Snippet - The Prison Statistics India 2024 Report

This past week, the Prison Statistics India Report for 2024 ['PSI Report'] was published by the National Crime Records Bureau ['NCRB]. I could not spot any massively interesting data points as such, especially if we read this Report together with the 2023 PSI Report. Indian prisons continue to be filled overcapacity, mostly with undertrial prisoners, who are usually young and poorly educated. While we do know that the prisons were collecting both religion and caste demographics, these indicators continue to be out of sight in these Reports. Economic profiles of prisoners are also not provided. If we did have that data provided in the Reports, one suspects it would further confirm that our prisoners are, disproportionately, coming from marginalised backgrounds.

The five-year charts in the 2024 Report show us that there has been a tapering of the prisoner population. The highs seen in the 2022 Report have, thankfully, not been witnessed again. Any positivity generated by this data is offset when we consider that that reasons for that tapering is not systemic improvement. One big reason are the efforts made in 2023 by the Supreme Court to push for release of prisoners through undertrial review committees. This is coupled by consistent decrease in prisoner population seen in Uttar Pradesh over the past couple of years. Anybody can see that these are not long-term solutions.

The 2024 Report is going to be interesting historically, as hereon the legal framework will no longer speak to the Criminal Procedure Code of 1973 but the Bharatiya Nagarik Suraksha Sanhita of 2023. 1973 saw the introduction of a new Code with an impetus on ensuring speedy justice and provisions meant to reduce unjust undertrial incarceration. It went out in 2024 with an unpleasant legacy on these fronts. The new law has built upon the same rotten foundations but with some tweaks on aspects of arrest and bail, so it would be interesting to see what changes it brings on the ground. 

A case in point will be the impact on default bail under what was Section 436-A of the 1973 Code, which has now become Section 479 of the 2023 Sanhita. This scheme of default bail under the old Code had enabled release of prisoners who had served half their prison term. The revised scheme allows for release on serving one-third of the sentence, provided it is a first-time offender (with some more caveats which we needn't elaborate here). 

Implementation of 436-A is seen by some as a chokepoint resulting in unjust incarceration. However, the PSI data has consistently shown that this may not be the case, as there was hardly a sizeable number of the prison population eligible for release in the first place. The 2024 Report reaffirms this trend. As we have seen, 479 BNSS will change the eligibility criteria, potentially expanding the reach of the clause. It will be fascinating to see the impact it has. If the half-year's worth of data is anything to go by, the future of this species of default bail may not be very different from its past.

 

Snippet: Bellin's Critique of Criminal Procedure doctrine as a Law of Cooperation

I came across a new article posted to SSRN by Prof. Jeffrey Bellin titled 'Criminal Procedure as the Law of Cooperation' (forthcoming in the Georgia Law Review, 2026). The paper is focused on the development of U.S. criminal procedure by their Supreme Court, and so is not directly dealing with things that this blog talks about usually. But I thought that the argument made in the paper resonated quite well with critiques of how the Indian judiciary has developed criminal procedure as well.

His claim is straightforward - it is maybe a mistake to think that the main path taken by American courts on developing criminal procedure law is a rights-affirming one, which imagines restrictive interpretations as anomalies. He argues that, if anything, the dominant path has been imagining criminal procedure as a law for securing cooperation with law enforcement. Cooperation is the primary goal, and the enforcement of rights is subservient to ensuring that this primary goal is not unduly compromised. Decisions actively affirming rights while truncating cooperation-based interests are few and are outliers; these have often been whittled down over time because of the dominant cooperation-based framework (Miranda being the example he offers). 

This critique connects with existing critiques of Indian Supreme Court jurisprudence. For instance, Mrinal Satish and Aparna Chandra had made a similar claim while surveying Supreme Court decisions on the fundamental rights linked most closely to criminal procedure in their 2016 essay 'Criminal Law and the Constitution' which was part of the Oxford Handbook. 

In the context of Indian law, one feature which adds to the complexity of the argument, is that unlike the U.S. where criminal procedure is largely a creation of judicial interpretation of the relevant clauses in the Bill of Rights, in India the law on criminal procedure remains rooted in statute, and this statute influences how the courts develop doctrine. A key focus of statutes governing criminal procedure would naturally be on maximising cooperation with agencies. This places it in conflict, somewhat, with other laws seeking to secure individual rights even at the cost of cooperation. Whenever there is a conflict, it is no surprise that Indian courts tend to read the law in a way which ensures maximal cooperation, with some outliers over the years. 

Those interested may find the piece engaging and as a useful resource to turn to for developing arguments about the doctrinal development of Indian criminal procedure.

An oddity in sentencing discretion for attempts to commit rape?

The reform of India's rape law in the wake of the Verma Committee Report led to an overhauling of how the core of the offence was defined. It also led to a recognition of fresh kinds of aggravated forms of the rape offence depending on various circumstances, with varying punishment schemes in place to properly sentence offenders for such crimes. 

One such example is Section 376(3) of the Indian Penal Code 1860, which states that:

"Whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine ..." [Emphasis supplied]

So, there is a mandatory minimum of twenty years in prison for committing rape on a woman below the age of sixteen years, and the maximum possible sentence is that of life imprisonment.

The insertion of a mandatory minimum punishment in any kind of offence has been the subject of intense debate and scrutiny across the globe. What I am interested in here is not that debate, but the peculiar set of consequences that clauses such as Section 376(3) have when considered from the prism of attempts to commit crimes.

Section 376 does not separately punish attempts to commit rape. Therefore, resort must be had to Section 511 of the Penal Code, which states that:

"Whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both." [Emphasis supplied]

If you are wondering how do you calculate one-half of life imprisonment, look no further than Section 57 of the Penal Code, which states that for calculating fractions of punishment, life imprisonment shall be reckoned as equivalent to imprisonment for twenty years.  

This poses an interesting quandary for cases where the allegation is an attempt to commit offences such as Section 376(3) [or, for that matter, Section 4(2) of the Protection of Children from Sexual Offences Act 2012]. Reading Section 376(3) with 511 confers the judge with discretion to convict someone for a term which may extend to one-half of twenty years, so theoretically a figure anywhere between 0 to 10 years in prison. But, because Section 376(3) carries a mandatory minimum term of twenty years imprisonment, conferring any sentence below one-half of that prescribed limit would, technically, offend that mandatory minimum. 

