The Supreme Court Order in P. Chidambaram v. ED: Some Thoughts

A Two Justices' Bench of the Supreme Court has decided the appeal filed by P. Chidambaram against an order of the Delhi High Court dismissing his plea for Anticipatory Bail in an ongoing investigation being conducted into what is being labelled as the "INX Media Scam" [Crl. Appeal 1340 of 2019, decided on 05.09.2019. ("Chidambaram")]. The main difference between the two sets of proceedings was that while the High Court order considered bail pleas in two parallel investigations being conducted by the Central Bureau of Investigation [CBI] and the Directorate of Enforcement [ED], the Supreme Court hearings were only concerning the ED case. This is because, as many will already know, the CBI arrested Mr. Chidambaram the same night that his bail plea was dismissed by the High Court.

The Gravity and Uniqueness of Economic Crime

I had discussed the High Court order here, and had flagged three issues which I thought were not only central to the hearings but also to the practice of deciding bail applications more generally within the sphere of economic offences. The High Court order had stressed upon the gravity of economic offences and had taken it so seriously that it considered it appropriate to recommend that anticipatory bail be taken away as a possible remedy in any such case. I did not think it was possible but the Supreme Court somehow managed to amp this rhetoric up several notches. 

While the Supreme Court does not expressly recommend removal of anticipatory bail as a relief, it went 9/10ths of the way [See Paragraphs 67 to 82], and almost reached that projected finish line in the specific context of money laundering cases. At the end of Paragraph 34, the Court went so far as to note that "In cases of PMLA, in exercising the power to grant anticipatory bail would be to scuttle the statutory power of the specified officers to arrest which is enshrined in the statute with sufficient safeguards."

The Supreme Court develops the logic adopted by the High Court, and links the rhetoric of economic offences being very grave with the idea that they are also very complex to investigate, and thus, uniquely in need of custodial interrogation [See Paragraphs 76 to 81]. Therefore, the Supreme Court concludes, that "Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation." [Paragraph 81] 

Pause here to see just how lazy this reasoning is. What are "economic offences"? Theft and cheating are economic offences — but are you telling me that they are so complex to investigate that you require custodial interrogation to get to the bottom of them? Of course not, which is why I implored the Court to try and come down from the high altar of principle and delve into the specifics and help give some clarity so that the lowly magistracy can go about applying the law with greater certitude. But this wasn't to be.

The laziness is also on display in terms of the Court unquestioningly accepting this position of cases involving economic offences being so complex as to almost justify custodial interrogation and denial of bail. Granted, some cases can be very complex — for instance, laundering through hawala channels where there were no real paper trails created. But surely this principled stance cannot apply to all cases, and this is why we needed the Court to get messy with detail. Moreover, why should the Court trump up custodial interrogation? What about how this can reduce incentives for independent investigations? This is hardly a novel thought — James Fitzjames Stephen retained the ban on confessions in the Indian Evidence Act because, as a civil servant told him, it made sure that the officers don't sit in the shade all day while rubbing chilli in the eyes of some poor sod trying to get him to confess to a crime, rather than go out and investigate a case.    

A Carte Blanche to the Police? 

Moving on, we find that the Supreme Court marries this discussion about the position of economic offences with a more general level of argument when it engages with the issue of what to do in situations where an accused denies she is being "evasive". Here, to remind readers, the accused asked the Court to call for transcripts of his questioning as he challenged the assertion that he had not been cooperating with the probe.

The Court refused these requests by turning to the principle that courts and police operate in separate spheres. This forestalls any court from qualitatively assessing the investigation, and so where an agency asserts that an accused is "not cooperating" or "being evasive", a court is supposed to accept these assertions without question. Doing otherwise would sully the principle of separation between the police and the judiciary. 

Alas, the Court forgot about its own prior judgment in Sakiri Vasu, where a different bench had actively authorised magistrates to entertain applications from persons aggrieved by the manner in which police ran an investigation. Or did it? In the section of the judgment which justifies why sealed covers are alright, the Supreme Court notes that looking at confidential material (without showing it to the accused) has always been accepted as long as it is done by a court "to satisfy itself that the investigation has been conducted in the right lines and that there is no misuse or abuse of process in the investigation" [Paragraph 53]. 

So then, how can the Court go ahead and refuse to test the police officer's assertion that an accused was "not cooperating" or "being evasive" in questioning? If a court is going to be deprived of the ability to question police on their stand in such situations, then aren't we effectively condemning a person to custody and surrendering her liberty to the mercy of the executive? The doublespeak on display is astounding, and deeply concerning. 

Conclusion: A Recipe for Disaster

Talk to anyone in the profession and they will tell you that the money laundering law has given wide powers upon executive officers that are capable of being abused. After all, money laundering is not a crime like theft or cheating, but a crime which depends entirely upon creating a narrative about what someone did with the fruits of that previous theft or cheating. The scope for imagination is wide, and in our system of slow-moving justice, the result of this imaginative exercise often results in an unfair onslaught upon the civil liberties of an individual for a significant time of her life.

Rather than take a scalpel and forensically examine allegations in some detail during bail hearings in order to make sure that an innocent person is not ensnared by police agencies on frivolous grounds, and to ensure that custodial interrogations do not become a principle of first resort for investigators, with its decision in Chidambaram, the Supreme Court has taken a leap towards a world where all of this becomes more than possible. It was once said that a draconian law is not only made on text, but also in how it is applied. With this verdict, perhaps the same might soon be said of the money laundering statute. Of course, if it wasn't already the case.  

