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

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

The Gravity and Uniqueness of Economic Crime

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

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

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

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

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

A Carte Blanche to the Police? 

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

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

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

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

Conclusion: A Recipe for Disaster

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

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

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. 

The Reference in Tofan Singh's case - What's at Stake?

In 2013, a Division bench passed the judgment in Tofan Singh v. State of Tamil Nadu [(2013) 16 SCC 31], an appeal against conviction for offences under the Narcotics, Drugs and Psychotropic Substances Act 1985 [NDPS Act]. While suspending the sentence of the appellant, the bench referred the case to the Chief Justice for constituting a bench of higher strength to resolve conflicts on two legal issues:

1. Is the officer recording a statement under Section 67 of the NDPS Act a "police officer" for the purposes of Section 25 of the Indian Evidence Act 1872 [IEA]?
2. Can the statement recorded under Section 67 of the NDPS Act be treated as a confession, even if the officer recording it is not treated as a police officer?

The case was recently listed before a three Justices' Bench and has been heard on four occasions this month, making a judgment likely in the near future. While the hearings have escaped media attention almost entirely, it does not take away from the fact that the issues being decided are very critical for not only cases under the NDPS Act but also criminal proceedings more generally. In this post, I lay out just what is at stake, and give my prediction for what the Three Justices' Bench might do. 

The Issues 

Section 67 allows an authorised officer to record statements of any person to determine if a crime under the NDPS Act has been committed. It includes questioning persons arrested on such suspicions as well, and these statements can be used in evidence. In permitting the use of statements recorded during investigations, Section 67 departs from regular Indian criminal procedure. This can be found in Chapter XII of the Criminal Procedure Code 1973 [Cr.P.C.], that details the powers and duties of police officers during investigations. Sections 161 and 162 of the Cr.P.C. do permit police to record statements, but do not permit their use at trial (except to contradict a witness). 

Though significant, this issue is not before the Court in Tofan Singh. Instead, the issues mentioned above stem from judicial interpretations of the phrase “police officer”: whether or not it includes officers from other services invested with similar powers. Why does it matter? Because confessional statements made to a "police officer" are inadmissible under Section 25 IEA, and if those officers are considered to be outside its scope, then the confessions recorded by these officers become admissible evidence. 

The lasting judicial answer to this question is found in the Constitution Bench decision in Badku Joti Savant [AIR 1966 SC 1746]. It gave a thumb-rule to decide the matter: if an officer can file a Final Report under Section 173(2) of the Cr.P.C. (commonly called a Chargesheet), then it is a “police officer”. This narrow reading has meant that the confessional statements made to officers under the Customs Act 1962 and the Prevention of Money Laundering Act 2002 [PMLA], among others, are all admissible. [For more on this controversy, see here.]   

Now, read the NDPS Act with this lens. Section 36-A says that a case will begin on a chargesheet or a complaint by an "authorised officer". So if we apply the thumb-rule, then since no chargesheet is being filed then these officers are not "police officers". But things are not so simple. The NDPS Act is different, because here, police and authorised officers have coequal powers to investigate, unlike the Customs Act or PMLA where the police have no role to play. Further, the statutory text has subtle differences. The NDPS Act, through Section 53, allows a Government to invest officers with powers equal to those of an Officer in-charge of a Police Station under the Cr.P.C. "for investigation" of offences. A similar provision is absent from the Customs Act or PMLA. Section 67 of the NDPS Act is also different from analogous provisions in the Customs Act (Section 108), and PMLA (Section 50); the latter require making statements under penalty of perjury, which is absent from the NDPS Act context.  

Why was a referral was required in Tofan Singh? In that case, the Division Bench indicated that the authorised officers recording the statement under Section 67 should be “police officers”, and use of any confessional statements recorded by them should be hit by Section 25 IEA. The problem was that two prior decisions by Division Benches had held otherwise: Raj Kumar Karwal [AIR 1991 SC 45] held that the powers under Section 53 NDPS Act are insufficient to make the officer a “police officer”, and Kanhaiyalal [(2008) 4 SCC 668] relied on this view to allow confessions recorded under Section 67 into evidence. Thus, the controversy had to be placed before a bench of higher strength.

