on how to treat statements given by persons in custody in a PMLA case, which it expressed while granting bail to the petitioner. These views extend to statements made by the person concerned (Paras 21 to 34) as well as a statement of a co-accused person that is being pressed into reliance (Paras 35 to 37). 

The Holding

The facts are largely irrelevant for this post, and a quick summary would do. The petitioner was alleged to have been the puppeteer pulling the strings behind a number of persons, all towards orchestrating transfer of properties and monies by illegal means. The material used to substantiate these allegations consisted almost entirely of statements recorded by the Enforcement Directorate officials from the Petitioner whilst he was in custody, and statements of other co-accused persons and witnesses. 

In respect of statements by persons concerned, the court appears to have held that: (1) where a person was arrested by the Enforcement Directorate in one case and remanded to judicial custody by a court, the Directorate cannot record statements of that person under Section 50 of the PMLA in a different case without obtaining permission from a court which remanded the person to judicial custody (Para 33); (2) if a person is in custody under PMLA irrespective of the case for which he is under custody, statements under Section 50 PMLA of such a person shall be inadmissible against the maker as such statements will be hit by Section 25 of the Indian Evidence Act 1872 (Paras 27, 32). 

In respect of statements by co-accused persons, the Court has held that such statements would be hit by the rule under Section 30 of the Evidence Act which means that such statements cannot be treated as a piece of substantive evidence against an accused. This rule would apply even for the bail hearing, and will require that the agency fields other material since the statement of a co-accused can, at best, be used to lend assurance to other material (Paras 36, 37).

The Controversy

The only real controversy, I would argue, stems from the second part of the holding in respect of how to treat statements of persons in custody under PMLA. This set of observations lends itself to different readings, ranging from narrowest to broadest. 

The narrowest reading of Prem Prakash, which would be the storm in a teacup view, would be that the judgment emerged from unique facts and its conclusions must remain confined to those facts. Here, The petitioner was already in custody in one PMLA case, his statements were recorded and used in a different case. All that the Court has said is that only in such a situation would it be impermissible to use the statements against their maker. In all other cases i.e., where a person is arrested and questioned in the same case under PMLA, or where a person is in custody because of a non-PMLA case, there would be no such bar. 

The broadest view would argue that Prem Prakash has fundamentally altered the landscape by rendering any Section 50 PMLA statement given in custody after arrest, as a statement which cannot be used against the maker. Such a conclusion relies upon Para 32 of the judgment which begins: "We have no hesitation in holding that when an accused is in custody under PMLA irrespective of the case for which he is under custody, any statement under Section 50 PMLA to the same Investigating Agency is inadmissible against the maker. The reason being that the person in custody pursuant to the proceeding investigated by the same Investigating Agency is not a person who can be considered as one operating with a free mind." A person is not under some unique sense of duress merely because he is already in custody in one case and is now questioned in another, which is why Para 32 is phrased as it is. 

The problem, of course, is that Para 29 of the judgment seems to suggest precisely that a person is under a unique sense of threat: "Is a reasonable inference legitimately possible that, due to the vulnerable position in which the appellant was placed and the dominating position in which the Investigating Agency was situated, in view of the arrest in the other proceeding that, there obtained a conducive atmosphere to obtain a confession?" With due respect, this does not make sense, for the reasons already stated above. It is not the quantity of cases in which I am in custody, but the quality of the custodial experience which is what sets it apart. That is the true import of Justice Krishna Iyer's opinion in Nandini Satpathy, which the bench also invokes in Prem Prakash.

It is not just this obvious sense of internal contradictions that hamper Prem Prakash from achieving its fullest potential as a radical judgment which could force investigative agencies to abandon what appears to be the standard operating procedure to force the accused to make his own noose by recording damning statements which lack any kind of corroboration in material particulars, and then hang the accused with it. A related issue is the judgment's seeming reluctance to cross the rubicon on that extremely familiar issue in Indian criminal law and procedure — how to define 'police officer' for purposes of Section 25 of the Evidence Act. That clause bars evidence of confessions to police officers [discussed at length here] and it has been retained as section 23 in the Sakshya Adhiniyam. 

Prem Prakash refers to the Supreme Court's recent magnum opus on PMLA, the judgment in Vijay Madanlal Choudhary (2022). For a judgment which set out to clarify the law, it did a woeful job, as can be seen from the observations on this issue of whether Enforcement Directorate officers would be 'police officers' for the purposes of Section 25: 

"Ex-consequenti, the statements recorded by the authorities under the 2002 Act, of persons involved in the commission of the offence of money-laundering or the witnesses for the purposes of inquiry/investigation, cannot be hit by the vice of article 20(3) of the Constitution or for that matter, article 21 being procedure established by law. In a given case, whether the protection given to the accused who is being prosecuted for the offence of money-laundering, of section 25 of the Evidence Act is available or not, may have to be considered on case-to-case basis being rule of evidence."

This is remarkably confusing. Either an officer is or isn't a police officer, that is not a 'rule of evidence' that can be left to a case-to-case determination. Nevertheless, Para 24 in Prem Prakash skilfully uses this part to show us that the door was clearly not slammed shut on this issue by Vijay Madanlal, but there were a few cracks left yet. So far, so good. 

What happens next is the problem. Prem Prakash has relied upon a decision by three justices in Raja Ram Jaiswal [AIR 1964 SC 828] to understand 'police officer' under Section 25 in a purposive sense by looking to the kind of powers conferred upon an officer. It failed to mention that after Raja Ram Jaiswal came the Constitution Bench decision in Badku Joti Savant [AIR 1966 SC 1746], which offered a different and arguably narrower view of how to interpret 'police officer' for purposes of Section 25. In this limited view of who is a police officer, Badku Joti Savant argued that it has to be a person who can file a police report at the end of an investigation, something which the Enforcement Directorate officials conspicuously do not exercise under the PMLA. 

In other words, if the Court was taking the plunge on Section 25 in Prem Prakash, it had to set out more clearly how the existing law could be rationalised first with that part of Vijay Madanlal, and then give us a framework for expanding the contours of Section 25 to include Enforcement Directorate officials within it. This is not difficult. The periodic amendments to the PMLA and Section 44 which speaks of 'complaints' filed at the end of investigations, has brought that the PMLA investigative process closer and closer to a traditional police investigation, blurring the distinction between a complaint proceeding and one launched on a police report. For instance, Section 44 today has an explanation which allows 'further investigation' after filing a complaint , allowing 'subsequent complaints' to be filed.  

Thus, even if we cannot close our eyes to the unfortunate holding of Badku Joti Savant (as much as we might want to), it is today not that hard to slot in Enforcement Directorate officials as police officers for Section 25 even with that regressively formalistic framework. Unfortunately, this is left unsaid in Prem Prakash, and it would fall upon subsequent benches confronted with the problem to develop this thought. One would hope that they water the seed and nurture this plant rather than weed it out even before it has had a chance to show the smallest of green shoots. 

Will Prem Prakash prove to be seismic decision, or a mere storm in a teacup? Let us wait and see.

Old Wine in New Bottles? — The Judgment in Vijay Madanlal Choudhary (Part Two)

The previous post in this two-part series considered how the Supreme Court's judgment in Vijay Madanlal Choudhary & Ors. v. Union of India & Ors. [SLP Crl. No. 4364 of 2014; Judgment dated 27.07.2022 ("Vijay Madanlal Choudhary") dealt with the offence of money laundering under the Prevention of Money Laundering Act 2002 ["PMLA"]. This post turns its lens to how the judgment understood the procedural facets of that statute. It first recaps the important holdings of the Court, and then turns to a critique. As a result, this post is longer than the previous one.