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

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

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

Custody and Cooperation

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

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

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

Gravity of Offences and Bail 

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

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

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

Prosecutorial Courts: Economic Offences and the White-Knight Syndrome

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

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

The Supreme Court and The Crisis of India's Criminal Justice System - Part 2

(This is the Second Post in a Two Part Series. Read part one here)

The 1990s are considered by some to be the heyday of the governance avatar of the activist Supreme Court. Impatient with the teeming corruption, incompetence, and lethargy in other branches of State, the Court went beyond merely telling them how to do their job and began doing their job itself. The previous post in this series highlighted that the Court's interventions into criminal justice could also be explained along these lines. It suggested that a trend was revealing itself by the end of the 1990s: Guided by the premise of "doing justice" in the cases before it, the Court did not shy away from changing the rules of the game itself. It resulted in a remarkable increase in the court's powers to bring about the desired results, and an expansion of the opportunities for litigants to be heard beyond those provided by the Criminal Procedure Code 1973 [Cr.P.C.]. This concluding post charts the Supreme Court's interventions in the criminal justice system since that decade.   

Trial Courts and the Erosion of an Adversarial System

Over the course of this millennium the Court has developed its remedial jurisprudence for writ courts to intervene in pending cases. In 2010, the Court concluded that separation of powers could not limit its duty of doing justice and thus the Court had powers to transfer cases to the CBI even if the statute suggested otherwise [Committee for Protection of Democratic Rights, (2010 3 SCC 571)]. The Court has suggested broad categories of cases that can merit a transfer of investigations, and has almost always agreed to requests where allegations involve interference by holders of public office [See, KV Rajendran, (2013) 12 SCC 480]. But, more importantly, the Supreme Court has buttressed this jurisprudence by also recognising similar powers in trial court judges. It is to the latter that I turn. 

The legal footing for this innovation was found in Sections 156(3) and 173(8) of the Cr.P.C. In Sakiri Vasu [(2008) 2 SCC 409] the Court recognised implied powers within the power of magistrates to "direct" investigations under Section 156(3), Cr.P.C. Directing, the Court held, also implicitly included an ability to monitor investigations to ensure they are "proper". Later, in Vinay Tyagi [(2013) 5 SCC 762], the Court recognised even further supervisory powers under Section 173(8), Cr.P.C., as it held that a magistrate could herself direct police to conduct further investigations to clear any doubts that she has and to satisfy her "judicial conscience". These new supervisory powers had their limits though. Unlike writ courts, magistrates could never direct a specific agency to investigate the case when it directed investigations to be conducted [CBI v. State of Rajasthan, (2001) 3 SCC 333], and nor could they call for fresh investigations to take place [Vinay Tyagi].

Sakiri Vasu and Vinay Tyagi rarely make it to discussions about criminal procedure in India. But in the cacophony of judgments that emerges from the Supreme Court, they demand our attention and offer valuable insight on the Supreme Court's engagement with the criminal justice system. 

• First, they show that the Court's distrust of police together with its commitment to fairness has deprived the police of functional autonomy even during investigations. Today, trial judges can guide investigations, either based on their own assessment of the facts or on an application by a litigant. While the criminal procedure and evidence statutes always encouraged active judicial participation during trial, the Court has expanded this logic into investigations paying little heed to the long-held beliefs of minimal judicial intervention into this space. In doing so, the Court has cast grave doubts over some core tenets of our system of criminal law: can it still be called an adversarial system if the trial judge can guide the police to investigate a case in a manner that satiates a "judicial conscience"? While the Court has continued to insist that the adversarial system is a bedrock of the Indian system, these questions remain unaddressed [See here, for an earlier discussion on the Blog]. 
• Second, Sakiri Vasu and Vinay Tyagi are illustrative of exactly just how fractured the Court's jurisprudence of doing justice and seeking fairness has become. On the one hand, the Court admitted that judicially created time-limits were unconstitutional because of the possibility that undue expediency could harm a defendant's right to a fair trial [P. Ramachandra Rao, (2002) 4 SCC 578]. But on the other, in Sakiri Vasu and Vinay Tyagi, the Court paid little heed to how heightened judicial involvement in investigations could also harm that fair trial right. The double-standards were glaringly apparent when the Court concluded that the rights of defendants were curtailed by its intervention - by which the Court had made itself the court of first and last resort for any challenges to any aspects of the investigation or trial. But, it justified this curtailment of constitutional rights to file writ petitions before the High Court as necessary for public interest [Shahid Balwa, (2014) 2 SCC 687; Girish Kumar Suneja, (2017) 14 SCC 209] [See here, and here, for earlier discussions on the Blog]. 
• Third, and finally, Sakiri Vasu also suggests that besides this bunking the idea of trial court deadlines, the Court began to treat trial court delays as qualitatively different from those in appellate courts. For according to the Court, one of the reasons for broadening Section 156(3) Cr.P.C. was to curb petitions for such reliefs clogging the docket of High Courts, implying that the resulting delays in trial courts were more palatable.

              

Investigative Agencies and False Dawns

The previous post discussed how the distrust of the police led to sweeping directions for reform in D.K. Basu. But as the Court found out soon enough, the issuance of directions did not translate into change. Despite knowing about this non-compliance with D.K. Basu, the Court went ahead and took an even bolder step in Prakash Singh [(2006) 8 SCC 1]. It is one of the rare instances where the Court directed states to implement a draft legislation. Unsurprisingly though, compliance with the Prakash Singh directions has been woeful.    

