Guest Post: Much Ado About 'Heading'? Bailable Offences under the NDPS Act

(This is a guest post by Abhayaditya Singh)

The Hon’ble Bombay High Court’s Aurangabad Bench recently reignited the debate on the bailable or non-bailable nature of offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 [“the NDPS Act”] while rejecting an anticipatory bail application in Abhijit Annasaheb Amrutrao v. State of Maharashtra. The applicant was charged with section 27 of the Act (consumption of a narcotic drug or psychotropic substance), an offence carrying a maximum imprisonment of one year. According to Part II of Schedule I to The Code of Criminal Procedure, 1973 [“CrPC”], such an offence would typically be bailable. No change to this position has been made under the new BNSS either.

However, controversy arises due to Section 37 of the NDPS Act, titled “Offences to be cognizable and non-bailable.” The section declares every offence under the NDPS Act to be cognizable and places additional conditions for granting bail for certain offences, in addition to those in the CrPC. Two benches of the High Court have taken divergent views on the interpretation of this provision. In Stefan Mueller v. State of Maharashtra [“Stefan Mueller”], the court held that certain offences under the NDPS Act were bailable. Conversely, in Rhea Chakraborty v. Union of India [“Rhea Chakraborty”], the court disagreed with the earlier findings in Stefan Mueller, ruling that all offences under the Act are non-bailable.

The Aurangabad Bench, in the present case, refused to follow Stefan Mueller and denied bail on the grounds laid down in Rhea Chakraborty. These conflicting viewpoints have already been referred to a larger bench of the High Court for determination. Explaining the two contradictory positions seriatim, I argue in this piece that the omission in Section 37 is indicative of legislative intent and that a contrary interpretation would amount to judicial overreach.

The Conflict

In Stefan Mueller, the High Court noted that Section 37(1)(a) declares all offences under the Act to be cognizable. Crucially, the section does not state that all offences under the Act would be non-bailable, contrary to what its heading might suggest. The High Court further opined that the heading has only limited influence on the construction of a statutory provision. In the absence of a demonstrative legislative declaration to the contrary, the High Court ruled that the Schedule to the CrPC would dictate the bailable nature of the offence. Resultantly, the bail provisions of the CrPC alone would influence a Court’s ruling.

The primary disagreement in Rhea Chakraborty stemmed from Stefan Mueller’s perceived failure to consider the judgement of the Supreme Court in State of Punjab v. Baldev Singh [“Baldev Singh”]. In paragraph 4 of Baldev Singh, the Supreme Court states that “Section 37 makes all the offences under the Act to be cognizable and non-bailable and also lays down stringent conditions for grant of bail.” While the High Court in Rhea Chakraborty acknowledged this statement as obiter dictum, it nevertheless considered itself bound by it. Another prong for rejection of the bail plea was the non-obstante clause in Section 37 introduced vide the 1988 Amendment. The High Court found that this gave the NDPS Act a complete overriding effect over the CrPC, and that any classification of offences thereunder would be governed by the NDPS Act alone.

It is in this context that the reference in Karishma Prakash v. Union of India arose. The High Court disagreed with the reliance on the obiter in Baldev Singh as binding and delved into the legislative history of the Act. Finding that if the legislature intended for every offence under the NDPS Act it could have brought an Amendment to that effect, the High Court agreed with the ruling in Stefan Mueller. Finally, in the interest of judicial decorum, the divergent views were referred to a larger bench of the High Court.

Understanding the Legislative Intent

Much of the discussion around the nature of offences – and the impact of Section 37 – revolves around the 1988 and 2001 Amendments to the NDPS Act. A brief discussion of these is therefore pertinent to understand the legislative intent. The unamended text of the section, as introduced in 1985, merely stated that every offence punishable under the Act would be cognizable, a point reflected in the section’s heading.

The 1988 Amendment introduced to the section the contentious ‘twin conditions’ for bail and modified the heading to include the term “non-bailable”. Notably, this change was not reflected in the text of the section itself. The Statement of Objects and Reasons for the Amendment claimed that although the major offences under the NDPS Act were non-bailable, certain offenders were able to procure bail due to technicalities.

The 2001 Amendment narrowed the scope of application of Section 37(1)(b), the twin conditions, to only a few specified offences under the NDPS Act. It also introduced a sentencing structure based on the quantity of drugs involved in an offence. The Statement of Objects and Reasons for this Amendment indicated that the uniform sentencing structure needed to be overhauled to facilitate the rehabilitation of addicts while maintaining deterrence for illicit traffickers. Rationalising the sentence structure under the NDPS Act would allow for addicts to be granted bail without having to comply with the strict conditions of the Act.

It is evident from the preceding discussion that the legislature recognises two categories of offenders under the Act. First, providers who participate in illicit drug trafficking and often deal in ‘commercial’ quantities of drugs. Second, consumers who may be addicted to certain substances and generally deal in ‘small’ quantities. Despite the 1988 Amendment changing the heading of Section 37, it introduced the stringent bail conditions only for offences punishable with imprisonment of five years or more.

