Hiding in Plain Sight: The Relevance of Character Evidence in Indian Criminal Law

Can our past behaviour serve as a guide for predicting future conduct? The intuitive answer, is yes. Cutting-edge behavioural science research adds substance to this intuition and demonstrates that there are identifiable links between our past and future choices, helping policymakers to design better systems for ease of living (and companies to make more money through better advertising). This notion of prediction is at work almost everywhere, but not in the law of crimes and evidence in most Common Law countries. Instead, here we find that the law has strict rules that greatly limit the ability to rely on this link for prosecuting crime. Indian law is no exception: Sections 14, 15, 52-55 of the Indian Evidence Act 1872 [IEA] show that evidence of a defendant’s bad character is not generally relevant to prove that she was guilty of the offence in question. 

The Shift from Character to Responsibility in Criminal Law

In Making the Modern Criminal Law, Professor Farmer argues it was not always like this, and until the mid-19th Century it was routine for evidence of bad character to be the basis for court decisions. Things took a turn between 1870-1920 due to a multitude of factors, and the relevance of character was slowly replaced by a focus on responsibility in criminal trials. Two factors were arguably more important than others. 

First, responsibility came to fore as it became impossible for juries to arrive at judgments of character with any certainty for it to be used as a basis to render judgments. A fixed local context in a village meant everyone was well-known and judgments of character had resonance. But industrialisation gradually uprooted this idea of a fixed local context, and meant that the law had to look away from character for criminal trials to keep running. 

Second, the question "Why criminal law?" began getting different answers in this period. Till now, criminal law was seen as the tool to help ruling classes exclude certain undesirable types of persons from regular society. In this period between 1870-1920, this determinism in criminal types gradually lost out (as did the notion of ruling classes) and new opportunities were seen in the signalling effect of criminal law. Subjecting persons to censure and sanctions for what they intentionally or knowingly did, as opposed to who they were or what they did accidentally, was seen as a better way to send the message to persons on what kind of conduct was acceptable to maintain a desirable civic order.

Sir James Fitzjames Stephen was a prominent part of the intellectual movement that supported these changes to the Common Law of crimes. He was also the main draftsman of the Indian Evidence Act of 1872, which explains why the statute adopted some of these ideas rather early. In the years since, Indian law has not moved away from these precepts. Much like the rest of the Common Law world, evidence of bad character continues to be generally irrelevant towards proving guilt or innocence in India, but it can become relevant in certain exceptional cases specified by statutes. Today it is difficult to find many people disagreeing with the idea that nobody should be sent to prison only based on the bad reputation they harbour, for what if it might happen to you? 

Note, that the above discussion is about proving guilt or innocence through character evidence. If we find proof of guilt on completing trial, character evidence comes right back into the spotlight when courts are deciding punishment. Prior convictions can mean higher punishments, and having none can entitle a defendant to probation instead of jail time. This shifting of focus from the offence back to the offender at this stage is standard practice, especially so in a system like India, where trial judges have vast discretion at the sentencing stage and can award sentences anywhere between zero and the prescribed maximum. 

The Hidden Salience of Character Evidence Today

On paper, this is perhaps the end of the matter when it comes to evidence of bad character, but in practice it is not so. Consider a phenomenon that has been demonstrated in India, in context of the limits placed on use of character evidence to question the credibility of victims testifying in rape trials [Proviso to Section 146, IEA]. The rule was designed to curb decision-making based on ideal stereotypes of rape victims: it can’t be rape since the victim had an active sex life, etc.

In his book, Professor Satish demonstrates that, in practice, the rule only displaced such inquiries about a victim’s character from the guilt-determination phase to the sentencing phase. His empirical study demonstrated that sentences were higher in cases where the victims fit the stereotype of vulnerability, as against cases where they did not. Admittedly, the text of the rule does not bar the judge from considering the evidence of a victim’s character at the sentencing phase. But surely this indirectly perpetuates the same stereotypes that the rule was intended to eliminate.

This example nicely illustrates the hidden salience of character evidence today. Although the last century saw limits being placed on the relevance of character for questions of guilt or innocence, it is becoming increasingly apparent that notions of character — who you are — are still very pertinent in how criminal law is administered. While the example above was about victims’ interests, the same issue also exists when we consider the position of defendants: character evidence plays a big role in how persons are targeted as suspects and defendants in the criminal process. 

The argument is simple: None of the changes introduced to restrict the use of character evidence puts a handbrake on how crimes were investigated. To understand this better, imagine criminal law as a funnelling exercise. It is impossible to discover all instances of crime. Out of reported instances, it is again impossible to prosecute each of them for want of resources. Enforcement of law has a necessary selectiveness; an exercise of discretion by the police decides which cases merit the use of precious government resources.