This open defiance of judicial authority would not have bothered the Supreme Court too much. None of it would've been surprising: the Court made a similarly bold attempt to fix India's prisons in the 1980s and struggled. In fact, I argue that in this context the non-compliance helped the Court: the problems of alleged corruption and incompetence that reform failure generated continued to supply justifications for the Court to use its powers to transfer cases altogether, either to a different police station, or to the CBI, or take it up themselves. But by the mid 2000s the cracks in this scheme had begun to appear: Almost a decade had passed since Vineet Narain but the reforms suggested for the CBI had not been implemented. Faced with this situation, in hindsight, the Court could've done many things. It could have taken up the issue itself (a step that it did take up in other contexts). Or, it could perhaps address it in any of the several transfer cases that continued to be filed. But it did none of this and kept transferring cases to the CBI where it deemed fit. Thus, the Supreme Court chose to actively build a myth of the CBI being a premier, independent, investigating agency despite the absence of adequate structures to warrant this label.  

In this decade, though, the problems first identified in Vineet Narain have begun to make themselves visible again through all the myth-building. I'd say the bubble burst in the Aarushi case, when the indefinite and inconsistent position of the CBI attracted much negative publicity. The cracks, now visible, worsened with allegations of political interference in the agency's functioning made in many high-profile cases. 

• First came Narmada Bai [(2011) 5 SCC 79]: Contesting transfer of a case which had already been investigated by the Gujarat Police to the CBI, counsel for Amit Shah argued that the CBI had "lost all its credibility as an independent agency and is being used the political party in power in the Central Government". The Court still transferred the case, perhaps brushing aside the insinuations as political bombast. 
• Then in 2014, counsel for the states of West Bengal and Odisha resisted transferring cases in the Saradha Chit Fund Scam to the CBI arguing that the agency had "in a great measure lost its credibility and is no longer as effective and independent as it may have been in the past." Interestingly, there was no stern rebuke from the Court. Rather, after curtly stating that these apprehensions were baseless, it noted that "a lot can be said about the independence of CBI as a premier Investigating Agency but so long as there is nothing substantial affecting its credibility it remains a premier Investigating Agency. Those not satisfied with the performance of the State Police more often than not demand investigation by the CBI for it inspires their confidence." [Subrata Chattoraj, (2014) 8 SCC 768]
• In a horrible case of be careful what you wish for, less than a year after this order the Court was presented with that something "substantial". A petition filed by Common Cause claimed that the-then CBI Director Ranjit Sinha had allegedly met persons accused in the Coal Block Allocation Scam that was being investigated by the CBI, but for no apparent reason. The CBI pleaded that "any adverse order that [the Court] may pass in this regard would irreparably damage the credibility of CBI". But this plea was rejected, and the Court ordered an independent inquiry [Common Cause, (2015) 6 SCC 332]. 

Today, less than three years after this episode which ended in a corruption case being registered against Mr. Sinha, the Supreme Court finds itself dealing with the punches and counterpunches being thrown by the two senior-most officers of the CBI. It would be an understatement to suggest that the CBI's sheen has been lost. No matter how these proceedings conclude, one wonders how the Court will handle the next request for transferring investigations to the CBI. Will it still make loud declarations about its status as a premier agency? Or will this decade mark an inglorious end to the Court's maverick remedial jurisprudence of opportunity in favour of more sustainable approach? 

Conclusion: A Criminal Justice System with little "System" or "Justice"?

Ultimately, these posts highlight that the Supreme Court's noble pursuit of justice has brought us to a point where there is left a semblance of a system, helping to achieve a very strange kind of justice in the context of criminal law. I would be stating the obvious in saying that any policy interventions to improve existing systems would first require considering data to evaluate possible benefits or drawbacks of any intervention on many parameters. Instead, the Supreme Court has done exactly the opposite: selectively shooting from the hip as and when it deems fit. 

It mattered little to the Court if this pursuit of justice came at the cost of subverting core institutional concepts, like a separation of powers between the branches of State. In the same vein, it did not matter if it came at the cost of the criminal justice system itself. As the reticence with which the Court had first approached this topic of altering the existing criminal procedures in Vineet Narain gradually disappeared, the system became little more than clay putty in a child's hands, subject to any tweak for hasty fire-fighting purposes. The slow-burning embers of such an intervention lay hidden for a while, but have finally made themselves brightly visible this millennium. Today, it is becoming clear that the Court's intervention has brought more work to an already overburdened judiciary, and invited blatant disregard for judicial orders by successive governments which refuse to support structural reforms in investigating agencies at both central and state levels.

What makes all the short-sighted compromises much worse is an appreciation of the kind of justice that the Court is helping to realise through its work. Yes, the new remedial jurisprudence of the Court opened doors that were once closed to litigants left feeling short-changed by local authorities. But take a moment and ask yourself: who are the litigants standing to gain? Can anyone afford to go to New Delhi and knock on the doors of the Supreme Court, or even a High Court? Can anyone afford lawyers to navigate this complex area of law and present their case? Of course not. There aren't even enough legal aid lawyers to help defendants take benefit of the prisons' jurisprudence that the Supreme Court developed, forcing the Court to periodically intervene to ensure compliance with existing laws. And yet, the Court has pressed through on an agenda which not only makes it more difficult to get relief from the trial courts, but implicitly undermines the quality of that relief. All of which suggests that while justifying its interventions for purported benefits to the have-nots, a closer look suggests that the Court has perhaps ended up only worsening their lot. 

If the 1990s were the apogee of the promise of reform that judicial intervention held in the field of criminal justice, this millennium has confirmed that the promise was a hollow one. Yet, the need for reform remains urgent as ever. Perhaps one lesson to be learnt is that quiet, yet effective pursuits of justice, will undeniably achieve a lot more than a slew of unenforceable or irreconcilable orders. Thus, any interventions directed towards reforms in criminal justice must represent the co-equal will of the Indian State, rather than an isolated action forced upon the rest by one branch that causes more harm than good.

