Guest Post: Criminal Status as a Constitutional Filter - What the Uttarakhand High Court's Order in Deepak Kumar Gets Wrong

(This is a guest post by Ammar Shahid and Syed Raiyyan)

The order passed by the Uttarakhand High Court (“The Court”) on 19th March 2026 in Deepak Kumar @ Akki v. State of Uttarakhand is a tight disposal of a petition that was asking for considerably more than it deserved. Three of four reliefs were turned down, and rightly so. However, the reasoning deployed against a prayer for police protection to Deepak Kumar is receiving significant criticism. It is not that the Court reached the wrong result. It is the path it chose to get there that rests on a doctrinal footing that does not hold up under scrutiny. When a Court ties the availability of relief under Article 21 to a Petitioner’s status as a “suspected accused,” it makes a statement about constitutional entitlement that no precedent supports.

Factual Backdrop

On Republic Day, 2026, Deepak Kumar (“Petitioner”), a gym owner from Kotdwar, Uttarakhand, intervened when a group entered the shop of one Vakeel Ahmed. He was a seventy-one-year-old shopkeeper and was pressured into removing the word “Baba” from the shop’s name. When the crowd demanded to know who he was, Petitioner identified himself as “Mohammad Deepak.” Days later, a First Information Report (“FIR”) was registered against him and his associate on charges including misconduct, snatching a mobile phone, and criminal intimidation. A mob later gathered near his gym and shouted slogans against him. Petitioner filed his own complaints, and his gym membership dropped from approximately 150 to nearly 15 in the weeks that followed. It was in this backdrop that he approached the High Court under Article 226.

The Petition and its Reliefs

The Petitioners were accused persons in FIR No. 19 of 2026, registered under sections 115(2), 191(1), 351(2) and 352 of the Bhartiya Nyaya Sanhita, 2023. They approached the Court with four prayers: quashing of the impugned FIR; directions to register FIRs on their own complaint against alleged perpetrators of hate speech; police protection for themselves and their families; and a departmental inquiry against certain police officials for alleged partisan conduct.

The Court dismissed reliefs (ii), (iii), and (iv) at this stage. Relief (i), the quashing of the FIR, was listed for further arguments. On reliefs (ii) and (iv), the reasoning is difficult to fault. On relief (ii), the petitioner had suppressed the registration of two FIRs on his own complaint. Both were registered at the same police station as the impugned FIR, and both predated the writ petition by more than a fortnight. Additionally, the statutory remedy under Section 175(3) of Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”), 2023 was available and unused. On relief (iv), a prayer for departmental proceedings against investigating officers while one’s own investigation is still pending practically invites the inference of an attempt to complicate the inquiry. The Court’s scepticism there is entirely well-founded and supported by reasoning. It is relief (iii), the prayer for police protection, that demands a harder look.

The Court’s Reasoning on Relief (iii)

The Court refused police protection primarily on the ground that a “suspected accused” who is under investigation cannot pray for adequate police protection, and that the police administration is “competent enough to keep on watch for his safety.” The Court also noted that the concerned officer had conveyed by telephone that there was no credible threat perception. The last ground of there being no credible threat was a perfectly adequate basis to refuse the relief. The first ground, on the other hand, is constitutionally tenuous.

Entitlement to Relief vs. Merits of Relief

There is a distinction in adjudication that has been overlooked in the order: the distinction between a petitioner’s entitlement to seek a particular relief and whether the petitioner has made out a case for that relief on the merits. These are entirely separate questions, and treating them as one produces reasoning that goes further than any given case requires.

Entitlement asks: Is this person, as a matter of constitutional or legal principle, capable of invoking this relief at all? Merits ask: has this person placed sufficient material before the Court to justify granting it? A Court can answer “yes” to the first and “no” to the second, and proceed to deny the relief without any doctrinal baggage. What a Court cannot do is answer “no” to the first question when the relief in question flows from Part III of the Constitution. Article 21 has long been understood to encompass an affirmative obligation on the State to protect it. In Akansha v. State of U.P., the Allahabad High Court held precisely this. The right to protection of life is a constitutional obligation of the State, and this obligation runs independently of the petitioner’s conduct or legal status.

Consider how this plays out in practice. When the Court says that a “suspected accused” cannot pray for police protection, it is not just deciding this case. It is articulating a principle. That principle, taken at face value, would mean that any person against whom an FIR is registered loses the ability to approach a Court for protection of their life until the investigation concludes. The logical endpoint of that proposition is uncomfortable: a person facing genuine, credible, life-threatening danger from a third party would be turned away at the door of the writ Court simply because he is simultaneously accused in another matter. Yet it is what the reasoning in this order, read literally, imports.

The merits dimension, by contrast, was entirely workable on the facts of this case. The petitioner placed no concrete material before the Court demonstrating a real threat. The investigating officer himself reported no credible threat perception. In those circumstances, the Court had everything it needed to deny the relief on the merits: there was simply nothing on the record to justify invoking the Court’s extraordinary writ jurisdiction for police deployment. The entitlement question did not need to be answered, and answering it the way the Court did created a proposition that the facts of the case did not require. This distinction is not novel, and the Courts have been asked to apply it in precisely this context before.

What Constitutional Precedent Actually Establishes

The Supreme Court’s Article 21 jurisprudence has maintained one consistent thread: the right to life does not shrink based on a person’s status in criminal proceedings. Several cases make this unavoidably clear.

In Arun Gavli v. State of Maharashtra, the Bombay High Court addressed this question of entitlement in the context of a person with a formidable criminal history. The Court’s approach was that the State’s obligation to provide protection under Article 21 is not neutralised by the fact that the person threatened carries FIRs or pending cases against him. The inquiry must remain limited to the threat, not the character of the person threatened. The Court held that “if a person like the petitioner, makes out a specific case of a genuine and imminent threat to his life on a particular occasion or at a particular place, the State Government would not be justified in refusing to grant armed police protection to him qua that particular occasion or place. This would, however, be subject to occasional review by the Threat Perception Committee constituted by the State Government.”