How does the police exercise this discretion? They do so by employing a strategy of “rounding up the usual suspects”, i.e., on the basis of the very notions of bad character that the law has deemed improper for use at the trial. As a result, across the world, the data on persons arrested and prosecuted for crime appears skewed. Persons who are poor or from minority and / or immigrant groups are far more likely to be targeted by the police as suspects while choosing which cases to prosecute. In India, this has been witnessed in the disproportionate numbers of Muslim men being arrested in custody.

Character Evidence and Prosecuting Terror 

A lack of effective checks on the discretion of law enforcement agents is at the heart of the hidden salience of character evidence in the criminal law today. This is true for India as well. There is no set of rules or standards that guides which offences are classed as cognizable (offences allowing arrests without judicial warrants) leading to an unprincipled growth in cognizable crimes over time. A wide array of cognizable crimes gives legal sanction to the police for pretextual arrests and prosecutions and an opportunity to enforce character-based prejudices rather than the pursuit of genuine threats or suspects.

Broadly defined criminal laws also give wide, unchecked discretion to the police. These can be very deceptive as they often have a mental element like “knowledge” or “intention” clearly set out, as if the lawmakers are telling us that this is a proper crime and not a regulatory offence that criminalises without any need of showing culpability. But once we move past this, it is quite common to find a broad definition of the conduct that is being criminalised. Since the police cannot be expected to prove existence of the culpable mental element when they initiate the criminal process by arrest, effectively, through broadly defined criminal laws the law confers a license on the police to arrest anyone they desire. 

To see this in play, imagine a statute that makes it a crime to knowingly offer financial support to an organisation banned by the government. Now, imagine another law that makes it a crime to “associate” with a banned organisation with an “intention to further its activities”. Remember that the police will normally initiate the process based on observable conduct and not the mental element that accompanied it. Keeping this is mind, it is evident that the first example offers a degree of clarity: the criminal conduct is specified, and consequently helps confine the compass of suspicion for the police to justify arrest and investigation. The second is like clay putty in a child’s hands, as permitting police to arrest for suspected “associations” means, according to the dictionary, they can arrest for suspicions of any connection between two entities. 

These are not imaginary crimes but part of India’s main anti-terror statute, the Unlawful Activities Prevention Act 1967 (UAPA) [Sections 40 and 38, respectively]. Another example of an offence that has a clearly stated mental element, coupled with a broad range of conduct that can trigger the crime is Section 15 of the UAPA. This provision criminalises "Terrorist Acts" by first specifying the mental state, but then expands the range of proscribed conduct to include damage to any property. What this translates to is a vast ocean of unregulated discretion with the police to target persons who “look like” trouble, or are “anti-national types”, or “urban maoists” through the UAPA without any hard proof of conduct that justifies the kind of fear that the label of terrorism generates. 

Is this why an overwhelmingly large number of prosecutions under the UAPA not bring convictions? Perhaps. But the problem is that the trial stage, where an improper and possibly a character based prosecution can be screened out after being tested for proof and reasonable doubt, comes after an excruciatingly long wait in UAPA cases. Trials under the UAPA involve a long waiting period that is usually spent by defendants in custody, since the UAPA adopts a much harsher set of rules for granting bail and also allows for longer pre-trial custody during investigations [Section 43-D, UAPA]. Thus, even though the rule of law mandates that individuals must not be targeted and tried simply because of who they are, the prosecution of anti-terror crimes in India actively perpetuates these consequences.

Conclusion

Criminal trials counteract the intuitive notion that our past acts can serve as a predictor of future conduct. But it would be a mistake to assume that the rules of criminal trials spread consistently throughout the legal system. A cursory look confirms that character evidence remains relevant in the stages of sentencing with express legal support. But a closer look reveals the existence of a hidden salience of character evidence, often working to undermine the very goals that the exclusion of such evidence at trials was designed to achieve. 

Ending this haphazard nature of regulation for character evidence will certainly help to bring any legal system in alignment with its professed aims. Thus, if Indian legislators really do think that the evidence of character is useful for determining guilt or innocence, then they should effect such changes. The limited legislative engagement with these issues in recent decades suggests that India’s professed values support the opposite conclusion, however, which then means that steps must be taken to reduce the role character evidence plays through the criminal process.

An obvious point of reform would be placing stricter checks on the enforcement of laws by police by arrests. It is something that the Indian Supreme Court has supported, albeit in a haphazard manner itself through cases like Joginder Kumar, DK Basu and Arnesh Kumar, and so is arguably a point of intervention that can gather broad consensus. But this will take time, and in that time, hundreds of persons will remain in custody awaiting a trial in their cases, having been prosecuted under vague offences such as the UAPA. 

Perhaps the first point of intervention, then, is to reform the process of pre-trial custody in this context. Given the high probability of character-based prosecutions which do not withstand the test of "beyond reasonable doubt", should the law stick to a process which not only allows for upto six-months of custodial detention during an investigation, but also makes it virtually impossible to grant bail till conclusion of the case? If the trial cannot follow in a conviction, we must ensure that the process is not a proxy for the same punishment.