The Supreme Court and Criminal Investigations - Romila Thapar v. Union of India

Today, a Three Justices' Bench of the Supreme Court dismissed that writ petition filed by Professor Romila Thapar [Romila Thapar & Ors. v. Union of India & Ors., W.P. (Crl) No. 260 of 2018, decided on 28.09.2018]. Two members of the Bench found that there was nothing to show mala fide exercise of power by the investigating officers [Khanwilkar J., writing for himself and the Chief Justice], while Chandrachud J. dissented from this view. The interim relief of house arrest will last for another four weeks, during which time the arrested persons can seek appropriate remedies. This short post is not about the facts and the allegations involved, but rather, about the larger legal issues of setting up an SIT and the monitoring of criminal investigations by the Supreme Court. 

Background

A month ago on 29.08.2018, a group of "eminent academics" led by Professor Thapar rushed to the Supreme Court in a "Public Interest Litigation" [PIL] seeking directions to ensure an independent investigation into a case being investigated by the Pune police. This is Case FIR No. 004 of 2018, registered at P.S. Vishram Bagh, Pune. The trigger behind the petition was the country-wide arrests of persons, who were notably critical of state policies on several issues, conducted by the Pune Police while investigating the case. As the Supreme Court ordered house arrest of the five arrested persons, they also joined the PIL, and the prayers were revised asking the Court to transfer the investigation to a "Special Investigation Team" [SIT] monitored by the Supreme Court. 

To someone unfamiliar with the Indian legal system, this will - and should - seem bewildering. Why is the highest constitutional court being asked to interfere with criminal investigations and direct how they should be conducted? Moreover, how is this happening in petitions not filed by the aggrieved persons? Nothing in the Constitution expressly permits either course, and such a scenario would be beyond the wildest dreams of the framers as well. Yet over the last three decades (almost), amidst great fanfare, the Supreme Court has arrogated to itself this unbridled power to stop and start criminal investigations. Local state police are taken off a case and it is either transferred to a central agency or an SIT, periodically reporting to the Court itself. Further, the broadening of locus standi rules has also happened during the same era, and a PIL for monitoring investigations is actually quite common. Two famous instances in recent memory where the investigations were monitored by the Court were the 2-G Scam and the Coal Block Allocation Scam cases.      

The Disagreement Over Mala Fides in the Decision

But there was to be no SIT in Romila Thapar. As I mentioned at the outset, the majority and dissent mainly diverged on whether the petition showed existence of mala fide in how the investigation had proceeded. Naturally, the point here was not that the Pune Police was legally incompetent to conduct the investigation, but that the manner in which it had proceeded showed elements of bias and bad faith. At Paragraph 26 of its opinion, the majority held that all that the accused persons could show was a lack of material against them, and procedural errors in their arrest and search. Such arguments did not satisfy a claim of mala fide investigation, and these issues were fit to be agitated before the proper courts. 

This conclusion seems quite unbelievable after reading the dissenting opinion. Out of the many things that it points to, one circumstance is clinching. Chandrachud J. notes how, hours after the first day of hearings in the Supreme Court, the police held media briefings sharing privileged material to suggest that the arrested persons were culpable, although the said material had not even been tested for its veracity [Paragraphs 22-24]. This is galling, for the police in India are not adversaries but agents tasked with unearthing the truth of the matter. After all, this is why the procedural law envisages a possibility of the police concluding that no case is made out against persons after investigations. If the police is holding media briefings on the first day, convinced about guilt, then what is the point of the investigation?

An Unfortunate Omission - The Right to Fair Investigations

This idea of bias in investigations, and pre-judging the matter, was something that the Supreme Court dealt with front and centre in another recent Three Justices' Bench decision in Mohan Lal v. State of Punjab [Crl. Appeal 1880 of 2011, decided on 17.08.2018]. There, the Court held an investigation cannot be conducted by the same officer who was also the informant in the case. There was no need to prove bias or mala fide: the circumstances were bad enough for the Court to assume bias and label any such investigation to be unfair. Even more significant was how the Court located this issue within Article 21 of the Constitution. It held that every individual had a right to a fair investigation, and that a biased or unfair investigation would contravene this right.

Mohan Lal is not mentioned even once throughout the decision in Romila Thapar, and it is very hard to understand how this point went missing through the hearings and the opinions. After all, here was a clear chance to develop this right to fair investigations under Article 21, and link it to the prevailing mess that is the SIT jurisprudence. The Court could have clarified, for instance, whether individuals had the right to raise an Article 21 challenge of this nature in a pre-trial setting - unlike Mohan Lal which was a post-conviction appeal. It is no doubt unfortunate that the opportunity went begging, but observers of the Supreme Court should be alarmed at how often this is happening. While the Court has expanded the scope of Article 21 over the last two months, the Court has not been savvy enough to apply its jurisprudential innovations and develop them further. As the dissent itself notes, there is no point to lofty constitutional rhetoric if it is not applied productively.   

Conclusion - Towards a Sounder SIT Jurisprudence?

The SIT jurisprudence emerged in an era where the Supreme Court ran roughshod over the separation of powers enshrined within the Constitution and paid lip-service to legal principle and procedural propriety in the pursuit of populist solutions to problems of governance and state capacity in India. Often, the solutions are not legally or procedurally sound, and the same goes for the SIT. I have said this before: The Supreme Court is horribly ill-equipped to monitor criminal investigations and the SIT makes no sense. That is a function of the local police and trial courts, because crime is local. Taking an investigation out of the regular course is not only an indictment of the local police, but also the Trial Courts, and High Court, who would otherwise have opportunities to review the progress and fairness of investigations. 