The Madras High Court’s position in K. Kalaivanan v. Superintendent of Police, Thiruvarur District is to a similar effect. The petitioner was involved in criminal cases and sought protection from rival group threats. The Court, in directing appropriate protection, reiterated that the right to life does not stand diminished by the existence of criminal proceedings against a person. Further, it is for the police to assess the credibility of the threat on the ground and not for the Court to bar the gateway to relief based on the petitioner’s legal status.

In Sunil Batra v. Delhi Administration, the Supreme Court held that even a convict retains fundamental rights. The Court drew a clear line: lawful custody restricts only those rights that cannot be exercised because of confinement itself. All other rights remain intact. If a convicted prisoner retains rights under Article 21, the argument that a “suspected accused,” who benefits from the full constitutional presumption of innocence, has a diminished entitlement to seek protection of his life would be legally untenable.

Taken together, these decisions convey what the Uttarakhand High Court’s order does not engage with. Courts have been asked this question of entitlement several times and have answered it in the affirmative. The identity, criminal status, or legal record of the person seeking protection goes, at most, to the credibility of the threat claim. It does not operate as a threshold disqualification.

Conclusion

To be fair to the Court, the outcome on relief (iii) is defensible. The petitioner placed no material before the Court establishing a genuine, immediate, or concrete danger. The police’s own assessment was that no credible threat existed. The relief simply was not made out on the facts. These were sufficient, clean, and principled grounds to deny the prayer.

However, the path the Court took to get there is a path that constitutional precedent does not sanction. Precedents converge on the same point: criminal status is not a constitutional filter through which the right to life must pass.

Courts often deal with petitions that are, as this one appears to have been, partly instrumental. The instinct to reject them firmly is sound. However, the legally sound path is in rejecting them on the ground that corresponds to the actual problem of insufficient merits. Formulating a broader principle that could one day be applied against someone whose threat is entirely real and whose only misfortune is the existence of an FIR bearing his name is untenable. One ground was enough here. Two grounds, when one is constitutionally unsound, is one ground too many.

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.         

Guest Post: A Three Pronged Analysis of Prema v State & Ors

(This is a guest post by Megan Sequeira)

Even though ours is not a pure Common Law setup, the diversity of facts presented with each case ensures that the judiciary develops with each adjudication. This piece intends to analyse one such case through its journey in the Trial Court and then the High Court of Madras: Prema v. State and Ors (Spl.S.C.No.21 of 2017).

Facts of the Case

The case is about a 2 years and 9 month old infant, who was sexually assaulted by a neighbour. The victim’s mother was on her way to buy food and the child was crying. The accused, who was sitting in his courtyard at the time, told the mother to leave the child with him, which she did. Upon returning home after half an hour, she could not find the child and on calling her name, the accused led her out by hand. 

Later that day, the child complained of pain in the private parts. On removing her garments, her mother noticed whitish liquid like semen present on her. The mother informed her husband, who was out of station at the time. She also informed the other neighbours about the happenings. 

The next day, the victim complained of pain again and was also running a fever, upon which her mother informed their relatives and rushed the child to the hospital. The doctor treating her stated that she had been sexually assaulted and the same was communicated to the Police, who recorded a statement. The victim, barely 3 years old, did not make any statement (and it is unclear if the police or court asked her to). It was her mother who acted as the first informant in the case. 

A case was filed for aggravated sexual assault under Section 10 of the Proection of Children from Sexual Offences Act 2012 (POCSO), and was heard before a Fast Track Special Court. The Judicial Officer, after hearing the arguments advanced on either side, acquitted the accused, stating that the prosecution had failed to prove the case beyond reasonable doubt. Consequently, the mother of the victim child filed an Appeal before the Madras High Court. 

The High Court overturned the acquittal and found the accused guilty, sentencing him to 5 years of rigorous imprisonment under Section 10 of the POCSO Act, along with a fine of Rs. 5000/-. The Court also directed payment of compensation of Rs. 1,00,000/- to the victim child. 

Analysis

The Semen - Semman Contention

What stood out most in the Trial court verdict was the confusion between the English word Semen and the Tamil Word Semman, meaning red soil. 

The mother of the victim had her statement recorded to the police inspector, wherein she simply stated a “white colour liquid” (Para 13). The inspector recording the statement then wrote “Seman”, a minor misspelling of the word for which neither the victim nor her mother could be blamed. When evidence was presented at trial, the typist misinterpreted the word “Seman” and typed out “Semman”, which translates to laterite soil or red soil. Neither the prosecutor, nor the victim’s counsel, or the trial judge noticed this error at the time. And so during arguments the defence used this point to contend that the mother’s testimony only proved that there was red soil and not semen found on the private parts of the victim. 

This argument was, surprisingly, accepted by the judge, and was a major ground for the acquittal, in spite of what the victim’s mother had said and what the police report stated (seman). Fortunately, the High Court saw through this folly of the typist, and considering the victim’s mother’s statement as well as the medical evidence provided by the doctor, set the record straight. However, it leaves open a larger door, linguistically speaking. 

As per Article 348 of the Constitution, all Supreme Court and High Court proceedings are conducted in English. This is in spite of the fact that India has no official national language, and a wide range of over 19,500 mother tongues spoken across the country (although the 2001 Census categorises it into 122 Mother Tongue Categories). 

On the other hand, FIRs registered by the Police are not necessarily filed in English or Hindi, but often in the regional language, as stated in the Code of Criminal Procedure (Section 277). In Prema v State, the FIR was written in Tamil, using English words. This is what led to the misspelt “Seman”. A 2019 Delhi High Court Bench had in fact directed the Delhi Police Commissioner to use the same words used by the Complainant while filing an FIR, although this is still rarely ever (if at all) seen in practice.

