Codification of Criminal Law (Part 2): The Cr.P.C. and BNSS

The previous post in this three-part series kicked off our discussion on the Indian criminal codes with a discussion on the Indian Penal Code 1860 and its 2023 counterpart. In this post, we turn to the procedural law underlying a bulk of the Indian criminal process: the Criminal Procedure Code 1973 [Cr.P.C.] which was replaced in 2023 with the Bharatiya Nagarik Suraksha Sanhita [BNSS].

Much like the previous post, here again the idea is to identify broad themes which have had, and continue to have, an impact on the legal system. In this post, I offer four such themes, which are kind of complementary to the previous post on the IPC.

Theme 1 — The Identity Crises within the Code

If you take a look at the BNSS or the Cr.P.C. 1973 (OK, fine, just the index), you may come away thinking what, exactly, are we dealing with here? Is this a policing law? An investigations law? A structuring of criminal courts statute? Or a law regulating criminal procedure and trial? Well, it is a law rolling all of these facets into one. In fact, it had even more bundled into it before the Indian Evidence Act was passed in 1872, and it was accompanied by different Presidency level acts on criminal procedure for a while too! 

The IPC has the lengthy Report of the Law Commissioners as a precursor which we can refer to for understanding some of the 'how' and 'why'. There is no comparable document when it comes to understanding the choices made for criminal procedure legislation in India. Sure, there are a few reports of the Law Commission dealing with this part of the codification journey, but nothing which spells out the rationale behind all of the choices, including the choice to craft a law which is dealing with so many different aspects under one roof. 

Not having a Report conveniently setting out this rationale does not mean there is none, and more enterprising scholars may look through the archive to find answers. Till they do so, I will proffer a guess, which is that the jumbling up of the Criminal Procedure Code stemmed mainly from the need to retain as much of the pre-existing regimes in place across British territories as possible for administrative convenience. And a key feature of this regime was the massive power vested in the office of the Magistrate. 

It was the office of the Magistrate which tied these threads together to weave one law of criminal procedure. If there is a sense of identity crises, it is due to the multiple roles that were played by Magistrates at the time: they performed executive as well as judicial functions. Naturally, then, the law would reflect this tendency. You had one part of the law deal with the purely executive functions of Magistrates, in taking bonds for keeping the peace and passing orders to maintain order and address emergencies. Then there was their control over investigations that are run by the police, which was again mostly an executive mandate - almost everything police did required reporting to magistrates, or would be done on their orders. Then we had the judicial part of their duties in the form of either running trials or committing cases to the sessions courts.

Unwieldy as it may be, the scheme of the criminal procedure code made some sense as a legal document speaking largely to the magistracy. Once that underlying basis goes, it becomes very difficult to justify this amalgamation of different pursuits under a single umbrella. After gaining independence, India progressively brought about a separation of the executive and judiciary and terminated the heyday of the magistrate in the letter of the law (spirit notwithstanding). However, absolutely no change was brought about to the scheme of the procedure code, which makes very little sense. Even with the BNSS no efforts were made to organise the law any better.      

The resulting problem is not just of poor design. The parts of the code which dealt with executive powers were drafted very differently from parts regulating exercise of judicial powers. There is a lot of leeway given for decision-making in the former, allowing for great misuse and abuse of wide discretionary powers. This may have made sense in a colonial setup where there was nobody superior to the executive, but it is entirely antithetical to a constitutional setup. In refusing to critically revisit the Code and resolve its identity crises, the Indian Parliament perpetuates this colonial tendency.   

Theme 2 — An Unfair Balance of Power

Which brings us to the second, related, point. The criminal procedure code was drafted at a time and place when the objective was to control subjects and not govern citizens. Famously, in the context of search and seizure clauses in the Code being overbroad, it was noted that the notion of 'rights' was absent from the considerations driving the Code. 

There is an imbalance of power, by design, within the document. It does not foster accountability in the exercise of state power. Instead, the scales are weighed in favour of the state, against the citizen. Provisions relating to exercise of discretion by an officer while performing tasks — police arrests, emergency provisions for magistrates, bail, etc. — appear to lay down some standards, but on closer scrutiny these words are hollow and confer a carte blanche upon officers. This phenomenon (in respect of executive power) has been written about by scholars like Nasser Hussain and Radhika Singha to criticise colonial lawmaking. The outcome is to create a system in which there is precious little that an ordinary individual can do in the face of oppressive state power besides submitting to it. 