This assertion is only further buttressed by the 2001 Amendment, which rationalised the sentencing structure and laid out this distinction in no uncertain terms. The NDPS Act envisions two categories of offenders and, therefore, lays down two broad categories of offences. Therefore, absent any indication to the contrary, it must be inferred that the Act purposefully establishes both bailable and non-bailable offences in accordance with this distinction.

Constructing Section 37

The High Court in Rhea Chakraborty relied on the non-obstante clause in Section 37 to assert that the NDPS Act would have an overriding effect on the CrPC for the classification of offences. Per this, subsequent to the 1988 Amendment, bail provisions of the CrPC would only apply to offences under the Act when there was no conflict between the two. A non-obstante clause permits for the enforcement of what follows the clause, unimpeded by the provision it seeks to override.

Accordingly, it would be correct to say that offences under the NDPS Act would be cognizable regardless of what the CrPC states. However, the High Court seemingly applied the non-obstante clause to the heading of the section since nothing in the text of the provision would allow for such an interpretation. The heading of the section, at best, precedes the text of the provision and, at worst, is altogether external to it. Such an interpretation of the non-obstante clause is therefore unsound.

There is broad agreement on the weightage accorded to headings as an internal aid to construction. The Supreme Court has stated that headings of a section cannot control the plain meaning of the words in a provision, nor can they be referred to for construing clear and unambiguous provisions. Their utility is limited to instances of ambiguity or doubt. In Section 37, the legislature has declared all offences under the NDPS Act to be cognizable, but the absence of a similar declaration regarding the non-bailable nature of offences does not create ambiguity.

Considerable emphasis was placed in Rhea Chakraborty on the growing problem of drug abuse in India. Averments from the Statement of Objects and Reasons of the Act and its Amendments were reproduced to justify the declaration of all offences under the Act to be non-bailable, arguing that Courts had to adopt a strict stance on offences under the NDPS Act, to prevent the exploitation of perceived legal lacunae. Even so, regardless of the potential for abuse of the legal process, legislative casus omissus cannot be supplied by the judicial interpretative process.

Conclusion

Under a critical lens, regardless of obiter dicta to the contrary, it becomes apparent that the substance of the section does not reflect what the heading might suggest. Within the scheme of the NDPS Act, all offences are cognizable; however, only a subset of these is non-bailable. Declaring all offences to be non-bailable would create a heightened onus on drug users, a class of offenders towards which the legislature has adopted a reformative approach. Such an interpretation imposes conditions for bail not envisioned under the NDPS Act and, in essence, constitutes legislating from the Bench.

Speaking in the context of anticipatory bail, the Supreme Court observed that courts should refrain from imposing bail conditions not mandated by the legislature. If an offence is declared bailable, the grant of bail becomes a matter of right. The issue of bail is one that strikes at the heart of the promise of non-deprivation of life and personal liberty enshrined in Article 21 of the Indian Constitution. In deciding the reference placed before the larger bench, it falls upon the HC to maintain the legislative intent behind the provision and uphold constitutional values.

Guest Post: Barb Wiring Free Speech — Criminal Law and Curbing Press Freedom

(I am delighted to present a guest post by Nipun Arora, an advocate practising in Delhi, and Shivkrit Rai, a law researcher at the Delhi High Court)

Recently, the Uttar Pradesh police registered a First Information Report [FIR] against journalists (of The Wire) reporting on apparent violations of the lockdown that has been ordered by the Central Government. Similarly, an FIR was registered against an elected representative from the Aam Aadmi Party (an MLA) for allegedly defaming the Chief Minister of Uttar Pradesh. 

By no means is one state the exception here—there have been several such cases from different states across India in the past as well, with baseless FIRs being registered as part of clear attempts to stifle press freedom and rile journalists who ask uncomfortable questions. Often these incidents are discussed as part of a larger narrative on freedom of press discourse. What is often ignored is the means involved towards this end of silencing journalists: Police questionably using criminal law. This use of police machinery to hamper and obstruct journalistic freedom is a concerning issue that needs to be addressed by both, judiciary and the executive.

Abuse or Misuse? "Cognizable" Offences as Tools for Harassment

These FIRs against journalists / media houses disclose several similarities. Most importantly, we find that a majority of the offences alleged in these cases are "Non-Cognizable". This refers to that category of offences where the police cannot investigate the case without an order from the court, and thus cannot arrest suspects. 

In a bid to overcome this hurdle, we see that the police simply add one or two offences to the FIR that are "Cognizable". This mere mentioning of a particular section now allows the police to investigate the case without any judicial oversight and now the police can assume powers of arrest and detention in pursuance of the investigation. 

