Statutes, Courts, and the Constant Creating & Plugging of Gaps

Three decisions caught my eye over the past couple of months. Two by different benches of the Indian Supreme Court — Pune Bar Association v. UOI [Decided on 22.05.2026] and Dineshchand Surana [2026 INSC 579] — and one by a Two Justices' bench of the Kerala High Court — CMRL & Ors. v. UOI & Ors. [Decided 26.05.2026]. 

Pune Bar Association dealt with the new Bharatiya Sakshya Adhiniyam 2023 [BSA] regime for the certification of "electronic evidence" such as printouts, and the issue was whether its requirements were unconstitutional. This minefield of an issue was dealt with in two paragraphs, reasoning that since electronic evidence was more likely to be tampered or manipulated with, the imposition of stringent certification requirements was valid. No engagement with the change in law, with the fact that most other countries don't impose certification, and with whether adding a new certification requirement is, in fact, undermining the very claim of the BSA to eliminate the difference between traditional documents and electronic records. Just a lazy recitation of an old logic of tampering which has prompted judicially created barriers of entry for otherwise valuable evidence [discussed at length a long time ago on this blog]. 

At the other end of the spectrum was Dineshchand Surana, which is more than 150 pages long and a mini double-take on an issue which one member of the Bench had dealt with just over a year ago [discussed here]. Are prosecutions for cheque dishonour something which should be covered by the statutory bankruptcy moratorium for individuals? Every possible aspect of how to read the text of the cheque dishonour offence, text of the moratorium clause, and that of the criminal procedure regime, is covered across those 150 pages. The result is that the court ties us in knots by the end of the judgment, because the question it set out to answer — whether an act punishable with imprisonment is really a crime or not — is not something which the text of any law caters to or provides.

Then, there is CMRL, which may yet find its way before the Supreme Court given the stakes of the case and of the issue involved. A Two Justices' Bench of the Kerala High Court has held that (i) there is no relief of 'quashing' an Enforcement Case Information Report (ECIR) that can be sought (but will a writ remedy lie against this action? the court doesn't really answer), and (ii) the Enforcement Directorate can record an ECIR and use PMLA provisions for summoning persons to give statements even before any underlying scheduled offence is linked to the proceedings. A key component of the court's reasoning was, again, the statute, but in an inverse manner. What mattered was the absence of any statutory existence of the ECIR, and its non-statutory basis is the foundation for the judgment.

All three are significant because of the issues that they dealt with and they will surely generate a lot of critique. What I am interested in is the picture we see when we step back a little and look at these three decisions as illustrative of a much broader and commonplace theme within our legal system of how courts engage with statutes, and vice versa. 

For example, it isn't by accident or oversight that the PMLA (or for that matter the Customs Act before it) does not give any statutory basis to an ECIR. It is the result of parliament wisening up to judicial decisions back in the first two decades after independence on wielding of powers by the central statutory agencies dealing with issues such as smuggling and tax avoidance. The Supreme Court decided that a fuzzy statutory basis for conducting investigations allowed these central agencies to wield powers that regular state police do not have — such as taking sworn statements from accused persons, for instance. The message which Parliament took away was that lack of a clear statutory basis would insulate these powers from scrutiny. And we find that it has since become a hallmark of how most central agencies operate.

If CMRL is an example of what happens with Parliament keenly pays attention, one can say that Pune Bar Association and Dineshchand Surana are good examples of what happens when no attention is paid. Since Dineshchand Surana is sort of new, one can perhaps excuse legislators for not fixing the issues which first became obvious when the Supreme Court touched upon this issue in P. Mohanraj more than five years ago. If you are not feeling so charitable, like me, then you can clearly spot how the ongoing fiasco could have been so easily avoided by amending the statute in a timely manner. Now, we have more confusion on hand, in one of the largest arenas of litigation around — cheque dishonour cases. 

Certification is a problem far older than moratoriums, and which is why the BSA provisions and now their treatment in Pune Bar Association are perhaps the most upsetting parts of this story. It took nearly two full decades for law to be settled on how to treat the certification requirement under the old Indian Evidence Act 1872. Even so, many recognised how this requirement was, arguably, unhelpful, pointing famously to the fact that one of the inspirations for the requirement — similar clauses in UK Legislation — had since been repealed. Seemingly aware of this saga, we saw the BSA declare that electronic evidence will be at par with documentary evidence. So far so good, right? Well, not really, because along side this declaration, was the retention of an even more restrictive certification requirement which had to be met to introduce printouts and other obvious items into evidence — the clause under challenge in Pune Bar Association.

What is the point, really? I guess it is to write peculiar judicial opinions, to cite them, to make arguments using them, and pat ourselves on the back for our acumen being the only people who can access this arcane and byzantine domain. It certainly is not to ensure that the law is simple enough for everyone to understand it, use it, and hope for some results within one's lifetime.

Does Criminal Law Matter?

For practitioners in Delhi, courts resume regular functioning after a summer break (the length of which is determining entirely by how high you are up the judicial ladder). The start of term in July is a mix of emotions: happiness at being able to earn some money, sadness at having to work to earn that money, and a sigh of relief to be able to mingle about in familiar surroundings with familiar faces. 

For a small section of the legal community, comprising those concerned with criminal law and procedure, the predominant feeling when term started in July 2024 was neither relief or sadness, but uncertainty. The triumvirate which had defined our criminal law for more than a century — the criminal codes that were neatly combined and kept in the Criminal Manual — were being replaced by new laws. That first month was defined by conversations and discussions about what was good, what was bad, and just how much of it would apply to the cases already in motion. 

By the end of the month, most of us had realised that we weren't being asked to learn a new language in middle age, but essentially revise what we have learnt. Nevertheless, in many cases, people suffered due to the uncertainty that the introduction of new laws brought. In a system where dates of hearing are given at an interval of months and not days, losing out on a date simply because nobody knows what law applies is, well, pathetic. Yet this was the situation faced by many a litigant, and in fact, it continues to be so.

We tend to forget that not everything was smooth sailing in the aftermath. There was a strong protest by a section of the public to two changes (hiking punishments for death by negligence) and the government relented. But even this protest did not care about anything more than the specific, limited, interest, of this interest group. It did not care about the process which would affect all persons potentially ensnared within the criminal law which was being made more muscular and police-friendly. 

Why? Is it because people were not mobilised by political actors around these issues? Is it because it all happened so fast? Or was it because criminal law, honestly, simply, just does not matter within the public consciousness. It matters as gossip, as a lurid news item, as something to create a public-villain figure — at that distance, one level of remove. It does not matter because none of us ever want anything to do with it, and know that if we are sucked into that black hole of police stations, then law is not what will matter most. The overbearing discretionary nature of police powers is one way in which the relevance of criminal law is negated. This point applies to all executive power and is a broader critique of Indian law in general.

There is another critique more specific to criminal law. At its core, criminal law seeks to govern society's moral code through a combination of influences. The simple and obvious truth is that for a large part of the public, a much larger part than which stays in cities surrounded by courts and prisons and police stations, the influences of criminal law are so distant that they may as well be phantasms. The shadow of law barely manages to cover a fraction of the lives of this public, and most interpersonal relations here take place on the basis of a code that operates entirely outside the language of the sanhitas and the codes that came before. The occasions on which the state swoops in to intervene in these interpersonal relations through the criminal law are so few as to render the criminal process almost irrelevant from their calculus of concerns.