The Possibilities in Referral

It is critical that the referral is before a Three Justices’ Bench. This means that the thumb rule of how to identify a “police officer” cannot be re-examined in the Tofan Singh hearings, as that was the gift of a Five Justices’ Bench. Unless, of course, the present bench finds a novel route out of that quandary. This means that the hearings in Tofan Singh should play out within the limited context of the NDPS Act, leaving similar powers invested under the Customs Act, PMLA etc untouched. 

How might the hearings turn out? I have not been able to attend court, nor have I come across live tweets, but I would wager that if the Bench is inclined to retain the existing position then it would want to diminish the statutory differences and locate the NDPS within the existing law. Whereas, if it is inclined to change the law, it will focus on the subtle differences flagged above that make the NDPS Act regime unique. I would argue that the latter option the better choice. Both legally, and also because it fits in with a trend over the past two decades of heightened procedural protection for NDPS Act cases. 

The points of difference — that Section 53 NDPS Act invokes a police officer, and Section 67 does not require sworn statements — are not trivial, and the earlier cases that ignored them not very well reasoned. Raj Kumar Karwal held that Section 53 was insufficient because of Section 36-A requiring that the authorised officer prosecute cases via a complaint. Kanhaiyalal simply extended this to Section 67 as well. This approach is not certainly one way to read Section 53 and Section 36-A of the NDPS Act together, but it is incorrect.

Looking only at the complaint or chargesheet to identify the procedure is far too narrow an approach. Instead, what must be looked at is the entire process from the start to finish. This highlights how the NDPS Act is different from the Customs Act or PMLA: there, a prosecution is not the only inevitable outcome and imagine resolving cases through administrative proceedings. For this reason, those sets of procedures are not termed investigations. On the other hand, Section 53 clearly confers powers for "investigating" cases. Looking only at the statutory label given to the end-product of this process will mean privileging form over substance.  

These arguments carry much more bite in the NDPS context because of the other fundamental point of difference: none of the other laws confer powers on both the police and other agencies. Thus, here the arbitrariness is manifest within the same statutory framework. How can investigations led by one agency end up with more evidence and less procedural protections for accused persons than another, for prosecuting the same crime. It should amount to violating Article 14, given that the NDPS Act has no process for separating the kinds of cases that are investigated by police officers or other officers.       

Which brings me to the final point, of a visible trend for heightened judicial protection to accused persons in NDPS Act cases. Unlike regular Indian criminal procedure, here, the judiciary has held that violations from procedural norms carry serious consequences for the prosecution. Two instances stand out: evidence obtained contrary to statutory norms under Section 50 is inadmissible, and investigation by the same officer who lodged the case can vitiate trial. Allowing confessional statements to be rendered admissible under Section 67 would create a strange tension within the legal framework, and belittle the other safeguards that the judiciary has fought hard to create and protect. 

Conclusions

The hearings in Tofan Singh should conclude within the month of January 2019, making a judgment likely before the retirement of Sikri, J., who was the author of the decision that started this process. It is possible that the Three Justices' Bench upholds the position prior to Tofan Singh entirely and says that confessions under Section 67 shall remain admissible, or try and carve out some exceptions to the general norms laid down by the Constitution Bench in Badku Joti Savant to perhaps exclude the use of confessional statements recorded under Section 67. I have suggested that the latter course is more likely, and like everyone else, await to find out how the issues are ultimately resolved by the Bench. 

