The Constitution Bench Judgment in Mukesh Singh — A Sensible Retreat from Automatic Bias

On 31.08.2020, a Constitution Bench of the Supreme Court delivered its unanimous verdict in Mukesh Singh v. State (Narcotic Branch of Delhi) [SLP (Crl.) Diary No. 39528/2018 decided on 31.08.2020, along with other batch matters]. The Constitution Bench had been assembled to decide on the correctness of a Three Justices' Bench decision of 2018, Mohan Lal [AIR 2018 SC 3853]. 

Mohan Lal had taken up a very specific issue upon which conflicting decisions had been rendered by the different benches of the Supreme Court in the past. This issue was what is the effect upon the validity of a criminal investigation where the investigating officer is the same person who is the first informant. This is not an uncommon instance, mind you. For example, in narcotics cases, it is quite ordinary for the crime to be reported as a result of officers conducting a raid. Can the officer who conducted the raid continue as the investigating officer? And if so, does that have any effect on the validity of the ensuing investigation? The conclusions in Mohan Lal were that (a) the same officer reporting the offence must not continue as the investigating officer of the case, and (b) where this happens, then it vitiates subsequent proceedings, due to a presumption of bias being established. While the facts in Mohan Lal were specific to the NDPS Act, the observations made in the decision were broad and applicable to the context of criminal investigations more generally. 

This author had expressed his reservations about these conclusions in Mohan Lal. The doubts were loudly expressed within the year by a Bench of Two Justices in Mukesh Singh (which ultimately found its way to the Constitution Bench). Then, in Varinder Kumar [2019 SCC OnLine SC 190], a different Three Justices' Bench (Two members of which were part of the Bench in Mohan Lal) supported the conclusions that had been arrived at earlier but with many reservations (and some problematic language on procedural rights of accused persons), and expressly declared that the 2018 ruling would only apply with prospective effect.

It appears that now, finally, the confusion has been put to rest.

The Arguments  

The 62 page long judgment details the submissions of the Appellants from Paragraphs 3 to 4, then narrates the submissions by the Solicitor General [Para 5] and the Additional Solicitor General [Para 6], and finally rounds this up with Rejoinder submissions [Para 7]. 

The Appellants, naturally, argued in support of Mohan Lal and its logic of automatic bias. The thrust of argument was focused around the NDPS Act and a key point was the interplay between Sections 42 and 52 of the Act. Section 52(3) states that an officer who conducts an arrest / search / seizure under Section 42, must turn over the person / items over to an officer empowered to investigate the case. For the appellants, this added statutory gloss to the point of principle that the observations in Mohan Lal were based upon. Surely, the text of Section 52(3) suggested that Parliament was also uncomfortable with the same officer continuing as the investigating officer in a case.    

On the other hand, the Respondents approached the issue from a generalist perspective and delved into the scheme of the Criminal Procedure Code 1973 to argue that there was, in fact, clear support for the same officer to continue as the investigating officer on a case in Section 157. The Code was also cited to argue that the categories of issues which render proceedings vitiated for "illegality" is clearly set out, and having the same officer continue on the case is not one of the specified grounds. On the scheme of the NDPS Act itself, it was argued that Section 52 did not demand that the officers must be different. 

Reading the judgment, it seems a bit surprising that the central focus of arguments was not the universalist approach of Mohan Lal. The Appellants recorded submissions do not suggest why that specific position is the desirable one. If anything, only the Respondents seem to have tried to explain what are the problems in that approach and why a case by case approach ought to be favoured. The argument in this regard seems to have been purely consequentialist — so many cases with good evidence will be thrown out on a technicality — and not about where this specific issue fits in the larger legal fabric of the doctrine on bias.

The Judgment 

The judicial consideration of the argument begins from Para 8 onwards. The dissatisfaction with Mohan Lal is evident in Para 8.1: 

"On considering the entire decision of this Court in the case of Mohan Lal (supra), it appears that in this case also the Court did not consider in detail the relevant provisions of the Cr.P.C. under which the investigation can be undertaken by the investigating officer, more particularly Sections 154, 156 and 157 and the other provisions, namely, Section 465 Cr.P.C. and Section 114 of the Indian Evidence Act. Even in the said decision, this Court did not consider the aspect of prejudice to be established and proved by the accused in case the investigation has been carried out by the informant/complainant, who will be 35 one of the witnesses to be examined on behalf of the prosecution to prove the case against the accused. This Court also did not consider in detail and/or misconstrued both the scheme of the NDPS Act and the principle of reverse burden."