The peculiarity of criminal law means that the state knows that the elites won't speak up and the plebians can't. It means that the state can pretty much do as it wants because while criminal law matters for everyone it simultaneously does not matter at all.

Thinking about Law and a 'Legal Science' in India

In a recent post on this Blog, we touched upon the idea of criminal law in India being a rather confusing space to navigate. While the post focused on confusion created due to different courts promoting contrary positions on law, the issue is much broader than that. Courts, Legislatures, and the Enforcement Agencies, all appear at times to be speaking at cross-purposes — on matters of both substantive and procedural law. 

I felt that the point about confusion in the law's landscape could do with a longer, standalone post. I say confusion instead of consistency, but perhaps they can be used interchangeably to describe what I have in mind. Which is the absence of any meaningful coherence within the structure of law. No lodestar to guide lawmaking itself, or to guide decision-making within laws by various stakeholders wielding power. 

Law and Legal Science

There are many reason for pursuing this thought. One of them is a recent paper by Prof. Markus Dubber titled 'New Legal Science in the Dual Penal State' (available here). The paper explores the idea of looking at the structure of law, stripped of the baggage that the legal enterprise has acquired over time in different parts of the globe (traditionally divided across the Common Law and Civil Law lines), and then creating a system based upon identified principles which are pursued through the law. 

This idea, of starting from the ground up to develop a system of law, is a thought experiment which we do not end up dealing with much in India. We do not have any scholarship comparable to Hart & Sacks' The Legal Process that has attempted to unpack the many layers of our legal system, and then try and resurrect it on a bed of principles. What would such an exercise look like within the Indian context? It would need a lot of work, for starters, because of how many layers the Indian system consists of. And then there is the conflict about principles. Professor Dubber's paper moves on the premise that a new Legal Science will be in pursuit of a critical analysis of law. However, can we really agree on what those principles will be, and create a system in willing pursuit of critically analysing the exercise of power by the state? I wonder.

Here, I only bear half the burden and explore the layers of our legal system, working backwards, peeling back layers of the onion. The fight about principles can come later, and by others.         

Our Constitution as a Source of Principles?

Before you say "We do have a lodestar, it is the Constitution of India, and this post can end here", let me deal with that at the outset. The Constitution is a political document which proscribes certain legislative acts in Part III, and promotes certain others in Part IV, but it is not a document which actively crystallises principles for lawmaking. Within that broad sphere of activity which the Constitution leaves open, a State is free to do as it pleases. Even the power dynamics that it sponsored have created more problems than we are ready to acknowledge, as Gautam Bhatia has argued in his recent book.

The boundaries of principle have been supplied by our courts, and quite erratically at that. As Sandipto Dasgupta's argues in his book, independent India's judiciary saw independence as an opportunity for the courts to fully embrace Common Law, and the Supreme Court tested the Constitution not on its own terms or those of its founding principles but on the anvil of Common Law principles which the judiciary thought that it had inherited. Whatever scope for principled lawmaking the Constitution may have provided thus proved to be short-lived as a result.

The Common Law in India   

Peeling off this layer of the Constitution and the founding moment of the Republic takes us to the layer beneath; of colonial rule which began formally in 1858. It was the legal traditions introduced during this time which the judges of independent India turned to. Not just the courts, but the move to "Legalize the Revolution" (borrowing again from Dasgupta) meant that a large part of the colonial state apparatus was retained after independence. 

What were the principles which guided lawmaking during this era? Was it really the Common Law as the judges of post independence India wanted to argue — albeit a shackled common law which they felt had been freed with independence? Or was it something more complicated than that. M.C. Setalvad's Hamlyn Lecture titled the Common Law in India is a good place to start unpacking this, but it is necessary to place it in context. Setalvad delivered this seminal lecture in 1960, at the end of the tumultuous first decade of the Constitution of India governing affairs. A decade in which he was the country's Attorney General and at the forefront of the constant tussle for the Constitution that was going on. To think that Setalvad was in England merely delivering a historical or academic lecture is naive — the lawyer was making a case about his vision of independent India's legal system. 

The pitch that the Common Law came into India is one that has stuck since. But it requires more critical scrutiny than what has so far been offered to help us arrive at a more honest appreciation of the conflicting influences that guide India's legal system. To simply wax lyrical about the Common Law in India ignores a large tradition of colonial legal history — that of the Codification enterprise. 

Codification was conceived of, in part, as a response to the Common Law. A set of predefined rules that did not change on the basis of successive judicial decisions. It was meant to be the scientific expression of law, par excellence. And it was in codification that the colonial legal enterprise was birthed originally, in both realms of civil and criminal law. The Common Law that the courts of British India employed was within this context of these codes, and within the broader context of colonial rule. It presents us with the original setting of the common law working in an age of statutes, much before Guido Calabresi would go on to discuss these themes for America.

The principles, motivations, and influences behind the Colonial Codes, which were interpreted by courts using — at times — the set of principles developed in the Common Law of England, are therefore also an inseparable part of how we unpack Indian law today because of independent India's choice to retain these  codes lock, stock, and barrel. 

The Messy, Pre-Colonial, Company Era     

Peeling the layer of colonialism, we find the messy pre-colonial era which preceded the formal assumption of power by the Crown. Much like the peaceful transfer of power that occurred in 1947, the assumption of power in 1858 was no break with systems past. Instead, legislative and administrative projects which began prior to 1858 are what came forth as the first colonial codes in criminal and civil law. 

A shift from colony to independent nation-state in 1947 without changing much of the colonial state apparatus, including the colonial legal codes, meant that independent India chose to avoid confronting the logic of power that underlined the colonial legal system. This was a logic which placed the sovereign above the subject-citizen. Adopting it in a post-colonial setting has, arguably, proved not to be the best of choices from the perspective of creating accountability upon sovereign power. 

If we turn the clock back to 1858, the transfer of power took place by a simple proclamation read aloud by Lord Canning, and all the natives under Company rule became subjects entitled to all protections of a rule of law under the British Crown. But, the foundational premise of Company Rule was markedly different from Crown Rule. Its predominant goal was policing the territory to maintain law and order and maximise revenue; justice, was not a prerogative. And in adopting the police-state as the base for Crown Rule, it was ensured that the justice promised under the Crown would also remain a poisoned chalice. 

The core interest of Company Rule was revenue collection: administration of law was a by-product. For ease of administration, procedural systems similar to the British law were introduced for civil and criminal proceedings. The core interest structuring these proceedings was not justice but regulation and maintaining order for maximising extraction of wealth. Company Rule coexisted with a sliver of pre-1858 Crown rule, in the form of Crown Courts for certain areas (Presidencies) and peoples (the British).  

The shift from Company to Crown Rule did not eliminate the Police State components while introducing or expanding the just rule of a benevolent sovereign — assuming that the Crown Courts administered any such thing in the first place. But rather 1858 and the subsequent years assimilated them together to form a composite structure akin to the kind of Dual Penal State which Dubber has identified in different contexts. This is perhaps most visibly seen in the complementarity and later assimilation of the Police Act and the Criminal Procedure Code which were enacted by the Crown after 1858. 