Effectively, then, does the judge have any discretion to award a sentence other than ten years in prison for attempts to commit the offence under Section 376(3) IPC, no matter how different they all might be? If we read Section 376(3) IPC read with the attempt clause in this manner which eliminates all possibility of sentencing discretion, then would it not fall foul of the rule laid down by the Supreme Court in Mithu [AIR 1983 SC 473] that vesting discretion with the judge is what makes sentencing just, fair and reasonable from the perspective of Articles 14 and 21 of the Constitution?

If anyone can point to more discussion on this then that will be great!

Snippet: The Delhi High Court Order In Sharjeel Imam's Case

Yesterday, on July 10, the Delhi High Court delivered its judgment and final order in a petition filed by Sharjeel Imam [Crl. M.C. 1475/2020] challenging the order passed under Section 43-D(2) of the UAPA, by which the police have been granted additional time to complete the investigation in a case filed against him. The extension order was upheld.

The Order itself and the law on Section 43-D(2) are bound to receive close attention in the coming days. But what caught my attention upon reading the order was a specific observation passed by the Court at Para 51:

"Having heard the learned counsel for the parties and perused the record, at the outset I may state that the petitioner has not challenged the addition of Section 13 of UAPA to the list of offences, he is accused of. ..." [Emphasis mine]

This observation seems to be in response to a submission made by the Additional Solicitor General, which is recorded at Para 24 ["Mr. Lekhi submitted that Ms. John did not challenge the addition of Section 13 of the UAPA to the list of offences of which the petitioner is accused of ..."]. In turn, this entire exchange seems to have been a result of submissions made on behalf of Imam, where Senior Counsel argued that the invocation of UAPA offences on the 88th day of the investigation displayed the bad faith of the police.

This exchange is interesting because, seemingly inadvertently, it reveals a very serious problem within the Indian criminal justice system. This is the near-absolute discretion vested with police for adding offences to an ongoing investigation and the limitations upon aggrieved persons to challenge these decisions. 

To appreciate this, let's take a step back. Normally the criminal process begins with lodging a "First Information Report". This not only summarises the initial allegations, but also notes the various kinds of offences made out by the allegations. As an investigation proceeds and more material is gathered, it is not uncommon for police to add more offences to the case. 

All this seems pretty tolerable. But things get a little tricky when we consider that the same set of factual allegations can make out many different kinds of offences. For instance, someone raising slogans against the unity of India can seemingly fit the definition of Sedition (Section 124-A IPC), and at the same time it can fit the crime of engaging in "Unlawful Activities"(Section 13 UAPA). 

The kind of offence that is invoked by police during an investigation is a choice which carries serious substantive issues. Continuing with the above example, Section 124-A IPC and Section 13 of UAPA have different possible punishments upon conviction and, arguably, a prosecution for "Sedition" carries greater stigma. At the same time, this choice also carries serious consequences from a procedural standpoint. Not only is the procedure for trial of offences different, depending on the maximum possible punishments, but this is a factor which also affects valuable procedural rights of persons who are being accused of crimes. There are some offences for which police can arrest without warrant (cognizable) and where the person so accused does not have a right to bail (non-bailable). 

The core issue in Imam's case was also a procedural one — a UAPA case carries a possibility for extending time-limits on custody during investigation by ninety days, in addition to the regular ninety days that police get for serious crimes such as Sedition. Here, on the 88th day of the initial ninety, police had chosen to add UAPA offences in the case and immediately sought an extension for his custody while they completed their investigation. The Senior Counsel for Imam argued that this belated addition of the UAPA offence was a clear indication of bad faith. But, as pointed out by the State, Imam had not challenged this decision.

Which brings me to the issue — how do accused persons challenge this decision of police to add offences to an ongoing investigation? Some thoughts are below: 

• There is enough and more judicial rhetoric which has held that the domain of investigations is solely that of the police and courts mustn't interfere with that process. At the same time, there are very recent decisions (the most recent being from 2019) which blur these lines and actively invite trial courts to "monitor" investigations. Should one take the High Court's observations in Sharjeel Imam as an indirect suggestion to accused persons, that they should explore this option in respect of the decision of police to add offences in a case, by asking the trial court to examine the basis for adding offences during an investigation?
• The more conventional route for challenging any aspects of investigations has been to move a High Court under its extraordinary jurisdiction (the alacrity with which this was happening, in fact, had prompted one Supreme Court judgment to suggest monitoring by trial courts). Normally though, the High Court is invited to quash the investigation altogether (quash the FIR as it is called). So should we read the observations in Sharjeel Imam as a suggestion that accused persons could perhaps move the High Court against the invocation of specific offences?  
• The observations in Sharjeel Imam are made in the nature of an aside (thankfully). Still, it makes one think about how should courts test arguments of bad faith in this context. I say this because the Court in Sharjeel Imam did not say that a bad faith argument was misplaced. If that is the case, then we certainly need some clarity to help adjudicate such pleas. Will my claim appear more genuine if I have pursued independent remedies? Should it matter?
• If either of these avenues does exist, then what does this mean for the general way in which criminal law works in India? I say this because, normally, an accused person is not really an active "subject" in an investigation. Instead, the accused is an "object" to whom things may happen as the police go about their job of unearthing the truth. Are we witnessing a change in judicial attitudes where courts are themselves encouraging more participation from the side of the accused, perhaps recognising this is necessary towards securing the promise of an adversarial system of justice like India's claims to be?

It will be interesting to see whether this innovation happens in the near future or do these observations in Sharjeel Imam get lost to the pages of history.

[This post was updated at 5:30 PM on July 11, to add the point about adjudicating bad faith pleas]

Dear Minister, There Are No Silver Bullets — Of Speedy Trials and the Criminal Process

The 47th All India Police Science Congress recently concluded in Lucknow, Uttar Pradesh, and it has been reported that the Union Minister for Home Affairs has once again spoken of this Government's desire to carry out amendments to the Indian Penal Code 1860 [IPC] and the Criminal Procedure Code 1973 [CrPC]. This, according to me, is the second such public statement made by this Government. While this may not itself be of any significance, I would argue it assumes immense significance considering that this is the second such statement to have come within the first six months of this Government's tenure. 

It is highly probable, then, to expect these proposed amendments to be released for public discussion within the next year. In the build-up, the Minister has made fairly moderated remarks about the process of legislative reform, as well as about the objectives that the proposed reforms will seek to pursue. One of these objectives is the idea of a speedy trial for criminal cases. That delayed disposals of cases is a problem plaguing the Indian legal process is a fact nobody can dispute — in fact, some might argue it is the problem of our legal process. 