Another confusion added to this issue is that regional and sessions courts conduct their proceedings in the regional languages, whereas the High Courts and Supreme Courts only conduct their proceedings in English. When a case travels in appeal to the High Court or Supreme Court, then translations become necessary. There used to be a set of official translators dedicated to serving this task, I am told, but today it is more common for translations to be done through non-official translators, or by lawyers’ or litigants themselves. It is understandable, then, that translations are often riddled with faults, and can lead to drastic consequences as in Prema v State. Faulty translations are a second-level problem though. Because what this masks is the possibly large number of litigants who cannot knock on the doors of constitutional courts, being unable to fund a litigation that requires an added expense of getting the record translated.

Then there is the problem posed by conducting proceedings chiefly in English, and how this renders justice inaccessible to those not conversant with the language. Firstly, the parties themselves, along with witnesses, are often not conversant in English. To ensure their adequate participation in the process, it would require hiring translators and even interpreters. This is a far-away dream given the stricken-state of judicial infrastructure at the district level. Further, legal representation in subordinate courts usually comprises non-English speaking lawyers, which renders them not very helpful for taking litigation to constitutional courts.

Under Article 21 of the Indian Constitution, every litigant has the right to justice. This implies that not only must he have the right to speak in the language he understands before the magistrate, but also the right to understand the whole proceedings and the judgment delivered. It is evident, then, that this right is far from being realised in how the judicial system currently functions.

A Three year old Respondent 

The Trial Court found that the evidence given by the mother of the victim child was not enough to substantiate the case and it was not trustworthy, considering the same to be hearsay. Based on this, the Trial Court found that the prosecution’s case was not proved beyond reasonable doubt and accordingly acquitted the accused. In doing so, the learned Judge implied that the non-examination and absence of testimony from the 2.75 year old victim could prove fatal to her case. 

As per the Indian Evidence Act (Section 118), all persons, including a child, are competent to be considered as a witness in the court of law if they are able to understand the questions put to them, or able to give rational answers to those questions. However, it is important to note that the evidentiary value given to a child witness differs from case to case and circumstances influence the trust and value of such evidence. The trial judge is responsible for conducting the Voir Dire Test and deciding whether such a witness is competent to give evidence, or is a tutored witness. 

If it can be understood legally that circumstances impact the validity and admissibility of such evidence, it should also be legally understood that circumstances impact the ability of a child victim to come forward as a witness. It is a reasonable stance to hold that the inability of a child witness to come forward in a trial cannot be considered fatal to a case, no matter what the circumstances. Furthermore, expecting the child in question, who has recently been sexually abused and is in pain, to speak openly in front of strangers or even understand the complexity of the situation, is beyond reasonableness. The requirement of such a child to be examined as a witness, and the non-believing treatment meted out to the mother of such a child, is a definite obstruction to justice. 

It is also important to note that although POCSO trials are conducted ‘in camera’, the child is nevertheless being placed in an unfamiliar and highly confrontational setting. The POCSO Act makes available various provisions for the recording of evidence of a child witness, that still seem to fall short of the necessity. Section 26 allows the Judicial Magistrate to take the assistance of an interpreter, translator or any other person familiar with the child’s manner of communication while recording a statement. The section does not make any provisions for victims or witnesses below the age of three years, at which age they can only formulate two to three word sentences. 

The consequent section states that presence of a special educator in cases of physical and mental disabilities is permitted. While commendable, the Act should go forward, considering the possible regression and trauma caused by an instance of sexual assault or harassment, and make the presence of such assistance the norm instead of the exception. In this case, the child was produced before a Judicial Magistrate who noted in his report that she stayed silent even when asked simple questions such as her name or age, and was clearly afraid to speak in front of a stranger (Para 38). The absence of an interpreter, or a special educator in the case certainly raises doubts as to the efficiency of the court's proceedings. 

Criticism of an Idealised Legal System

There exists a visibly stark contrast between the judgments of the High Court and Trial Court. This distinction is a sure-fire way to oppose the idealised legal system. The common belief that the facts of a case are objectively heard and the truth always comes out due to the evidentiary rules is proved wrong in most appealed cases where the previous verdict is overturned, as in this case. The facts of a case are never objectively heard. The Judge assigned to a case influences the judgment, be it for good or bad. For instance, the Trial Judge refused to consider the reasons behind the delay in filing the FIR, nor did the Judge accept the reason behind the absence of medical evidence. On the other hand, the High Court fully took into consideration the reasons behind the delayed FIR, attempted to understand the reluctance of the other neighbours to stand as witnesses, considered the absence of medical evidence due to the delay and so on. The positions taken by the two courts indicate that facts cannot be heard objectively. By attempting to ascertain which of the judges were correct in their stance, one’s own subjective biases get included in the process. 

Additionally, the portrayal of the same facts in two such opposing ways as in this case is another indicator of the idea that the truth being discovered through trial is patently flawed. The defence portrays the inimical terms between the appellant’s husband and the accused as a reason to throw suspicion on how she would leave her child in the custody of the accused. The prosecution on the other hand puts forth the community and neighbourly environment, where the accused was sitting in his courtyard and voluntarily offered to look after the child who was crying. The defence uses the flimsy evidence of reddish colour on the victim’s private part due to the “semman-seman” typography, which went unnoticed and uncorrected by the Judicial Officer, while the prosecution brings forth the evidence of the white liquid present on her body as well as her garments, as noticed by the mother of the victim and the doctor treating her for the fever and prolonged trauma. The defence portrays the reluctance of the neighbours to stand as witnesses as fatal to the case, while the prosecution brings forth the element of community and neighbourhood as a hindrance to stand in support of one party and against the other. 