There was no moment of reckoning at India's independence and adoption of Constitution for the 1898 Criminal Procedure Code. If the idea was that the Constitution would simply perform some magical blood transfusion, ridding the document of its oppressive tendencies, that did not come to pass. Neither did such a reckoning occur when the Cr.P.C. 1973 replaced the 1898 Code. Now, that trend has been continued by the 2023 BNSS.  

Theme 3 — The Rise of Special Criminal Procedure

The previous post raised this issue of the general versus special parts of the criminal law and how there have been calls for consolidation as part of reform measures for substantive criminal law in India. However, this premise of treating the general / special divide as a substantive law problem was questioned. Instead, I argue, it was and remains a matter of procedure. 

Over time, the oppressive nature of the general law was not oppressive enough. It guaranteed trials to defendants with a slew of procedural rights. Slowly, and steadily, we see that the colonial state became exceedingly unhappy in extending such procedures for mettlesome agitators, and began to introduce novel legislation with truncated trials before show courts. The highly political element charging special laws gave way to a realisation that it really was not ideal to have all kinds of cases adjudicated by the general law. Corruption, black-marketing, and other social ills in the first decade of independence got the special law treatment, where the fast-tracked and muscular procedure of the law was as important as the punishments being imposed. This trend has continued in the decades since, and its most recent avatars are laws like the UAPA, PMLA, NDPS, NIA Act, to name but a few.

What's interesting is that over time, even as special criminal procedure kept growing, it was not as if the general law remained static. It took turns to notably reduce many of the features which had made it so attractive (or unattractive) to defendants facing prosecutions. Committal hearings went out the door. Framing of charge became a process reliant on just the police papers and not sworn testimony. While the gap between them may have reduced, there still remained a slew of protections available in ordinary cases which were kept entirely away from some of the special law regimes. Perhaps the most important of these being the bar on confessions to police officers being tendered into evidence.

I would again reiterate that it is not the existence of substantive crimes in different statutes that is the problem, but this existence of special procedures to deal with some kinds of crimes. It gives obvious incentives to use some laws over others, and allows for obvious discrimination at the hands of government which can easily be masked using the language of state interests. And the problem flows from the Cr.P.C. / BNSS failing to codify any general non-negotiable rules. You can perhaps argue that it is ideally something left to the Constitution.                      

Theme 4 — 19th Century Trials, 21st Century Problems 

The 1861 Cr.P.C. and its colonial successors crafted a procedure for conducting trials which was fit for their times. In retaining wholesale the structures that were adopted for the 19th Century, notwithstanding the effort of the 1950s to try and chop off some corners, successive legislatures for independent India have ignored the obvious: that a 19th century design may not be eternally fit for purpose.

There is a lot to consider here, but let's take only a few examples. The Cr.P.C. adopts a funnel design for processing cases, asking the same question — should a case go to trial? — multiple times before actually starting trial. This might have been beneficial at a time when there were not that many cases clogging the docket, but not anymore. Especially, because a funnel design can easily collapse into farce: There is no point asking the same question if you will mindlessly give the same answer each time, with the case just taking more time to plod along.

Then there are the specifics for trials. It made sense to have different procedures 'warrant' and 'summons' cases in an era where there was a marked difference in their seriousness. But over time the gravity of summons cases increased, leaving only 'summary' trials for cases that are of a comparably lesser gravity. So why retain three categories for magistrate trials? Especially as in many statutes permitting summary trials, there is an option to shift a trial to the other track. Why not retain a unified process for trials before magistrates, which would eliminate a lot of confusion as well as arbitrary procedural gimmicks that continue to trouble courts and provide avenues for delays? No answers forthcoming in the BNSS, unfortunately.

It sounds like stating the obvious, but it needs to be said out loud: trying to solve 21st Century problems using 19th Century legal procedures is doomed to fail, even if you try and do it using video-conferencing or other digital means.                           