And, worryingly, very oftenthe cognizable offences added to the FIR are hardly applicable to the case at hand. For instance, consider the FIR filed against the Editor of Vishwani, a Karnataka based newspaper in 2019 at the behest of a complaint by the Janta Dal (Secular). Here, allegations of Criminal Breach of Trust—a cognizable offence—were added to what was (at best) a Defamation case, which is a non-cognizable offence. 

A similar trend is on display in the Uttar Pradesh cases against the Aam Aadmi Party MLA and The Wire where a cognizable offence Section 505(2) of IPC (false statement with the attempt to create enmity, hatred or ill-will between different classes), was added to circumvent the need to go the magistrate. This practice of adding cognizable offences where only non-cognizable offences are made out gives the police a cover to ‘investigate’ the case and arrest the accused.

Heightened Problems in Times of Covid-19

The only resort for the accused that remains, then, is to approach the courts, which have often made observations in such cases lambasting the police conduct of registering bogus cases that are all too clearly attempts to stifle the constitutionally protected freedom of speech and expression. Recent examples being the cases of Prashant Kanojia and Priyanka Sharma. But by the time that happens, the aggrieved individual is generally already under arrest, and thus the damage has been done. A chilling message has been sent: Dare to question, then face the music.

At the present moment, however, even approaching the courts is not possible as they have restricted their functioning to cases of utmost urgency due to the Covid-19 outbreak. The guidelines for court hearings suggest that courts are only taking up cases involving matters of life and death, and these more ordinary excess of executive power are, unfortunately, not matters that will be guaranteed a hearing in court. As a result, we find ourselves in the midst of a situation where the police have a carte blanche of sorts, rendering the already vulnerable persons in an even more precarious position.

Designing a Response? An Argument for Constitutional Torts

The much-needed structural reforms in police activity that have been recommended for decades are yet to see the light of day. While a High Court can step in and set aside the FIR in a specific case, it is clear that this strategy has failed to get the message across to police at large, as despite the repeated quashing of bogus FIRs new ones keep registered every other day. We need a different take on this problem, where state agencies are actively working towards dissuading persons from exercising their fundamental rights without any justifiable reason. 

In 1983, in a case titled Rudul Sah v. State of Bihar [(1983) 4 SCC 141], the Supreme Court had held that in cases involving violation of fundamental rights, the court can grant compensation to the victim. In cases of custodial deaths, repeatedly, the state has been held liable to pay compensation for infringing right to life under Article 21. A case of frivolous FIRs which is aimed at infringing the fundamental rights, and registered at the behest of the state itself (as opposed to being registered upon a complaint by a private person), clearly points towards the mala fide of state authorities who use the police to clamp down on press freedom. 

The courts thus need to take note of the growing tendency of the state to register, suo moto, a baseless FIR, aimed at curbing the freedom of speech, and make an attempt to curb the practice. It would be appropriate for the courts to start awarding compensation to the victim against whom the baseless FIR is registered, and to make appropriate orders of recovery of such compensation from the officer on whose instructions the baseless FIR was registered. It would ensure that only those sections which are genuinely made out are included in the FIR. Recovery of the compensation from the concerned officer would of course act as a deterrent and prevent such frivolous cases.

The need of such an institutional response becomes important because it ensures that even in extreme circumstances like the present where the functioning of the courts is also limited, such FIRs are not registered because of the deterrence created. The fear of repercussions once the courts reopen would be sufficient to dissuade an overenthusiastic officer even when the courts are closed. Such a systemic response has been a long-time due, and needs to be considered by the courts now.

Supreme Court Grants Bail in the P. Chidambaram Cases — Some Thoughts

[This is a long post discussing both the CBI and the ED Bail Orders]

Readers may recall that at the end of August 2019, the Delhi High Court dismissed the petitions of P. Chidambaram for anticipatory bail in connection with what has become popularly known as the "INX Media Scam", which was the subject matter of investigations being conducted by the Central Bureau of Investigation ["CBI"] as well as the Enforcement Directorate ["ED"]. Mr. Chidambaram was arrested by the CBI almost immediately after this order, and so he moved the Supreme Court for anticipatory bail in the ED case. The petition in the ED case was also dismissed on 05.09.2019, since the Supreme Court agreed that necessary custodial interrogation would suffer if bail were granted.

Mr. Chidambaram's bail pleas in the CBI case made their way to the Supreme Court, and around two months after his initial arrest, the Supreme Court held in his favour, directing that he be released on bail in the CBI Case [Crl. Appeal No. 1603/2019, decided on 22.10.2019]. However this did not lead to his release since, around a week before the order, the ED had sought, and was granted, permission to arrest Mr. Chidambaram [Note that the ED had not made any efforts to secure his custody, let alone arrest Mr. Chidambaram, till 11.10.2019]. This triggered another set of bail petitions, which resulted in the order passed today in P. Chidambaram v. Enforcement Directorate granting him bail in the ED case [Crl. Appeal 1831 of 2019, decided on 04.12.2019].