Forerunners to Company Rule

The police state of Company Rule is as much part of the foundations of Indian Law as is the Constitution. But it is not the last layer of the onion. We can continue to peel it further and reach the 18th Century. At this point, different parts of the subcontinent were under different legal regimes. Those parts in which the British East India Company took root were no terra nullius either. The legal systems which the Company introduced through its regulations were designed to either nullify, or complement, the pre-existing regime that the Company encountered. This meant, therefore, that the Company's law was also influenced in turn by what came before it. 

The recognition that what came before Company Rule mattered to how the British went about their task in introducing legal rules and schemes for governance is important to help understand just how complicated the structure of present-day Indian Law is. These influences are also not of mere historical significance but can be felt even today, both indirectly in terms of how they influenced the British-era law as well as directly in how various practices can still trace roots back to this period. It is a shame that an effort to go and 'decolonise' the criminal law made no attempt to unravel the substantive foundations of the present-day Indian criminal law, which appear to be largely a 19th Century creation.  

Why a Legal Science?

Without fully engaging with, and deconstructing, all of these influences upon our legal system, it is impossible to carve out the principles that do guide its functioning, or identify ones that ought to guide it.

There is no need for this exercise if all that we want from 'Law' is that it provides some kind of rickety and uncertain basis for how social, political, and economic relationships can function. But if we want to go a step further, then a project of the kind that Dubber bats for — call it by whatever name — is obviously a desirable effort. Especially, in a jurisdiction like India, which has so far not had any time for a true and honest reckoning with its legal history to organise its legal present.

There are numerous examples where a consistent, principled, approach would reap benefits in how the law is created and applied. Within the criminal law, one can easily think of how it would transform the regime of bail and arrest. Again, I might add, for better or for worse depending on where you stand. Either which way it would be better than the present system where outcomes appear determined largely by the luck of the draw, and personal moral compass of individual officers and judges who wield near total discretion in deciding matters pertaining to individual liberty.           

Two Sides of the Same Coin

Outside of the legal fraternity, it did not matter much that some judges of the Supreme Court were retiring in these past weeks. Within the legal fraternity, though, the retirement of Justice A.S. Oka led to a genuine outpouring of affection and emotion from across the aisles; no doubt made more stark by the near total absence of such reaction a few days prior in respect of Justice Trivedi. 

Revisiting this juxtaposition, and reading several judgments authored by the two retiring Justices (limited, largely, to the field of criminal law and procedure), I could not escape thinking how Justices Oka and Trivedi are but two sides of the same coin of judicial discretion. When it came to matters of criminal law, the former wielded discretion to actively question exercise of state power, while the latter wielded judicial discretion to shield the state from questions; of course, subject to exceptions. 

We might like one approach over another, sure, and there are no doubts about which approach this blog might prefer. But the unfortunate truth is that our preferences do not count for much as a legal principle. I say this, because at the end of the day, in our frustratingly polyvocal judicial system with its constitutional mandate of rights riddled with exceptions, there is no single correct approach to issues that these judges were dealing with. There is no fundamental principle, no categorical imperative in these parts.

If anything, the closest thing that Indian constitutional jurisprudence in action appears to have in the name of 'principle', is a loose concept of balance. A jurisprudence of the 'Force' in Star Wars with its constant tussle between dark and light, if you like. In this jurisprudence of balance, every story has two sides, every right is tethered to its exceptions, and so even the most egregious instance of personal liberty being violated is not an absolute but can have some justification that requires we form a special investigation team to find out. 

This is our fickle rule of law, where consistency in outcomes is an honourable exception and even the simplest case appears to be cast in jeopardy. A few senior lawyers I know stress the jeopardy aspect by telling their clients that going to court, especially superior courts, is quite like playing high-stakes poker. Are they wrong? Administration of such a 'rule of law' where every scenario brooks an exception ultimately turns entirely upon how every singular actor wields their discretionary power to advance their personal notions of law, justice, and whatnot. One judge can view that discretionary power as being guided by a vision to uphold liberty, the other can view that same power as guided by a mission to secure law and order. Both views are correct, as much as you might not like one of them. 

The problem is that both views should not coexist in all scenarios. Some situations do not justify two views. Some cases only have one correct view. And these truths should not change whether we are dealing with petty disputes between family members or dealing with dissidents who disagree with the State and its policies. In ours, however, they do. A jurisprudence of balance is not one in which the rule of law retains an inconvenient and unwavering consistency in times of war as in times of peace, but one where law must have the flexibility to bend and contort itself into whatever is the convenient shape for the day. Is this jurisprudence of convenient balance something to be scornful about? At times. But if you think about the high chance that any revisit of the status quo will make things intolerably and inexorably worse — by, say, stacking all the decks in favour of the State — then a constant tussle between impulses is a happy compromise to live with. 

We can eulogise one judge and demonise another all we like, but no one person or their vision can straighten out the many contradictory impulses within the Indian legal system, all of which can be traced back to the Constitution itself. In the grand scheme of things, all that they manage is tilt the balance, by wielding their awesome power of judicial discretion. Depending on where you stand, that tilting of balance is something will either be something to be very grateful for, or extremely despondent about. 

Paper Update: Confronting the Violence Within

At the start of the month, a bench of the Supreme Court dismissed a plea for anticipatory bail filed by a person accused of corruption [Devinder Kumar Bansal v. State of Punjab (2025 INSC 320)]. The person in question was accused of asking for bribes to do audit work, and now sought relief from court. For the uninitiated, 'anticipatory bail' is a remedy where a person goes to court claiming he entertains a reasonable apprehension of arrest in connection with a case, and if the court agrees, then it can pass orders directing that in the event of his arrest the police should release him on bail. 

Even a mildly critical reading reveals the problem. If all we need is reasonable apprehension that there may be an arrest, where does that leave the police's power of arrest and the consequential 'benefits' that arrests and custodial questioning are seen to bring to the pursuit of justice? It can bring it to an absolute standstill. Which is why no court since the introduction of anticipatory bail has read the provision strictly, and the law since 1973 is a study in seesawing judicial opinions on how to exercise this great discretionary power that the criminal procedure code had conferred upon judges. 

Devinder Kumar Bansal falls in the bucket of opinion which warrants extreme circumspection in the grant of anticipatory bail. It notes that the relief "can be granted only in exceptional circumstances where the court is prime facie of the view that the applicant has been falsely enroped in the crime or the allegations are politically motivated or are frivolous." Note that none of this is statutory criteria by the way — something made even more interesting by the fact that in Pakistan, law specifically made testing the falsity of allegations something a court must test while deciding anticipatory bail pleas. 

What makes Devinder Kumar Bansal even more interesting, and allows me to use it as a hook to shamelessly plug a small essay that has come in a volume titled Police Violence in India, is a one-line observation that it made in passing, stating that "if liberty is to be denied to an accused to ensure corruption free society, then the courts should not hesitate in denying such liberty. [Emphasis supplied]" No matter the precepts that we should not turn persons into tools for achieving some unknown larger aims — such as a corruption free society — the observation is deeply revealing of the consistent tendency of courts to emphasise upon custody as a means to secure justice. Especially during investigations. 