The Findings on Searches and Arrest

The challenge to powers of search conferred by the PMLA primarily arose due to amendments made to Section 17 of the Act in 2019, whereby a proviso was removed. This proviso was in the nature of a pre-condition that had to be satisfied before a search action under PMLA could be undertaken, and essentially required that an investigation in respect of the scheduled offence ought to have been started. By removing this anchor of the scheduled offence, it was argued that the entire logic of the PMLA had been turned on its head.

For arrests, the argument was much simpler — Section 19 of the PMLA enabled arrests without securing the minimum safeguards that the ordinary criminal procedure under the Criminal Procedure Code  1973 ["Cr.P.C."] allowed, and thus ought to be struck down. Unlike ordinary law, there was no system in the PMLA for an arrested person to know the case against her since no First Information Report was recorded under the PMLA. If Section 19 had to be saved, then the Court ought to declare that the PMLA equivalent — a document called the Enforcement Case Information report or "ECIR" according to Petitioners — ought to be shared with the arrested person. 

The Court did not find any such problem with either the search or the arrest powers. In case of the former, it upheld the amendment and held that it expressed the legislative policy (not to be questioned) of treating money laundering seriously. It made sense to de-link the PMLA process from the scheduled offence to not leave the former hamstrung in cases where there is somehow a lapse in prosecuting the scheduled offence. If anything, this enabled the Enforcement Directorate to take action and then ask the sleepy police to also take action. In respect of safeguards, and here the analysis dovetails with the Court's observations on the arrest powers, it noted that comparing the PMLA with a penal statute was incorrect since it was a sui generis law. Even though the statute had used the word 'investigation' to describe the process of the Enforcement Directorate, it was more appropriate to read it as 'inquiry' instead given the PMLA had many facets besides investigating commission of crime.

With that context, it was of the view that the PMLA had many safeguards which made any worries about abuse were unfounded: the powers could only be exercised by very senior officers, with a necessary requirement of recording reasons in writing and forwarding them to a separate authority, and by a statutory provision penalising vexatious searches or arrests. In case of arrests, the Court held that an ECIR was not a First Information Report but an internal document; anyway, a statutory requirement under Section 19 to share grounds of arrest fulfilled the need to inform a person about the case against her.

On "Section 50" PMLA Statements

Section 50 PMLA enables Enforcement Directorate officials to record statements on oath from any person. It was subjected to a limited, twinfold challenge. Firstly, that clause must be read down in terms of Article 20(3) of the Constitution of India, and secondly, that statements recorded under Section 50 ought to be hit by the bar under Section 25 of the Indian Evidence Act 1872 ["IEA"] rendering confessions to police officers inadmissible, if sought to be used at a subsequent trial.

Since the PMLA was not seen as a penal statute by the Court, and 'investigations' were 'inquiries', it was only logical for the Court to reject submissions on this front as well. The rejection of the Section 25 IEA submission was resounding, with the Court relying upon a line of precedent stretching all the way back to the mid 1960s, where similar powers for officers of other agencies acting under the Customs Act 1962 and other state laws were upheld. The Court noticed the recent judgment in Tofan Singh [(2021) 4 SCC 1] which had extended such guarantees to the Narcotic Drugs & Psychotropic Substances Act 1985 ["NDPS Act"]. As had been argued earlier on this blog, Tofan Singh carefully tailored its findings on the peculiar statutory scheme of the NDPS Act, and the Court in Vijay Madanlal Choudhary relied on this aspect to distinguish it from the PMLA context.

For Article 20(3) of the Constitution, the Court observed that every person summoned to give statements under Section 50 cannot be a person 'accused of an offence', again relying upon precedent which went back to the 1950s concerning powers to record statements conferred under other laws including the Companies Act 1956, the Customs Act, and the Foreign Exchange Regulation Act 1973 ["FERA"]. However, where persons under arrest were questioned, it acknowledged that the clause may apply, leaving that determination open to the peculiar facts of each case.       

On Bail

In 2018, a different bench of the Supreme Court in Nikesh Tarachand Shah [(2018) 11 SCC 1] struck down Section 45 of the PMLA partially, as it then stood. This clause imposed what are popularly known as the 'twin conditions' of bail — restrictive conditions that are found in some laws which require that before granting bail the prosecutor must be heard and a court should be satisfied that (i) the accused was not guilty of the offence, (ii) the accused is not likely to commit any offence while on bail (see here for more). The reasons behind striking down these parts of Section 45, as it had been explained earlier, was not because the court had any problem with the twin conditions, but only because the manner in which the PMLA applied the conditions was found to be arbitrary — it was based on the kind of scheduled offence allegations involved, and since the legislature had completely eroded any rationality in the scheme of the schedule this made application of Section 45, in turn, arbitrary. 

In 2018, Parliament sought to solve this problem by doing away with this classification based application of Section 45 altogether — now, it would apply to all cases under PMLA. This amendment to the law was challenged as unconstitutional. The Court disagreed. Firstly, it explained how nothing prevented a future legislature from remedying a defect identified in Section 45 by Nikesh Tarachand Shah. Secondly, it held that the manner in which Parliament had chosen to remedy this defect — by abandoning the classification altogether — was not unconstitutional as money laundering is exactly the kind of offence which warrants such restrictive bail conditions. At the same time, the Court noted that the twin conditions would not apply in cases of being granted bail for delays in investigation [Section 167(2) Cr.P.C.] or prosecution [Section 436A Cr.P.C.]  

Critiquing the Findings on Investigative Aspects 

Section 17 — The Tail Wags the Dog

Recall that the very definition of money laundering under the PMLA is intrinsically linked to a scheduled offence. It is that property which is derived or obtained by engaging in acts relating to scheduled offences which become proceeds of crime, which are the heart and soul of the PMLA. Seen from this perspective, a statutory limit on the agency concerned with money laundering to hold its hands till there was at least a suspicion of there having been a scheduled offence makes sense. At the same time, it also makes sense to not ask agencies to wait till that investigation is over to do something. This is the balance that was struck by Section 17, through a proviso which required an investigation into the scheduled offence to have begun before the Enforcement Directorate undertook searches etc.

The Court, in trusting legislative policy, has now approved a state of affairs where the tail shall wag the dog. It is justified, the Court tells us, to allow the Enforcement Directorate to proceed to ensure the system can be cleansed of money laundering. All that is rhetoric, not reasoning. No matter which you look at it, in the current scheme of things where the existence of a scheduled offence is necessary for the PMLA, letting the PMLA process begin even before anyone has alleged the commission of a scheduled offence does not stand to reason. In effect, it makes the judgment of the Directorate also determinative for deciding whether or not a scheduled offence might have been committed, which is nowhere within its mandate. Considering the plethora of scheduled offences that already exist, one can appreciate the perception that this provision allows the Enforcement Directorate to create money laundering allegations where there might not be any, for which police station will disagree with a letter from the 'very senior officers' telling them to register a case for commission of scheduled offences?

We can keep taking turns at it, but a square peg will not fit in a round hole. 

Non-Existent Safeguards?

Vijay Madanlal Choudhary extols the many safeguards present in the scheme of Sections 17 to 19 of the PMLA to consign worries about abuse of powers into the dustbin. The seniority of the empowered official is supposed to allay fears of misuse, as is the existence of a provision punishing vexatious exercise of power. None of this is new: the same logic was offered when coercive powers granted under other socio-economic laws were challenged in the past. What is, nevertheless, worthy of note is the uncritical, almost loving eye, with which the view is re-affirmed by the Court. The Petitioners made submissions about the biased nature of enforcement under the Act, the inherent limits of provisions punishing abuse of power — it would require internal sanction, which rarely comes — and the paltry rate of conviction to suggest that the threat of abuse and misuse was not mitigated by the purported safeguards. The Court did not so much as blink in the face of this criticism, and its suggestion of trusting the officials would certainly leave some corners bemused, as conservative a view as that may be. 