The slew of orders passed by courts in Mr. Chidambaram's petitions has made distinct contributions to the law in this field — some desirable, others not so. Having discussed previous orders at the stage of anticipatory bail, this post discusses the two orders of October [Crl. A. 1603/2019] and December [Crl. A. 1831/2019]. I first discuss their contributions to the law, and then make some observations on the proceedings at large to highlight the seriousness of certain issues that are given criminally negligible attention by courts while considering the grant or refusal of bail.

P. Chidambaram v. CBI — Focusing on the Particulars       

The posture of proceedings before the Supreme Court in this case was slightly peculiar: The High Court had held that there was no basis to apprehend that Mr. Chidambaram would tamper with evidence, or that he was a "flight risk". Nevertheless, it rejected his bail plea, considering the probability that he could influence other witnesses. Both parties filed cross-appeals in the Supreme Court where the accused sought bail, and the CBI sought to challenge the High Court's observations that Mr. Chidambaram was not a flight risk.

In a pleasantly short order, the Supreme Court held that bail ought to be granted. Besides helpfully culling out five relevant principles for considering bail pleas for future courts [(i) Gravity, (ii) Threat of Tampering with Evidence, (iii) Threat of Absconding, (iv) Status / Personal factors of the Accused, and (v) Public / State interest (See Paragraph 22)], the Court also repeatedly insisted that the specifics of each case be looked at and, in doing so, chided the State for asking the Court to treat the "flight risk of economic offenders [as] a national phenomenon".

How is a Court to consider the above factors, then? The Supreme Court did not approve of a full-blown analysis of the merits of the prosecution. Instead, it advocated an approach that focused on the identified factors primarily, along with a minimal consideration of the prosecution's case itself. Judicial analysis of these bail factors had to be rigorous — something apparent in how the CBI submissions were rejected for being vague, generic, and totally unsupported by the actual facts of the case [Paragraphs 27 ("Flight Risk"); Paragraphs 28—31 ("Tampering")]. Thus, as the Court points out: 

Mere averments that the appellant approached the witnesses and the assertion that the appellant would further pressurize the witnesses, without any material basis cannot be the reason to deny regular bail to the appellant; more so, when the appellant has been in custody for nearly two months, co-operated with the investigating agency and the charge sheet is also filed. [Paragraph 31. Emphasis supplied]

I suspect that the Paragraph extracted above might end up being cited in subsequent bail petitions and judicial orders. But the real takeaway is the judicial approach on display here: The Court's refusal to be cowed by rhetoric and hyperbole while remaining keenly focused on an appreciation of the facts as they are relevant to the issue of bail. This is something that merits emulation, especially in cases where public glare is the harshest.

P. Chidambaram v. ED — Of Triple Tripods and Gravity of Offences

The Delhi High Court had denied bail in the ED case primarily due to the seriousness of allegations while holding that there was no threat of Mr. Chidambaram either absconding or tampering with evidence. Its order had attracted a stream of press coverage for reportedly copying portions of the State's submissions as part of its "findings", as well as discussing the facts of an entirely unrelated case as being related to the case against Mr. Chidambaram [Paragraph 11].

The Court relied upon its own earlier orders from October in Crl. Appeal No. 1603/2019 to outline the factors relevant for deciding a bail petition. But, curiously, the Court completely failed to mention that this was a case where, besides Section 439 of the Criminal Procedure Code 1973 ["Cr.P.C."], the provisions of Section 45 of the Prevention of Money Laundering Act 2002 ["PMLA"] would also have to be considered. 

That provision itself had been struck down as unconstitutional in 2017. But since then, there was an amendment to the PMLA in 2018, which sought to cure the defects in the provision and render it constitutional. In fact, the legal effect of the changes to Section 45 through the 2018 amendments has been the subject of judicial scrutiny before some High Courts but it is an issue that hasn't yet been considered by the Supreme Court. Given this position, I find it extremely peculiar that the judgment completely fails to mention Section 45, and wonder if this fact may form a valid ground for review.

After the Supreme Court simply assumed that the legal considerations for bail in a PMLA case would be the same as in any other case [Paragraphs 15—17], it also impliedly rejected the submission made by Dr. Singhvi, appearing for the appellant, that the gravity of an offence needn't be a factor for consideration at the stage of bail and the only relevant factor was the "Triple Test" of evasion, tampering, and influencing witnesses (or "Triple Tripod" as the order notes at one place) [Paragraphs 15—17, 21]. 