Remands to Custody and Bail

A long, long time ago, this blog ran a series on issues surrounding the grant of bail for non-bailable offences. The primary issue focused upon, was how several statutes placed the burden upon the accused to show that there were no reasonable grounds to believe that the alleged offences had been committed by her. In the last of those posts (available here), I covered a section on how the law placed this burden upon on the accused, without providing her any right to access documents prior to filing of the charge-sheet.  Section 207 Cr.P.C., concerning supply of copies for certain documents, only applies after the charge-sheet has been filed. Before that (and this is when bail applications are most commonly filed), no statutory right to copies of documents and statements exists. A brief insight into the case law was provided in that post, which showed courts occasionally had decided to supply a copy out of concerns for fair trials.

Recently, I was part of arguments before a trial court in Delhi where the investigating agency sought remand to police custody. Remand to custody, it may be recalled, stems from Section 167 Cr.P.C. When the police fail to complete investigation within 24 hours, this provision enables the police to make a request to the Magistrate, for detaining the accused person for a further duration in custody. This custody can be of two kinds, police custody or judicial custody. As it normally happens with the Cr.P.C., Section 167 does not explicitly state that an Application has to be filed. It does explicitly demand that Case Diaries (See Section 172, Cr.P.C.) are to be forwarded when the accused is produced. Normally though, for a judge to pass orders an application would be necessary, and so applications are always filed for seeking remand. These are, commonly, cyclostyled applications that merely recount the facts of the case with one or two paragraphs containing the reasons for seeking further custody of the accused. These, again, are usually (i) fear of the accused fleeing the course of justice, (ii) fear of tampering with evidence, and (iii) apprehension of coercing witnesses.  

In our case, when the remand application was filed, copies were specifically denied to the accused persons. The prosecution argued that there was no provision under the Cr.P.C. allowing for such copies to be filed. As I was given to understand, this stand is routinely adopted by prosecutors across courts. Remember, an Application seeking remand is different from the Case Diaries, for which access-restrictions are specifically crafted within the Code. While it could be argued that the Code does not specifically enable the accused to obtain copies of documents and statements before the charge-sheet is filed (an argument which in my opinion is contrary to all sense of fairness), can the same logic be extended to a mere remand application?  

I think it cannot, and in light of the possible merit the other argument has - that no materials can be supplied - it serves all the more reason to ensure a copy of the remand application is supplied to the accused. To make an argument through analogy let us look at preventive detention. While preventive detention laws come with deprivations of standard procedural rights (such as a right to counsel), even persons detained under these laws are constitutionally required to be supplied with the grounds seeking detention! Without having any knowledge of the reasons why the state seeks my custody, what is the point of the accused even contesting the point of custody in that event?

Most judges have a fine sense of balance and often inform the counsel for an accused the basis for the remand application. It is not as if the nitty-gritty of an investigation is being laid bare in the investigation. That remains the domain of a Case Diary which is rightly shielded from prying eyes. Moreover, there is no prohibition on the counsel for an accused inspecting the court record or applying for a certified copy of these records, which are public documents in the eyes of law. If this is the case, then why stick with the charade of non-cooperation? Such a position only worsens the imbalance in resources that the State has at its disposal as against those an accused person can summon. The Delhi High Court rules have a fine chapter on police and custody remands which could sorely do with an amendment addressing this anomalous situation.

Preventive Justice Part 3 - An Overview of the Statutes

The two previous posts in the Preventive Justice series focused on Article 22 of the Indian Constitution which prescribes basic minimums regarding preventive detention in India. The history behind this constitutional provision - labelled an anachronism - offers further support to that old adage of not judging books by their covers. The development of due process law in India was used to question the sustainability of the basic minimums constitutionally prescribed by Article 22. To recap, it was argued that the Supreme Court has, unambiguously, held that Article 22 is not a complete code and preventive detention laws are open to challenge under Articles 19 and 21. In this concluding post in the series, I look at the many statutes - both federal and state - in India that authorise preventive detention for a wide variety of acts. The question I beg, not always directly, is whether these would pass muster when tested against Articles 19, 21 and 22 of the Constitution. 