In an essay titled 'Confronting the Violence Within', I've taken up this tendency of courts to make interpretive choices that privilege custodial interrogation and questioning in criminal cases, which only entrenches the importance of the custodial setting within the law. And courts conveniently want to only focus our attention on the good parts — custodial interrogation is more 'elicitation oriented' as they say — while turning a blind eye to what makes the custodial setting so unique for the investigator — its inherently violent nature. The paper looks at this tendency through two specific areas — law on the right against compelled self-incrimination, and law on anticipatory bail. While Devinder Kumar Bansal has been published after the paper and is relevant to its arguments from an anticipatory bail perspective, even for the law on self-incrimination there have been interesting developments, as the Supreme Court in granting some reliefs to Ranveer Allahabadia specifically directed him to be questioned without his lawyer present. The direction is not unique and in line with previous decisions by the Supreme Court which have consistently sought to remove any intermediary from the custodial setting to ensure its 'uniqueness' — again, without ever squaring up to face the violence which is what makes the custodial setting unique.

If the courts themselves places such a premium on the need for custodial interrogation, how can we expect custodial violence which is an inherently inseparable part of the process, to vanish? 

If liberty is to be denied to an accused to ensure corruption free society, then the courts should not hesitate in denying such liberty. Where overwhelming considerations in the nature aforesaid require denial of anticipatory bail, it has to be denied. It is altogether a different thing to say that once the investigation is over and charge-sheet is filed, the court may consider to grant regular bail to a public servant - accused of indulging in corruption

Anticipatory bail can be granted only in exceptional circumstances where the Court is prima facie of the view that the applicant has been falsely enroped in the crime or the allegations are politically motivated or are frivolous. So far as the case at hand is concerned, it cannot be said that any exceptional circumstances have been made out by the petitioner accused for grant of anticipatory bail and there is no frivolity in the prosecution.

 

Errantry - Jury Trials

If there is one thing that has consistently piqued my interest and curiosity, and I am sure it is true for many others, it is jury trials in India and their phasing out. I blame it on the Nanavati Case, a perfect blend of all that makes criminal trials irresistible (anyone interested in the story may want to read In Hot Blood).

The story is well known: A naval-officer husband dropped his wife and children to the theatre, went and got himself a weapon from his ship, then started looking about for his wife's paramour in South Bombay. The husband, K.M. Nanavati, went to the house of the paramour, Prem Ahuja. Nanavati went straight for Ahuja's room after confirming he was home, locked it behind him, and then three shots were heard. He left as swiftly as he came, and went straight to the police to turn himself in. Well, almost. 

The case was sensational material for news and even more so for the tabloids which lapped it up from all angles. After a quick investigation, Nanavati was tried before a jury for the murder of Prem Ahuja, which acquitted him. The verdict was sent up to the Bombay High Court by the Sessions Judge. A Division Bench of the High Court set aside the acquittal and held that there was enough evidence to conclude that Nanavati was guilty of murder.

According to folklore, Nanavati's legacy to the Indian criminal process was the eventual condemnation of the jury trial. The last jury trial, which convinced the powers-that-be that a fickle public which returned perverse verdicts contrary to available evidence could not be trusted with dispensing justice. Henceforth, the criminal trial would be the provenance of the trained judge, to ensure such errors are not repeated.

Existing scholarship by James Jaffe and Kalyani Ramnath, amongst others, has already debunked some myths around Nanavati being the 'last' jury trial, as well as it being the determinative factor leading to the demise of that system of being judged by one's peers. In this short post, I want to add to this small but very fascinating area of work by positing two separate points which appear to have not been commented upon.

First, the judgment of the High Court convicting Nanavati of murder is misunderstood as having fired a broadside at the idea of jury trials in India. Sure, it held that the verdict of the jury was perverse, but this was not because of some inherent fault that it found in the system. Rather, both Justices Shelat and Naik in their separate opinions held that one big reason for the jury's incorrect conclusions was that the trial judge had misdirected the jury on several key points of fact and law. In other words, the jury was not per se bad or perverse, but it had rendered a perverse verdict being misdirected on how to treat some crucial parts of the evidence. This, then, makes the verdict a condemnation of the judge as much as the jury, dynamically altering the received wisdom about the trial itself. This re-appreciation of what Nanavati actually held, as opposed to what it has come to stand for, contributes to the laregely untapped area of scholarship on how a nascent Indian state treated the jury trial.

Flowing from the first we come to the second point, which is that even if we assume that the Nanavati jury had deliberately returned a verdict contrary to the evidence, it is arguably unidimensional to view this as a singularly bad outcome. A history of the jury trial in England shows us that the duty of the jury was not to return a verdict that was only in agreement with the law, but also return a verdict which was in agreement with its conscience, and it was the bounden duty of the system to respect such a 'perverse verdict'. In other words, a jury returning perverse verdicts was not a glaring error pointing to a breakdown but a part of the process. It should come as no surprise that the colonial government was not-too-happy in securing the jury trial in its fullest glory for India. Contrary to established practice in England the Indian criminal procedure code allowed presiding judges to disagree with a jury and refer its verdict to the High Court for a final decision (section 307 of the 1898 Code). It was this same procedure which was adopted in Nanavati's case by the Sessions Judge, reflecting its ordinariness from a procedural perspective.

So here is an alternative history in Nanavati. Maybe the system did not flounder in the case any more than it does in any sensational case.

Errantry - Exploring the quotidian CBI archive

As is fairly well known, the Central Bureau of Investigation [CBI] traces its origins to the Special Police Establishment [SPE]. This agency operated without statutory backing at first, but then was conferred legal basis first by way of an Ordinance [No. 22 of 1943] and then by the Delhi Special Police Establishment Act of 1946 [DSPE] — which remains on the statute book even today. 

The primary task of the SPE was rooting out corruption from public service; or more specifically, central agencies and their officers. The need to combat corruption is perhaps one of those political and legal issues that resonates across time and space in independent India's history. Which is what makes the archive of the SPE a fascinating site to explore for anyone interested in how has the enforcement of laws fared in the past— either for pure, unsullied historical interest, or to draw lessons for the present.

This is the rabbit hole that I stumbled into after having found a copy of the Report published by the Bakshi Tek Chand Committee, or the "Report of the Special Police Establishment Enquiry Committee" (1952). It is a remarkable document in more ways than one. For instance, I did not know that permanent commission for the SPE itself was an uncertainty for many years. Nor did I know that staffing concerns undermined the agency as poorly back in 1952 as they did in the 1990s-2000s, when the Supreme Court decided it had to do something about the CBI's functioning.

The 1952 Report was merely the most visible part of the iceberg. Publicly available material pertaining to the SPE archive extends to providing us with a quotidian account of how the fledgling agency was being run at a time of unparalleled significance for the country. Just before independence we find letters being written to the Chief Commissioner, Delhi, for issuing Curfew Passes to SPE officers as they all lived in Old Delhi and could not manage to travel for work (!). It also has an interesting portrait of the officer in-charge of the agency in its initial years, one T.A. Bambawale. 

The organisational setup shows how threadbare the operation was, a feature of the fiscal constraints as well as constraints imposed upon by partition on the availability of officers. We see detailed progress reports of cases being maintained and circulated, as well as acquittal reports with remarks by officers. There is protracted letter-writing on financial questions such as who should bear costs of hiring special counsel running a trial — a debate running from 1948 till 1953.  