Having said so, the Apex Court disapproved of the manner in which the High Court had gone about considering the merits of the prosecution case for assessing the gravity of allegations. This criticism was of a threefold, and partly contradictory, nature: (i) the extensive nature of scrutiny, (ii) the apparently uncritical assessment of facts (by copying the State's submissions), and (iii) relying upon the material supplied in sealed covers to arrive at a conclusion [Paragraphs 23—24]. Considering the ubiquity of sealed covers in the practice of law today, it was refreshing to read the Court refraining from opening the sealed cover [Paragraph 24] and observing that: 

In that circumstance though it is held that it would be open for the Court to peruse the documents, it would be against the concept of fair trial if in every case the prosecution presents documents in sealed cover and the findings on the same are recorded as if the offence is committed and the same is treated as having a bearing for denial or grant of bail. [Paragraph 23. Emphasis supplied]

The Supreme Court did not agree with the finding that the seriousness of allegations was a sufficient reason to deny Mr. Chidambaram bail. In arriving at this conclusion it also strongly rejected the State's claim that his custody was required to confront him with witnesses, recalling that the ED had  had several months to do so since the rejection of Anticipatory Bail on 05.09.2019, and that Mr. Chidambaram's cooperation with the investigation could be secured through appropriate bail conditions. One of these, which is bound to attract some controversy in the coming days, is a condition prohibiting him from speaking publicly in "connection with this case" [which may or may not extend to the CBI case].   

The Chidambaram Cases, Arrests, and Custody — Unexplored Issues

The legal aspects of the Chidambaram cases have thus been explored. But it would be naive to think that these cases were all about the law — far from it. This is why it becomes important to consider some of the other issues that remain unexplored in these orders. Foremost among these issues is the need for greater scrutiny while evaluating the State's perceived need for a person's custody and alleged non-cooperation by an accused person with the investigation.

While discussing the 05.09.2019 order rejecting Mr. Chidambaram's plea for anticipatory bail in the ED case, this Blog had criticised the "hands-off" approach of the Supreme Court in engaging with the arguments about the lack of cooperation by the accused. The order reflected a complete refusal to test the claims by ED of the need for Mr. Chidambaram's custodial interrogation, uncritically accepting the submission about there being a "qualitative" difference in the kind of questioning that might be conducted with a person on bail. The bail order of 04.12.2019 does narrate the failure of the ED in conducting any significant interrogation or confrontation with witnesses, but it sorely missed an opportunity to revisit this critical issue which crops up in almost every other bail hearing. 

In fact, the Chidambaram cases confirm how agencies often seek custody without ever having any intent to conduct thorough questioning, and repeatedly seek further extensions of custody by promising that a very important phase of questioning is on the horizon. Thus, while the Supreme Court did well to call out the ED on its bluff of future questioning in the 04.12.2019 order, it still remains possible for state agencies to merely claim that an accused person is not cooperating with the probe without ever having to substantiate this allegation to a reasonable degree of scrutiny. Surely this cannot be the position of law in a constitutional republic that claims to be very protective of a person's right to life and personal liberty. 

The unrelated, and more thorny issue, is the role played by the "gravity" of an offence. This was one of the main grounds for critiquing the Delhi High Court's initial orders of August 2019. Again, it is unfortunate that the Supreme Court did not make some attempts at clarifying the legal position through the multiple orders it passed in the Chidambaram cases. 

To recap, the problems with considering the gravity of the offence as a factor for deciding bail petitions are twofold. The first problem is a lack of nuance while considering the issue: Simply looking at the maximum possible sentence and the best case of the police is too uncritical an approach, especially in offences where criminality is inferred from neutral facts [fraud, corruption] and is not apparent as in cases of bodily harm [murder, dacoity]. 

But there is also a second, related problem with treating gravity as a factor for deciding bail petitions. Considering the fact that a case is at its infancy when a bail petition is being heard, courts have consistently held that there mustn't be an in-depth examination of the merits, which is something reserved for the trial. At the same time, there must be some examination of the merits to determine the gravity of allegations, since a court cannot blindly accept every averment that the police makes. Drawing this fine line between what is too little and what is too much scrutiny of the facts is the problem, and we saw how the High Court's approach was criticised in both the CBI and ED cases as having gone too far in its analysis. But this criticism was hardly scientific, and the arbitrariness of this line-drawing is apparent upon a random sampling of bail orders and on reading the submissions made before courts. 

Considering that the Supreme Court specifically rejected Dr. Singhvi's submissions on the factors for deciding bail, and unequivocally held that "gravity" must be seen as a factor for determining the bail petition [Paragraph 21 of the 04.12.2019 order], it is singularly unfortunate that while it criticised the Delhi High Court's analysis, it did so without offering any guidance for courts which undertake this difficult line-drawing exercise on a daily basis. Greater certainty in this realm would not only help reduce the arbitrariness that plagues bail hearings at present, but would also arguably make them proceed faster, with everyone having a clearer picture of what is relevant and what isn't.      

Hiding in Plain Sight: The Relevance of Character Evidence in Indian Criminal Law

Can our past behaviour serve as a guide for predicting future conduct? The intuitive answer, is yes. Cutting-edge behavioural science research adds substance to this intuition and demonstrates that there are identifiable links between our past and future choices, helping policymakers to design better systems for ease of living (and companies to make more money through better advertising). This notion of prediction is at work almost everywhere, but not in the law of crimes and evidence in most Common Law countries. Instead, here we find that the law has strict rules that greatly limit the ability to rely on this link for prosecuting crime. Indian law is no exception: Sections 14, 15, 52-55 of the Indian Evidence Act 1872 [IEA] show that evidence of a defendant’s bad character is not generally relevant to prove that she was guilty of the offence in question. 