Scope of Legislative Power on Preventive Detention

The Seventh Schedule to the Indian Constitution details the various items on which the federal and state legislatures can pass laws. Preventive Detention figures as Entry 9 on the Federal List (List I) as well as Entry 3 of the Concurrent List (List III). These read as follows:

Entry 9, List I: Preventive detention for reasons connected with Defence, Foreign Affairs, or the security of India; persons subjected to such detention.

Entry 3, List III: Preventive detention for reasons connected with security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community; persons subjected to such detention.

In A.K. Gopalan v State of Madras [AIR 1950 SC 27] the majority held there was no requirement to specify what issue of defence or foreign affairs a preventive detention statute sought to deal with. It would be legal for it to simply refer to the subjects mentioned in these entries as justifications. As we shall see, this proved to be important for courts in upholding the validity of these statutes.

Federal Laws Authorising Preventive Detention

Is it purely coincidental that the federal laws authorising preventive detention in India today have some connection with the 1975 Emergency, when preventive detentions were most routinely ordered? Perhaps. Although the controversial Maintenance of Internal Security Act, 1971 was repealed in 1978, its cousin the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) was not. This was, in fact, supplemented by the National Security Act (NSA) and the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act (Black Marketing Act) in 1980. What are the purposes of these laws and what do they proscribe?

• COFEPOSA: Allows for preventive detention for "conservation and augmentation of foreign exchange and prevention of smuggling activities." 
• NSA: Persons acting "prejudicial to the defence of India, the relations of India with foreign powers, or the security of India" as well as those acting "prejudicial to the security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community can be preventively detained.
• Black Marketing Act: Allows for detention in cases for prevention of "blackmarketing and maintenance of supplies of commodities essential to the community."

Do these objectives fall foul of the tests laid down in Articles 19, 21 and 22? The legality of the NSA was challenged in A.K. Roy v Union of India [AIR 1982 SC 710], and upheld by the Supreme Court. It helped that the legislature had copied the objectives from the Seventh Schedule. 

The COFEPOSA posed a more interesting challenge. Passed before the Emergency, it was also placed in the Ninth Schedule. This was the basis for the Supreme Court upholding its validity in Attorney General for India v Amratlal Prajivandas [AIR 1994 SC 2179]. At that time laws placed in the Ninth Schedule were completely immune from judicial scrutiny. This understanding changed with I.R. Coehlo v State of Tamil Nadu [AIR 2007 SC 861] which held placing a law in the Ninth Schedule could not bar challenges for fundamental rights violations. 

Did that affect the fate of COFEPOSA? The Supreme Court in Dropti Devi v Union of India [(2012) 7 SCC 499] held that this didn't matter. It noted that as the validity of the COFEPOSA had been upheld once, the change brought by I.R. Coelho would not allow another challenge. Still, the Court went ahead to address the merits in the decision, only to bunk the arguments that the COFEPOSA violated Articles 19, 21 and 22. The economic harm that the COFEPOSA purportedly addresses was seen as a measure to safeguard the security of India by the Court.   

State Laws Authorising Preventive Detention

The vast majority of State laws greatly resemble each other - in both substance and in name - and address purported anti-social elements such as Goondas and Bootleggers. Amnesty India has put up a useful resource listing these laws and their objectives which means I can jump right away to the more recent developments on this front. I refer to the amendments to preventive detention laws brought to address video piracy and digital offenders. This was done by Karnataka most recently, giving us the atrociously titled Karnataka Prevention of Dangerous Activities of Acid Attackers, Bootleggers, Depredator of Environment, Digital Offenders, Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders, Land Grabbers, Money Launderers, Sexual Predators and Video or Audio Pirates Act 1985. The problems posed by such amendments by states have been discussed a fair bit already (see here, here and here) and has been considered once by the Madras High Court in 2005. Supplementing those critiques, I argue that these extensions are illegal for the laws do not pass the test posed by Articles 19, 21 and 22. The development of due process would suggest Article 21 poses an important test to the validity of these laws.