Given this enormity of the problem, and the public statements of moderation and deliberation made by the Union Minister, it was quite surprising to read the Minister of State for Home Affairs to have reportedly stated that the proposed amendments might include provisions that restrict the right of an accused person to appeal against a conviction, in case of offences such as rape. As per the report, the proposed amendment will only permit an appeal to the Supreme Court, and in doing so ensure that an accused undergoes his sentence rather than remains at large by prolonging an appeal.

With the greatest respect, it is exactly this tendency of enacting horribly myopic changes to the law displayed by successive governments, that not only worsens the problem of case delays, but also compounds various other problems with the criminal process. Consider this proposal seriously for a minute: Sure, in theory, taking away one stage of appeals may speed up the ultimate disposal of a case. But stop here and think about what will happen to all those appeals that currently end up before the High Court. Sure, not everyone will chase the appeal to the Supreme Court, but in light of the stakes involved (the shame of conviction and the lengthy sentence) it is fair to assume a lot of people will still want to go to Court. So, then, what ends up happening is that there are worse delays at the level of the Supreme Court. Delays which will take valuable time away from the judges to decide matters of constitutional importance. 

Thus, such myopic "reform" to the law to get "speedy trials" end up worsening the very problem it set out to resolve. Besides which, it compounds the many other problems that are a part of the criminal process. I mentioned above that many persons may choose to not pursue appeals if the only option is to go to the Supreme Court. Only a fool would argue that this is the result of a fair choice presented to the accused person. Rather, considering the profile of an ordinary convict as per the government data, far more likely is the probability that the convict just cannot afford to fight that litigation. The legal process can't be made to run so fast that it crushes the very persons it is meant to serve.

There is no doubt that the criminal process has many problems in its current state. There is, again, no doubt that the causes of these problems are manifold, the outcomes of complex interactions between different parts of the process, that have been going on for decades (even centuries). The need for slow and careful deliberation in the process of attempting a resolution of these knotted problems cannot be overstated. It will do us well if our Ministers abandon the search for silver bullets. 

P.S. — While I appreciate the criticism mounted by the Union Minister against the "colonial" nature of the criminal law statutes, we mustn't forget that some of them, such as the Cr.P.C., are not colonial but the product of extensive deliberations made by legislators of an independent India. 

Article Update — The Right Against Self-Incrimination in India: The Compelling Case of Kathi Kalu Oghad

Article 20(3) of the Indian Constitution guarantees to all persons a fundamental right against compelled self-incrimination, and states that "no person accused of any offence shall be compelled to be a witness against himself". In an essay recently published in the Indian Law Review, I focus on the eleven Justices' Bench decision of State of Bombay v Kathi Kalu Oghad [1962 (3) SCR 10], which defined the contours of this constitutional protection. 

This is not a purely legal essay, and while I do level a critique at the legal reasoning in Oghad, I don't make normative claims as such about the legal position and what it ought to be. Instead, the purpose of this paper is to look at the decision in Oghad as a historical event, located as the culmination of a 100 year-long history in the Indian subcontinent of using law to address police violence to obtain evidence from defendants.  

A long-arc historical narrative helps to appreciate how legal doctrine developed in Colonial India and had a telling influence on how the same judges looked at the issues in Independent India. It also helps appreciate the political context in which these legal developments took place. My suggestion, is that the outcome in Kathi Kalu Oghad was a product of these legal and political forces combining.

Showing the history and context surrounding Kathi Kalu Oghad is an exercise not done purely out of academic interest. This approach suggests that the judicial compromises in Oghad were probably designed as a stop-gap sensing an imminent change in the law on policing, with reform projects in many states moving at a good pace. Instead, the 1962 War came and brought with it an Emergency, consigning those reform-efforts to the waste-basket of history. The compromises that made sense to those eleven Justices in August 1961, do not make sense today in 2019, and are the primary reason why Article 20(3) has been rendered impotent as a means for safeguarding persons against coercion to give evidence — a feature that continues to remain prominent in the criminal process across India.

I hope that reading the paper convince you of the same.

The published version is available here. This might be paywalled, and so a draft, slightly different from the final paper, is available here

Snippet: New Report on Judicial Delays for Delhi

With the help of DAKSH, a Bangalore-based organisation which has been involved in some amazing work on the judicial system, the Delhi High Court ran a "Zero Pendency Project" to gather data towards solving the seemingly insurmountable problem of backlog and judicial delays. Having spent almost two years running this Pilot Project, the Report of the Zero Pendency Project has recently been made available. 

Contrary to some news articles, the Report does not say that all pending cases in Delhi can be cleared by appointed 43 more judges. The Pilot Project was only examining a select group of courts — Sessions Courts on the criminal side, District Courts, Motor Accident Courts, and Labour Courts on the civil side. The estimates for the "ideal" number of judges needed to clear pending cases is only in reference to these courts (Page 62 of the Report). To read them as anything else is, well, wrong.

In fact, the recommendations part of the Report is, according to me, the least significant. What the Report does recommend is, frankly, not very new. Like many earlier reports, we are told that delays are caused by bogus adjournments, missing witnesses, and missing parties. But what is different in this Report is the granular data collection by which these problems are identified, and that is what makes the study a great contribution to the field of work examining the Indian legal process.

In short, make sure to read the Report!

Snippet: The Codification Journey of Criminal Procedure in India

The older editions of some popular legal commentaries are not easy to find, but make for interesting reading. I have been lucky enough to frequently refer to Ratanlal Ranchhoddas & Dhirajlal Keshavlal Thakore, The Criminal Procedure Code (6th edn., 1949, Bombay Law Reporter Office, Bombay), for purposes of research. But recently, I was randomly leafing through the book and came across these snippets that detail the history of how the Criminal Procedure Code came to be. Below, I've copied some extracts from pages 490-91, for the benefit of everyone:

In 1833 the Governor General in Council was empowered by 3 & 4 Will. IV, c. 85, to legislate for the whole of British India, i.e., for all persons whether British or native or foreigners; for all Courts established by Charter or otherwise; for all places within the territories of British India. The Regulations made under the previous states were replaced by Acts. This statute provided for the appointments of the “Indian Law Commission” mainly with a view to codify Indian laws and procedure. ... 

In 1847 the Indian Law Commissioners were instructed to prepare a scheme of pleading and procedure with forms of indictment adapted to the provisions of the Penal Code. It was prepared in 1848.  