The quality of legal representation for either side in an adversarial setting is one of the motivations behind the entry of biases into the judicial process. As per the POCSO Act, the State appoints one Special Public Prosecutor to every Special Court and to every Fast Track Court. This in itself seems strange, since it gives way for an opportunity to arise wherein the prosecutor and the Judicial Officer contracted for the term can develop either a favourable or an unfavourable working relationship, hence bringing in further biases. The criteria for appointment of a Public Prosecutor for a High Court has been laid down in Section 24 of the Code of Criminal Procedure, 1973, and appears to be both comprehensive as well as strict. However, the method of appointing Special Public Prosecutors in an FTSC is comparatively lax. 

In a report by the Centre for Law and Policy Research, it was found that the prosecutors in cases tried before Karnataka FTSCs are often laidback and lacking, with instances recorded such as the failure to produce medical evidence to the Court on the grounds of it being unnecessary, or not engaging the assistance of interpreters or translators when necessary due to the costs or time involved. Prosecutors and judges are not given any specialised training as to dealing with POSCO related cases.

Furthermore, many judges are not able to factor out their personal beliefs while they are considering court cases, even when they have the best possible intentions. The Trial Court stated that the Prosecution had failed to substantiate the case of the prosecution and prove the charge. However, Section 29 of the POCSO Act clearly states that the Special Court shall presume that such person has committed the offence, as the case may be unless the contrary is proved in cases of aggravated sexual assault. The burden of proof in the case was supposed to be on the accused, but the Trial Court Judge shifted this burden with no given reason on to the prosecution, and the Special Public Prosecutor failed to point the same out.

Another reason is the incidence of witnesses and victims turning hostile. This occurs due to a myriad of reasons, ranging from social positions and community belonging, to stigmas and stereotypes, to threats and bribes. For example, witness number 4 in the case, who was the neighbour of the victim, and was actually told the entire story by the victim child herself, was not produced before the Court, because she declined to appear. Her evidence was not recorded at all. The reason given as to why she refused to testify was her position in the neighbourhood, which made her reluctant to speak in support of one family and against the other.

Witnesses are generally not inclined to get involved with court proceedings. It could be due to their position in the society, or because of their inherent vulnerability, especially in cases of sexual offences such as this one, when the witness is female. There also exists a general fear of the police force, coupled with the fear of threat or intimidation from their own communities.

Conclusion

This case comment aimed to highlight the issues underlying the Trial Court’s overturned judgment while also seeking to understand the wider areas of concern faced in the judicial system. The analysis of how biases enter the adjudication system as the case proceeds makes it an interesting case study.

In addition to the above, there exists another important element to be considered. The long span of time taken to finally settle the case, as is the duration spent on most cases in the Indian Judiciary, is a matter of grave concern. The incident itself occurred in September 2017, and the FIR was filed 5 days later, in the same month. The fast-track court passed its judgment only in September 2018, a whole year later. The case was appealed in 2019 and was heard and finally decided on 2nd July 2021. 

The prolonged trauma of not only undergoing such a horrific experience but also living in an environment of suspicion, betrayal and shame without receiving the much-deserved justice, is a gruesome thought that should be wished on nobody. It is essential to analyse the shortcomings in the judicial system that causes cases like this to go on for such long durations. 

Guest Post: Rethinking the Conviction Model for Non-Homicidal Repeat Sexual Offences

[I am happy to present this guest post by Ms. Ashna D., a third year law student in the undergraduate program at NUALS, Kochi.]

When the Supreme Court in Mithu Singh v. State of Punjab [1983 SCR (2) 690] struck down as unconstitutional the mandatory death sentence for murders committed by life convicts, the Court made its position very clear – “The legislature cannot make relevant circumstances irrelevant, deprive the courts of their legitimate jurisdiction to exercise their discretion not to impose the death sentence in appropriate cases, compel them to shut their eyes to mitigating circumstances and inflict upon them the dubious and unconscionable duty of imposing a preordained sentence of death.” 

This view was echoed by the Justice Verma Committee Report when it specifically opted against prescribing a maximum sentence of death for repeat offences of rape. Despite this, Parliament in the Criminal Law (Amendment) Bill, 2013 chose to mete out harsher punishments in certain cases and argued that if a person repeatedly commits the sexual offence of rape, the punishment has to be death.

Recently, India has been witnessing a disturbing glorification of the death penalty as a proportionate punishment for heinous sexual offences. This dangerous rhetoric seems to have wriggled its way into the sentencing process with the Supreme Court allowing the “collective conscience” to influence the quantum of punishment. This post highlights a need to reassess the constitutionality of Section 376E of the Indian Penal Code [IPC] which adopts a ‘conviction model’ that is vague, disproportionate and arbitrary. It argues that such a provision unthinkingly forecloses the possibility of reform and rehabilitation of convicts and victims respectively, by placing two glaringly different classes of offences on the same footing. For, as Lord Macaulay noted in his ‘Notes on Punishment’ on the Penal Code, “To the great majority of mankind, nothing is so dear, as life”.

A Misguided Interpretation of Enhanced Punishment

The outrage that followed the 2012 Delhi gang-rape led to the passing of a slew of amendments pertaining to the offence of rape. Apart from broadening the definition of rape to include oral and digital penetration, another amendment provided that persons who had already been convicted of rape under Sections 376, 376A or 376D of the IPC shall suffer an enhanced punishment under Section 376E IPC, which would either be imprisonment for the rest of his life or the death penalty as well. A literal reading of the Section only requires a previous conviction in order to impose the death penalty, and deviates from the ‘chronology of offences’ model followed under Section 75 IPC.