Conclusion

The lack of attention to preventive detention legislation in India remains surprising. Especially at at time when there is renewed attention to the expanding scope of detention without trial across the globe. The judicial approval of these statutes has stemmed debate to a certain extent, and has consequently resulted in emboldening states to continually expand preventive detention laws. While preventive action in itself is not a problem, Indian laws (both federal and state laws) display a glaring lack of proportionality in their approach. Prescribing possibly year-long detentions for potential copyright violations, when the offence itself is bailable, is patently unjustified and illegal. Looking ahead, lets see what the future holds. 

Special Offences: The White Knight and Heroes we Deserve

[This is the fifth post in a stop-start series discussing issues arising from the Prevention of Corruption Act, 1988. For earlier posts, see here, here, here and here]

[A slightly different version of this post first appeared on the Indian Constitutional Law and Philosophy Blog]

Last week a Single Judge of the Delhi High Court decided Girish Kumar Suneja v CBI (Crl. M.C. 3847/2016 decided on 27.10.2016), dismissing a petition under Section 482 Cr.P.C. read with Article 227 of the Constitution as non-maintainable. The petition challenged an order framing charges in one of the many Coal-Block Allocation Scam related matters being tried before a Special Judge in New Delhi (this particular case also had the industrialist Naveen Jindal as a co-accused). It forms part of our series on the Prevention of Corruption Act, 1988, and can be seen as tying in with the third post in the series on appellate jurisdiction. This post begins with some much needed background before going to the decision in Girish Kumar Suneja, with some mild comments to close.

The Genesis – Shahid Balwa and the 2-G Trial

I’ve written earlier about a tendency to idolise the Supreme Court as a White Knight cleaning up the corrupt governance of India. This was in full view in 2010-2011 as the telecom spectrum allocation scandal hit the country, seriously questioning the integrity of the Executive and Legislature. Approval ratings of the Supreme Court automatically skyrocketed while it quashed license-allocations, and, most importantly for this post, monitored a CBI investigation and then vetted the entire set-up (from the particular judge to the special prosecutor) for trial of the offences allegedly arising out of this ‘2-G Scam’. Before ridding itself of the matter, it also directed that any challenge to orders passed by the Special Judge trying the 2-G Scam cases had to be made before the Supreme Court and access to the High Court had been completely barred for anyone aggrieved. This was labelled an exercise of the Court’s extraordinary powers to do ‘complete justice’ under Article 142 of the Constitution.

Procedural rights of accused persons had been restricted before by both Federal and State legislatures [the legality of which came up before the Supreme Court way back in State of West Bengal v Anwar Ali Sarkar (AIR 1952 SC 75)]. But for the first time we saw the Supreme Court itself go ahead and take up the reins. And since the Supreme Court was seemingly handling everything at that point this evoked little criticism. Naturally, though, it was challenged by the accused in the first 2-G Scam case and this was decided in Shahid Balwa v Union of India & Ors. [(2014) 2 SCC 687]. The Supreme Court took the opportunity to rubber-stamp its actions with approval while giving little legal justification. Instead, it turned to coffee-table conversation and served up ‘Larger Public Interest’ as the answer. Larger Public Interest demanded a speedy trial. This meant denying the accused their constitutional remedies to challenge judicial orders, because these challenges were mostly fraudulent abuses by these ‘better-heeled litigants’ of the ‘openings’ offered by the criminal justice system and delayed the trial. In fact, the Court thought the accused owed it to this Larger Public Interest to forego their rights to appeal and challenge decisions to ensure the smooth progress of the trial.

The Coal Scam and Girish Kumar Suneja

The Coal-Block Allocation Scam is the latest opportunity for the Supreme Court to reprise its White Knight act and go through the repertoire of corruption-cleaning remedies. Barring access to the High Court for criminal defendants figured as a part of this and became the focal point in Girish Kumar Suneja. The Petitioner argued a challenge to the order framing charges was maintainable before the High Court and could not be barred by the Supreme Court’s orders. This seemed obvious it was argued, for of course the Supreme Court could never have intended to take away substantive rights, or limit the High Court’s writ jurisdiction under Articles 226 & 227. The focus of those orders was to prohibit challenges that sought a stay against trial court proceedings, and there was no problem here as no stay was sought.