But since the Court has been granting prayers for creating an SIT and / or monitoring investigations, my principled opposition is not going to matter much. In that event, all one can ask for an attempt to help remove such cases from being purely fact-specific and having some clear basis for future courts to decide when should a request for creating an SIT or monitoring an investigation be allowed. In this regard, an admirable effort is made by the dissenting opinion in making sense of the earlier cases to try and cull out broad themes. This minimal level of consistency will help both litigants and the court by giving some much-needed certainty to the field, while reducing the politicisation of such requests. 

Exclusion of Jurisdiction and the decision in Girish Kumar Suneja

On 13 July 2017, a three-judges bench of the Supreme Court dismissed the petitions clubbed together with Girish Kumar Suneja v. CBI [SLP (Crl.) 9503 of 2016, hereafter Suneja]. The preliminary issue raised in these petitions was a challenge to the Supreme Court's order dated 25.07.2014, whereby aggrieved persons were confined to only approaching the Supreme Court with a "prayer for stay or impeding the progress in the investigation / trial", and jurisdiction of High Courts was thus excluded. This Blog, on an earlier occasion, had considered the Petitioners' case and argued that the impugned order of 25.07.2014 was bad, and readers may refer to that post for a recap. Here, I argue that the decision in Suneja does not offer any convincing justification for why the Court disagreed.

Excluding Jurisdiction: Missing the Forest for the Trees

In Suneja, the Court takes up three key arguments assailing the exclusion of jurisdiction caused by the order of 25.07.2014 and its effects - (1) Curtailment of the High Court's power to entertain petitions under Sections 397 and 482 Cr.P.C; (2) Exclusion of writ jurisdiction under Articles 226 and 227 of the Constitution; and (3) A violation of Article 14 caused by treating the 'coal-block allocation scam' cases under this special procedure. On all three counts, it disagreed with the Petitioners' claims. On closer examination, one can see how the Court does so not by engaging with the argument, but by avoiding it altogether.

Sections 397 and 482 Cr.P.C.

On the first issue of curtailing statutory powers of entertaining revision petitions [Section 397 Cr.P.C.] and quashing petitions [Section 482 Cr.P.C.], the Court reminds us that these are not rights, such as appeals, but entitlements. A High Court may refuse to entertain these petitions. This characterisation was never in doubt - the issue, was whether it was unconstitutional to deprive the High Court of even this ability to entertain such petitions. For this, the Court turns to the legislative history of Section 397(2) Cr.P.C. [which prevents revision petitions for challenging interlocutory orders] to elaborate that the scope of revision jurisdiction was restricted to prevent delay. But the Court does not conclude that the present petitions fall within this category, which renders these observations obiter. Perhaps proceeding with that assumption, the Court moves on to consider the scope of inherent jurisdiction under Section 482 Cr.P.C. Again, it talks of a 'rarest of rare' level for quashing petitions being entertained, implying that the issue must be very serious to warrant intervention. Still, no answers are offered to explain what warrants an exclusion of this jurisdiction altogether. One may then assume that the Court implies the exclusion was illegal, which is why it considers the tests for considering whether the present cases could have triggered an exercise of jurisdiction under these provisions. 

In doing so, the Court makes notable errors in law. For instance, in considering the interplay between revision and quashing the Court notes that "it is quite clear that the prohibition in Section 397 Cr.P.C. [of not proceeding against interlocutory orders] will govern Section 482 Cr.P.C. We endorse this view." This means that for Court, Section 397 applies to all final and intermediate orders, while Section 482 applies to interlocutory orders. Such a reading ignores the notwithstanding that comes at the start of Section 482, which has led the Supreme Court to conclude on several occasions that the scope of Section 482 remains untrammelled by the terms of Section 397 - most recently clarified by another bench of three judges in Prabhu Chawla [Crl. Appeal No. 844 of 2016, decided on 05.09.2016]. Remember, all this is irrelevant, because the present cases actually involved a question of why recourse to this jurisdiction could be barred. The Court only engages with that issue in its terse refusal to consider the decision in Antulay [(1988) 2 SCC 602]. Antulay was a decision by seven judges, but it is distinguished because the facts were different and it involved a trial before the High Court itself, and the impugned provision therein - Section 9 of the Criminal Law Amendment Act 1952 - in turn used the 1898 Cr.P.C. The facts, though different, led the seven judges in Antulay to consider why any court's jurisdiction could not be ousted, which would nonetheless be relevant here. That the bench in Suneja even raises the second point about the Cr.P.C. is simply shocking, since the allegations in Antulay concerned a period after 1973 and by which time the 1952 Act was being read with the new Cr.P.C. [as required by Section 8 of the General Clauses Act 1897].  

We are then left without any answers for the actual issue. For some reason the Court continues to miss the forest for the trees, and refuses to tell us why recourse to revision and quashing was made impermissible in the present batch of cases. It painfully continues to develop on the obiter by considering whether the batch of petitions met the standard of seriousness for interference under Section 482 Cr.P.C., and concludes that "challenge to orders of this non-substantive nature that can be agitated in a regular appeal is nothing but an abuse of the process of the Court." The observation is entirely misplaced. The Petitioners raised issues of law, arguing that certain findings suffer from impropriety - express grounds for interference under Section 397. But if recourse to that provision is barred, then what? Should recourse to Section 482 still remain impermissible? The Court ignores the peculiarity in the present set of facts, which have come about by its own hand. 