The rationale behind Section 75 is founded on the principle that criminal law affords limited patience to repeat offenders who have failed to “learn their lessons from the initial punishment”, and is borrowed from American criminal jurisprudence. It can be argued that it is wrong to keep imposing increasingly severe penalties for each new offence. This is because such provisions give too much weight to persistence and violate the principle of proportionality, creating a systemised gradation of punishments that fail to understand the enormously differing motives and circumstances underlying each individual crime.

Nonetheless, a criminal justice system that allows for recidivist provisions must at least ensure their fair implementation. This is precisely what was argued for by the petitioners in the case of Mohd. Salim Mohd. Kudus Ansari [Writ Petition No. 1181 of 2014, Decided on 03.06.2019 (Bombay High Court)], where the accused was sentenced to death upon ‘subsequent conviction’ despite the trials for the first and second alleged offences of rape being conducted almost simultaneously. By adopting the ‘conviction model’, the Bombay High Court not only turned a blind eye to the marginal time difference between the two convictions, but it also arbitrarily deprived the accused of his single opportunity to seek reform. This confusion surrounding the term ‘subsequent conviction’ makes its application inherently vague and may trap the innocent by not providing for an adequate warning.

Faulty Foundations

It is only reasonable to assume that crime is deterred not by increasing the gravity of punishment, but by ensuring its certainty. Nonetheless, a criminal justice system must consciously adhere to the principle of proportionality. That is to say that it does not allow punishment of the innocent; for, any punishment in excess of what is deserved for the criminal conduct is punishment without guilt. The logic followed by Section 376E IPC is principally unsound on two grounds. Firstly, barring Section 376A IPC which itself requires the causing of death, imposing a sentence of death for non-homicidal offences is antithetical to Articles 14 and 21 of the Constitution and therefore in gross violation of the principle of proportionality.

As was observed by the Supreme Court of the United States in Coker v. Georgia, rapes are no doubt barbaric crimes that deserve serious punishment. However, the Court opined that the death penalty is a needless and purposeless imposition of pain and suffering on a rapist who, as such and as opposed to the murderer, does not unjustifiably take human life. While the depravity and sheer inhumane nature of countless crimes may push us to make demands for the capital punishment its severity and irrevocability must be kept in mind. To equate the two would therefore be manifestly unjust.

Secondly, the objective of Section 376E IPC, to provide for enhanced punishment of repeat offenders, can only be achieved if the punishment awarded under this section exceeds the punishment awarded for the first conviction of rape under Section 376 (only rape), 376A (causing death or resulting in persistent vegetative state of victim) or 376D (gang rape). Ergo, if the first sentence is one of life imprisonment, for the second conviction to be an enhanced punishment it cannot be a second life imprisonment. This is by virtue of Section 427(2) of the Criminal Procedure Code which provides that that a subsequent sentence of life imprisonment imposed will run concurrently with the previous sentence. Thus, the ultimate purpose of Section 376E will be defeated if the enhanced punishment, by necessary implication, is not capital punishment. Such a position not only runs the risk of erroneous executions but is also in direct violation of the dictum laid down in Mithu Singh and the ‘rarest of rare’ doctrine propounded in Bachan Singh v. State of Punjab [(1980) 2 SCC 684].

On Rehabilitation and Reformation

By robbing judicial discretion in the sentencing process and pursuing our thirst for revenge, we are forgetting that a criminal is a victim of his circumstances in a society that has failed him. If the recent rise in sexual crimes is any indication, it is a telling tale of a nation that still perpetuates patriarchal notions and accepts the power and dominance of a man over a woman’s bodily autonomy. Our governments cannot offer society false hope that by killing sexual offenders via a death penalty we can eradicate sexual violence. By conveniently enlarging the scope of penal provisions to provide harsher punishments for repeat offenders, the State is shirking its responsibility of creating a strong framework to rehabilitate survivors of sexual offences within which various stakeholders must continuously assist them in rebuilding their lives.

Concomitantly, the State also owes to convicts a rightful chance to reform. This duty entails reforming the manner in which the practice of life imprisonment is implemented. Issues such as overcrowded and understaffed prisons, physical and mental torture of inmates, and inadequate recreational facilities have long lasting impacts on the lives of prisoners in ways that hinder reform and render their reintegration into society extremely problematic. Add to this the innumerable years convicts spend languishing in these very prisons with the prospect of death hanging over the heads. In a broken criminal justice system such as ours within which the very administration of the capital punishment is so intrinsically fallible, to extend its application to non-homicidal offences is to commit the gravest form of injustice disguised as the law. 

Supreme Court Grants Bail in the P. Chidambaram Cases — Some Thoughts

[This is a long post discussing both the CBI and the ED Bail Orders]

Readers may recall that at the end of August 2019, the Delhi High Court dismissed the petitions of P. Chidambaram for anticipatory bail in connection with what has become popularly known as the "INX Media Scam", which was the subject matter of investigations being conducted by the Central Bureau of Investigation ["CBI"] as well as the Enforcement Directorate ["ED"]. Mr. Chidambaram was arrested by the CBI almost immediately after this order, and so he moved the Supreme Court for anticipatory bail in the ED case. The petition in the ED case was also dismissed on 05.09.2019, since the Supreme Court agreed that necessary custodial interrogation would suffer if bail were granted.

Mr. Chidambaram's bail pleas in the CBI case made their way to the Supreme Court, and around two months after his initial arrest, the Supreme Court held in his favour, directing that he be released on bail in the CBI Case [Crl. Appeal No. 1603/2019, decided on 22.10.2019]. However this did not lead to his release since, around a week before the order, the ED had sought, and was granted, permission to arrest Mr. Chidambaram [Note that the ED had not made any efforts to secure his custody, let alone arrest Mr. Chidambaram, till 11.10.2019]. This triggered another set of bail petitions, which resulted in the order passed today in P. Chidambaram v. Enforcement Directorate granting him bail in the ED case [Crl. Appeal 1831 of 2019, decided on 04.12.2019].