Owing to the great delay in examining the measures recommended by the Indian Law Commissioners, a Royal Commission was appointed in England in 1853 toe examine and consider the recommendations and draft enactments of the Indian Law Commissioners, and a second Commission was appointed in 1854. 

The draft of the Criminal Procedure Code was examined and revised by the Commissioners appointed in 1854. They prepared a draft Code which was presented to parliament in 1856, and introduced into the Legislative Council of the Governor-General by Sir Barnes Peacock in 1857. It appeared on the Statute Book as Act XXV of 1861, and came into force on January 1, 1862. Originally, it applied to the territories subject to general Regulations, (p. 491) and was gradually extended to other territories of British India, barring the presidency-towns. 

It was considerably amended by Act VIII of 1869. Both these Acts were repealed by the Criminal Procedure Code of 1872 (Act X of 1872). This Code, like its predecessor, did not apply to the High Courts and the Chief Courts of the Punjab, and the Presidency Magistrates’ Courts in Calcutta, Madras and Bombay. The several Acts governing the procedure of High Courts were repealed and replaced by the High Courts Criminal Procedure Act (X of 1875) which regulated the procedure of the High Courts in the exercise of their original criminal jurisdiction. 

The Presidency Magistrates Act (IV of 1877) was enacted to regulate the procedure of the Courts of Magistrates in the presidency-towns. Several provisions of these three Acts — X of 1872, X of 1875 and IV of 18777 — were similar though not couched in the same language. It was, therefore, thought desirable to consolidate the three Acts into one single Code of Criminal Procedure for the whole of British India, and Act X of 1882 was therefore passed repealing these three enactments.” 

To complete the history subsequent to what the book narrated, Act X of 1882 was then replaced by Act V of 1898. This was materially the same as the previous iteration of the Code. It underwent some comprehensive amendments in 1923, whereby many changes were made to the pretrial process such as adding Section 164(3) that required persons be cautioned before making statements or confessions to Magistrates.

The 1898 Code was carried forward after Indian independence. And in 1955, it underwent another set of substantial amendments. The years between 1958 and 1969 saw criminal procedure become the subject of in-depth consideration by the Law Commission of India and other bodies — Report Nos. 32, 33, 36, 37, 39, and 40, all related to different aspects of criminal procedure. 

In Report No. 41, the Law Commission suggested replacing the 1898 Code with a new Criminal Procedure Code to streamline the many changes that had taken place over time. The proposed Code took away jury trials (already a dead letter), reduced the scope of committal proceedings, and also sought to create simpler procedures to make the criminal justice system quicker and more accessible.

This new Code was ultimately passed as the Criminal Procedure Code 1973, and notified as Act No. 2 of 1974. It has not undergone substantial revisions of the kinds that the 1898 Code saw in 1923 and 1955. But the amendments of 2006 and 2009 — which introduced different norms for arrest, brought in plea bargaining, and recognised rights of victims, respectively — have made important changes to the system. 

In a few years, the 1973 Code will mark its fiftieth anniversary. Has it delivered on the promises of making the criminal justice system move faster, and render it more accessible to the indigent? 

Errantry: The Law Commission of India

The Law Commission of India has been in the news recently for making recommendations on how to categorise the BCCI for purposes of filing information requests under the Right to Information Act, as well as for expressing support for simultaneous state and central elections. During colonial rule - both before and after 1857 - the Law Commission played a pivotal role in formulating India's system of laws. Most of our current civil and criminal legal system can be traced to the work done by the Law Commissioners of British India in the 19th Century. The inception of a Law Commission for independent India was a project dear to both Prime Minister Nehru and India's first Attorney General M.C. Setalvad. Before the current tradition of the Commission being chaired by retired judges began, it was Mr. Setalvad who assumed responsibilities at the helm between 1955-58. 

From 1955 till 2018, the Commission has published 275 Reports. Out of these, some have been truly significant contributions to Indian Law. Perhaps the two standout ones are the Fourteenth Report - providing a comprehensive account of the Indian legal system - and the Forty-First Report which led to the Criminal Procedure Code, 1973. But my illusions about the importance of the Commission in the law-making process received a slight blow when, by pure chance, I stumbled upon a recent link that gives details on what happened to the first 262 Reports that the Commission has produced since 1955. From these, data is still missing for 52 reports, giving us information on 211 Reports. The statistics are not flattering. Out of 211 Reports, 92 have been implemented. But 101 out of 211 are still pending consideration. Yes, not rejected - which includes only 16 Reports. Shockingly, from the list of 101 Reports, three date back to 1957. 

For convenience, let's term the period between 1955 and 1985 - covered by the first ten Commissions - as an era of big party rule. And that since 1985 as the era of coalition politics. Till 1985, 113 Reports had been published with data for 79 Reports. Out of these 79 Reports, 54 had been accepted, 7 rejected, and 17 are still pending. That's a massive acceptance percentage of over 65%. The list contains 149 Reports between 1985 and 2015, with data on 132 Reports. Out of these, 38 have been accepted / partly accepted, and 10 rejected. That's almost 29% reports being accepted. A staggering 84 Reports are still pending consideration. All of the eighteen Reports prepared by the Commission under the chairmanship of Justice (Retd.) A.P. Shah are pending. Only one Report out of the nine prepared by the Commission before that, under Justice (Retd.) PV Reddi, was implemented.

Fascinatingly, it seems that the fate of the Law Commission Reports seems to have suffered a serious blow with the onset a more fractious political system in India. The data does not tell us when the reports were accepted or rejected, which would make it more possible to verify the effect of changing regimes on the nature of Law Commission recommendations. 

What is the significance of this, apart from being a fun pastime for perennially boring individuals such as myself? For starters, there is a statutory interpretation issue for lawyers. Classical canons of interpretation from English Law, which Indian courts often rely upon, suggest that Law Commission proposals that are rejected are evidence to support the statutory text which was kept on the books. But there is nothing on what happens when a Report is kept pending for over half a century. But the broader claim is that, perhaps, this data should make us re-examine the role and purpose of the Law Commission - at both the federal and the state level. Ideally, looking to the vision of Nehru, and how similar Commissions operate elsewhere, the Reports are serious efforts to keep improving the law by ensuring it remains useful for contemporary society. Clearly that is not happening: as the most recent Budget Session reminded us, our legislators have much better things to do than legislate. Perhaps the Commission could have a bigger involvement with law reform rather than merely forwarding the final report to the relevant Ministry? Some food for thought. 