The Sui Generis Argument is Flawed

The idea that the PMLA is not a penal law but a sui generis law is central to much of the Court's reasoning in Vijay Madanlal Choudhary. This is the justification for holding it unnecessary to bring the PMLA at par with other penal statutes in terms of procedural safeguards conferred upon persons who may get entangled in the PMLA process. 

The previous post explored this argument from the perspective of how the civil and criminal machinery within the PMLA operated while comparing it with other laws. It argued, that the PMLA did not allow for its civil process to live independent of its criminal process; indeed, without a prosecution for the offence, the civil action would die a natural death sooner rather than later. So the idea that PMLA also deals with inquiries ending in civil consequences is a half-baked truth at best.

We need to return to that comparative perspective and now look at the PMLA together with the other kinds of socio-economic offences that have been passed over time, to assess the Court's reasoning when it comes to procedural safeguards regarding questioning persons. It is difficult to take stock of all such laws passed at the state and central levels, but it would suffice if we take note of some primary central ones — the Customs Act 1962 (preceded by the Sea Customs Act of 1878), the Companies Acts of 1956 and 2013, the Foreign Exchange Regulation Act 1973 ["FERA"]. Vijay Madanlal Choudhary draws comparisons between the PMLA and these laws, for which the Supreme Court has repelled legal challenges in the past by holding that the questioning of persons under those laws is for an inquiry unlike criminal investigation, to hold that the PMLA ought to be treated similarly. 

This comparison is flawed, because while the Customs Act, or FERA, or even the Companies Act, allow officers to file a civil action for penalties at the end of an inquiry, there is no such option in the PMLA. So, in case of the former, the idea that powers to question people or even arrest them are not necessary linked to a future prosecution has at least some legs to stand on because that outcome is statutorily possible. Of course, this does not address the problem in deciding whether procedural safeguards that are relevant during an inquiry should apply basis how an inquiry ends, and whether Article 20(3) should not apply to questioning and Section 25 IEA should not apply in the cases where the inquiry does result in a criminal prosecution. For the PMLA, there is no such possibility; a standalone civil action cannot last beyond 180 + 365 days. What's more, the PMLA is linked to the fact of a crime, and thus any inquiry where persons accused of that prior offence are called, are already placed very differently from individuals suspected of customs duty evasion. 

The theoretical sophistry that the Court had been able to rely upon in the past with FERA or the Customs Act is simply not available to it when it comes to the PMLA, where without the criminal action nothing survives. Yet, somehow, this distinction has escaped the Court's attention, and it applied judgments decided in context of other laws.

The few grains that the Court does throw towards procedural safeguards, it fails to flesh out. Imagine that earlier judgments on Article 20(3) and statements to officers under socio-economic laws did not clearly say that an arrested person ought to be treated differently. Vijay Madanlal Choudhary does this much, at least, but in a rather half-hearted manner. Secondly, in refusing to share the ECIR with an arrested person, the Court finds that the clause requiring sharing grounds of arrest would do the job. It would have helped if the Court could stress upon the manner of sufficiency required in these grounds if it was treating them as a substitute for being supplied a copy of the ECIR itself. In practice, it is all too common for the agency to simply state that a person is arrested for committing a Section 3 PMLA offence, nothing more and nothing less. By fleshing out the nature of grounds, the Court could have prevented this from continuing. Now, it would fall upon the High Courts to, hopefully, breathe some life into this clause. 

A point, also, about Tofan Singh would be in order. The Court has held that the judgment was unique to the NDPS Act context and could not be extended to the PMLA. This is, undoubtedly, correct. As had been noted at the time, Tofan Singh was unlikely to provide any succour beyond the NDPS Act because of how the Court went about examining the issue then. Still, the manner in which Vijay Madanlal Choudhary suppresses the points of similarity between the NDPS Act and PMLA is rather striking. For instance, it is nowhere mentioned how the NDPS Act also has confiscation mechanisms in place, much like the PMLA.  

Assessing the Revival of Section 45 Twin Conditions

Nikesh Tarachand Shah, much like Tofan Singh, dealt with the form of a problem rather than its substance (both were authored by the same judge, incidentally). Here, that problem was the twin conditions of bail. 

The problem with Section 45, according to Nikesh Tarachand Shah, was that it imposed the restrictive bail conditions by creating an illogical classification between kinds of cases. It accepted that such conditions are legal and necessary where compelling state interests exist, but recognised that not every case of money laundering would be the same, and adopting a monetary threshold to gauge seriousness made sense. This logic of the threshold had been done away with, while at the same time multiplying the total number of scheduled offences manifold. This was a problem because the underlying offences were very different and since money laundering necessarily turned to the scheduled offence, the nature of that offence was not an altogether irrelevant factor for consideration.

Parliament's answer to this in the 2018 amendment was not to repair the classification, but to do away with it altogether. In Vijay Madanlal Choudhary, the Court correctly notes that its earlier judgment had pointed out an error with the form and not substance of the twin conditions, but it failed to identify exactly what that error was while upholding the legislative response to the perceived problem. In concluding that the legislature could remedy defects and restore the twin conditions to PMLA, Vijay Madanlal Choudhary is right. But here, the manner of resolving the defect was to completely undermine the logic of the judgment in Nikesh, which the Court chose not to appreciate. Instead, the Court endorsed, whole-heartedly, the abandoning of a classification-based approach and the application of twin conditions to all PMLA cases. For, we are reminded again, money laundering is a very serious offence. 

There is an obvious problem with that assertion, though, because unlike other crimes, at a basic level money laundering derives its seriousness from the seriousness of the underlying scheduled offence and what kind of proceeds of crime were generated there. Yes, terrorists and drug cartels might engage in money laundering and should not get bail easily is a plausible view, but the law as it works today paints these persons with the same brush as any copyright or trademark violators who may 'derive or obtain' any property by way of their violation. Such petty offences are not rendering the financial foundations and the economic integrity of the country unstable, with all due respect. To contend that these are hypotheticals unworthy of attention because the Enforcement Directorate will not waste time on such cases is not a good enough response, because a court is required to deal with the law and not how an agency may or may not choose to enforce it in its wisdom. 

This is an odious conclusion, no matter which way we look at it.

Conclusions

There are many serious problems in how the Court has justified the refusal to treat the PMLA at par with other penal laws when it comes to procedural safeguards. Vijay Madanlal Choudhary has glossed over distinctions between contexts that are gaping chasms, acting under the illusion that these are minor cracks in the edifice of its immaculate reasoning. The conclusions, at many points, are starkly incorrect on law. 

At the outset of this series, it was observed that Vijay Madanlal Choudhary is a conservative decision, inasmuch as the Supreme Court has simply remained faithful to its inglorious past of taking away all semblance of safeguards to personal liberty and property when it comes to socio-economic offences. Restrictive bail conditions in independent India first came for the essential supplies law before they became famous for anti-terror laws; reverse burdens were held good in 1964 when it came to gold smuggling; the guarantee of Article 20(3) was held inapplicable till customs officials or those from the registrar of companies concluded their inquiry given the theoretical possibility that such inquiries might, till that stage, not end in prosecution. More recently, it was okay for the accused in the 2G Scam and Coal Block cases to be denied a right of appeal.