It is quite evident by this point which way the judgment is going to go, and there are no surprises from here till the conclusions in Para 12. After a detailed discussion of the 1973 Code [Para 9], the judgment turns to the NDPS Scheme. How is the point about Section 42 / 52 dealt with? At Para 9.3.8 and 9.5, the judgment notes that it is nowhere stated that the officers empowered under 53 have to be different / shall be different from those empowered for 42. Thus, to require otherwise would be overstepping the judicial function by inserting words in the statute which do not exist. 

For the Court, the NDPS being a law which casts a reverse burden and carries heavy punishments is not something which warrants a rule of automatic bias in cases where the informant continues as investigating officer. As the judgment notes [Para 10], the accused would have the opportunity to cross-examine that officer and burnish her claim about bias. The judgment also referred to the presumption of regularity that is attached to official acts under Section 114, illustration (e) of the Evidence Act and observed that a rule of automatic bias would run contrary to this presumption. Thus, "the matter has to be left to be decided on a case to case basis without any universal generalisation." [Para 10.1]

Some Thoughts

On the whole, Mukesh Singh is the kind of dour, sensible decision, that we need more of (perhaps without the copious extracts of statutory provisions — Sections 41 to 57 of the NDPS Act are extracted almost entirely!). For this author, the conclusions arrived at mark a sensible retreat from the rule of automatic bias that Mohan Lal had supported. It is impractical for a legal system where law enforcement is understaffed and it did not sit comfortably in a procedural setup where standards always trump rules when it comes to issues about weighing the impact of procedural safeguards. On top of which, I still think that a rule such as this would only have prompted law enforcement to find loopholes to work-around what they saw as a bad rule rather than the rule actually furthering the promise of fairer investigations. Lastly, and the speed with which the issue got resolved by a Constitution Bench is proof of this, the truly awesome nature of reliefs offered for the breach of a procedural rule were bound to make courts have second-thoughts about going ahead and fully implementing Mohan Lal.    

Coming back to a position where accused persons have to demonstrate bias is a sensible retreat. But, what next? How is this task to be carried out by accused persons and the plea determined by courts? And what about reliefs beyond acquittals? It is quite surprising that, much like Mohan Lal which it overruled, the judgment in Mukesh Singh has not offered us any clarity on these important practical aspects. There has been a tendency on part of the Supreme Court to not fully explore the remedial aspect of rights cases, and Mukesh Singh fits the bill. In being concerned with limiting the scope for acquittals on pleas of bias, the Court ended up missing a chance to explore other reliefs that accused persons might be entitled to when a plea of bias is raised at the end of trial or, as is much more common, in an appeal context.  

Let us take the bias point next. The Constitution Bench brackets prior decisions into two buckets — those for an automatic bias rule and those against — and in doing so ignores that there is a fair bit of subtlety involved in the task of determining a plea of bias [For more on the Indian law on bias, see here]. For instance, consider the judgment in Mohan Lal. A key reason for the Three Justices' Bench choosing the automatic bias rule was its mistaken finding that the existing legal position required accused persons to "demonstrate prejudice" and "bias [to] be actually proved". A closer look at the older case law would reveal that none of the decisions had gone ahead and actually dealt with how accused persons were to go and establish pleas of bias. The only real exception being the 2004 decision in V. Jayapaul [(2004) 5 SCC 223], which required that an accused must establish the existence of a "real likelihood of bias" and not existence of "actual bias". 

The only reference we get to this practical side of things is Para 11 of the judgment in Mukesh Singh, where it is observed that: 

... Only in a case where the accused has been able to establish and prove the bias and/or unfair investigation by the informant-cum investigator and the case of the prosecution is merely based upon the deposition of the informant-cum-investigator, meaning thereby prosecution does not rely upon other witnesses, more particularly the independent witnesses, in that case, where the complainant himself had conducted the investigation, such aspect of the matter can certainly be given due weightage while assessing the evidence on record. Therefore, as rightly observed by this Court in the case of Bhaskar Ramappa Madar (supra), the matter has to be decided on a case to case basis without any universal generalisation. As rightly held by this Court in the case of V. Jayapaul (supra), there is no bar against the informant police officer to investigate the case. As rightly observed, if at all, such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the investigating officer the question of bias would depend on the facts and circumstances of each case and therefore it is not proper to lay down a broad and unqualified proposition that in every case where the police officer who registered the case by lodging the first information, conducts the investigation that itself had caused prejudice to the accused and thereby it vitiates the entire prosecution case and the accused is entitled to acquittal. (Emphasis supplied)

What we see is that the Court has gone ahead and supported Jayapaul, but observed that the accused may establish bias or its real likelihood, which is a tad confusing to say the least. Furthermore, the observations in the first half of Para 11 are loosely worded and can lend themselves to a view that the judgment goes to limit the significance of biased investigations only where the case lacked independent evidence. This, in my view, is an incorrect reading of the paragraph. Rather what the Court seemed to have been at pains to do here, and throughout the judgment, is to narrow down the cases where acquittals might be warranted on grounds of bias / real likelihood of bias on part of the investigating officer. 