Article 226 and 227 of the Constitution

The conclusions on Article 226 and 227 also proceed on an assumption that the issues raised in the batch of petitions are 'trifling' and therefore would not warrant interference under writ jurisdiction. With due apologies for sounding repetitive, the bench again fails to explain how this jurisdiction can be ousted entirely. In fact, here, the bench expressly says "there can be no doubt that the jurisdiction of a High Court under Articles 226 and 227 cannot be curtailed, yet extraordinary situations may arise where it may be advisable for a High Court to decline to interfere." This volte-face is completed at the end of this part of the decision, where the bench says that "there is nothing extraordinary if the High Court ought not to interfere and leave it to this Court to take a decision in the matter in larger public interest". But this is not what has happened in the present case! In unequivocal terms, the High Court was barred from entertaining petitions. The Supreme Court is now attempting to portray the scenario as a willing refusal by High Court's to entertain cases, when it is actually an exclusion of jurisdiction by the Supreme Court itself. It is fair to say that nobody is fooled. 

Article 14 and Judicial Legislation

The argument under Article 14 in Suneja was twofold - the 'coal block' cases do not constitute an identifiable class, and even if they do this differentiation must be created through statute. The Court, expectedly, whips up the rhetoric to justify why the cases are an identifiable class in themselves. But the decision does not engage at all with the more pressing issue of how such classes can be created. It says that "the order passed by this Court does not amount to legislation in the classical mould but according special treatment to a class of cases for good and clear reason and in larger public interest as well as in the interest of the accused." There are obvious legal issues in judicially created classes for perpetrating discrimination. Judicial orders are imprecise, are creations of un-elected persons thus unrepresentative of the democratic process, and finally cannot be subjected to a challenge under Part III leaving no recourse for those aggrieved. The Supreme Court attempts to conveniently sidestep all of this by resorting to verbiage. Since nobody really knows what the 'classical mould' of legislation is, this is doublespeak for "the Supreme Court can do whatever it wants" - a highlight of the Court's White-Knight tendency in this arena of economic offences [previously discussed here].

Public Interest and the Rights of Accused Persons

There are three other heads of argument that are considered in Suneja - (1) violation of Article 21 by the procedure created by the impugned order, which is not established by 'law'; (2) illegal use of Article 142 of the Constitution to curtail both Statutory and Fundamental Rights of the Petitioners, and; (3) Illegally preventing a stay of proceedings. Rather than consider each of these in turn, it is easier to attack the common thread underlying these strands - the idea that public interest is a satisfactory justification to proscribe rights of accused persons. With great vigour the bench notes that "it is now time for all of us including courts to balance the right of an accused person vis-a-vis the rights and interests of individual victims of a crime and society. Very often, public interest is lost sight of while dealing with an accused person and the rights of accused persons are given far greater importance than societal interests and more often than not greater importance than the rights of individual victims. ... It is not as if the appellants have been denuded of their rights. It is only that their rights have been placed in the proper perspective and they have been enabled to exercise their rights before another forum." 

While the Court merely makes a cursory reference to Shahid Balwa [(2014) 2 SCC 687], the same issue reared its head on that occasion. Here, again, it uses the arguments of the Petitioners against them in observing that in pressing for a stay of proceedings it seems that the conclusion of the trial is not an objective for them. These are serious cases of corruption, the Court notes, and so a stay order cannot be given for the asking. Such logic is fit for the pulpit, not for the Supreme Court. At the most basic level, the bench ignores the practical realities that plague the judiciary. The present petitions were filed sometime around winter 2016, and have been decided in July 2017. For whatever it is worth, the Petitioners did allege severe illegalities in the trial, and by refusing to consider the issue of stay at the earliest the Court allowed a potentially illegal trial to continue for six months. Within that time most of the evidence has been completed in two sets of petitions [Y. Harish Chandra Prasad v. CBI (Crl. Appeal No. 1145 of 2017) and P. Trivikrama Prasad v. CBI (Crl. Appeal No. 1153-54 of 2017]. How is that fair, and how is that a correct utilisation of judicial time? At a deeper level, the Court is effectively denouncing a class of persons from seeking an enforcement of their fundamental rights for no better reason in law than because it thinks it is against public interest. It does not realise that such rhetoric ultimately trickles down to trial courts, where an accused is then painted as guilty simply for choosing to remain silent [a fundamental right] and is thus subjected to lengthy pre-trial detention.

Conclusion

On all counts, Suneja is a bad decision. We get no further answers to why is it fair to exclude the High Court as a forum for jurisdiction beyond the bench re-iterating that this is in public interest. For this, it could have merely expressed agreement with the previous decision of Shahid Balwa and saved time. When the bench does try to engage with the legal issues, it fails to grasp what was at stake and flounders. Ultimately, the decision may result only in compounding uncertainty by using previously unheard of tests and expressions to explain what is, essentially, another instance of abusing the vast discretion vested with the unelected judges of our Supreme Court. 

(Disclaimer: The Author was engaged as a part of the team arguing for the Petitioners in Crl. Appeal No. 1145 of 2017)

The Shifting Sands of Adversarial and Inquisitorial Systems in India

In his Hamlyn Lecture titled The Common Law in India delivered in 1960, MC Setalvad argued that the Indian criminal process contained several similarities with the British system. For him, India had adopted the Adversary System of Trial (page 45-47), which was a core precept of the Common Law. He went ahead to observe: "Equally rigorous is the application in India of the rule of Common Law which is said to put justice before truth. The decision, whether in a civil or a criminal trial, has to be rendered solely on the evidence put forward by the tribunal." To recap, this Adversarial system is in contrast with the Inquisitorial system that was a hallmark of Continental Europe. There, the judge has a far more active role to play towards eliciting the truth rather than merely administer justice.