 

Snippet: Increasing Penalties for Traffic-Rule Violations Makes Roads Safer?

The short answer to the titular question here is, no. The Motor Vehicles (Amendment) Bill, 2016 is soon going to become law and is being largely hailed across platforms as a gamechanger. It brings in a lot of new things which are necessary - revamping definitions, including aggregator services, reworking the insurance and compensation provisions. But, sadly, it simply treads the all-too-familiar path of hiking penal tariffs in a bid to curb bad road behaviour. 

I have argued on this blog (a long time ago here) that this routine understanding of deterrence is fraught with problems. A rational decision-maker will consider costs posed by breaking the law, and the likelihood of being caught at that moment. The lesser the likelihood of being caught, the lesser any possible sanction will impact my behaviour. Duh, right? The fact that nobody seems to be stating the obvious at this moment is pretty infuriating, forcing me to say it all over again. To assume that adding another zero to the quantum of fines is going to deter people from driving rashly, or taking the wheel when drunk, is daft. Anybody who travels by road can tell you that the problem isn't just the existence of sanctions, but it is their enforcement. 

How often do traffic cops cut challans (fines) after stopping vehicles suspected of violating traffic rules? A simple attempt to map the disparity between these two events (the stopping of a vehicle vs. issuing a fine) and then reducing the arrears would probably achieve far more towards making our roads safer than another increase in penalties. And it is simple - just add recorders on the motorcycles that the traffic police use. That technology is inexpensive and easily accessible, and would deter the corruption that is rife in this field. Maybe this solution is also too naive. In fact, I'm sure it is. But it is surely better than simply raising the sceptre of more stringent punishment, ignoring how this will also proportionately increase the corruption plaguing the system at present. 

Snippet - Constitutional Evasion and the CBI's Dubious Legal Basis

The Indian Constitutional Law and Philosophy Blog put up an important and timely opinion on what appears to be an emerging doctrine of constitutional evasion, where the Supreme Court is creating an effect by simply not deciding issues of seminal constitutional importance. Demonetisation and Aadhar were taken as two examples, and in this snippet I offer a third - the legal status of the Central Bureau of Investigation.  

The CBI is a curious entity and was once before the subject of a Guest Post on this Blog. It does not have any statutory basis and traces its foundation to a Notification passed in 1963 (Resolution No. 4/31/61-T dated 01.04.1963). Its precursor was the Delhi Special Police Establishment [DSPE], created under the eponymous 1946 statute. The CBI started out under the control of the Ministry of Home Affairs, but Granville Austin in Working a Democratic Constitution notes how the Prime Minister came to exercise far greater control over the Agency during Mrs. Gandhi's tenure at the helm (pages 190-191) and then went back to the Home Ministry under the Janata Government (pages 454-455). He also notes how the Agency was often used to carry out political vendetta in the 1970s, both by the Congress as well as the Janata Governments. The lack of autonomy in the CBI has been a consistent theme in the five decades since, perceived to be constantly trading allegiances, with echoes being seen by papers in the raids conducted in the office of the Delhi Chief Minister in 2015. Nobody likes being maligned, and the CBI itself made calls for greater autonomy with past directors advocating the cause for the Agency to have a statutory basis. The Supreme Court has also been sympathetic to these pleas. It expressed great displeasure upon learning that CBI recommendations had been changed at the behest of ministers in relation to the coal blocks allocation scam, and went ahead and conferred greater autonomy to the Agency in September 2013.  

So far so good. On 06.11.2013, then, the Guwahati High Court famously passed an order holding the CBI was without any legal basis. In an impeccably reasoned decision, the Court held that the CBI could not be located in the DSPE Act. The Guwahati High Court did find the CBI to be distinct from the DSPE after tracing its legislative history as found in the file notings itself (paragraphs 45-49), contrary to what the Union of India asserted. Such an independent police force which conducted investigations and inquiries required statutory backing, and could not be the product of a mere Executive Notification. It refused to lend weight to an argument made by the Union which effectively sought non-interference despite illegality as things had remained this way for decades. In another part of the decision, the Court traced the Constituent Assembly Debates on the subject to show how the Framers never intended to confer investigative powers upon a Central Agency as has been done today (paragraphs 51 - 68), but it did not go ahead and consider the legality of the DSPE itself. 

On 09.11.2013, in a hearing conducted at the residence of the then Chief Justice, the Supreme Court stayed the decision [order available here]. This was understandable and fair, as thousands of investigations and prosecutions would have been thrown into the lurch if the CBI was suddenly disbanded. The problem is the lack of activity that the petition has subsequently witnessed in the Supreme Court, which is where the issue of Constitutional Evasion comes in. The case [SLP (Civil) 34834/2013], along with connected petitions, has been listed a total of eight times since 2013. Long dates came between the filing of submissions etc with the stay remaining operative. The order passed on 15.02.2016 converted the case to Civil Appeal No. 1473/2016 and notes that the hearing was expedited, but no subsequent date was given. On 11.11.2016, applications for vacating the stay were dismissed. No likely date of next listing shows up on the case status webpage as of today.

By prolonging the stay and refusing to hear the matter, the Court is inadvertently supporting the claim of the Union of India that things should not be interfered merely because they have been so. Rather, it would be in the national interests for a speedy resolution of these issues of seminal constitutional importance, that plague the premier investigating agency of India. 

Snippet - The Delhi Public Gambling Act, 1955

Diwali in New Delhi means parties with some festive gambling in many households across the city (Tambola was a family favourite). Recently, the Delhi Police raided a high-profile Diwali party in the posh residential colony of Sainik Farms. It has been alleged that this was actually a gambling den and a case has been registered. A friend called up asked whether this means the little party he was planning this week could also come under the cloud. I figured it would make good material for a short post.

The Delhi Public Gambling Act 1955 is what governs this area. It is based on an old colonial statute - the Public Gambling Act 1867 - and one can find similar laws today in Maharashtra, Gujarat and Madhya Pradesh among other states. The name of the statute makes it clear that it does not have a problem with all kinds of gambling. Public gambling is the vice it deals with. This covers two situations, the first where the organisation of the gambling itself is being made a venture. So if there was a fee levied on entering the gambling house, for instance, which the owner of the house keeps. The other situation is where some manner of gambling occurs on the occurrence or non-occurrence or extent of any natural event. So, no, the regular Diwali party is not going to make an offence under the Delhi Public Gambling Act. This is without even discussing what is gambling and whether some games of skill can be excluded, a question that has reached the Supreme Court more than once. 