Over time, not many people have had a problem with this growing body of law developing right under our eyes, because these were confined to specific areas of activity. Even for those with left-leaning inclinations, such laws were in fact lauded because of the detrimental impact that white-collar criminals and smugglers posed to the country. 

What the PMLA does, is that it weaves together all the restrictive, rights-effacing clauses from this illustrious past in one fine blanket, and it then goes a step further. It is not restricted to just the smuggler or hoarder, but to practically anyone. It is not old wine in a new bottle, contrary to what the title might suggest. In its reach and deleterious impact on basic freedoms, the PMLA is truly a sui generis law unlike any other. The judgment in Vijay Madanlal Choudhary was an opportunity to trim it down to size and prevent it from becoming another MISA from the 1970s; instead, the Court has, for now, green-lit that very outcome.         

Mobile Phones and Criminal Investigations

I've put out a short primer / paper (made with friends) explaining the basics about mobile phones and criminal investigations. This is meant to help convey the legal issues that arise in context of the following: (i) seizure of a phone by police; (ii) police compelling the person to unlock the phone, and; (iii) police accessing the contents of a phone.

Broadly, the takeaways are:

• Police have broad powers of search and seizure which they can use to seize a mobile phone during an investigation, which is treated just like any other object;
• There is greater ambiguity in the law that might authorise regular police, and courts, to compel individuals to provide passcodes and / or open locked devices by using biometric ID;
• There are no prior limits on the use of the seized phone and the kinds of content that might be accessed;  
• There are legal limits present under statutes that serve as avenues to restrain these powers. The misuse / abuse of these powers also threatens possible violations of the fundamental rights to privacy and that against compelled self-incrimination;
• However, the value of legal tools to contest seizure of mobile phones and / or any compulsion used by police in getting them unlocked, is often lost due to the situational dynamics in which the law operates. The power differential between police and a witness / suspect inside a police station is simply too much to bear and results in most persons unlocking their devices. The myriad difficulties in holding police officers to account, and quickly, only makes this worse. 

To put it simply: The police can take away almost anyone's phone if they think it might be useful to the investigation, see anything inside it without accountability, and the law confers potentially useful rights against compelled testimony which often don't matter inside the confines of a police station. 

At a time when a mobile phone is a close substitute for real life, the many problems posed by the status quo are not too difficult to imagine. For starters, the problems from ordinary life will obviously be replicated: investigating agencies will have to draw inferences from conversations and thus might impute criminal intent where none existed. 

But, given the massive amounts of information floating on a mobile phone, they bring their unique problems to the table. For most people, real life is never squeaky clean, and so it is safe to imagine that their phones reflect this reality. So by having relaxed laws that permit easy seizure of mobile phones, and having almost no legally defined limits on what the police can do with these devices once they've seized them, we create a situation where the police can go on a roving and fishing inquiry to find leverage against a person to either make her say things against her will. 

The document suggests some avenues for reform, but there are no short-term fixes to what is only a reflection of a broader, systemic, malaise. Let me explain how.

Sir James Fitzjames Stephen thought that having a law that excludes confessions made to the police was necessary in India because for them "it is far pleasanter to sit comfortably in the shade rubbing red pepper into a poor devil's eyes than to go about in the sun hunting up evidence." Amazingly, the law regulating investigations has changed little from Stephen's time. The past 150 years have taught us that without drastically improving the resources for policing, mere legal rules can do little to stop coerced confessions / statements and improve the quality of investigations. 

A police force that is short on money and staff, but pressed for time to deliver results, is always going to find shortcuts to give the public an answer. The risks of a fallout are also minimal, since any eventual unravelling of a case only happens many years after an investigation is completed, by which time nobody is around to blame. It is perhaps inevitable for the situation to get worse now, as mobile phones have meant that police don't need that proverbial red pepper anymore.

Diluting the Right to Silence: A Postscript

For those who missed it, Sregurupriya made a powerful critique of the recent Supreme Court decision in Prahlad v. State of Rajasthan [Crl. Appeal 1794-96 of 2017, decided on 14.11.2018], where a three Justices' bench upheld a murder conviction because the defendant failed to convincingly explain the incriminating circumstances in the case. Sregurupriya argued that the decision gravely dilutes the right to silence, constitutionally guaranteed to defendants under Article 20(3) which protects against compelled self-incrimination. In this short postscript, I offer two, very loosely related, points. First, I question the continued relevance of the statutory provision that allows for this judicial questioning of the defendant - Section 313 of the Criminal Procedure Code [Cr.P.C.] 1973. Second, I suggest that the right to silence was already extremely diluted in India, with the need for a relook starting much before the 313 stage which was the focus in Prahlad.

Do We Still Need Section 313 Cr.P.C.?

Let me make a brief detour to recount the ordinary trial procedure for offences punishable with more than two years imprisonment. After the court frames charges, the prosecution is asked to furnish its evidence wherein witnesses are called and documents / materials are exhibited. Once the prosecution has closed its case, we enter the Section 313 Cr.P.C. phase - where the judge, with the help of prosecutor and defence counsel, poses questions to the defendant who is required to answer them, even if only to tell the court "I do not remember" or "I do not know". 

This seems decidedly wrong. What about the defendant's constitutional right to silence, and all the rhetoric about the presumption of innocence with the prosecution shouldering the burden of proof? Section 313 Cr.P.C. is, purportedly, intended to support all of this by giving an opportunity to the defendant to explain the incriminating facts without swearing on oath. It is nothing more than actualising the great principle of giving the person a right to be heard - audi alteram partem [See, pages 45-46 of the 154th Law Commission Report (Vol. 1)]. Since the law treats the Section 313 Cr.P.C. statement as evidence, it means the court can rely on this explanation as well. As Prahlad illustrated, that reliance is clearly not restricted to acquittals alone.

The contradiction at the heart of this justification should be obvious: Why do courts need to call on explanations from defendants if they are presumed to be innocent until guilt is established beyond reasonable doubt, especially since defendants can take the stand and give the evidence themselves? There, I think, lies an important truth: Section 313 Cr.P.C. has been around from times when defendants had no right to give evidence. A verbatim provision was present as Section 342 in the 1898 Cr.P.C., and under that Code defendants had no right to testify up till the mid 1950s. In that setting, something like a 313 statement made sense as defendants had no other recourse to address potentially bogus theories of the prosecution. Once we confer upon defendants the right to speak at trial, the formerly benevolent provision begins to assume a more sinister role. 

As Sregurupriya illustrated in her post, Supreme Court decisions have repeatedly told trial courts to not use the Section 313 Cr.P.C. statement to fill gaps in the prosecution case, nor to draw adverse inferences against the defendant based on answers in that statement. What does that tell us? It shows that despite persistent reminders from the highest Court, trial court judges can't help but act like human beings: It's only natural to expect an innocent person to explain away circumstances and those guilty to remain quiet. Which is why scholars have also persistently reminded us that the entire idea of a right to silence is counterintuitive to most people. To put it bluntly, you can't tell judges that they can make defendants answer their questions and then expect the same judges to be selective in their appreciation of the responses. Section 313 Cr.P.C., thus, will always hinder the right to silence, if not in law then in practice. Maybe it's time to reconsider its utility.

Whither the Right to Silence?