Concluding Remarks

In the first years after independence, the Home Ministry of the Central Government produced an interesting memo in which, it was argued, that the existing procedural setup may not be suitable for independent India with its teeming caseloads and delays. There were two paths available, the memo noted: Burn the existing system to the ground and come up with a new one, or make some necessary amendments for now and kick the can down the road. The latter approach was preferred and led to changes in 1955 designed to speed up the process (and punish perjury). 

Over the next two decades, you can see this initial debate flickering in the background as there is a review of the entire legal process by the Law Commission followed by specific reviews of the criminal procedure code by that Commission. Unsurprisingly, the appetite for radical reform had only reduced, resulting in the 1973 Cr.P.C. which, barring a couple of truly radical moves like a clause for default bail, was content in retaining the existing procedures. 

The BNSS has chosen to further this legacy by retaining the 19th Century procedures well into the 21st, and blissfully hoping for different outcomes merely on the strength of non-enforceable timelines and the promise of technology. We do not know what discussions led to drafting the BNSS, as the government is yet to release the reports, and so can only wonder whether any prospect of radical reforms ever raised or has that flickering flame of the 1950s and 60s been snuffed out.  

Postscript: Three takeaways from the Story of Jury Trials in India

Before moving on to other things in the present, I thought the series on jury trials could do with a finishing touch. This postscript tries to contextualise and organise thoughts around the decade-long story that was retold across four posts; areas where this story can be useful for scholars in India as well as abroad looking to draw connections. I have tried to narrow this down to three takeaways: (i) lay participation in criminal law, (ii) searching for principles in the criminal process, and (iii) strategies of criminal justice reforms.

Lay Participation in the Process

A theme in the evolution of jury trials from antiquity till the 1950s has been the growing emphasis placed upon truly democratising and opening up the jury. From being comprised of landed elites and others having special knowledge about the area and its people, by 1950 the law in England and across many states in USA permitted almost anyone to serve on the jury. This shift in the law and perceived opening up of the criminal process saw contemporary debates about the value of lay participation in the process, and it has also been a focus of scholarly inquiry later [See, here, here, and here, for instance].  

British administrators, and later legislators, introduced the jury convinced of its relative benefits. But the worry about not having the right kind of people for this job was ever-present for the 100 or so years in which jury trials were seen in different parts of the subcontinent during various phases of colonial rule. It led to restrictive jury lists, where till the 20th Century no 'native' Indian was allowed to serve, and the opening up of jury lists still only letting in those with property and high educational qualifications. The limits on the use of juries, as well as participation in them, was one more argument in the quiver of the nationalist movement's case to demonstrate inequality under colonial laws.

You would imagine that independence, and specifically adoption of universal adult franchise as the model for a new republican state, would lead to radical enfranchisement in the jury process. As we have already seen, though, independence did not lead to any such change in attitudes. In fact, not having the right kind of people for running jury trials was one of the strongest, if not the strongest, point taken for abolishing them. The loudest voices in the room making these noises about bad jurors were usually not legislators, but lawyers and judges, who repeatedly highlighted the unique expertise demanded for administering law which was just not available with ordinary Indians.

The arguments against jurors were mostly emotive and, quite often, purely elitist. Simply put, it often reduced itself to the uneducated and illiterate person — by far a majority in 1950 — being unable to keep pace with the law's technical workings. But the entire history of juries stood as proof that the ordinary person could very often deliver justice in spite of these hindrances. And their position as laypersons gave them a unique ability to cut through the law's mirage at times, especially in police cases where a tutored witness could be identified. The available data of the time also showed as much — statistics gathered in 1953 by the Home Ministry at the insistence of Dr. Katju suggested that verdicts in bench trials were overturned as frequently, if not slightly more frequently, than in jury trials. 

By couching their argument in a point about expertise and unique ability, the lawyers and judges critical of jury trials were perhaps trying to downplay their inability to adequately simplify cases for juries to aid their decision-making. A key component of jury trials was the judge's instruction to the jury about the case: summarising the facts and explaining the law. Very often in appeal we saw that High Courts while overturning verdicts did so not because of jury incompetence but because of judicial incompetence in giving a proper instruction to the jurors about the points of law. The infamous Nanavati case was no exception. But because the official voices were often the only voices in consultations, the point about bad jurors went uncontroverted.