But this is not all. What is far more interesting, and problematic, in the Delhi Public Gambling Act is Section 10. This empowers a magistrate to compel any individual arrested / apprehended on suspicion of committing an offence to make a statement on oath. The provision categorically states, that "No person so required to be examined as a witness shall be excused ... on the ground that his evidence will tend to criminate himself." The provision further states that refusal to make a statement is an offence itself, punishable under Sections 178 or 179 IPC. This is also present in the older Public Gambling Act 1867, and the laws on public gambling promulgated by other states mentioned above. If ever there was a clear violation of the right against self-incrimination under Article 20(3) of the Constitution, it is this. Despite this, I haven't come across a decision of the Supreme Court or any High Court declaring this provision to be unconstitutional. Depending upon how the investigation in the current case arising out Sainik Farms goes, we might just get that decision. 

Cheating in the IPC - Interesting Overlaps

Section 420 of the Indian Penal Code, 1860 [IPC] is perhaps one of the most famous provisions in the Code, right up there with Section 302 IPC. In this short post, I discuss an interesting point of overlap between Sections 415 IPC and 417 IPC, and their more famous cousin Section 420 IPC. 

Reading the Text 

Section 415 IPC defines cheating and deals with a variety of acts and omissions, which should be clear below:

A. Whoever, by deceiving any person, 

A.1 Fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or

A.2 Intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and

A.2.1 Which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property

Is said to cheat

The fulcrum is deception - everything else flows from that. Deceiving is the conduct required of the Accused. This conduct must result in either of the two sets of consequences in A.1 and A.2. A.1: an unlawful transfer/retention of property caused through deception. A.2: doing/not doing a thing which is done because of the deception and causes/is likely to cause harm or damage. These consequences have different mens rea terms associated with them. The Accused must fraudulently or dishonestly induce the transfer of property [Fraudulently is defined in Section 25 IPC and Dishonestly is defined in Section 24 IPC]. Or, the Accused must intentionally induce the doing/not doing of a thing. If the conduct and consequences are brought about with the required mental element, a person is said to cheat.

Cheating is punished in Section 417 IPC, which simply states "whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both". A slightly different form of cheating is punished by Section 420 IPC, which states:

Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 

Whoever cheats invokes the definition under Section 415 IPC. The provision then requires the person cheating (X) to dishonestly induce the person deceived to delivery any property to any person. The difficulty should be apparent here. The first part of the definition in Section 415 IPC itself provided that cheating can occur in situations where X deceives Y and dishonestly induces Y to deliver any property to any person. Effectively, then, the first part of Section 420 IPC reads Whoever cheats, and thereby cheats, before moving to the bit about making, destroying or altering valuable securities. This oddity remains merely an interesting drafting problem when viewed independently. But recall that Section 417 IPC punished cheating in all its hues, and looks more benign when compared with Section 420 IPC. 417 is non-cognizable (no arrest without warrant), bailable (bail as a matter of right), and inflicts imprisonment up to one year. Section 420 IPC is cognizable (arrest without warrant), non-bailable (no right to bail), and allows for imprisonment up to seven years. 

Cheating through History

So how do we resolve this? One step would be to see if this was discussed by the drafters of the Code. Looking at Lord Macaulay's 1838 Bill we find cheating offences were present very differently. Section 394 of the Bill punished 'cheating', Section 392 defined cheating as follows:

Whoever, by intentionally deceiving any person, fraudulently induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or to affix a seal to any substance, or to make, alter, destroy the whole or any part of a document which is, or purports to be, a valuable security, is said to "cheat" 

There was no Section 420 IPC equivalent. In fact, the comments contain an interesting discussion on how the framers actively decided not to render all kinds of deceptions criminal for that would that defeat the rule of criminal law being the last resort and make the penal code a law to enforce morals. This attitude changed in 1860 as can be seen with the addition of the second kind of consequences (described as A.2 in the discussion above). Section 420 IPC was also added to the mix, and a nearly contemporaneous commentary to the promulgation of the Code states that "increased punishment may be awarded where the cheating causes any property to be delivered 'dishonestly', that is where the it is of the kind which the first clause of the definition in Section 415 describes ..."  [Morgan & Macpherson, The Indian Penal Code 1860, p. 378 (1863)]. 

So, the scheme possibly intended was to demarcate the two sets of consequences into two punishing provisions. Assuming this is the case, then I argue the drafting of Section 420 IPC leaves one wanting for clarity. The provision confuses in trying to club the consequences of delivering property, and making, altering or destroying valuable securities.   

Conclusion

Since the IPC came in 1860, there have been a few decisions by High Courts considering the issue that is the subject of this post. Most of them concur with what appears to have been the legislative intent - Section 420 IPC punishes cases where deception results in the dishonestly inducing a person to deliver property, while Section 417 IPC punishes other forms of cheating not accompanied by delivery of property [See e.g. Supdt & Legal Remembrancer v. Manmatha Bhushan Chatterjee, AIR 1924 Cal 495; Shree Krishna Polyster v. State (GNCT of Delhi), Crl. M.C. 779/2005 decided on 23.10.2007]. It would have been a more elegant solution for the Code to include the consequence pertaining to valuable securities in the definition in Section 415 IPC itself, and then have the different punishment clauses. An amendment to that effect would help rid the confusion existing to this day.

In Re Sedition

The offence of sedition made headlines again last week. This time, a public statement had been made stating that Pakistan was not hell. Cue, pandemonium. A private complaint under Section 124-A of the IPC was filed against the maker of the statement [Ms. Ramya, an erstwhile MP]; demonstrations were carried out in Karnataka by certain political outfits, and various entities were demanding a retraction of the statement over the internet. This circus came shortly after Amnesty India had also been alleged to have sponsored seditious talks in Bengaluru. The uproar fizzed, as it always does, and there were the usual outraged television debates with news anchors telling us that the nation wanted to know how could a crime like sedition still exist. The public live-tweets and votes in favour of repeal outnumber those for retention of the offence. If only live-tweeting could replace parliament.

I find it very difficult to discuss the offence of sedition under Section 124-A of the IPC given the obviously political and policy-based tenors of the debate generated. The wanton criminalisation of speech and expression carried out by the provision has been subjected to intense analysis by my friend and colleague Mr. Gautam Bhatia in his book. All of that debate has a clear conclusion - if one considers free speech and expression as important democratic virtues, then offences criminalising these virtues are obvious problems. The value judgment of where to draw the line on free speech must, theoretically, be made by the democracy. By having failed to repeal the offence despite it being 2016 today, one can argue that our democracy wants the sedition offence.