The slew of orders passed by courts in Mr. Chidambaram's petitions has made distinct contributions to the law in this field — some desirable, others not so. Having discussed previous orders at the stage of anticipatory bail, this post discusses the two orders of October [Crl. A. 1603/2019] and December [Crl. A. 1831/2019]. I first discuss their contributions to the law, and then make some observations on the proceedings at large to highlight the seriousness of certain issues that are given criminally negligible attention by courts while considering the grant or refusal of bail.

P. Chidambaram v. CBI — Focusing on the Particulars       

The posture of proceedings before the Supreme Court in this case was slightly peculiar: The High Court had held that there was no basis to apprehend that Mr. Chidambaram would tamper with evidence, or that he was a "flight risk". Nevertheless, it rejected his bail plea, considering the probability that he could influence other witnesses. Both parties filed cross-appeals in the Supreme Court where the accused sought bail, and the CBI sought to challenge the High Court's observations that Mr. Chidambaram was not a flight risk.

In a pleasantly short order, the Supreme Court held that bail ought to be granted. Besides helpfully culling out five relevant principles for considering bail pleas for future courts [(i) Gravity, (ii) Threat of Tampering with Evidence, (iii) Threat of Absconding, (iv) Status / Personal factors of the Accused, and (v) Public / State interest (See Paragraph 22)], the Court also repeatedly insisted that the specifics of each case be looked at and, in doing so, chided the State for asking the Court to treat the "flight risk of economic offenders [as] a national phenomenon".

How is a Court to consider the above factors, then? The Supreme Court did not approve of a full-blown analysis of the merits of the prosecution. Instead, it advocated an approach that focused on the identified factors primarily, along with a minimal consideration of the prosecution's case itself. Judicial analysis of these bail factors had to be rigorous — something apparent in how the CBI submissions were rejected for being vague, generic, and totally unsupported by the actual facts of the case [Paragraphs 27 ("Flight Risk"); Paragraphs 28—31 ("Tampering")]. Thus, as the Court points out: 

Mere averments that the appellant approached the witnesses and the assertion that the appellant would further pressurize the witnesses, without any material basis cannot be the reason to deny regular bail to the appellant; more so, when the appellant has been in custody for nearly two months, co-operated with the investigating agency and the charge sheet is also filed. [Paragraph 31. Emphasis supplied]

I suspect that the Paragraph extracted above might end up being cited in subsequent bail petitions and judicial orders. But the real takeaway is the judicial approach on display here: The Court's refusal to be cowed by rhetoric and hyperbole while remaining keenly focused on an appreciation of the facts as they are relevant to the issue of bail. This is something that merits emulation, especially in cases where public glare is the harshest.

P. Chidambaram v. ED — Of Triple Tripods and Gravity of Offences

The Delhi High Court had denied bail in the ED case primarily due to the seriousness of allegations while holding that there was no threat of Mr. Chidambaram either absconding or tampering with evidence. Its order had attracted a stream of press coverage for reportedly copying portions of the State's submissions as part of its "findings", as well as discussing the facts of an entirely unrelated case as being related to the case against Mr. Chidambaram [Paragraph 11].

The Court relied upon its own earlier orders from October in Crl. Appeal No. 1603/2019 to outline the factors relevant for deciding a bail petition. But, curiously, the Court completely failed to mention that this was a case where, besides Section 439 of the Criminal Procedure Code 1973 ["Cr.P.C."], the provisions of Section 45 of the Prevention of Money Laundering Act 2002 ["PMLA"] would also have to be considered. 

That provision itself had been struck down as unconstitutional in 2017. But since then, there was an amendment to the PMLA in 2018, which sought to cure the defects in the provision and render it constitutional. In fact, the legal effect of the changes to Section 45 through the 2018 amendments has been the subject of judicial scrutiny before some High Courts but it is an issue that hasn't yet been considered by the Supreme Court. Given this position, I find it extremely peculiar that the judgment completely fails to mention Section 45, and wonder if this fact may form a valid ground for review.

After the Supreme Court simply assumed that the legal considerations for bail in a PMLA case would be the same as in any other case [Paragraphs 15—17], it also impliedly rejected the submission made by Dr. Singhvi, appearing for the appellant, that the gravity of an offence needn't be a factor for consideration at the stage of bail and the only relevant factor was the "Triple Test" of evasion, tampering, and influencing witnesses (or "Triple Tripod" as the order notes at one place) [Paragraphs 15—17, 21]. 

Having said so, the Apex Court disapproved of the manner in which the High Court had gone about considering the merits of the prosecution case for assessing the gravity of allegations. This criticism was of a threefold, and partly contradictory, nature: (i) the extensive nature of scrutiny, (ii) the apparently uncritical assessment of facts (by copying the State's submissions), and (iii) relying upon the material supplied in sealed covers to arrive at a conclusion [Paragraphs 23—24]. Considering the ubiquity of sealed covers in the practice of law today, it was refreshing to read the Court refraining from opening the sealed cover [Paragraph 24] and observing that: 

In that circumstance though it is held that it would be open for the Court to peruse the documents, it would be against the concept of fair trial if in every case the prosecution presents documents in sealed cover and the findings on the same are recorded as if the offence is committed and the same is treated as having a bearing for denial or grant of bail. [Paragraph 23. Emphasis supplied]

The Supreme Court did not agree with the finding that the seriousness of allegations was a sufficient reason to deny Mr. Chidambaram bail. In arriving at this conclusion it also strongly rejected the State's claim that his custody was required to confront him with witnesses, recalling that the ED had  had several months to do so since the rejection of Anticipatory Bail on 05.09.2019, and that Mr. Chidambaram's cooperation with the investigation could be secured through appropriate bail conditions. One of these, which is bound to attract some controversy in the coming days, is a condition prohibiting him from speaking publicly in "connection with this case" [which may or may not extend to the CBI case].   