News reported that India's Central Bureau of Investigation [CBI], the premier investigating agency [recently discussed here], successfully petitioned the trial court to extend the pretrial custodial remand of Christian Michel - at the centre of a big financial conspiracy case. The reason? Because of his "non-cooperation" and his "evasive answers" in the interrogation. For those unfamiliar with the Indian criminal process, it might take two seconds to digest this: in a system purportedly conferring a constitutional right to silence, how can pretrial custody be extended for "non-cooperation" with police investigations? And yet, that is the reality, common for defendants across the spectrum. 

Having experienced this reality first-hand for some time now, the decision in Prahlad did not come as a surprise to me. Even on the matter of judicial policy and precedent, Prahlad is only the newest page in a long, long chapter of Supreme Court decisions that have positively denuded the right to silence of any substance. Allow me to demonstrate this with a simple example. Imagine that the Delhi Police lodge a First Information Report alleging that Person X stole a car, thus committed theft and arrest her. Also imagine that a Customs Officer arrests Person Y on allegations of smuggling gold into India. Today, Person Y will have no right to silence till the start of trial. Replace the customs offence with any offence which is not investigated by the police and you get the same result, despite being arrested. Why? Because of the Supreme Court's consistent position to require a "formal" accusation, the absence of which is sufficient to ignore all substance — a position that I have strongly criticised earlier [see here, here, and here].

If the stakeholders in the Indian criminal process really do wish to honour the right to silence, then a lot of the existing law must be reconsidered. Section 313 and statements at trial will come much later in that process, which first requires taking a long hard look at how investigations are conducted. This is not something radical — India has been crying out for "scientific" investigations since the mid-1950s. But with each passing year, as decisions like Prahlad are rendered which further diminish the scope of a right to silence, the guarantee of Article 20(3) might well be rendered an ignoble epitaph for our transformative Constitution itself.  

Voice Samples and Self-Incrimination

A Single Judge of the Gujarat High Court handed down the decision in Devani v. State of Gujarat [Spl. Criminal Application Direction 5226 of 2015, decided on 18.01.2017], which formed the basis of the previous Guest Post on the Blog. To recount, the decision agreed with the Supreme Court's conclusions in Ritesh Sinha [(2013) 2 SCC 357] that compelling a person accused of an offence to undergo 'Voice Spectrography' does not amount to making her a witness against herself. Having held so, Pardiwala, J. then considered whether there was any statutory basis to permit such testing by the police. This was the issue on which the two judges in Ritesh Sinha disagreed, and is now pending before a larger bench for resolution. Pardiwala, J. found no such basis, and thus held that the Petitioner could not be compelled to undergo Voice Spectrography. This brief post follows up on the analysis offered previously and develops those ideas further.

'Evidence' in Article 20(3) and the Physical-Mental Divide

To decide whether or not the right against self-incrimination, guaranteed under Article 20(3) of the Constitution, is violated, three questions need to be affirmatively answered. First, that the person concerned is accused of an offence. Second, this person is required to give evidence against herself. And, finally, that the person must be compelled to incriminate herself. In Devani, only the second of these questions arose: Pardiwala, J. had to decide whether the taking of voice samples/exemplars could amount to evidence? 

Section 3 of the Indian Evidence Act contains a very broad definition of the term 'evidence'. Does the same definition apply here? It doesn't. As Gautam pointed out, the interpretation of this part of Article 20(3) is governed by State of Bombay v Kathi Kalu Oghad [1962 (3) SCR 10] which was decided by eleven judges. Deciding whether or not handwriting samples and blood samples were within the pale of Article 20(3), the Supreme Court gave us the term 'physical evidence'. By prefacing 'evidence' in this manner, the Supreme Court excluded blood samples and handwriting samples from the mix. The logic essentially being, that these materials were inherently immutable and were only being used for drawing comparisons with material already collected during the investigation. Enter, Selvi v State of Karnataka [(2010) 7 SCC 263]. Decided by three judges, it considered whether an accused could be compelled to undergo either brain mapping (BEAP), polygraph tests, or narco-analysis. The three judges held that compelling a person accused to undergo any of these would violate the constitutional right under Article 20(3). Now, you may correctly ask, that was it proper to place all three tests in the same bracket? After all, the drugged state of narco-analysis involves persons making statements, as opposed to polygraph tests relying upon physical responses to stimuli (usually questioning). On the issue of polygraph tests, the Court held that such a physical response was as good as a statement. The response involved a unique communicative value, which ordinary 'physical evidence' would lack. 

I agree that Pardiwala, J. is not entirely correct in narrowly construing the contours of Selvi by suggesting that the decision was solely concerned with what he calls 'psychiatric evidence'. The problem really is how broad the conclusions in Selvi were, as Gautam pointed out. While it attempts to distinguish Kathi Kalu Oghad, the logic employed for bringing polygraph tests within the confines of Article 20(3) does not hold firm. This is because even in a polygraph test the physical responses are used to compare. There is a set of normal readings taken when the person responds to supposedly harmless questions. After this, the uncomfortable questions are asked, and the readings obtained by both the sets of responses are then compared. There is a way to keep both Kathi Kalu Oghad and Selvi, perhaps. This would look at how the preliminary readings in polygraph tests are also obtained under coercion, as against a case like blood samples where material is obtained wholly independently.

Self-Incrimination and Voice Exemplars

The previous post made important observations about the logic behind Article 20(3) which receives scant attention. Gautam argues that the employment of the 'physical evidence' concept was an attempt to balance the dual claims of the crime control vs. due process approach. Developing his thoughts further, one may suggest that Selvi shows a shift from focusing on the crime control aspects to the issues of due process. In Kathi Kalu Oghad, we get a clear idea that the Court saw Article 20(3) as a means to ensure the quality of evidence at trial remained of a sterling quality. While persons may give false testimony under pressure, blood never lies, and so it made no sense to exclude it from the possible evidence that a judge may consider to decide issues at trial. Fifty years later, the three judges in Selvi are at pains to link Article 21 to Article 20(3). There is as much attention placed upon the manner in which the evidence is obtained, rather than solely judging its quality. Thus, the Court appears more willing to look at issues such as particular techniques violating the mental privacy of the accused which it earlier would not rarely consider. 

The problem with making claims about 'shifts' is that there needs to be something more to suggest a trend. Unfortunately, I can offer nothing by way of evidence, and would rather classify Selvi as a one-off event in the largely depressing judicial history of Article 20(3). On each of the three questions that I identified, the Supreme Court has consistently narrowed the scope, only to render this constitutional protection non-existent for large swathes of the criminal law that are today administered by agencies other than the khaki-clad police.  

Moving on to considering the particular issue at hand, then. I agree with Gautam that the 'physical evidence' conception is not the answer for a conceptually rigorous model for understanding the right against self-incrimination. But I do not think that the issue of voice sample poses any great difficulty to the existing setup and thus calls for reform will not find many takers, yet. If we were to look at this issue of voice samples from the lens of Kathi Kalu Oghad, it would be argued that the voice sample is obtained to compare it with the tape recording. Voice, like handwriting, is quite immutable, making it a fit for the 'physical evidence' category. The approach offered by the Selvi would offer the same result. The voice samples here have no communicative quality of their own: they are purely for purposes of comparison with evidence that exists independent of the person. The big flaw in this entire claim is the idea that the human voice is immutable since there is material to suggest otherwise (something that Devani does not fully address). Assuming there is some certainty on that front, it is difficult to argue that the technique of Voice Spectrography would violate Article 20(3).

Creating a Statutory Basis

The second part of the decision is a familiar tale of woe. Pardiwala, J. traverses through the entire gamut of statutes in the field in his search for some basis to ground this technique, only to end his search in vain. He concludes that Voice Spectrography could therefore not be compelled upon an accused, and offers pointers to the State Government on how to remedy the situation before finishing his decision. The tale is familiar because it can be recounted for most investigative developments in India. This blog had earlier considered one example in Section 311-A of the Cr.P.C.; how it took several decades for such a common investigative tool (taking handwriting samples) to receive statutory support, only for it to be riddled with problems.