The Shift from Character to Responsibility in Criminal Law

In Making the Modern Criminal Law, Professor Farmer argues it was not always like this, and until the mid-19th Century it was routine for evidence of bad character to be the basis for court decisions. Things took a turn between 1870-1920 due to a multitude of factors, and the relevance of character was slowly replaced by a focus on responsibility in criminal trials. Two factors were arguably more important than others. 

First, responsibility came to fore as it became impossible for juries to arrive at judgments of character with any certainty for it to be used as a basis to render judgments. A fixed local context in a village meant everyone was well-known and judgments of character had resonance. But industrialisation gradually uprooted this idea of a fixed local context, and meant that the law had to look away from character for criminal trials to keep running. 

Second, the question "Why criminal law?" began getting different answers in this period. Till now, criminal law was seen as the tool to help ruling classes exclude certain undesirable types of persons from regular society. In this period between 1870-1920, this determinism in criminal types gradually lost out (as did the notion of ruling classes) and new opportunities were seen in the signalling effect of criminal law. Subjecting persons to censure and sanctions for what they intentionally or knowingly did, as opposed to who they were or what they did accidentally, was seen as a better way to send the message to persons on what kind of conduct was acceptable to maintain a desirable civic order.

Sir James Fitzjames Stephen was a prominent part of the intellectual movement that supported these changes to the Common Law of crimes. He was also the main draftsman of the Indian Evidence Act of 1872, which explains why the statute adopted some of these ideas rather early. In the years since, Indian law has not moved away from these precepts. Much like the rest of the Common Law world, evidence of bad character continues to be generally irrelevant towards proving guilt or innocence in India, but it can become relevant in certain exceptional cases specified by statutes. Today it is difficult to find many people disagreeing with the idea that nobody should be sent to prison only based on the bad reputation they harbour, for what if it might happen to you? 

Note, that the above discussion is about proving guilt or innocence through character evidence. If we find proof of guilt on completing trial, character evidence comes right back into the spotlight when courts are deciding punishment. Prior convictions can mean higher punishments, and having none can entitle a defendant to probation instead of jail time. This shifting of focus from the offence back to the offender at this stage is standard practice, especially so in a system like India, where trial judges have vast discretion at the sentencing stage and can award sentences anywhere between zero and the prescribed maximum. 

The Hidden Salience of Character Evidence Today

On paper, this is perhaps the end of the matter when it comes to evidence of bad character, but in practice it is not so. Consider a phenomenon that has been demonstrated in India, in context of the limits placed on use of character evidence to question the credibility of victims testifying in rape trials [Proviso to Section 146, IEA]. The rule was designed to curb decision-making based on ideal stereotypes of rape victims: it can’t be rape since the victim had an active sex life, etc.

In his book, Professor Satish demonstrates that, in practice, the rule only displaced such inquiries about a victim’s character from the guilt-determination phase to the sentencing phase. His empirical study demonstrated that sentences were higher in cases where the victims fit the stereotype of vulnerability, as against cases where they did not. Admittedly, the text of the rule does not bar the judge from considering the evidence of a victim’s character at the sentencing phase. But surely this indirectly perpetuates the same stereotypes that the rule was intended to eliminate.

This example nicely illustrates the hidden salience of character evidence today. Although the last century saw limits being placed on the relevance of character for questions of guilt or innocence, it is becoming increasingly apparent that notions of character — who you are — are still very pertinent in how criminal law is administered. While the example above was about victims’ interests, the same issue also exists when we consider the position of defendants: character evidence plays a big role in how persons are targeted as suspects and defendants in the criminal process. 

The argument is simple: None of the changes introduced to restrict the use of character evidence puts a handbrake on how crimes were investigated. To understand this better, imagine criminal law as a funnelling exercise. It is impossible to discover all instances of crime. Out of reported instances, it is again impossible to prosecute each of them for want of resources. Enforcement of law has a necessary selectiveness; an exercise of discretion by the police decides which cases merit the use of precious government resources.

How does the police exercise this discretion? They do so by employing a strategy of “rounding up the usual suspects”, i.e., on the basis of the very notions of bad character that the law has deemed improper for use at the trial. As a result, across the world, the data on persons arrested and prosecuted for crime appears skewed. Persons who are poor or from minority and / or immigrant groups are far more likely to be targeted by the police as suspects while choosing which cases to prosecute. In India, this has been witnessed in the disproportionate numbers of Muslim men being arrested in custody.