The Chidambaram Cases, Arrests, and Custody — Unexplored Issues

The legal aspects of the Chidambaram cases have thus been explored. But it would be naive to think that these cases were all about the law — far from it. This is why it becomes important to consider some of the other issues that remain unexplored in these orders. Foremost among these issues is the need for greater scrutiny while evaluating the State's perceived need for a person's custody and alleged non-cooperation by an accused person with the investigation.

While discussing the 05.09.2019 order rejecting Mr. Chidambaram's plea for anticipatory bail in the ED case, this Blog had criticised the "hands-off" approach of the Supreme Court in engaging with the arguments about the lack of cooperation by the accused. The order reflected a complete refusal to test the claims by ED of the need for Mr. Chidambaram's custodial interrogation, uncritically accepting the submission about there being a "qualitative" difference in the kind of questioning that might be conducted with a person on bail. The bail order of 04.12.2019 does narrate the failure of the ED in conducting any significant interrogation or confrontation with witnesses, but it sorely missed an opportunity to revisit this critical issue which crops up in almost every other bail hearing. 

In fact, the Chidambaram cases confirm how agencies often seek custody without ever having any intent to conduct thorough questioning, and repeatedly seek further extensions of custody by promising that a very important phase of questioning is on the horizon. Thus, while the Supreme Court did well to call out the ED on its bluff of future questioning in the 04.12.2019 order, it still remains possible for state agencies to merely claim that an accused person is not cooperating with the probe without ever having to substantiate this allegation to a reasonable degree of scrutiny. Surely this cannot be the position of law in a constitutional republic that claims to be very protective of a person's right to life and personal liberty. 

The unrelated, and more thorny issue, is the role played by the "gravity" of an offence. This was one of the main grounds for critiquing the Delhi High Court's initial orders of August 2019. Again, it is unfortunate that the Supreme Court did not make some attempts at clarifying the legal position through the multiple orders it passed in the Chidambaram cases. 

To recap, the problems with considering the gravity of the offence as a factor for deciding bail petitions are twofold. The first problem is a lack of nuance while considering the issue: Simply looking at the maximum possible sentence and the best case of the police is too uncritical an approach, especially in offences where criminality is inferred from neutral facts [fraud, corruption] and is not apparent as in cases of bodily harm [murder, dacoity]. 

But there is also a second, related problem with treating gravity as a factor for deciding bail petitions. Considering the fact that a case is at its infancy when a bail petition is being heard, courts have consistently held that there mustn't be an in-depth examination of the merits, which is something reserved for the trial. At the same time, there must be some examination of the merits to determine the gravity of allegations, since a court cannot blindly accept every averment that the police makes. Drawing this fine line between what is too little and what is too much scrutiny of the facts is the problem, and we saw how the High Court's approach was criticised in both the CBI and ED cases as having gone too far in its analysis. But this criticism was hardly scientific, and the arbitrariness of this line-drawing is apparent upon a random sampling of bail orders and on reading the submissions made before courts. 

Considering that the Supreme Court specifically rejected Dr. Singhvi's submissions on the factors for deciding bail, and unequivocally held that "gravity" must be seen as a factor for determining the bail petition [Paragraph 21 of the 04.12.2019 order], it is singularly unfortunate that while it criticised the Delhi High Court's analysis, it did so without offering any guidance for courts which undertake this difficult line-drawing exercise on a daily basis. Greater certainty in this realm would not only help reduce the arbitrariness that plagues bail hearings at present, but would also arguably make them proceed faster, with everyone having a clearer picture of what is relevant and what isn't.      

Two Wrongs Don't Make a Right: The Supreme Court's Reading Down of Mohan Lal

A few weeks ago, I had mentioned the possibility of the Supreme Court changing the rule it had laid down in Mohan Lal v. State of Punjab [AIR 2018 SC 3853] [Discussed here]. That possibility became a reality when a Three Justices' Bench handed down its decision in Varinder Kumar v. State of Himachal Pradesh [Crl. Appeal No. 2450 of 2010, decided on 11.02.2019], and specifically "read down" the Mohan Lal decision as not applicable to cases pending at the time of that judgment.

Recap: Mohan Lal, and Impartiality in Investigations

The issue decided in Mohan Lal was a very precise one: can the same police officer who served as an informer for a case continue as the investigating officer? Take the following example: Officer X is working undercover and raids a room with five people. All of them flee, and only one is caught. Who should investigate the incident? There are reasons to suggest Officer X should continue: she was at the scene and knows the case the best, presumably, and there are not many police officers out there anyway. But, there are also strong reasons for Officer X to not continue as the investigating officer. Being there at the scene, not only is she a part of the story, but also has her own version of the story. Can she be trusted to disregard her recollection of events when it conflicts with other information revealed through the investigation? Unfortunately, there will continue to remain lingering doubts over the fairness of any investigation Officer X conducts in the case.

This conflict between realities of investigations and the lingering problem of fairness is what the Three Justices' Bench of the Supreme Court sought to address in Mohan Lal. It rightly identified a conflict between earlier decisions of the Court on the point: some benches had held that an investigation conducted by the same officer would be unfair and illegal, but others had held that there was no grounds for complaint unless there was some perceptible bias shown in the conduct of the officer. Mohan Lal decided this issue by agreeing that the fairness issue was paramount, and held that there was no need to show any perceptible bias. Not only this, it held that any investigation done by the same officer was unconstitutional, and could vitiate the entire trial that follows. As the decision did not specify otherwise, this rule would apply to all pending cases and appeals as well, and threw them all into doubt.