The Criminal Procedure Code, 1973 is a curious mixture of highly particular rules combined with vague standards. The part on police investigations are a good example. Police discretion on when to investigate a case is couched in vague terms, coexisting with provisions stipulating meticulous rules for things such as inquests. Do we, then, really need a clear statutory basis for what techniques can the police administer? Pardiwala, J. himself suggests that there may not be such a need when he invites the State Government to consider bringing in Rules to permit Voice Spectrography. Regardless of where one stands on the security-liberty paradigm, few would dispute the need for law to keep pace with technology and for the police to have up-to-date investigative tools at its disposal. This raises  questions on whether it makes sense to continue requiring concrete statutory backing for the particular techniques that the police can adopt, in an environment that is notorious for belaboured law reform. The spectre of abuse and misuse looms large though, leaving us with that familiar feeling: of being between a rock and a rather hard place. 

Guest Post: Voice Spectography and Self-Incrimination

(In this guest post, Mr. Gautam Bhatia offers his take on the recent decision by the Gujarat High Court in Devani v State, which considered the issues posed by using voice spectrography during investigations. This essay has been cross-posted with permission from the Indian Constitutional Law and Philosophy Blog) 

On the 18th of January, in Devani vs State of Gujarat, a single judge of the Gujarat High Court handed down an interesting ruling on the constitutionality and legality of voice spectrography as an investigative technique during criminal proceedings. The writ petitioner had been charged with offences under the Prevention of Corruption Act. The main piece of evidence was a telephone conversation between the petitioner and the person from whom he had allegedly demanded a bribe. The Investigating Agency wanted to subject the Petitioner to a voice spectrography test, so that it could compare the two voice samples. The Petitioner challenged this.

The Court’s decision was delivered in the context of a split opinion by a two-judge bench of the Supreme Court, delivered in 2012, in Ritesh Sinha vs State of U.P. Justice Aftab Alam had held that in the absence of express statutory authorisation, investigative agencies could not compel an accused to undergo a voice spectrography test. Justice Ranjana Desai had disagreed. While the two judges were in apparent agreement over the proposition that voice spectrography did not violate the right against self-incrimination under Article 20(3) of the Constitution, in view of the disagreement between them, they referred the case for resolution by a three-judge bench. This bench has not yet been constituted.

In Devani, the Gujarat High Court agreed with Justice Alam and disagreed with Justice Desai, holding that the investigating authorities could not legally compel an accused to undergo a voice spectrography test. The Court based its judgment on statutory interpretation, finding no warrant for the taking of voice samples under the existing criminal procedural framework. However, it also found that the taking of voice samples did not violate Article 20(3) of the Constitution. It is to this finding that we turn first.

Article 20(3)

The Court’s examination of the self-incrimination issue took place – as it had to – in the context of the Supreme Court’s 2010 decision in Selvi vs State (previously, on this blog, we have discussed Selvi and the right against self-incrimination under the Indian Constitution in some detail). Readers will recall that Selvi – a three-judge decision of the Supreme Court – had clarified some of the conceptual underpinnings of the right against self-incrimination that had been left open in the previous judgment of Kathi Kalu Oghad. The question in this case was how the Gujarat High Court would interpret Selvi, and how it would thread the needle between Kathi Kalu Oghad, which had held the taking of fingerprints and handwriting samples was consistent with Article 20(3), and Selvi, which had held that narco-analysis, brain mapping, and the polygraph test, were not. In other words, what was the deeper conceptual basis that underpinned the spectrum between fingerprints and narco-analysis, and where did voice spectrography fall on this spectrum?

The Gujarat High Court’s reading of Selvi was as follows: Selvi, it held, had prohibited the compulsory psychiatric examination of the accused. However, a voice spectrography test – which only involved the subject speaking something into a recorder, and subsequent analysis of his voice patterns – did not come within the ambit of “psychiatric examination“. Consequently, voice spectrography was not hit by the Selvi bar, and was therefore constitutional (paragraph 44).

It is submitted, with respect, that the High Court’s reading of Selvi is unnecessarily narrow, and is not borne out by the decision and reasoning in that case. Recall that, in the last analysis, in Selvi, the intellectual foundation of the Court’s judgment was the idea of mental privacy. In paragraph 160 of that judgment, the Court held:

“Even though the actual process of undergoing a polygraph examination or a BEAP test is not the same as that of making an oral or written statement, the consequences are similar. By making inferences from the results of these tests, the examiner is able to derive knowledge from the subject’s mind which otherwise would not have become available to the investigators. These two tests are different from medical examination and the analysis of bodily substances such as blood, semen and hair samples, since the test subject’s physiological responses are directly correlated to mental faculties. Through lie-detection or gauging a subject’s familiarity with the stimuli, personal knowledge is conveyed in respect of a relevant fact.” (Para 160)

On, in other words, the right against self-incrimination (among other things) was aimed at protecting the mental inviolability of an accused during the course of a criminal proceeding.

The Court in Selvi went on to note:

“The compulsory administration of the impugned tests impedes the subject’s right to choose between remaining silent and offering substantive information. The requirement of a `positive volitional act’ becomes irrelevant since the subject is compelled to convey personal knowledge irrespective of his/her own volition.”

And:

“While the ordinary exercise of police powers contemplates restraints of a physical nature such as the extraction of bodily substances and the use of reasonable force for subjecting a person to a medical examination, it is not viable to extend these police powers to the forcible extraction of testimonial responses. In conceptualising the `right to privacy’ we must highlight the distinction between privacy in a physical sense and the privacy of one’s mental processes… so far, the judicial understanding of privacy in our country has mostly stressed on the protection of the body and physical spaces from intrusive actions by the State. While the scheme of criminal procedure as well as evidence law mandates interference with physical privacy through statutory provisions that enable arrest, detention, search and seizure among others, the same cannot be the basis for compelling a person `to impart personal knowledge about a relevant fact’. The theory of interrelationship of rights mandates that the right against self-incrimination should also be read as a component of `personal liberty’ under Article 21. Hence, our understanding of the `right to privacy’ should account for its intersection with Article 20(3)… a conjunctive reading of Articles 20(3) and 21 of the Constitution along with the principles of evidence law leads us to a clear answer. We must recognise the importance of personal autonomy in aspects such as the choice between remaining silent and speaking.An individual’s decision to make a statement is the product of a private choice and there should be no scope for any other individual to interfere with such autonomy, especially in circumstances where the person faces exposure to criminal charges or penalties. Therefore, it is our considered opinion that subjecting a person to the impugned techniques in an involuntary manner violates the prescribed boundaries of privacy. Forcible interference with a person’s mental processes is not provided for under any statute and it most certainly comes into conflict with the right against self-incrimination.” (Paras 190 – 193)

Consequently, Selvi went much further than simply prohibiting compelled “psychiatric examinations”. It located its decision within the framework of personal autonomy, the right to remain silent, and mental privacy.

However, it is precisely within this context that the issue of voice spectrography attains an almost intractable difficulty. If you look at the issue from one perspective, it seems clear that voice spectrography falls squarely within the Selvi prohibition. The mind is centrally involved in the act of speaking, and if “mental privacy” is to be understood in this sense, compelling a person to speak, and then using his voice to determine other relevant facts in a criminal proceeding, is certainly an invasion of mental privacy. Compelling a person to speak certainly violates their choice between speaking and remaining silent. It is certainly an interference with her “mental processes“. And finally, it does seem that what happens in a voice spectrography test is very similar to polygraph tests and brain mapping – bodily stimuli are mapped and measured. The fact that in one case, it is stimuli from the brain, and in another, voice patterns, ought not to make a difference, because – as discussed above – speaking is a direct result of mental activity.