The Delhi High Court disagreed. It did not merely recite Shahid Balwa but gave a lengthy order with three main planks of reasoning. The first was to distinguish the right of appeal and the right of revision/exercise of inherent powers by the High Court. There was no problem in denying the latter, the High Court held, because it was discretionary as opposed to a statutory right of appeal. The second plank was to conclude that no problem arose by denying writ remedies under Articles 226 & 227 as the Supreme Court remained accessible to those aggrieved. And finally, the High Court observed that orders passed under Article 142, such as the one barring access to the High Court in the present case, were binding on all courts and thus had to be complied with here.  

Comment – An Odious State of Affairs

Girish Kumar Suneja leaves much wanting. For starters, if the High Court thought it was bound by Article 142 then this renders the other planks of reasoning entirely superfluous. Those planks, in any event, are made of termite-stricken wood. In distinguishing the right of appeal with revision / inherent powers the High Court missed the point entirely. The issue here was not about the exercise of power but about whether access to court through this means could itself be barred completely for particular litigants. On this point the Petitioner cited Anur Kumar Jain [(2011) 178 DLT 501 (DB)] (which I discussed earlier). A Division Bench of the High Court held that while Section 19 of the Prevention of Corruption Act, 1988 barred a revision against orders on charge, this could not prohibit invoking Section 482 Cr.P.C. and / or Articles 226 & 227 of the Constitution, as such a denial would be unconstitutional. Girish Kumar Suneja tries to side-step the issue of unconstitutionality in denying writ remedies [held contrary to the basic structure in L. Chandra Kumar (1997) 3 SCC 261] by wrongly equating the Supreme Court and High Court as fungible forums which is contrary to the text of the Constitution itself. I would go so far as to argue that reliance on Article 142 was also misplaced here. Because orders passed on 25.07.2014 by the Supreme Court in the Coal Block Allocation Scam did not specifically invoke Article 142 unlike the orders passed at the time of the 2-G Scam.

The biggest problem remains the decision in Shahid Balwa. In Anwar Ali Sarkar (supra) the Court struck down a West Bengal Special Courts Act as it did not provide any principles for the executive to decide which cases could be tried by special procedures that took away some rights of the accused. Larger Public Interest is as bad, if not worse, as that untrammelled executive discretion the Court warned against. The rhetoric about ‘better-heeled litigants’ reminds me of the criticisms levelled by Professor Hart in his exchange with Patrick (later Lord Devlin, where he questioned his conclusions on the relationship between law and morals for lacking any empirical basis. But since Article 142 of the Constitution does not prescribe how the Court must go about dispensing ‘complete justice’, we are expected to keep calm and carry on knowing that our constitutional rights may be withdrawn based on what the Court feels is the Larger Public Interest. One can argue that Shahid Balwa has limited applicability by relying upon the observations of the Three Judge Bench decision in State of Punjab v Rafiq Masih [(2014) 8 SCC 883] which noted that orders under Article 142 are not binding precedent [a paragraph that was cited in Girish Kumar Suneja]. This would prevent blind reliance on Shahid Balwa to pre-empt any debate on the validity of such orders excluding access to justice in subsequent cases. One can only hope that the decision in Shahid Balwa has been cut down to size before the next time the White Knight makes a reprisal.

The Right to Counsel in India

I've made several visits to a police station over the last two years. A few of them were when a person had been issued a notice to appear - either as a potential witness [Section 160 Cr.P.C.] or as a suspect [Section 41-A Cr.P.C.]. These meetings teach you a lot. The last one involved me standing outside the station for five hours while the person was being interrogated by the police. This was legal - after all, one has a rather limited right to counsel in India. I argue that it is urgently necessary to reconsider this fundamental right and expand its scope in line with the developments of the criminal justice system. 