The Problems with Mohan Lal: Too Bitter a Pill 

A decision that says fair investigations are a constitutional right sounds amazing, and few would have any qualms about this aspect of Mohan Lal. The problems with the case — as discussed at length in an earlier post — were in the remedies it prescribed for violations of this right. The case held that an unfair investigation vitiated any subsequent proceedings, including a trial. Problematically, there was no clarity on (i) the kinds of unfairness that can lead to throwing out subsequent proceedings, and (ii) when can the individual seek these remedies (i.e., could this be done during a pending trial or only at the appellate stage).

The problem with remedies such as the one prescribed in Mohan Lal is that they encourage what has been called "remedial deterrence". The criticism that fundamentally good prosecutions are being thrown out on technical grounds stings, and deters courts from finding breaches of the right to avoid using these awesome remedies. In the past few weeks, this was amply on display in, first, the decision in Mukesh Singh (17.01.2019), and now Varinder Kumar (11.02.2019). In fact, the latter invokes this issue expressly, where Sinha, J. expressly suggests that a fundamentally good prosecution against a notorious offender will be thrown out because of a technicality unless the Mohan Lal rule is watered down. This is what it did, only, it did not do so with much grace. 

Varinder Kumar and the perils of a Balancing Approach

The Bench in Varinder Kumar thought a solution to the bitterness of Mohan Lal was to limit it as a rule that did not apply to pending cases. All that was needed to achieve this is a line saying "Mohan Lal does not have retrospective effect". But the decision goes further and explains why this needs to be done, and in that process, undoes whatever credit it deserved.

The analysis of this issue begins from Paragraph 9. At Paragraph 11, Sinha, J. very fairly notes that in Mohan Lal the Court did not go ahead and fully develop the remedial tool it had crafted because the need for such an exercise was obviated by the facts. Through Paragraphs 12 till 18, the opinion takes up that mantle and begins crafting the remedy. In this effort, the decision roots itself in the logic of "balancing" the rights of an accused with other stakeholders in the system. The broad argument is straightforward: Mohan Lal disturbed the ideal balance and allowed the system to "veer exclusively to the benefit of the offender", and "societal interest therefore mandates that [the rule] cannot be allowed to become a springboard ... for acquittal ... irrespective of all other considerations". 

The notion of balancing rights has frequently come to the fore when the Supreme Court has discussed victims' rights — most recently in Mallikarjun where it expanded the contours of a victim's right to appeal. Here, the active victim is replaced by the passive society, whose interests are jeopardised by the release of persons like Varinder Kumar on supposed technical flaws in the prosecution. But if you chase this argument, aren't persons like Varinder Kumar also part of that same society, and is it not in society's interests to prevent flawed and unfair investigations? Undoubtedly so. Adherence to proper procedure is not a matter of "benefit" to an offender, or creating a "springboard" for acquittals. It is a commitment of a law-abiding society, that the State's power will be wielded in a particular manner, without looking at who is the target, and is the only real guarantee of personal liberty that exists. 

Thus, while a balancing logic might — and I stress on might — be appropriate in context of a victim's right of appeal, it is thoroughly out of place when at issue is the procedure for wielding state power. In a similar vein, Mathew, J. in Prabhu Dayal Deorah v. District Magistrate [AIR 1974 SC 183] lamented the tendency to sacrifice procedural law while prosecuting "anti-social activities". The observations really do deserve being quoted in full:

The facts of the cases might induce mournful reflection how an honest attempt by an authority charged with the duty of taking prophylactic measure to secure the maintenance of supplies and services essential to the community has been frustrated by what is popularly called a technical error. We say, and we think it is necessary to repeat. that the gravity of the evil to the community resulting from anti- social activities can never furnish an adequate reason for invading the personal liberty of a citizen, except in accordance with the procedure established by the Constitution and the laws. The history of personal liberty is largely the history of insistence on observance of procedure. Observance of procedure has been the bastion against wanton assaults on personal liberty over the years. ... The need today for maintenance of supplies and services essential to the community cannot be over-emphasised. There will be no social security without maintenance of adequate supplies and services essential to the community. But social security is not the only goal of a good society. There are other values in a society. Our country is taking singular pride in the democratic ideals enshrined in its Constitution and the most cherished of these ideals is personal liberty. It would indeed be ironic if, in. the name of social security, we would sanction the subversion of this liberty. We do not pause to consider whether social security is more precious than personal liberty in the scale of values, for, any judgment as regards that would be but a value judgment on which opinions might differ. But whatever be its impact on the maintenance of supplies and services essential to the community,'when a certain procedure is prescribed by the Constitution or the laws for depriving a citizen of his personal liberty, we think it our duty to see that that procedure is rigorously observed, however strange this might sound to some ears. [Emphasis mine]

Conclusion: Saving Criminal Procedure from the Courts

Most observers would have said that the absoluteness of Mohan Lal will be tempered to make way for a more practical remedy, and Varinder Kumar takes some steps in that direction. Whether this is the last step is something only time will tell, though I would suggest otherwise — remember that the reference made in the earlier case of Mukesh Singh is pending. In this respect, then, Varinder Kumar is frankly unremarkable.

Perhaps the balancing approach of the opinion is also unsurprising. It relies upon observations made by a different Bench of the Supreme Court in Sonu v. State of Haryana [(2017) 8 SCC 570], where the issue was limiting retrospective operation of another procedural rule arising a judicial decision: The necessity of Section 65-B Certificates for admitting electronic evidence as held in P.V. Anvar v. P.K. Basheer [(2014) 10 SCC 473] [For discussions, see here]. On that occasion as well, the Bench lamented about the fear of letting criminals go on technicalities, and posing procedure as an honour among thieves. 

While it may be unsurprising, this repeated invocation of a balancing act is alarming. By subscribing to this argument of fear, where adherence to procedural law in establishing guilt is belittled as a mere "technicality", and nebulous societal interests are used to balance away what are perceived as "benefits" to an accused, the Supreme Court is not only betraying the Constitution but unknowingly setting a body of precedent that might return to come back and haunt all of us one day.