Examined another way, however, the issue is much more complex. While speaking is a result of brain activity, the crucial thing to note in a voice spectrography test is that it is not about what the speaker is saying – that is, not about the content of her voice – but about her voice as a bodily, physical phenomenon. In this sense, voice spectrography seems much closer to fingerprints, blood samples, and DNA, than it does to narco-analysis. In a similar sense, it seems a stretch to say that the examiner is deriving knowledge from the subject’s mind. Although speaking is a result of a mental process, given that the brain is, ultimately, responsible for keeping the human body alive, every other bodily function can, ultimately, be traced back to the brain. Here, again, given that the content of what the speaker says is not at issue, it does seem that voice samples are physical phenomena, in the same sense that blood or DNA is.

What this reveals, I suggest, is that ultimately, Selvi’s neat distinction between the physical and mental, between the taking of physical samples (blood, DNA, hair swabs, fingerprints) on the one hand, and interference with mental processes and invasion of mental privacy on the other, breaks down on closer examination. It breaks down in cases such as voice spectrography, where the physical/mental binary simply loses its valence as an explanatory device.

As I had argued in my essay on Selvi, the distinction between the physical and mental in that case was drawn in an attempt to strike a balance between two models of the criminal process: the crime-control model, which seeks to remove obstacles from investigating agencies in their attempt to discover the “truth”, and the due process model, which places great stress on the fundamental rights of the accused. By limiting the right against self-incrimination under Article 20(3) to invasions of mental privacy, the Court attempted to balance the two models. A case like Devani suggests that more work needs to be done to achieve a clear and coherent balance.

Statutory Analysis

Although not strictly within the scope of this blog, a word ought to be said about the second part of the judgment. The Court undertakes a thorough analysis of laws such as the Identification of Prisoners Act, the Code of Criminal Procedure, and the Evidence Act, all of which allow for various situations – and methods – by which investigating agencies and judges can act upon the body of the accused (compelling her to yield blood samples, DNA, sputum, hair swabs, fingerprints etc.) The Court finds that nowhere is there an express authorisation to take a voice sample, and nor can such an authorisation be read into the statutes. Consequently – and despite its misgivings on this issue as a matter of policy – the Court holds that, under the existing legal regime, compelled voice spectrography is not permissible. The Court’s analysis – from paragraphs 47 to 100 – repays close study, not simply because it is an excellent piece of statutory interpretation, but also because the Court subordinates its own sense of what might be desirable as a matter of legal policy to an autonomous reading of the existing law as it stands, and refuses to step an inch beyond the law. This is a phenomenon that has been falling distressingly out of fashion in recent years.

The Encryption Debate in India

This is a bit late, but I thought it would be nice to wade into the currently simmering liberty v. security debate centred about the proliferation of encrypted online communication. I'd written about encryption myself a while back at a time when it wasn't in the eye of the storm. Most of what I have to say in this post is probably already the subject of various comments/editorials in India and the USA, so I apologise for the inescapable repetition. I will address two questions (1) is encrypting private communications illegal in any form, and (2) can the government compel you to give up your encrypted communications. I am purposely keeping out of the liberty v. security debate.

Is WhatsApp Really Illegal Now?

I came across a provocatively titled article today - 'WhatsApp is now Technically Illegal and a National Security Threat in India'. The click-bait worked and I read through the piece and several others [useful links here, here, here and here]. What emerged was a bleak scenario. 

To answer the question first, WhatsApp is technically not illegal - an Internet Service Provider (ISP) running WhatsApp without seeking government permission for the new encryption level is what's illegal. This is because the Department of Telecommunications (DoT) operates through License Agreements between the Government (Licensor) and the ISP (Licensee). Clause 2.1(vii) of this Agreement places a limit of 40-bits for encryption that can be placed by individuals/organisations on the ISP without government permission. For anything more, the ISP needs permission from the Licensor, i.e. the Government. 

What is 40-bit encryption? The kind that people in the 1990s used. The Government doesn't really disagree - a 2002 Note by the DoT stated that 40-bit was needed to ensure security operations aren't hampered. Strangely, despite development of technology the Government stuck to this standard in 2007, incorporating it in the License Agreements mentioned above. In 2009, the Information Technology (Amendment) Act of 2009 was notified, which inserted Section 84-A: "the Central Government may, for the secure use of the electronic medium and for promotion of e-governance and e-commerce, prescribe the modes or methods for encryption." No such prescription has yet come through. The Government has not changed the 2007 policy, although several public sector institutions mandate a higher level of encryption than the 40-bit standard. The RBI mandates 128 bit encryption. This is because 40-bit encryption is rather insecure, to put it lightly. 

So, you don't need to worry about using WhatsApp yourself (well, given the new encryption, of course you don't). The ISPs offering you WhatsApp for use are the ones who will be bothered. That too for contractual violations and not for committing a crime, since this amounts to breaching the License Agreement. Notification of an encryption policy, or a change in the existing agreement, has been sought for many years. Maybe this wakes up the slumbering leviathan that is the Government. 

Can you/WhatsApp be Compelled to Reveal Information?

Section 69 of the Information Technology Act, 2000 is key to this. It authorises  any agency of the Central Government to "intercept, monitor or decrypt or cause to be intercepted or monitored or decrypted any information generated, transmitted, received or stored in any computer resource." This requires a written order under Section 69(1), and for it there must be satisfaction that "it [the interception, monitoring or decryption] is necessary of expedient to do in the interest of the sovereignty or integrity of india, defence of india, security of the state, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognizable offence relating to above or for investigation of any offence". Note how lofty goals of requiring decryption for the security of the state, come down to normal things such as investigating any offence. 

The Government may prescribe rules governing this process and attendant safeguards under Section 69(2), and these have been created in the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009. It places a requirement of cooperation on the subscriber (end-user, like you and I) or intermediary (like the ISP) under Section 69(3), and a failure to cooperate attracts a fine, and imprisonment which may extend to seven years under Section 69(4). This legal compulsion to cooperate with the threat of prosecution is what brings us to the fundamental right guaranteed to all persons (not citizens) in India under Article 20(3) of its Constitution: "No person accused of any offence shall be compelled to be a witness against himself." 

There are three questions that must be answered while determining any Article 20(3) question: (1) is there compulsion, (2) is the person compelled accused of any offence and (3) is the material sought from compulsion unique to the personal knowledge of that accused or not (blood samples are not unique to personal knowledge in this classification, for instance). Section 69(1) clearly reveals an element of compulsion - a potential seven-year jail term for not cooperating - so condition (1) is met. Its conditions (2) and (3) that are interesting.

I've recently written a lot about condition (2) and how it has contributed to a steady decay of the protection under Article 20(3) in the sphere of the so-called socio-economic offences [see previous posts here, here and here]. This requirement of being accused requires a 'formal accusation' against a person. Section 69(2) sends us to the 2009 Rules to see whether or not such a 'formal accusation' is made against a person who is subjected to an order under Section 69(1). The one Rule directly addressing the 'Decryption Key Holder' (WhatsApp in our case) is Rule 17, which doesn't really make any accusation of the kinds required. The terms of Section 69(1) make it abundantly clear that a need for interception, monitoring or decryption is not limited to crime-solving, but extends to crime-controls and prevention. This makes it harder to argue that a person is accused of any offence at the time when the decryption order warrants cooperation at the threat of prosecution.