The Fundamental Right under Article 22(1)

Article 22(1) of the Constitution reads "No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice." There are two important observations that I wish to make about the constitutional right.

The first, is that the right to counsel was an innovation by the Constitution in the scheme of Indian criminal procedure. If we look at Article 20 of the Constitution, and even the remainder of Article 22(1), we find these protections had existing statutory equivalents at the time. Those rights had been elevated to the status of constitutional safeguards. With the right to counsel, there wasn't any such statutory protection. The shared experience of many in the Constituent Assembly led to the insertion of this right. 

The second, is the text and consequent scope of this right. The trigger for the protection is very clearly set at arrest (I will argue that this itself is a problem, but more on that letter). This is where the clarity ends. 'Consult' can mean many things. Does this mean I can have a lawyer present during interrogation?  Or does it mean I can meet a lawyer for one hour once a week while I am lodged in jail during the pendency of my case? 

The Right to Counsel in Statutory Law

I've already mentioned that the right to counsel didn't have any statutory equivalent in 1950. This important right only found a mention in the Criminal Procedure Code 1973 with amendments made in 2010 [this was after the decision in D.K. Basu (AIR 1997 SC 610)]. Section 41-D, so inserted, reads: "When any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation."

Depending on your point of view, this right re-confirms or expands the scope of the fundamental right. 'Consulting' now definitely means meeting your lawyer during an interrogation. This right is limited, but again, the boundaries are hazy. Who decides when I can't meet my lawyer? The police? The fairness of that decision would be under obvious question. In fact, this is is what leads to most lawyers remaining outside the police station despite the existence of this right to an arrested persons. Would that decision be amenable to any judicial scrutiny, say, under Section 156(3) Cr.P.C.? I haven't seen any such challenges in court yet.

Cribbed, Cabined and Confined

That, for me, is the current status of the right to counsel in India. There are more exceptions to it than there is substance. It could be said that the system exhibits some innate fear of allowing a suspect to meet a lawyer, that this would allow the suspect to 'wise-up' and thwart investigation. This is bogus. Even today, the law places many restrictions on using the evidence from an accused. Of course there is little that beats a confession, but centuries of criminal jurisprudence have developed the idea that a confession will not come. Police are trained to make a case without relying upon the accused. That is how most investigations and cases proceed. In any event, this supposed 'fear' has other remedies: police can be trained better and given better resources (forensics, for starters). The answer cannot be a denial of basic human rights.

The unclear limits in Section 41-D have rendered it entirely inept, as I've argued above. But this impotence of the right is reflected most severely in how it has been guaranteed to undertrial prisoners under state jail manuals. In Delhi, the Department of Prisons limits the right to meet a lawyer to only once a week for an hour. This standing order was challenged before the Delhi High Court but nothing came of it. These are obvious areas to be addressed. But some fundamental restructuring is also required. Mostly because today an arrest is not the first point of contact between the potential defendant and the police as was the situation around 1950. Policing has changed and so have attitudes towards policing. This social fact has been given legal recognition recently by the Supreme Court in Arnesh Kumar v. State of Bihar [(2014) 8 SCC 273] which prohibits immediate arrests in a vast majority of cases. 

I argue that in light of this decision, it is about time the right to counsel was delinked from the idea of arrest The underlying idea must be salvaged - that the right to counsel was made available from the point one was coerced to be involved with law enforcement. Naturally, this would allow extending the right in cases where suspects and witnesses receive notices to appear before the police.

Post Script: The Delhi Prison Rules 2018 which came into force in 2019 have changed the scope of legal interviews for prisoners. Rule 585 has increased this to allowing "two" interviews a week to every prisoner. Besides this, there is an entire chapter on legal aid related issues.

[This post was updated on November 28, 2019, to add the post-script.]