Guest Post: The Relevance of Bad Character in Indian Law

I am pleased to present a Guest Post by Mr. Kaustav Saha, a very bright IVth Year student in the BA LLB (Hons.) programme at NLS, Bangalore. He may be contacted at kaustavsaha93@gmail.com.

Introduction

At the heart of the prohibition on evidence of bad character is a fundamental principle of criminal justice: the accused is only on trial for the offence he has been charged with, and will not have to answer for his past sins which have no bearing upon the charge. This rule is embodied in Section 54 of the Indian Evidence Act 1872 [IEA]. The quixotic nature of this rule is apparent: bad character is sometimes quite relevant to determine the guilt or innocence of an accused person. Should this statutory rule be eschewed in the face of compelling practical realities of a trial? 

In the Indian context, this dilemma is significantly embodied in the conflict between Section 54 on one hand and Sections 14 and 15 on the other. Section 14 IEA indicates that facts are relevant if they show the state of mind of a person or of bodily feeling [Section 14]. The crucial question which arises in the context of Section 14 is when state of mind is considered relevant. Courts have held that Section 14 operates only when existence of state of mind is in issue and not where guilt or innocence depends on actual facts [See, R v Vyapoory, ILR (6) Cal 655; Jagmohan @ Birju v State, ILR 1995 Del 165). This amounts to little more than saying that it operates whenever the state of mind is an ingredient of the offence, which is true for most criminal offences. Section 15 makes it a relevant fact that an act was part of a series of similar acts, where it is a question whether that act was accidental in nature. 

Section 54 v. Sections 14 & 15: An Intelligible Hierarchy?

This brings us to the heart of the debate: does Section 54 override all other provisions of the IEA [Sections 6-55] which make evidence relevant and hence admissible? This issue was squarely considered by the Bombay High Court in Lakshmandas Chaganlal Bhatia v State [AIR 1968 Bom 400]. The accused were charged with conspiracy to unlawfully import gold into India, and the Prosecution had relied upon evidence of the accused having assisted in committing such illicit acts prior to the alleged conspiracy being hatched. This was contended as being hit by the prohibition under Section 54, regardless of it being relevant under other provisions of the IEA. The Court disagreed, and held that Section 54 did not override other provisions, thereby accepting the evidence as relevant and admissible inter alia under Section 15.

I find the reasoning adopted by the Court problematic for two separate reasons. Firstly, it is highly questionable that the evidence in question satisfied the test of similarity as laid down in the common law [The most recent elucidation of which came in DPP v P (1991) 2 AC 447, that the prejudicial effect of such evidence must not outweigh the probative value]. It is submitted that allowing prior instances of smuggling to be relevant and admissible under the similar fact rule entirely frustrates the purpose behind the bad character prohibition. Such a reading of the similar fact rule allows highly prejudicial evidence to be admitted for proving facts which could have been otherwise proved by other, more reliable, evidence. Secondly, placing Section 54 beneath other provisions in a hierarchy is legally dubious, particularly when the common law indicates the desirability of the contrary position. Professor Williams lamented that case law from the early 19th Century till the 1920s revealed a tendency to widen the area of admissibility of similar fact evidence and deprive the accused of a fundamental protection which may lead to his acquittal [See, E. Williams, 'Evidence of Other Offences', 39 Law Quarterly Review 212, 223 (1923)]. 

Lakshmandas reveals a similar unfortunate tendency in Indian law. The court’s observation that evidence of prior smuggling would be inadmissible if offered for the inference that the accused were criminally predisposed is of little consolation. The use of the word 'accidental' in Section 15 has almost unanimously been considered as the opposite of 'intentional', and this has made evidence of similar fact in India admissible whenever mens rea is an element. To overcome this problem, it must be realised that the manner in which Lord Herschell used the word 'accidental' in the celebrated case of Makin v Attorney General for New South Wales [(1894) AC 57] and also how Sir Stephen used it in the Evidence Act, is a state of mind opposed to "coincidence or mere chance" [See P.B. Carter, 'Forbidden Reasoning Permissible: Similar Fact Evidence a Decade After Boardman', 48 Modern Law Review 29, 40 (1985)].

Conclusion

While the character evidence prohibition is treated as a laudatory exclusionary rule, a closer look reveals that this has largely been lip service. In the face of a conflict between including relevant evidence and preventing prejudice to the accused, the former has usually prevailed, and it may very well continue to do so. Indian law at present lacks a principled approach to the admissibility of such evidence and as a result, the Evidence Act has been interpreted to give a wide berth to the admission of similar fact evidence. This largely unfettered inclusionary rule threatens to engulf the prohibition on introducing evidence of an accused’s bad character. Rather than ask when state of mind is relevant, a largely unhelpful test, the question should be whether the accused asserts coincidence or chance as a defence. By altering the nature of enquiry thus, there is a better chance that the prohibition on character evidence will be treated as the rule and admission of similar fact evidence as the exception.