Contrast his observations with those in the Order dated 26.08.2016 in CC No. 01/2016 titled 'CBI v Gondwana Ispat Ltd & Ors' passed by the Court of the Special Judge appointed for the 'Coal-Block Allocation Scam Cases'. Throughout this 27 page order, the Court is at pains to remind us that "the ultimate quest of a trial is to ascertain truth and this journey of ascertaining the truth cannot be defeated merely on the whims and fancies of an accused." This rhetoric is in place to support logic relied upon by the Court to conclude that the fundamental right against self-incrimination under Article 20(3) of the Constitution is not available during the process of admission-denial in a criminal trial. Though the Special Judge does not invoke the term 'inquisitorial', the extract would snugly fit into the court orders from Continental Europe where countries adopt the inquisitorial method.

So, what is it to be for India, the adversarial or inquisitorial? The Criminal Procedure Code 1973 [Cr.P.C.] and the Indian Evidence Act 1872 [IEA] offer our criminal process a convenient shape-shifting ability. So the only answer is, well, either that India has a unique method that combines bits of both worlds. This intermixing is quite thorough and can be found in the investigation stage as well. When the police are investigating the courts are not supposed to interfere and decisions since the Privy Council verdict in Nazir Ahmed [AIR 1945 PC 18] offer support for this view. But together with this we have Section 156(3) in the Cr.P.C. which empowers a Magistrate to direct the police to investigate. This was extended to include a power to monitor investigations by the Supreme Court in Sakiri Vasu [(2008) 2 SCC 409] to further bump the shift away from an Adversarial System. One might argue that the views of Mr Setlavad were restricted to trials and so this is an unfair criticism. But even in trials, we have devices such as Section 165 IEA, which allow a court to ask any question from a witness or summon any document, regardless or relevance. Since this had always been on the statute-book, we can rightly question whether Sakiri Vasu is nothing but a restatement of inquisitorial tendencies that have always been around.

The Coal-Block Allocation Scam Cases
If an outside observer, akin to Professor Hart's companion throughout The Concept of Law, came to India and only looked at the trials before the Court of the Special Judge appointed for the Coal-Block Allocation Scam Cases then I am quite certain she would go home with a view that we are steeped in the inquisitorial tradition. The proceedings have explicitly and / or impliedly carried further the views of decisions such as Sakiri Vasu to bring about some very interesting consequences. As I have argued above, this is something that is bound to happen owing to the inherently ambiguous stance in our laws, and isn't a problem in itself. Ambiguity in law generally nourishes problems though, and it has so happened on a few occasions in these proceedings. I focus on two of these here, one from the realm of investigations and the other based on the trial.

First, is the device adopted by the Court of refusing to accept Chargesheets / Closure Reports filed by the CBI if it thinks certain areas have not been covered. Effectively, the Court tells the CBI to further investigate and then come back with a fresh report. In some cases, the Court has rejected multiple Closure Reports before it took cognizance once the CBI had filed a Chargesheet that it deemed acceptable (just search "coal closure reject cbi" in Google). Given that the same court is going to hear the case, issues of bias naturally arise. If the court thrice rejected the CBI view that certain persons had not committed any offences, would a trial before the same court not give rise to the appearance of a reasonable apprehension that the court is biased against the accused persons and they would be denied a fair hearing? In my opinion it would certainly give rise to a reasonable apprehension, warranting the case be tried by a different judge. In fact, this problem is also present when a Magistrate rejects a Closure Report to summons the accused persons for trial. These proceedings can perhaps be seen as nothing but the logical conclusion of that process in a world where Sakiri Vasu allows Magistrates to monitor investigations.

Second, is the use of Section 294 Cr.P.C. by the Court, which was referenced at the beginning of this post. This provision concerns the process of admission-denial of documents, and was the issue at hand in Gondwana Ispat. It was argued there that accused persons could not be forced to make any statement under Section 294 Cr.P.C. as it contravenes the guarantee against self-incrimination. The Court held otherwise and concluded that Section 294 Cr.P.C. consciously excluded a right to silence for accused persons. The Court reasoned that allowing an accused to remain silent would defeat the very purpose of Section 294 Cr.P.C., and the Legislature was aware of Article 20(3) but intended to exclude it from this area. This conclusion was largely driven by drawing an analogy with Section 313 Cr.P.C. (which deals with the statement of an accused, given without oath), which expressly speaks of an accused choosing to remain silent when faced with a question. This argument is incorrect for it holds a statute can be interpreted to exclude the application of Part III of the Constitution. This is contrary to the very idea of Part III. Whether or not there are specific allusions to a right to silence within the Cr.P.C., it nonetheless remains subservient to Article 20 of the Constitution.

The other logic employed by the Special Court is more interesting for this post - that allowing an accused to remain silent and possibly adopt different stands would not only "lead to an unending trial but it will rather cause impediment in the course of justice as it will be extremely difficult for the Court to render justice based on truth." I have read this a few times and yet, I cannot appreciate the genesis of this concern. When, if ever, would an accused willingly adopt multiple stands in a case in respect of evidence? But assuming such an example does exist, and the accused is happily changing stands as frequently as players change football clubs, from where is the Court deriving an obligation on the accused to help render its justice based on truth? Historically, an accused was not a competent witness till the late 19th, early 20th century. And even then, it is only if the accused chooses to come in the witness box. Given that answers under Section 294 Cr.P.C. are also made under oath, the Court has done indirectly what could not have been done directly.