The archive shows us the other side of the story too: petitions to various authorities by persons aggrieved of their prosecutions. Writing to the agency the grounds invoked are in the language of law. And when that leads to no avail the aggrieved parties did not hesitate to write to the ministers themselves, invoking the idea of a "people's government" for good measure. All of this, mind you, was happening in the immediate aftermath of Independence Day on 15.08.1947 so as to curb further hearings scheduled for October — the wheels of justice continuing to turn and to give glimpses of the every day in an extraordinary moment.

For the lawyer, I particularly enjoyed glimpses from the archive about how legal procedures played out. A few of these vignettes pertained to one case — a prosecution against M/s JK Gas Plant and its directors for (essentially) illegal sale of iron during the War [part of the same group which is today responsible for other 'JK' businesses in India]. While I could not locate the fate of the trial which was proceeding before one of the Special Tribunals constituted through an Ordinance during the War [and retained pursuant to a logic of perpetual ordinances], the archive shows us that it was a somewhat sensational case where one of the accused [B.B. Mathur] sought police protection alleging threats to his life in August 1947 made by / on behalf of the other director of the company. His plea was found genuine and he was granted protection, up till July 1948 when it was withdrawn on his own request. Far more mundane was the affair surrounding summoning of a key prosecution witness for the trial. This witness was now in Pakistan, and a government employee. In a series of events all too familiar to criminal lawyers today, the government bungled up the manner in which summons had to be served on a witness residing abroad, delaying the trial. In a series of events all too familiar to witnesses, the case kept getting adjourned on multiple dates thereafter when the witness was present. Ultimately, the Pakistani authorities wrote to their Indian counterparts to complain about the sheer wastage of time this exercise had occasioned, and requested if a commission could come to Pakistan whenever the proceedings did decide to record evidence.

Unsurprisingly, some effort appears to have gone into thinking about publicising the work of this agency in which such faith was instilled. The publicity drive extended to more general efforts at informing the public about the existence of the SPE [a more low key version of governments doing automated calls to inform citizens about anti corruption bureaus]. In an odd twist, the generic piece so published ended up suggesting there was too much corruption, not the kind of messaging the government wanted. The solution became to share all draft articles with the government before publication. Careful measures were taken to publicise convictions, with press notes being circulated by the government through agencies like the AP etc and also being placed in newspapers of the day. Much of these pertaining to cases where officers were caught "red handed". 

The catching of officers "red handed" is a technique that remains prominent to this day. Today these are called 'trap cases' where often the officer is entrapped into taking a bribe, with witnesses at hand to catch him in the act. Back in the day, a feature of the traps laid by the SPE appears to have been using judicial officers are eyewitnesses to the exchange of bribes. Such a 'committed' judiciary might have been the stuff of dreams for some in new India, but it was not palatable to more conventional heads such as the Justices of the Calcutta High Court [AIR 1951 Cal 524], who strongly deprecated the practice in 1951. A few years later [1954 SCR 1038], dealing with a set of appeals against convictions resulting from prosecutions launched by the SPE, the Supreme Court also dealt with a trap case. Here, not only had the SPE made an Additional District Magistrate a witness, but it had also supplied the bribe money for laying the trap [a princely sum of Rs.25,000/-]. While the Supreme Court accepted that laying of traps may be necessary on occasion, it strongly condemned the SPE having supplied the bribe money and having used members of the judiciary as witnesses for the trap. 

The archive suggests that one of the reactions at the level of the SPE was to quickly reorient itself to make sure that it could use the technique of entrapment effectively. Accordingly, a memo was issued to all the ministries to depute officials who could serve as independent witnesses whenever the SPE asks, citing the need for independent witnesses to bolster the legitimacy of the entire exercise. It would be interesting to see what memos were generated in respect of the SPE using its coffers to set the trap itself!

Errantry — Further thoughts on the new Criminal Procedure (Identification) Act

As expected (mostly), parliament passed the Criminal Procedure (Identification) Bill 2022 in double quick time without referring the bill to a committee. It is disheartening, given the obvious flaws that are present in the Bill, but in an environment where courts are unable to hear matters pertaining to important matters of constitutional law (Electoral bonds, anyone?), the threat of a potentially adverse court ruling is pretty low for any legislature to be incentivised to bring the statute in line with the law.

This development is likely to result in states taking steps to pass statutes and rules at their level, as was the case with the regime under the Identification of Prisoners Act 1920—either by way of separate statutes or by specific amendments to the central law. It will probably pan out over the next few months, and it is only then that a clearer picture will emerge. States will probably simply copy out the new central law and re-promulgate their old rules (or not do that and simply continue with the old ones). 

At the same time, there is still that slim chance that some states decide to take the road less travelled and pass laws and rules which offer more robust protection than what the central law has ordained (Yes, it is the hope that kills us). 

Keeping this in mind, I just wanted to plug links here to different state laws and rules for people to see and consider while thinking about the new regime. Some of these are:

• Rajasthan passed a separate Act in 1956
• Andhra Pradesh (and post bifurcation, Telangana)
• Kerala passed a separate Act in 1963
• Madhya Pradesh passed Rules in 1967
• Maharashtra and Gujarat had made amendments to the central act which were favourably discussed in the 1980 Law Commission Report. 
• Tamil Nadu amended the Identification of Prisoners Act in 2010. The scope was to expand the definition of measurements—a criticism of the old law which was also used to pass the new Act.
• Special attention must be paid to the 2021 amendment by Karnataka to the Identification of Prisoners Act as it was applicable to that state. It is surprisingly similar in its terms — with some obvious differences — and it would be helpful to see how this new regime fared in the months prior to the 2022 Bill being rushed through parliament.

These are only for some states which I could find without too much effort, and I would urge others to contribute to help make this a more comprehensive list. This is in the sincere thought that considering what was in store before the 2022 Act might help to determine how best to face the challenges that this new piece of legislation has brought forward.

Rendering Criminal Law Meaningless: On the Draconian Telangana Preventive Detention Law

In 2017, the Telangana government passed a Bill to ratify and ordinance which had made the "Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders and Land-Grabbers Act 1986", into the "Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders, Land-Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substance Offenders, Arms Offenders, Cyber Crime Offenders, and White Collar or Financial Offenders Act 1986". The Centre had at first questioned this expansion — not due to any rights' concerns, but on grounds of legislative competence — but the President approved the act in 2018, leading to Act 13 of 2018 being passed by the Telangana government (with retrospective effect). Which gave us the Act. 

This preposterously named statute is not designed to create fast-track criminal courts for the many kinds of "offenders" it lists out in the title, or provide different rules on bail, or even reverse the onus of proof. Rather, this statute refers to categories of persons against whom the Telangana Government can exercise its powers of Preventive Detention. To understand what this process of Preventive Detention is all about, you should take the 4 minutes it takes to go through this wonderful set of illustrations by PenPencilDraw. 

Simply put, it is a process which enables police to jail people for up to 3 months at a stretch even if they have not committed a crime by a process which involves no proper judicial scrutiny of the allegations, and no right to counsel. What makes preventive detention even worse is that it is often used in tandem with the regular criminal justice system for offences allegedly committed by persons, where detention orders are passed when accused persons are pursuing bail applications or are just about to be released on bail. 

The expanded Telangana Preventive Detention Law is, in fact, seemingly designed to operate in this way. The various categories of "offenders" identified under the Act are defined in a way which expressly links them to the commission of different cognizable and non-bailable offences — for instance, "sexual offender" is defined as anyone who has committed or abetted commission of offences under Protection of Children from Sexual Offences Act 2012, besides certain other Penal Code offences. If a person is accused of having committed such a crime, they will be arrested, and any "threat" to public order posed by them is therefore necessarily linked to their release, or potential release, on bail by a court.    