Character Evidence and Prosecuting Terror 

A lack of effective checks on the discretion of law enforcement agents is at the heart of the hidden salience of character evidence in the criminal law today. This is true for India as well. There is no set of rules or standards that guides which offences are classed as cognizable (offences allowing arrests without judicial warrants) leading to an unprincipled growth in cognizable crimes over time. A wide array of cognizable crimes gives legal sanction to the police for pretextual arrests and prosecutions and an opportunity to enforce character-based prejudices rather than the pursuit of genuine threats or suspects.

Broadly defined criminal laws also give wide, unchecked discretion to the police. These can be very deceptive as they often have a mental element like “knowledge” or “intention” clearly set out, as if the lawmakers are telling us that this is a proper crime and not a regulatory offence that criminalises without any need of showing culpability. But once we move past this, it is quite common to find a broad definition of the conduct that is being criminalised. Since the police cannot be expected to prove existence of the culpable mental element when they initiate the criminal process by arrest, effectively, through broadly defined criminal laws the law confers a license on the police to arrest anyone they desire. 

To see this in play, imagine a statute that makes it a crime to knowingly offer financial support to an organisation banned by the government. Now, imagine another law that makes it a crime to “associate” with a banned organisation with an “intention to further its activities”. Remember that the police will normally initiate the process based on observable conduct and not the mental element that accompanied it. Keeping this is mind, it is evident that the first example offers a degree of clarity: the criminal conduct is specified, and consequently helps confine the compass of suspicion for the police to justify arrest and investigation. The second is like clay putty in a child’s hands, as permitting police to arrest for suspected “associations” means, according to the dictionary, they can arrest for suspicions of any connection between two entities. 

These are not imaginary crimes but part of India’s main anti-terror statute, the Unlawful Activities Prevention Act 1967 (UAPA) [Sections 40 and 38, respectively]. Another example of an offence that has a clearly stated mental element, coupled with a broad range of conduct that can trigger the crime is Section 15 of the UAPA. This provision criminalises "Terrorist Acts" by first specifying the mental state, but then expands the range of proscribed conduct to include damage to any property. What this translates to is a vast ocean of unregulated discretion with the police to target persons who “look like” trouble, or are “anti-national types”, or “urban maoists” through the UAPA without any hard proof of conduct that justifies the kind of fear that the label of terrorism generates. 

Is this why an overwhelmingly large number of prosecutions under the UAPA not bring convictions? Perhaps. But the problem is that the trial stage, where an improper and possibly a character based prosecution can be screened out after being tested for proof and reasonable doubt, comes after an excruciatingly long wait in UAPA cases. Trials under the UAPA involve a long waiting period that is usually spent by defendants in custody, since the UAPA adopts a much harsher set of rules for granting bail and also allows for longer pre-trial custody during investigations [Section 43-D, UAPA]. Thus, even though the rule of law mandates that individuals must not be targeted and tried simply because of who they are, the prosecution of anti-terror crimes in India actively perpetuates these consequences.

Conclusion

Criminal trials counteract the intuitive notion that our past acts can serve as a predictor of future conduct. But it would be a mistake to assume that the rules of criminal trials spread consistently throughout the legal system. A cursory look confirms that character evidence remains relevant in the stages of sentencing with express legal support. But a closer look reveals the existence of a hidden salience of character evidence, often working to undermine the very goals that the exclusion of such evidence at trials was designed to achieve. 

Ending this haphazard nature of regulation for character evidence will certainly help to bring any legal system in alignment with its professed aims. Thus, if Indian legislators really do think that the evidence of character is useful for determining guilt or innocence, then they should effect such changes. The limited legislative engagement with these issues in recent decades suggests that India’s professed values support the opposite conclusion, however, which then means that steps must be taken to reduce the role character evidence plays through the criminal process.

An obvious point of reform would be placing stricter checks on the enforcement of laws by police by arrests. It is something that the Indian Supreme Court has supported, albeit in a haphazard manner itself through cases like Joginder Kumar, DK Basu and Arnesh Kumar, and so is arguably a point of intervention that can gather broad consensus. But this will take time, and in that time, hundreds of persons will remain in custody awaiting a trial in their cases, having been prosecuted under vague offences such as the UAPA. 

Perhaps the first point of intervention, then, is to reform the process of pre-trial custody in this context. Given the high probability of character-based prosecutions which do not withstand the test of "beyond reasonable doubt", should the law stick to a process which not only allows for upto six-months of custodial detention during an investigation, but also makes it virtually impossible to grant bail till conclusion of the case? If the trial cannot follow in a conviction, we must ensure that the process is not a proxy for the same punishment.

Arrests, Bail, and the Criminal Procedure Code

A quick run--through basic Indian criminal procedure. The Criminal Procedure Code 1973 [Cr.P.C.] creates two parameters for understanding an offence: (i) whether it is cognizable/non-cognizable, and (ii) whether it is bailable/non-bailable. These are defined in Section 2. Bailable offences are those made bailable [Section 2(a)], cognizable offences are those where police can arrest without warrant [Section 2(c)]. Vice-versa in case of non-cognizable offences [Section 2(l)]. 