With Mukesh Singh, it would seem that this issue of what happens to a prosecution where the same officer who was the first informant continues as the investigating officer has been settled. There is no vitiating of the case on grounds of presumptive bias. But that is the limited extent of clarity on offer, and the practical aspects of raising a plea of bias remain under-explored. 

Snippet: A Constitution Bench Overrules The Mohan Lal Verdict

Just over two years ago, a Three Justices' Bench of the Supreme Court delivered a unanimous verdict in Mohan Lal [AIR 2018 SC 3853]. The judgment endorsed a significant proposition: An officer who was the informant in a case (the facts there had a narcotics investigation) could not continue as the investigating officer for the same case. Wherever the officer was the same, it cast an indelible doubt over the impartiality of the investigation, which rendered all subsequent proceedings illegal in the case. The Court had noted that its observations were not limited to only narcotics cases but also applied to investigations generally (though this was not very clear from reading the judgment as a whole).

This Blog had in its analysis been critical of this view of presumptive bias, arguing instead in favour of an approach which considered the facts to find out if there was a reasonable likelihood bias in the specific case. Not only was this approach unappealing in law, I also argued that the approach would result in several practical impediments given (i) the consequences it would have  on pending cases, and (ii) understaffed nature of police forces, and it would not be unlikely that the pronouncements are revisited. 

It did not take long for a Two Justices' Bench of the Supreme Court to raise some of these doubts in Mukesh Singh and it was requested that the matter be placed before a Bench of appropriate strength to consider the problems. In the meanwhile, a different Three Justices' Bench of the Court delivered Varinder Kumar [(2019) SCC OnLine SC 170] whereby it agreed with Mohan Lal on the issue of bias but rendered the judgment applicable only prospectively, in a bid to insulate ongoing trials and prevent convicted persons from taking this ground for challenge in pending appeals. That decision was deeply problematic for its treatment of the issue, where the bench seemingly likened the procedural rights of accused persons as benefits.

It has been reported that Constitution Bench has decided a batch of matters today, i.e. on 31.08.2020 (including the reference in Mukesh Singh) and reversed the view taken in Mohan Lal, and has held that the facts of the case must be considered before arriving at a finding on the issue of bias. While the judgment is still awaited, on first blush at least this seems like a sensible course to adopt. A more detailed post will follow.  

P.S.: What the judgment will hopefully not disturb, though, are the observations made by the Court in Mohan Lal regarding the right to a fair investigation. The reason for vitiating proceedings as per the Mohan Lal court was the "infraction of the constitutional guarantee of fair investigation".  There can be no qualms with the proposition that there is a guarantee of fair investigations, and I hope that the baby does not get thrown out with the bathwater.  

Article Update: Rights or Benefits? The Indian Supreme Court and Criminal Procedure

A few months ago, I wrote on this blog about the Supreme Court's decision in Varinder Kumar v. State of H.P., through which a different bench of Three Justices limited the applicability of the ruling in Mohan Lal v. State of Punjab, which was delivered in early 2018. To quickly recap, the issue at hand was very specific: are investigations by the police officer who was responsible for the initial drug-bust (these were NDPS cases) liable to be set aside on apprehensions of bias? 

In Mohan Lal, the 2018 decision, the Supreme Court said yes and made a new rule that the same officer can't continue to investigate the case. Where the same officer did continue, it would render the entire investigate illegal and, naturally, also render the eventual trial to be set aside. By all accounts this was a pretty drastic set of remedies being judicially created, and back in 2018 itself there was a sense of palpable discontent with the ruling especially because it would potentially affect pending cases. Fast-forward to 2019, and the decision in Varinder Kumar came which explicitly made the ruling in Mohan Lal inapplicable to all pending cases. 

But rather than simply restrict the ruling because of the madness that would ensue in pending cases, the decision in Varinder Kumar engaged in a profound discussion about the need to balance rights of accused persons versus the rights of victims / society. The discussion, as I argued in the earlier post, was horribly misguided and based on unsubstantiated straw-man arguments that ultimately imperil the values of freedom, equality and fraternity sought to be secured through the Constitution by means of a criminal procedure code.  