In this manner, the executive authority fully subverts the judicial process, sending the clear message that it does not matter whether a court applied its mind to a case and thought a person deserves to be released on bail - we can still keep her imprisoned.

When the Telangana Preventive Detention Law was recently involved in a case before the Supreme Court, the bench was surprised that it had not yet been challenged and called the law "draconian" [This was during the course of hearing and deciding Banka Sneha Sheela (Crl. Appeal No. 733 of 2021, decided on 02.08.2021)]. Preventive Detention, as I have argued elsewhere, is inherently draconian in a legal system which is based on the idea of a fair trial being necessary to impose severe sanctions of imprisonment upon anyone. Time and again, states which preach fidelity to this idea endorse Preventive Detention, relying upon that old friend called necessity. This argument acknowledges the need for Preventive Detention but, at the same time, also recognises the need for keep it confined to a domain of extraordinariness. 

By and large, it is fair to say that this has been the Indian approach, in theory, since the Constitution was passed in 1950. Which is what makes statutes such as the Telangana Preventive Detention Law so strikingly dissonant to the law, and so clearly draconian. I say statutes such as the Telangana law, because this is perhaps only the most egregious example from similar laws prevailing across states. And it is also apparent that other states have flirted with the idea of expanding the scope of their Preventive Detention laws in the past — Tamil Nadu, for instance, took a step back in 2014 considering an expansion would run afoul of the Constitution.

What Telangana has done with its Preventive Detention Law, and what other states have either wanted to do in the past and might yet do in the future, is to effectively render the criminal process redundant and in its place erect a crude system of speedy "justice" through jail time for persons "known" to be criminals. The Supreme Court has said that it is cannot be a quick alternative to the regular criminal process, but honestly, that is what Preventive Detention is today. And in a criminal process plagued by delays at every level, it is easy to understand why there is an acceptance for such measures within the government, if not also within society at large. 

Sure, a state government may suffer the odd rap on the knuckles in court for adopting tactics where such obvious deprivation of rights is involved. But on a balance of considerations, is that not worth the cost when what the government stands to gain is a reduction in the crime rate. Want to curb spurious seed sales? Bring it under Preventive Detention. Want to show a tough stance on sexual offences? Bring that also under Preventive Detention. Same for cyber crime, rave parties, and any other kind of undesirable activity you can find. 

Is not the deprivation of liberty for a few justified when it leads to the improvement in the quality of life for the many? This is a false equivalence if there ever was one — this relationship between crime rates and Preventive Detention is no scientifically identified cause and effect but the police crediting any measure they like after the data comes in. It is obvious that they will credit measures which confer upon them almost boundless power and take away the "hassle" of criminal procedure. But the problem is that this false equivalence sells and is easy to fall for. Which is why more states are likely to go down the Telangana route in the future, I suspect, as it is unlikely that any of them are going to actually make the kind of investment required to actually improve how the criminal process functions.

The Telangana Preventive Detention Law might yet be successfully challenged in court and trimmed down to size, but until the criminal process begins to assume some degree of speed, the attractions of "doing justice" through Preventive Detention will remain very high for governments. 

Errantry: Moot Problem

The 16th edition of the K.K. Luthra Memorial Moot Court Competition concluded this past Sunday. It is one of the few moot court competitions focused on criminal law as an area, and I was thrilled to have been able to author this edition's case for the Moot which can be seen here.

Broadly, the case concerned the law of theft, developing on both Indian law and judicial decisions as well as those from other Common Law jurisdictions (most notably, Canada). The substantive law of theft is a funny thing — all the pre-eminent decisions are not of recent vintage, and the only major case that did come through recently is one that I had profound disagreement with (Birla v. Adventz). Nevertheless, it still made for a compelling contest.

These issues on substantive law were meshed in a thicket of issues on the procedural side. Here, the idea was to bring in issues that might be commonly known amongst lawyers and law students — the idea of excluding illegally obtained evidence — and combining these with issues that are not so well-known but are of seminal importance — the issues surrounding the duty of disclosure placed upon the police / prosecutor, requiring that they share their papers with the defence.

Comments will be highly appreciated!

Guest Post: Letter to An Aspiring Judge

[I am pleased to re-post this piece by Mr. Bharat Chugh, which first appeared on LiveLaw]

Since you’re here, I take it that you want to be a Judge, or, at any rate, are intrigued by the thought of being a judge. You may find this ironic that someone who hung his boots as a judge after roughly 4 years of service is writing an article on what it means to be a judge, and how does one go about achieving that objective. I am happy if you had this thought. The first part of training to be a judge is to take absolutely nothing at face value. Measure scepticism is a virtue. There’s nothing worse for an aspiring (or a serving) judge than a willing suspension of disbelief. 

My competency to testify on this issue is a crucial starting point, and I hope to discharge this burden of proof. 

I make no claims to great insight, and at 29, age is definitely not on my side but having been a lawyer (at 21), judge (at 23) and a lawyer and a mentor of future judges (at 26) has been an excellent learning curve (and a roller coaster ride). Each role has enabled me to experience, not only what it means to wear that particular hat, but also what it means to be the other. Being a lawyer has given me a better sense of what and how a judge should be, and conversely, my tenure as a judge has taught me the art of lawyering. Looking at one thing in relation to another is often the best way of understanding it. And often, one has to take a step back and look at a thing from a distance in order to be able to truly appreciate it – given that we tend to appreciate the trees and ignore the forest. Taking a step back has helped me aspire to certain objectivity of thought and to a somewhat balanced way of looking at things. 

Getting back to establishing my credentials (or the voir dire, for those inclined to Latin). Picture life so far for me as a football game - I’ve been a spectator (a student of law, undecided on whether I wanted to be a judge or not); a player on the bench, watching the game eagerly from the sidelines desperate to be called-in (as someone aspiring to be a judge and preparing for the Delhi Judicial Service); a referee, setting out the rules of the game and ensuring fair play and justice (a judge); a player (as a lawyer); and finally, a coach (in my engagement with future/newly recruited judges). 

I hope the above does raise at-least a presumption in my favour; a presumption of me being qualified to comment on these issues. The endeavour throughout this series would be to ensure that the presumption is not rebutted. (Because all good presumptions, as we know, are rebuttable) 

With the maintainability question (as we lawyers like to call it) having been addressed, let us move on to what I believe is the real heart of the matter. Have you asked yourself - ‘WHY’ do you want to be a Judge? As someone wise said (probably my mother) if you have figured out the ‘WHY’ of doing something, you’ll figure out the ‘HOW’ of doing it any ‘HOW’; this is exactly why the ‘WHY’ is important and a great place to start with. 

Why do you think you want to be a judge: Is it the power-kick? A beacon atop your vehicle? Or a pursuit of power that would give you the ability to translate your personal philosophies and world-view into binding judgments?’ 

If this is what you had in mind, I would advise you to give up reading this article and, for heaven’s sake, re-evaluate your life choices; not just for your own good, but for the good of all others whose lives would depend on your orders. The pursuit of power as an end in itself is dangerous. Preparing for judgeship and clearing the exam, which is by no means easy, would require reservoirs of patience that run deep, and would require you to be up and studying, sometimes - all night, while your friends party, lead normal social lives, or take up jobs, and to make matters worse - do and share all of this (with glamorous filters) on Instagram/Facebook. 