What's in a Name?
A lot, clearly. MC Setalvad was not entirely accurate to state that India wholeheartedly adopted the Adversarial System. On a deeper scrutiny, it is clear that our criminal process has always had traces of both, the Adversarial and Inquisitorial Systems. Such an equivocal position is far from ideal, and the problems with having backdoors are being realised in the litigation that is currently taking place in the Coal-Block Allocation Scam cases, and to an extent occurred before in the 2G Scam as well. There is one common element between these settings, and that is the pervasive involvement of the political with the judicial branch of the State. Could it be that the court is more willing to resort to its inquisitorial powers because it is pressurised to deliver results? We may never know. What we do know is that in its efforts to deliver truth-based justice, the judiciary is clearly cutting far too many corners. The 2G Scam cases saw the rights of accused persons being traded for nebulous values of 'public interest' and 'speedy justice'. These have been further employed in the Coal-Block Allocation Scam hearings to achieve new results. As things stand, all of these issues are pending before the Supreme Court which means nothing is settled. But, with the speed at which cases are being heard before the Special Court in Patiala House, it may be that 'speedy justice' comes at a cost too dear.

(Disclaimer: The author has assisted in proceedings arising out of the Coal Block Allocation Scam cases, arguing for the accused)

The Sahara-Birla Diaries Controversy

The Supreme Court of India recently dismissed a plea demanding a 'court-monitored investigation' into the allegations of corruption arising out of papers seized from prominent Indian business houses, given the tabloid-friendly 'Sahara-Birla Diaries' moniker. Naturally, news reports that the Petitioners treat this as a setback, stating that the Court "abdicated its constitutional responsibility" in dismissing the claims. The Wire carried an interesting piece, arguing the dismissal ignored binding precedent in Lalita Kumari [(2014) 2 SCC 1], which was decided by five judges. This is my take on the affair, as it has unfolded so far.

The Ordinary way to Begin Criminal Investigations

The Criminal Procedure Code 1973 provides a clear process for bringing information of an offence to the notice of police [Section 154(1)]. The Constitution Bench in Lalita Kumari held that the police must register an FIR on this information, if it discloses a cognizable offence. What if the police fails to do this? The Supreme Court has repeatedly stressed how the ordinary procedure itself provides sufficient remedies as well, which is what aggrieved persons must trigger before running to the High Court or Supreme Court [See here, for a recent example]. If the police do not register an FIR, the law asks the complainant to move a superior officer [Section 154(3)], and eventually petition the jurisdictionally-proper Magistrate to look into the matter [Section 156(3)].

Did the Sahara-Birla Dismissal Ignore Precedent?

Lalita Kumari is a curious case which I hope to discuss properly soon. For now, it is enough to note that besides stating that registering the FIR is mandatory, the Supreme Court also legitimised a 'Preliminary Enquiry'. According to Paragraph 120 [SCC Version] of the decision, the Enquiry is a measure to prevent the immediate dismissal of complaints. The police were tasked with double-checking whether a complaint did not disclose cognizable offences before discarding it. In all of this, the Court insisted that the quality of information cannot be judged at this stage. 

The Wire piece uses this conclusion in Lalita Kumari to argue that the Supreme Court ought to have decided differently, rather than dismissing the information as lacking any cogent material to support them. Attractive as it may seem, the argument is devoid of substance. First, the Wire piece does not engage with why the ordinary procedure was ignored to begin with. If we are talking about Lalita Kumari, where do the Petitioners show that the FIR was not registered on a complaint they filed? The second and third problems are linked, and these concern the failure to appreciate subtle differences between the Enquiry as spoken of in Lalita Kumari with a Preliminary Enquiry done by the CBI. The Wire piece does not note how Lalita Kumari expressly does not deal with a CBI investigation or Court-Monitored Investigation, which is what this case was all about. Since Lalita Kumari never came into the picture, there is no question of the Bench ignoring it here. 

The Court Monitored Investigation as a process started with another set of diaries, the 'Jain Hawala Diaries'. Then, as now, papers were found linking payments to politicians and a Writ Petition was filed in 1993 alleging inaction by the CBI [the political nature of which was noted recently on the Blog]. Only after carefully considering the matter and the allegations did the Supreme Court decide to 'monitor' the investigations. This meant the case was regularly listed, with investigating agencies providing regular updates while insulating the matter from the executive. So, one could in fact argue that the Supreme Court has upheld precedent in the 'Sahara-Birla Diaries' case by not immediately moving to a court-monitored probe. 

Conclusions - Another Arrow for Independent Investigations

There is nothing, anywhere in the law, about why some sensational claims should deviate from the ordinary procedure. Yet living in the times of the 2-G, Coal, and Black Money Scandals, many think it only natural that the non-partisan judiciary take care of such sensitive investigations. It seems to be forgotten that the Supreme Court itself in Vineet Narain [while dealing with the Jain Hawala Diaries] repeatedly emphasised on how the ad-hoc procedure it created was not ideal and in fact showed the necessity for immediate structural changes in our investigative agencies. Simply put, handling investigations ought not to be the Court's job. The dismissal of the request for a probe can be given a positive spin - the Court puts the foot down and presses for changes that India's investigative agencies so desperately require. The lamentable state of affairs is summed up nicely by the case at hand: the Writ Petition here was filed in 2015 alleging corruption surrounding the appointment of the Chief Vigilance Commissioner, head of the institution that birthed from the ashes of Vineet Narain. Lets hope the future contains fewee false dawns.