If I was to look at Section 124-A IPC, I'd obviously agree with all that is said about it being a horrible infringement on free speech, for those are my virtues too. But, regardless of the political virtues we subscribe to, there are deep objective problems with the offence that cannot be ignored. It is criminally vague and espouses a standard that defies any logical and unbiased enforcement. But even more importantly, the offence is redundant and achieves nothing from a criminal law perspective. The purpose of any offence is to curb certain kinds of behaviour in society. Can the conduct curtailed by having an offence such as Section 124-A IPC be curtailed by other offences? Certainly, yes; acts that would be properly booked under sedition as per the interpretation of the Supreme Court would ultimately also be offences of Rioting etc under the IPC. 

So why have sedition as an offence? In a 1977 Report/Working Paper, the Law Commission for UK and Wales recommended that the offence of sedition not be part of a proposed criminal code. It noted that "Apart from the consideration that there is likely to be a sufficient range of other offences covering conduct amounting to sedition, we think that it is better in principle to rely on these ordinary statutory and common law offences than to have resort to an offence which has the implication that the conduct in question is 'political'." I argue that this is the very reason why sedition continues to be an offence in India - it provides a label that the conduct is political. In a country which wears its nationalism on its sleeve (or, on its plate, depending on where you are), it is necessary to have sanctions against the wrong kind of political. That's an answer, if the nation wants to know.

Snippet - Unintended amendments to the Crime of Forgery?

My attention was drawn to a rather startling fact recently [see here for the one piece I found discussing this online]. The definition of forgery under Section 464 of  the Indian Penal Code 1860 [IPC] today is not what it used to be - and is commonly still assumed to be by many laypersons and lawyers alike. The cause of this is the series of amendments made to the IPC by the First Schedule to the Information Technology Act 2000 [the link leads to all statutes passed in 2000, scroll around to find the this particular one].

Section 464 before the amendment read as follows:

First - Who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document, or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed sealed or executed, or at a time at which he knows that it was not made, signed, sealed or executed ... [emphasis supplied]

The provision after the amendment reads as follows:

A person is said to make a false document or false electronic document or false electronic record - 

First - who dishonestly or fraudulently - 

(a) makes, signs, seals or executes a document or part of a document;

(b) makes or transmits any electronic record or part of any electronic record;

(c) affixes any electronic signature on any electronic record;

(d) makes any mark denoting the execution of a document or the authenticity of the electronic signature

with the intention of causing it to be believed that such document or part of document, electronic record or electronic signature was made, signed, sealed executed, transmitted or eaffxed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed ...    

The last bit in bold has curiously disappeared with the amendment. This has important ramifications for it means that antedating documents no longer constitutes forgery. Mr. Mahesh Jethmalani argues that it is possible to rebut this conclusion by arguing that this consequence is the result of an inadvertent legislative oversight, rather than the product of explicit legislative design. This invokes the doctrine of casus omissus, which has been invoked by courts to remedy patent legislative defects [the Madras High Court in 2007 discussed the concept at length in Sundaram Brake Linings Ltd. v. Kotak Mahindra Bank Ltd.], albeit rarely. The argument certainly has merit in this case. The purpose of the amendments made by the Information Technology Act to the IPC was to broaden the scope of the offences by including the electronic medium within them. And no discussion in parliament on the Information Technology Bill mentioned anything about removing a substantial portion of the forgery offence.

It has been nearly sixteen years since the amendments were passed and this issue has not received any judicial attention to my knowledge. From the latest I've heard though, a petition is currently pending in the Supreme Court where this issue has been flagged for consideration. It will be interesting to see which way the decision goes, whenever it does come.

Did the Supreme Court just 'Expand' Self-Defence?

I'm on holiday, which means no work-related reading (as far as possible). But it was interesting to see many major newspapers running an article that the Supreme Court had 'expanded' the scope of the right to self-defence/private defence (Times of India, New Indian Express links here). Naturally, it piqued curiosity and got me to read the judgment. At the outset, I cannot fathom why the piece has come in the news only yesterday, i.e. 16th June when the decision itself came on the 3rd. That's a speculative aside, fuelled by conspiracy theories germane to the kind of reading I'm doing right now. Also, I found the description in the Times a tad disconcerting: "one can take the law into hands if parents assaulted". A complex branch of the common law so horribly oversimplified in a tenor with apparently dangerous outcomes. Sigh.

Self-Defence in the Indian Penal Code, 1860

Of course, none of the pieces actually mentioned that there are statutory provisions on the right against self-defence. Sections 96-106 of the Indian Penal Code [IPC] painstakingly detail the various facets of this right, and have to be read together with the Second and Fourth Exceptions to Section 300 IPC. Importantly, the Supreme Court decision in question - Bhagwan Sahai & Anr. v. State of Rajasthan [Crl. Appeal 416/2016, decided on 03.06.2016] also doesn't discuss or mention these. 

Self-defence is a justificatory defence as opposed to an excusatory one. An excusatory defence is not based on the circumstances of conduct but the nature of the actor. For instance, insanity of the actor excuses her conduct from being considered an offence. As against this, if you are not insane or forcefully drunk and were to, say, hit X with a stick, that would normally be an offence. But if you were doing this because X had tried to stab you with a knife, then there is a justification behind your conduct. This justification is what makes it a non-offence.  Although the IPC doesn't bother too much about the different kinds of defences, a little clarity is useful to help understand their operation. 

The contours of this concept are etched through Section 96 to 106 in the IPC. Two things are of primary importance for this post. One, one has a right to defend his own body an the body of another against an offence affecting the body, as well as a right to defend his or another's property from offences of theft, robbery, mischief or criminal trespass [Section 97]. Two, the right of defence begins as soon as a reasonable apprehension of danger to the body arises, and continues till such apprehension remains [Section 102]. Furthermore, one has a very limited right of defence against acts done by public servants, or done under the authority of public servants [Section 99]. 

A last word before we move to the decision itself on the defence under Sections 96 to 106, and the exceptions under Section 300 which I flagged above. If you successfully argue that your conduct was protected under the right of self-defence/private defence under Sections 96 to 106 then it warrants an acquittal. Successfully pleading the conduct falls in the Second or Fourth Exception to Section 300 means the culpable homicide committed would not amount to murder, and thus be punished with the lesser sentence under Section 304 as opposed to Section 302.