In those moments of self-doubt and existential crises, when you think you are worthless (because you spend all your time holed up in your study room with your books, living as a hermit, while others party, marry and take up regular jobs); in testing times such as those, a hollow idea such as a blind pursuit of ‘power’ won’t keep you on track, and even if it does prove to be a moving force for you, it won’t be a good one. You may become a judge, but you won’t be a good one. 

What are the other considerations - ‘Job Security’ or a ‘Stable source of income’?’ 

I would not devalue the importance of having one’s basic needs met in life. Having worked and financed myself (and part of the household) since I was 14-15, I’ve seen ‘want’ and poverty up-close and personal. The anxiety of not being able to make rent the next month; I’ve lived with that. I’ve lived with the devil of poverty, sitting firmly on my left shoulder, for the majority of my life. I understand basic needs are important. But there are various avenues of earning a livelihood. Judging ought not to be taken as a means of earning a livelihood and can never be measured in terms of money. Though young judges are now paid reasonably well, that ought not to be the consideration. 

What then is the right consideration? Let me cut straight to the chase: No consideration would help you more than a belief in a higher purpose. A purpose bigger than you; bigger than your narrow interests and fears. A loftier ideal like the ‘the ability to dispense justice’ or ‘make a meaningful difference to people’s lives’ should be your anchor; your guiding star. A fine sense of justice and a heart that bleeds for the underdog should inform you at all times in your journey towards being a judge, and thereafter. Each injustice should rankle you and make you want to correct it. Look at yourself like a Justice Task Force of sorts. Always remember, no one in the entire judicial system has a bigger interface with the layperson than the Civil Judge/Metropolitan Magistrate at the nearest District Court. You, my friend, are going to be the brand ambassador of the justice system for close to 90% of the population. 

The enormous difference that a single bail application can make to a life. That snap ‘bail or jail’ judgment that a Magistrate makes, many times over a day, often thinking on one’s feet. The classic balancing act between the presumption of innocence on one side (liberty), and State’s impassioned argument of law and order (public order perspective), on the other. You’ll be deciding tens of them on a single day. Each would impact lives on a level you cannot possibly imagine now. 

Picture the crucial decision of granting or denying an injunction; an injunction against the demolition of a house in a slum somewhere in outer Delhi. To injunct or not to injunct! Imagine - the plaintiff’s daughter is getting married next week and an injunction for a week would help the family sail through this crucial time, but the plaintiff, even though he may have the balance of convenience tilted in his favour (and an excellent emotional appeal), he has little to show for a title. What do you do in such a case? Pure legalism, or law tempered with compassion. 

Imagine a young boy accused of selling tea in a train (https://www.livelaw.in/a-tea-seller-and-a-judge-a-young-railway-judges-beautiful-retelling-of-his-struggle-with-morality-and-law/), who though technically an offender (because he does so without a license), hasn’t really done anything wrong and it would be a travesty of justice to punish him. 

Think of the imprisoner’s dilemma in the case of a young man of 18 years, who got through one of the best medical colleges in the world, but had one too many while returning from his farewell party, and now finds himself in the dock as an accused in a drunken driving case, asking for mercy. Should you send him to jail because drunken driving, after all, is a huge public menace and a good sentence should ‘deter’ and try and make an example out of him. You may, in the process, destroy all his life-chances though. So should you, instead, fine him and pass a community service order and help him become a useful citizen? (Every sinner has a future, right?). 

Cases like these would give you sleepless nights; make you toss and turn, and you should. Let not the mantra of clinical detachment make you non-responsive or make you feel any less. This job is about this. This is not to suggest that you should be paralyzed into indecision by the enormity of what you do and these moral conundrums. Be firm and decisive but, at the same time, let that conscience and moral compass be alive and kicking. 

I must also add that this, by no means, is an exhortation for you to be a knight errant, pursuing his or her own sense of what is ‘just’, without the slightest regard to law and precedent; No need to do justice ‘though the heavens fall’. Let’s be fair - Justice would mean little if the heavens do actually fall. A sense of proportion and balance, therefore, is extremely crucial. 

And, well begun is half done. A belief in your ability to make a meaningful difference to people’s lives, each day, would set the right tone for not just your preparation but also the rest of your career as a Judge. 

The ‘Why’ part of the question having been addressed, we’ll get on to the ‘HOW’ part of it, next. At the very outset (and spoiler alert) - this series does not share any magical sure-shot formula that would ensure that you make it. The reason is simple: no such formula exists. There is, however, a method to all this madness. A method of preparation. Though I say early on in the introduction that once one has figured out a ‘WHY’ of becoming a judge, discovering the ‘HOW’ is not going to be a major challenge. That statement should not be construed to mean that the method is any less important. Genius is as much discipline as inspiration. 

In the next few articles, we touch upon a number of important questions ranging from the choice of reading material, to – what is the ideal pattern of study? In this, I’ll be drawing-in on my own lived experiences and the experiences of my peers at judicial academies, institutes and elsewhere. The reader, however, is encouraged to find his own brand of preparation. Draw inspiration from each source, without blindingly copying one method or the other. Devising one’s own method, after a careful analysis of one’s strengths and weakness is critical. Failing to prepare is preparing to fail. With that, adios for now. I’ll be back soon with some pointers on preparing to prepare. 

What the Protests over the Motor Vehicles Act Amendments tell us about Criminal Law

On 19 September, 2019, there was a big strike organised by public transport workers across Delhi and other parts of India, to protest against the amendments recently made to India's Motor Vehicles Act [MV Act]. The main cause for the protests, I am led to understand after speaking to several cab and auto drivers and reading the news, is the enhancement of penalties that the amendments have brought about. 

In fact, the outcry over steep fines has been in the news for some weeks now. Many states, including those that have BJP led governments, have also refrained from giving full effect to these provisions of the new law because of the perceived voter-backlash that such a move will generate. 

Such protests over changes in laws are rare in India nowadays — the demonetisation of high value bank notes of 2016 met with a whimper of protest — which is why protests over the MV Act, by the people and by state legislatures, demand attention. I think a closer look at this legislative process tells us a lot about legislative processes generally, and specifically about the apathy surrounding criminal law. 

The Rationale for Steep Fines in the MV Act Amendments

This is a simple one. The Central Government has consistently maintained that higher fines in the MV Act will serve as a deterrent to bad driving and help increase road safety. Going by the numbers on road safety in India, which confirm that it is as poor as one might suspect, it is difficult to argue that such deterrents are unnecessary. Which is why, perhaps, most states also agreed with the Centre during deliberations that the higher fines are a good idea. 

The regular argument against deterrence in the criminal justice system is that it can't be measured and so it doesn't exist. That claim might work for valuing deterrence in specific cases, but most of these accounts also agree that there certainly is a general deterrent effect that penal laws have and this helps to improve obedience to law at a macro level. Higher penalties for breaking road laws, I think, certainly achieve this general deterrence.