Which then brings up the point about jurors from a political standpoint. Why is it that a country which broke all convention and invested the populace with universal adult franchise was willing to distrust the same populace with having any role in administering the state? Perhaps, here we see a schism between periodically electing persons to positions of power, and directly holding state power accountable. This would tie in with theories about how independence and adoption of a constitution did not really alter the "conversation with power" in India. The preference still being structures which allowed the state machinery run by expert technocrats to do its own thing without meddlesome interference by the ordinary untrained man on the street.

Finding a Purpose in the Criminal Process

The discussion about jury trials was part of a much larger debate in the 1950s about the criminal process. What purposes would guide it, what values would inform it, and so on. After the initial spurt, though, we saw that the conversation turned its back on anything too radical, and settled on just one principle for the time being: Maximising Efficiency.     

One can argue that efficiency has been the only constant principle linking criminal law making before and after independence. The East India Company Regulations were driven by a spirit of efficient governance. Codification had efficiency at its heart. And a post-independence India bent on achieving social transformation had no patience for slow laws. 

The criminal procedure amendments of 1955 were run almost with a single-minded objective of making trials faster and the conversation around juries was also, quite naturally, affected by this perspective. Running the bad jurors argument a close race as the leading cause to remove jury trials was the point about this process being inefficient and hopelessly expensive.

But, is this a good argument or principle? Efficiency as a principle in organising legal process has been the subject of in-depth study in other parts of the world because more and more countries have turned to efficiency as the reason for changing parts of the criminal process [for example, here]. Quite often, lost at the altar of efficiency were the procedural protections meant to ensure fairness to persons standing trial. The jury trial, that 'palladium' of liberty, is the classic procedural protection serving this purpose, and scholars have demonstrated globally how it has been gradually eroded on account of efficiency and what this means for ideas of justice and fair adjudication in the criminal process. 

The story about the jury in India shows that this is a topic of interest even for our jurisdiction, and one that deserves greater scrutiny going ahead.  

Strategies of Reforming Criminal Justice

Lastly, I think the jury episode is also interesting from the point of view of reforms in the criminal process; a topic of contemporary relevance in India (and abroad too). In arguing for removal of jury trials - or even assessor-aided trials - from the statute book, what were the mechanics of the removal itself by the legislators? Most of them were content to remove the relevant clauses from the code, and that was that. This approach of viewing the criminal process as a modular setup is how most reforms had been carried out in the past, and arguably continue to be carried out in the present as well. Remove what you don't like (jury trials), and strap on new parts which you have a fancy for (plea bargaining).

A modular approach to understanding the criminal process may well work for some parts of that process, but it is entirely unsuited for understanding and contemplating about the process as a whole. Simply put, there are only some small aspects of this process which you can remove or add without casting a ripple effect across the entire system, and that assumption does not hold for all aspects of the process. 

Taking the jury out is one great example of fiddling with an aspect of the process that was not an appendage but had been a critical part of the statutory process as well as its judicial evolution. The assumption about expanding jury trials had been at the heart of the codification enterprise in criminal law. Many parts of criminal procedure and the law of evidence were crafted keeping in mind jury trials. Legal principles had evolved at the common law specifically keeping in mind jury trials, and Indian criminal courts imported this to the subcontinent. Many unsaid 'rules' in the system (such as corroboration of approver testimony) were all good practices which emerged to ensure fairness in running jury trials.

Can we think of removing jury trials from a system which had been dealing with them for more than a century by simply excising the set of provisions from the text of law, without grappling with any of these other aspects? You get the point. Yet, this is precisely the kind of approach that was suggested at the time. 

While it did not prove successful with jury trials, it did achieve success in many other aspects of the criminal process as it existed in the 1950s by way of the 1955 amendments, which took a wreaking ball to the existing process in the name of efficiency. Adopting a modular approach to the process, the legislature chopped and changed the criminal procedure code without giving much thought to what it would mean for the internal cohesion of the procedural scheme. This led to a strange legal process full of contradictions, which continues till today. For example, even as the law prohibits placing reliance upon police-authored testimonies as evidence, this material is still treated good enough not only for charging persons with offences but also ensuring that they remain behind bars for more than five years without trial.