The First Schedule to the Cr.P.C. 1973 lays out whether offences are cognizable/non-cognizable and bailable/non-bailable [Found at the fag-end of the statute]. Every offence under the Indian Penal Code 1860 [IPC] is covered in Part A/Part I, whereas "Classification of Offences Against Other Laws" is the subject of Part B/Part II. The classification in Part B/II is obviously overridden where a special statute deems an offence to be either cognizable and/or non-bailable [see, Section 37(1)(a), NDPS Act 1988].

Searching for a Rationale

Now, it should be clear that this classification of offences is quite important. Powers of arrest are severely curtailed in respect of non-cognizable offences, where police require a warrant from the Magistrate. Similarly, the right of an individual to bail is severely limited in non-bailable offences, as can be seen from the stricter standard employed while deciding bail for these cases under Section 437, Cr.P.C. This prompts the question: how does the Legislature decide upon the classification? 

Look again at the Cr.P.C. with this question in mind. Those definitions will now appear particularly unhelpful. In fact,nothing in the Code provides any rationale behind how offences are classified in the manner that they are. The 41st Law Commission Report, which paved the way for the 1973 Code, again does not provide any explanation.  What about cases, you ask: little luck there as well. No Supreme Court decision has provided any logic behind the classification exercise yet. 

Everyone seems to Forget about Part B

I did come across High Court cases, and one may read Subbulakshmi v. State [(1993) 1 MWN (Cri) 268]. The Madras High Court believed the distinction between cognizable and non-cognizable offences was based on gravity of offences. Thus, serious offences like murder [Section 302 IPC] are cognizable, while others like "Making atmosphere noxious to health" [Section 278 IPC] are not. This, however, is squarely contradicted by the 177th Report on Law Relating to Arrests. The Commission spends nearly half a page (!) to give us the logic behind classifications:

• The cognizable/non-cognizable distinction is not based on gravity of the crime or quantum of punishment, but upon the need to arrest the person immediately [Page 23, last paragraph onwards]
• The bailable/non-bailable distinction is by and large based on the "gravity of the offence (which necessarily means the quantum of punishment prescribed thereof)" and the need to keep offenders in jail pending investigation [Page 24].

The Law Commission gave this explanation responding to claims that the classification is bogus [for instance, see, KG Balakrishnan, "Criminal Justice System-Growing Responsibility in Light of Contemporary Challenges" (2010) 7 SCC J-3]. I, for one, remain unconvinced. All the Law Commission achieved was explaining classification of IPC offences under Part A. The same logic cannot extend to Part B, for the very basis for classifying offences into cognizable/non-cognizable under Part B is the quantum of punishment! Have a look:

• Offences punishable with death, imprisonment for life, or imprisonment for more than 7 years are made cognizable and non-bailable;
• Offences punishable with imprisonment for 3 years, and upwards but not more than 7 years are made cognizable and non-bailable;
• Offences punishable with imprisonment for less than 3 years or with fine only are made non-cognizable and bailable.

Does this Matter? Yes, it does

Well, not everybody has forgotten Part B. Legislatures (state and central) have certainly kept in mind that offences punishable with 3 years are cognizable and non-bailable. This has led to a host of laws carrying offences with a maximum term of 3 years imprisonment. For instance, the following are cognizable and non-bailable offences, which means you can be arrested without warrant, and denied bail:

• Making unauthorised constructions, repairs, modifications to your house. Section 43, Maharashtra Regional and Town Planning Act 1966;
• Posting, inter alia, offensive [nobody knows what it means] messages online. Section 66-A Information Technology Act 2000;
• Obstructing the doors of a closing Metro train. Section 67, Delhi Metro (Operation and Maintenance) Act 2002;
• Disturbing a gathering while they sing the national anthem. Section 3, Prevention of Insults to National Honour Act 1971;
• Failing to comply with any provisions of the Environment Protection Act, Rules or Govt. Orders [more than a 100]. Section 15, Environment Protection Act 1986;
• Offences [including unconscious possession of drugs] under the NDPS Act, 1988.

Some of these are undoubtedly cases where intuitively the need for immediate arrest is apparent: e.g. NDPS Act. But, the same cannot be said for them all. Conferring powers of easy arrest also carries the possibility of easy misuse. This was highlighted in context of Section 498-A by the Supreme Court recently in Arnesh Kumar v. State of Bihar [(2014) 8 SCC 273]. It also indicates the token regard for individual liberty held by the Legislature.

Some courts have tried innovative approaches to exclude offences punishable with a maximum of 3 years imprisonment from being cognizable and non-bailable [see, Subhash Chaudhary v. Deepak Jyala, 2005 Cr.L.J. 1034 (Bom HC)]. But that is not the solution. There is an urgent need to either provide some over-arching basis for the classification of offences, or perhaps delete Part B of Schedule I altogether.