Moreover, higher fines will also work better than, say, higher punishments in criminal laws such as enhancing the punishment for rape to a death sentence. The reason here is the immediacy of inflicting punishment. The traffic police can fine you on the spot, immediately after you break the law. Whereas the death sentence is not going to be delivered until the criminal process runs its course lasting years. This is another reason why I think general deterrence might be more probable for traffic norms and increase compliance.       

The Argument against Steep Fines in the MV Act Amendments

Considering everyone cares about road safety — well, almost — it is difficult to argue against a law designed to increase this. Which is why the primary argument has not been against high fines, per se, but that high fines alone are not going to do anything. 

How do detractors pull the carpet from under the Central Government's justifications? They point to the architecture that governs road traffic. First off, you need decent roads. If you have this, then you also need functioning traffic lights, clearly marked lanes, lower jaywalking, and a higher standard of basic driving sense for getting a license. Unfortunately, for most parts of India, none of the above are true. Rather than continue the slow slog towards improving this architecture, and get ground up to a higher standard of road safety, it is argued that the Government is imposing top-down reform as it is wont to do. 

This criticism only travels a certain distance, because why can't the Government also increase fines as it continues the slow slog towards improving road safety from the ground up. Understandably this is not being touted as the main reason behind the protest against the high fines either. That main reason, according to whoever I have spoken to, is distrust of an authority that has historically been known for its corrupt and arbitrary enforcement of traffic laws.

That almost all states in India do not have enough police officers is a known fact, and the same truth applies to numbers of traffic police in the states. These limited traffic cops simply cannot man every traffic light and patrol every road, and the insufficiency in numbers necessarily breeds arbitrariness in how laws are enforced everyday and thus takes away from any general deterrence that might have been possible. Granted, this might change with the increasing use of CCTV cameras to catch cars speeding, but the core arbitrariness of enforcement will remain. 

Besides arbitrary enforcement, the other problem is the manner in which the laws are enforced. Many adult Indians have stories about having gotten off easy when caught by traffic police. Higher fines only go towards allowing the police to charge higher rents for a stay on execution, rather than make us more compliant with the law. 

What links the MV Act protests to the absence of protest against Regular Criminal Law?

The arguments levelled against high fines can almost entirely be used for the criminal legal process in India at large. The systemic problems faced by road traffic norms are similar to that of the criminal justice system breaking under its own weight because of caseloads that run into crores, making all cases move at a snail's pace. And the problems with traffic police enforcement being arbitrary and corrupt are fully applicable to the criminal law more broadly. 

I would argue that what links the protests against MV Act amendments to absence of protest when laws are passed with similar effects — say, passing Section 66-A of the IT Act or diluting criminal procedure guarantees for accused persons — is the idea that the criminal law will not apply to "us" but to "others". 

The mere act of driving places people in peril of facing hefty fines, because the regular way of driving is totally removed from how the law might require a person to drive. This makes notions of "us" against "them" disappear without requiring any great mental effort. But the same can't be said for criminal law, where the idea of "othering" is writ large. The idea that Section 66-A would only hit provocateurs and not ordinary people made it easy to ignore the same problems that lay at the heart of that legal zombie and the fact that they could potentially be used to wantonly arrest anyone. The idea that "criminals" should not have a broad right to silence can even make the Supreme Court forget that there is no pre-defined criminal class and that such measures ultimately render everyone more susceptible to abuse of police power. Today, the same notion of othering is perhaps why the UAPA amendments that allow the state to brand anyone a "terrorist" can pass through without any protest. 

Until those of us interested in criminal justice reform can make it loud and clear that these notions of "us" and "them", of predefined criminal classes for whom harsh laws are justified, are bogeys, it will be impossible to prevent new variants of the same oppressive, liberty-stifling laws, from being passed no matter how many times a court strikes them down. 

Science in Policing: The New Old Thing

Recently, the Home Minister made an interesting public speech where he reportedly lamented the poor conviction rates. An official report of his comments also notes that the Minister suggested that wholesale changes to the Indian Penal Code of 1860, and Criminal Procedure Code of 1973 were on the cards to help make things better on the conviction front.

This blog has often argued that reforms to these statutes, as well as the Indian Evidence Act of 1872, should occupy the minds of legislators. So to hear that some legislative process might be underway soon is, well, arguably a good thing. But, as we all know, the means are as important as the ends: if the changes end up being little more than an implementation of the draconian "reforms" suggested by the Malimath Committee Report of 2003, then certainly status quo will seem like paradise. 

All one can say at this stage is that if a consultation process to amend the Indian criminal process does materialise, as suggested in the reports, then the legal system will certainly benefit if those who care about fixing the bad elements take an active part in the legislative process [a shout out to the good folks at IFF who have taken up this mantle in the sphere of, inter alia, internet policy].

The initial comments about where this reform process might lead can be seen in some observations that the Minister reportedly made about improving the quality of police investigations. He reportedly termed "age-old" investigation techniques involving third-degree methods as "pitiful", and argued that using more forensic science for police investigations will certainly increase convictions.

First Kashmir, now this: Reading these remarks about forensic science and "age-old" investigations made me feel as if everyone in the Government has decided to go back to the 1950s for inspiration about what to do in 2019. For if you go back to the newspapers of the early 1950s, you'll find them replete with editorials and press reports of ministers condemning "third-degree" police practices. At that time as well, the Government made loud noises about "forensic" evidence being a game-changer for policing in India. I discuss this history in a paper, where I also argued that the mere use of forensic science cannot do away with a tendency of police officers to use force: After all, what is stopping the use of brutal force to get the forensic samples.  

As we obviously know, the efforts of different governments since 1950 have not led to a significant change in public perceptions of the police from being the "Bully Boys" of the Raj to "Willing Servants" of the Indian people, as David Arnold wonderfully puts it. Is it possible though, that this time things will be different? I don't think so. Leaving aside the point about the use of coercion for implementing forensic science, I think that the recent political and economic trends render it rather unlikely that the modernisation supposedly needed for improving the quality of police investigations can happen any time soon. Two reasons stand out among the many others. 

The first is money: India loves to spend on defence, but not on policing, which results in huge staff shortages and poor tools, equipment, and training for investigations. The point about staff shortages is also affecting central agencies, as has been seen with the CBI. Currently, hearings are ongoing before a bench of the Supreme Court in Dilawar Singh where the Court has again expressed anguish about how slow the forensic science processing systems are (again, contributed by labs being understaffed). Thus, when governments do not like to spend on policing in normal times, how can we expect the Central Government to change this trend now, at a time when the economy is reportedly witnessing an unprecedented slowdown and the Government's busy spending to revive the falling demand? 

The second reason why the Home Minister's speech is likely to not yield much improvement is a technical one. Policing is a state subject. So, even if we treat the speech as being made in earnest and not an exercise in mere sloganeering, it is still the state governments which will be the key drivers in any push for police reforms. Unless, of course, the Central Government aims some more bulldozers in the direction of the quasi-federal structure of the Indian Constitution and lends aid and expertise to only those states where the government is an ally. Or, maybe it restricts the spending on forensic science to only central agencies like the CBI and the ED. Either way, given that those agencies don't deal with the bulk of prosecutions, it is unlikely to change much in the larger scheme of things.        

I honestly don't think this speech is a sign of much increased spending in the near future — the government has already been spending a lot on using more technology for police purposes. But I do think that changes to the Penal Code and Criminal Procedure Code might be part of the legislative agenda in the near future. Keep your eyes and ears peeled.