Did the Supreme Court Really Expand the Defence?

The failure to actually mention any provision on the issue of self-defence makes it difficult to discern whether the argument was on the defence itself or the Exception to Section 300. But as the Court notes that the Appellant argued an acquittal was warranted, we can safely assume it is the defence itself that was argued at the trial. The facts are conveniently stated: a fight seems to have arisen over land between two sets of parties. The Appellants' father was grievously injured and ultimately died, while the Appellants inflicted various injuries themselves on members of the opposite party. The trial court had convicted the Appellants on inter alia Attempt to Murder but the High Court had reduced that to a conviction for Attempt to commit Culpable Homicide.

The Supreme Court reversed the decision and acquitted the Appellants. The primary reason for doing so was the failure of the prosecution to reveal the exact nature of circumstances before the trial court. It appears that the prosecution had omitted to mention that the injuries arose out of a cross-fight where a case had also been instituted against the alleged victims. This merited adverse inferences against the prosecution case and so the Court viewed the Defence version more favourably. Thus, the Court believed the version that the Appellants were only retaliating to their parents being assaulted by the alleged victims, because of which their father ultimately died. The Court summarily observed that this gave legitimacy to the claim for self-defence. 

Once the Court agrees with the Defence version, that their conduct was retaliatory in nature, the plea of self-defence automatically gains credibility. The lower courts hadn't done so as they agreed with the prosecution version of events, which omits the part about the dispute being a open fight. So is the view that seeing one's parents getting assaulted is grounds for self-defence a significant expansion of the law? A bare perusal of the facts as mentioned in the decision read together with the provisions of Section 97 make it clear that this well-within the current scope of self-defence. I have a right to defend the body, as well as the property, of another person already conferred under the IPC. So, I fail to understand the belated hype generated in the news behind this decision.

Conclusion

I may of course be mistaken. There may exist a decision which constricted the right of self-defence that this significant decision has done away with which the newspapers are aware of and I am not. Sadly, though, neither the significant decision nor the newspapers actually state any such decision. Perhaps this was just another instance of that old saying: don't trust what the papers say, ever.

Curbing the Right to Legal Aid - Snippet

The Constitution of India guarantees free legal aid under Article 39-A. It expresses a clear idea - legal assistance is valuable and necessary to all. People in prison - both undertrials and convicts - are also allowed legal assistance by means of what is called a "legal interview". These interviews are secured through Rules commonly found in the Jail Manual for the respective state. In Delhi, the Delhi Prisons (Prisoners' Welfare Fund, Appeals, Petitions, Interviews and Communication) Rules, 1988 detail how legal interviews are secured for different classes of prisoners. Rules 42-43 are specifically relevant:

42. Every interview between an unconvicted person and his legal adviser shall take place within sight, but out of hearing, of a jail official. A similar concession may be allowed by the Superintendent in the case of an interview with any near relative of the unconvicted person. 

43. When any person desires an interview with an unconvicted criminal prisoner in the capacity of the prisoner's advocate he shall apply in writing, giving his name and address and stating to what branch of the legal profession he belongs and he must satisfy the Superintendent he is the bona-fide legal adviser of the prisoner with whom he seeks an interview and that he has legitimate business with him.

As you can discern, there is no limit to how many interviews one could have in a week, or the time for conducting these interviews. So naturally, I was a bit surprised when I came across Standing Order No. 53 passed by Delhi Prisons on 27.02.2013. The order restricts the right of prisoners to a legal interview to once a week, ordinarily. An additional interview can only be allowed in exceptional circumstances, with prior permission from Law Officer, PHQ. Given the absence of any requirement for reasons on what are exceptional circumstances, this discretion is rarely exercised without arbitrariness. Thus, undertrials have been denied rights to meet their lawyers for more than once a week. 

This was challenged before the Delhi High Court in 2014, and the Delhi Government also filed a response. If newspaper reports are to be believed, one reason behind this curtailment was that prisoners had not requested more than one interview per week ordinarily, reflecting they were satisfied. This is hardly commendable logic, and I am unaware whether the High Court has decided the petition yet. What I do know is that Standing Order No. 53 is still in force. It amounts to a clear contradiction of India's unequivocal commitment to free legal aid, and recognition that a prisoner desperately requires legal assistance. I am unaware of the practices followed in other states across the country. It would be interesting, and disturbing, to see whether there is a larger trend existing. Comments would thus be highly desirable!

Accessing the Supreme Court - Snippet

The Supreme Court of India is a rather difficult place to get into. You need either a Proximity Card or a Photo Entry Pass - the former has a long application process and litigants have to take the latter. Getting that photo entry pass is a cumbersome process. The reasons behind making it so cumbersome have mostly been mooted as being security concerns, but their implementation results in creating serious issues of access for the poor among others. This inaccessibility of the Supreme Court is something I have criticised this at length at an earlier point in time here.

Today, on a rare visit to the Court I saw that the person in front of me waiting at the pass counter was denied one. This was because he was less than 18 years old. Now to me, it made no sense - I get one would not want toddlers roaming inside a courtroom, but why place the bar at 18? In a hurry for my matter I let it pass, but after getting free I decided to make certain inquiries. I asked the person seated inside the PR Office whether a person below 18 years could get a pass. He barely looked above his phone to politely tell me that such persons could not get a pass. I said I knew a litigant who had filed a PIL and sought entry. Astonishingly, I was told that I would need a Court order (presumably from where the PIL is filed) to state that the litigant's presence was needed and thus his entry must be allowed.

Now lets think about the implications of this policy, if indeed what I am told is actually correct:

1. You have to spend additional money to get an appearance before the Supreme Court and make a request for allowing your entry - even though you are the litigant.

2. There is some very important difference between an 18 year old and a 17 year old that is known only to those handling administrative affairs at the Supreme Court, which makes them shunt 17 year olds out. I honestly doubt it is something to do with the intellect of these persons.

3. Entering the Supreme Court is as important and responsibility-bearing as (inter alia) voting, driving, drinking (in some states), smoking, having sexual relations, marrying, watching adult films, being held criminally accountable for your acts.

Perhaps the Supreme Court denies entry to children (I am unaware of this) and since the Juvenile Justice Act defines anyone between 0-18 as children the administrative authorities are merely putting this law into effect. Bravo, if correct! As I have earlier remarked, it is lamentable that seemingly irrational policies are executed merely a stone's throw away from the halls of our highest judicial forum. By accepting them without demurring, we are equally culpable as those with the robes.