In a short paper recently published in the Journal of NLU-D (SSRN version here), I engage with the idea that maybe the experience in Mohan Lal and Varinder Kumar is reflective of a deeper, more entrenched trend, of how the Supreme Court has historically dealt with the idea of "rights" in context of criminal procedure. To this end, I draw a parallel with the rights to free legal aid and a speedy trial, both of which were hallmarks of the Indian Supreme Court's Due Process revolution between the late 1970s to 1980s. 

While the Supreme Court certainly spoke a language of "Rights" while dealing with the issues, on closer examination it appears that this was only a tool to help redress the plight of poor and oppressed persons in dealing with the State, a task which the court took on through the vehicle of particular cases before it. The decision by which these "Rights" are created in fact show a surprising disregard for critical issues that would need some thought; for instance, what remedy should follow if the right stands violated? 

That the Court is fashioning the contours of this right as it goes along (or "winging it") becomes clear with each successive case. Until finally, matters reach a head and a petition is brought by a kind of litigant who the Court definitely didn't have in mind when it was fashioning these new rights. For instance, and this is from a Case, the right to legal aid is sought by someone implicated in a case about sexual assault or a socio-economic offence. 

What does the Court do? It doesn't stay true to the logic of "Rights" in these cases and treat all defendants equally, nor does it create rational limits based on economic status etc. Instead, it tells us that these defendants are not getting protections. Without saying it, the Court transforms these rights, into benefits, which it will confer upon classes of persons which it decides are deserving of them.

By no means am I claiming to have studied all the rights-creating exercises of the Court in my Paper. But the similarities in judicial approach in cases that are separated by decades is certainly striking. If nothing else, the paper encourages some reflection about the halo that gets drawn over the judicial excursions of the Post-Emergency era in Indian legal history by many quarters. More seriously, it also invites critical thinking about reform strategies that turn to the Court for help and should make all the stakeholders pay more attention to the means that are employed to achieve possibly desirable ends. 

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

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

Recap: Mohan Lal, and Impartiality in Investigations

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

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

The Problems with Mohan Lal: Too Bitter a Pill 

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

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

Varinder Kumar and the perils of a Balancing Approach

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

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

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

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

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

Conclusion: Saving Criminal Procedure from the Courts

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

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

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

Update: Less Than a Year and Clouds Already Over the Mohan Lal Judgment

In August 2018, a Three Justices' Bench of the Indian Supreme Court decided Mohan Lal v. State of Punjab [Criminal Appeal 1880 of 2011, decided on August 17, 2018]. The case decided the issue of whether the police officer who was the informant in a case could continue as the investigating officer, and held that this was prohibited and any such continuation would make the subsequent trial invalid. The case was discussed in detail on the Blog and while I agreed that a resolution of the legal issue was required I disagreed with the approach. The reason for this was a perceived mismatch between the problem and solution.

The problem here was a possible bias in the investigating officer's mind, and the likelihood that this could taint the entire case and lead to an unjust conviction. If you agree that this is a problem and a likely one at that — which I argued it is — there are still different remedies that can be imagined to help address it. Primarily, courts can either engage in a factual appreciation to examine the claims of bias, or can engage in a thumb-rule kind of approach which says that all such cases call for remedial action. The remedy that the bench in Mohan Lal considered fit was the latter: it held that there was no need for factual determinations to determine the likelihood or appearance of bias. Instead, the very fact, of the informant officer continuing on with the investigation, was good enough to deem the proceedings as tainted. 

I argued that this wasn't the correct cure for the problems, for several reasons. On the one hand, the rule places an extra burden on the police which is already acknowledged as poorly resourced when it comes to officers who can take up investigations. I also argued that this gave the police perverse incentives to lie and fudge records to be compliant with the law and simply change the name of the officer on paper rather than actually invest and get more officers to conduct investigations. Then there was the perception issue: defendants would be seen as getting away on technicalities, even if the entire case was conducted immaculately. 

It appears that the last of these has now stung a different bench of the Supreme Court. On 17.01.2019, a two Justices' bench in Mukesh Singh v. State [an appeal in an NDPS case] cast doubts over the validity of Mohan Lal and said that the remedy was "too drastic". They have placed the case before another Three Justices' Bench. We cannot know when that bench will preside and hear the case, and till then Mohan Lal remains good law. But it is telling that a decision that was passed to resolve a legal issue has already attracted the dissatisfaction of other members of the Supreme Court. 

It will be very interesting to see how this prickly debate is settled. One hopes that whatever ultimate judicial treatment the issues get, they are better than the manner in which the aftermath of another problematic opinion in Girish Kumar Suneja was addressed by the Court in Asian Resurfacing.

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.