We then come to condition (3). Is an encryption code/decryption key 'personal information' or is it akin to blood-samples? This question has been considered in the US and the UK; both countries follow similar distinctions and restrict their self-incrimination protections to something akin to our 'personal knowledge' idea. The last time I read up on this, England had the Court of Appeal decision in R v. S & A and the US had In re Boucher (district court and appeals court) and USA v. John Doe (11th Cir. App. Court). The English Court held the decryption key could be demanded without violating self-incrimination protections under the European Convention on Human Rights. It found the digital key akin to a physical one, and relied on this analogy for its decision. The American Courts held otherwise in both cases. And found that compelling such passwords violated the self-incrimination clause of the Fifth Amendment. Both sets of courts debunked the physical key analogy.

How would/should India hold? Back then, I'd argued that it made sense to agree with the American approach, primarily because of the 'foregone conclusion' doctrine they adopt. Basically, the idea is that self-incrimination questions don't enter the fray if existence of the information ultimately sought is a 'foregone conclusion': its existence can be concluded without needing the decryption. I stand by that claim, but understand that it will mostly not be seen being used by Indian courts any time soon. Which brings us to the settled question on the nature of the testimony. Is the decryption key really part of 'personal knowledge'? If you were to compel me to reveal my computer password, that demand is very different from demanding a firm to divulge its decryption key which is used to code a software. The former is quite certainly a part of my 'personal knowledge' - evidenced best by how often I forget the darn thing. The latter doesn't fit this idea - the decryption key is usually part of the software and not 'personal knowledge' of any person. Unless, we extend self-incrimination to corporations and label decryption keys as part of the corporation's 'personal knowledge'. 

I think this shows how no blanket answer can be given for whether these scenarios result in violating the guarantee of Article 20(3). Both sets of issues - the accused person requirement and the personal knowledge test - show exciting possibilities of development in this field. It would be interesting to see how a High Court treats them.

The Right against Self-Incrimination: Re-Defining Minimums

Over the last few posts we have discussed the interpretation of the phrase "person accused of any offence" which limits the application of the right against self-incrimination guaranteed under Article 20(3) of the Constitution of India. It was argued that the Supreme Court has interpreted the phrase in a manner that has placed severe restrictions on the application of this right. The balance, between the needs of law enforcement and rights of individuals, is tilted heavily in favour of the former. This is especially so if we limit our scope to looking at the applicability of Article 20(3) rights to cases involving offences outside the IPC, that are not ordinarily investigated by the police. The lines must be re-drawn, and I propose an alternative in this concluding post on the point. I argue that every person arrested, by any investigating/inquiring agency, and brought before a magistrate for detention beyond 24 hours under Section 167 Cr.P.C. must be understood as the "person accused of any offence" contemplated by the Constitution. I'll try and make out a case in support of this. I admit, at the outset, that the same is a work-in-progress, and comments are much appreciated.

Making a Basic Case 

I argue that we profit by reading the Constitution together with the Cr.P.C. Indeed, we must do so for Article 20 rights owing to the obvious overlaps. Article 20(3) coexists with a similar procedural right available under Section 161 of the Cr.P.C. Similarly, Article 20(2) has a corresponding statutory non-identical twin in Section 300 of the Cr.P.C. The Supreme Court has done this throughout its history as well. Unfortunately, in Deepak Mahajan it came to indefensible conclusions while doing so. 

If we read the entire Cr.P.C., the existence of some flow becomes evident. The code first tells you about how can a person's presence be secured - through arrest, summons, warrants etc. Then, it comes to securing evidence - searches, seizures, and the like. We then move to executive powers of judges, and then to investigations, cognizance, trial, judgment and appeal. Miscellaneous provisions come at the end. In this intelligent document then, it is not a fluke that Section 167(1) is the first provision that uses the word 'accused' when referring to the person being subjected to the legal justice system. It then characterises this accused person as one against whom "there are grounds for believing that the accusation or information is well-founded." The similarity between this language, and that which the Supreme Court itself used while first explaining the person clause in M.P. Sharma, is striking. Logically as well, it makes complete sense to consider such persons as those 'accused' at the time who may be detained for days in custody, as those to whom the protection against self-incrimination needs to extend. Detention is sought to by the police to collect further evidence, and it is necessary that a legal system protects the object of interrogation from having to face consequences borne out from being coerced to implicate herself.

This is why I disagree with the conclusion in Deepak Mahajan, where it held that the person before a magistrate in Section 167(1) is not the person protected under Article 20(3). Some criticism of the Court's interpretive exercise was already provided in the previous post. I also disagree with the Court's conclusion in paragraph 92 [SCC version of the judgment] that the word 'accused' means different things at different points in time. Rather, I argue that 'accused' has a settled core - someone having a well-founded accusation against herself - and this core develops as we progress from the stage of investigation to trial. The view of the Supreme Court, that a person may be arrested and sent to further detention beyond 24 hours but remains outside the scope of Article 20(3), is absurd. Individuals are left open to interrogation and detention in custody for as long as 3 months, without being protected from the possibility of facing a trial based on evidence coerced out of them. 

Reading Statutes Holistically

Setting aside Deepak Mahajan is fairly easy - it is a decision by 2 judges. Assuming it doesn't occupy the field, lets replace it with a view that every person arrested and detained beyond 24 hours is one "accused of any offence" for Article 20(3) and see the consequences. For one, I argue that this approach based on reading laws holistically promotes a clearer application of the criminal laws and also helps maintain that balance between the needs of investigation and the rights of persons. 

Within 24 hours, then, the police are not fettered by the absolute restrictions of Article 20(3). That means a person arrested cannot abuse a right against self-incrimination to dent an investigation by staying silent. Although 24 hours may seem like nothing, but manuals on investigation prove that this is not so [I can also crack a joke here and refer to a TV series 24 which shows repeatedly how the world can be put to imminent peril, and saved from it, in 24 hours]. Leads recovered through interrogation may not automatically result in securing evidence, but remain critical nevertheless.

This does not amount to giving the police a license to torture suspects, mind you. Bodily integrity is protected always under Article 21. Further, the scope of using confessions made to police officers is also very limited in India. Section 25 of the Indian Evidence Act prohibits using such confessions at trial against an accused person. Unlike Article 20(3), the person here need not be an 'accused' while making the confession. The reason behind this provision is a presumption against the reliability of such confessional statements. There are exceptions to this rule in Section 27 of that Act, which allow use of statements (wholly or partially) wherever these are supported by actual recoveries of material. The exception operates once a person is in police custody. As self-incrimination protections are also geared to ensure reliable evidence comes to court, applying Article 20(3) to persons in police custody beyond 24 hours would thus only strengthen the principles behind Sections 25 and 27. 

The Scope of the Problem at Hand

These posts were only looking at problems on one aspect of the right against self-incrimination. By no means have they been a complete discussion of these problems on this aspect. In fact, an equally bigger problem lies in provisions such as Section 108 of the Customs Act, 1962. These laws permit officers to question persons, and a refusal to answer questions is an offence which can be met by prosecution. Surely, the threat of prosecution on non-compliance amounts to compulsion! However, as the person questioned is not yet "accused of any offence", the Supreme Court has consistently held there is no violation of Article 20(3) by having such provisions. I conclude on a familiar note, thus. There is a long way to go to clean up the mess that is the law on Article 20(3). One only hopes that the Supreme Court does take it up, someday, one step at a time.