Summing Up

There is a lot of rich material in Indian history waiting to be discovered and examined critically by scholars in India and abroad that would speak to many contemporary debates about the criminal process. The story about what happened to jury trials in independent India is one such example. These posts give an introduction to those interested in the field, and I hope that they can be of use to everyone who is willing answer and engage more critically with the law as it is today. If the law is an ass, which it often is, let us at least try and understand how we got here.

The End of Trial by Jury in India — Part IV: Looking Back at a Tumultuous Decade

[This is Part IV in a four-part series. Links to other parts here: Part I, Part II, Part III]

We saw in the previous post that the proposal for abolition of provisions on juries mooted by the Bombay Government was kept pending by the Centre in September 1959, on grounds that the Law Commission's findings on the jury issue were yet to be fully considered. 

Such consideration, though, was already underway by this time. A second iteration of the Law Ministers' Conference was being proposed for some time since June 1959, at which the Law Commission Report was to form a key prong of discussions. While that Conference kept getting deferred, the Report was discussed on the floor of the Rajya Sabha in November 1959. The lengthy discussion only marginally featured the recommendation on juries. Only two speakers said anything; one seeing it as a slur on national character, while the other content with the recommendation. 

The latter, J.S. Bisht, found clear vindication of the stand in a recently concluded trial: "We recently saw what happened in the Nanavati case. It is sub judice, I am not referring to it. The verdict of the jury is there, I am not commenting on it, and the Judge has referred the case to the High Court on the ground that the verdict is perverse. It proves that. There it is amply before you, and therefore I submit, Sir, that it is high time that we abolished that system." (from the uncorrected debates of November 24).

This was not all. The deferred Law Ministers' Conference was finally held in Srinagar at the end of June, 1960. Trial by jury was again on the agenda (Item No. 13), and discussed in the Committee briefly (though for longer than in 1957). The meeting took stock of the status across states and ultimately concluded that while many states had already taken steps to abolish jury trials, the others "may examine the position and come to their own decision ...". In this brief discussion, the Bombay Law Minister, Shantilal H. Shah, could not stop from making a reference to the Nanavati case as well: "Recently there was a trial by jury of a member belonging to the Defence Services and the Judge called their decision perverse. (Laughter)."

Laughter and vindication. That is what the Nanavati case actually meant for the question of trial by jury by 1960, giving laughter and vindication to the large contingent of experts who had decried the retention of this foreign transplant. 

I would call it a question and not a debate because the writing was very much on the wall by this point. Even before the time Nanavati's case began, the only real question was when juries would go, not if; and it was still a question only because the Home Ministry was reluctant to endorse abolition since it was only in 1955 that it had sponsored reforms for making it work better. As the criminal procedure reforms continued in the next decade, it came as a surprise to nobody that a new proposed code had no place for trials by jury. 

Looking at the discussion as it progressed over the decade though these posts teases at the growing inevitability about the outcome. Paradoxically, a key prong for retaining juries in 1955 was the fact that they could, practically, be rendered redundant if state governments so desired. It would seem that this quixotic logic was at play even in areas which, on the face of it, showed a continued enthusiasm for juries. Thus, in West Bengal, the State Government had withdrawn jury trials in many important kinds of cases over the decade. It was done by designating special courts, assigning the cases to them, and prescribing that trials before special courts would follow the 'warrant' procedure which meant no jury was involved.  

The Law Ministers' Conference, the Law Commission, various State-Level Committees and Legislatures, and of course, Parliament; the question of what must be done with trial by jury was extensively discussed across multiple sites. The nature of the sites framed the conversation a certain way. It privileged the view of the expert—the bureaucrat, lawyer, or judge. 

Looking at it critically today, one wonders whether this presaged the outcome to a certain extent, given the overwhelming opinion of these experts was to distrust any involvement of the layperson in what was seen as a specialist discipline demanding exclusivity and expertise. Were they being unfair in casting the layperson as entirely unable to comprehend what transpired in court? KN Katju certainly thought so, being of the firm opinion that most cases were straightforward enough and an inability to simplify facts pointed to failings in the lawyers and judges rather than jurymen.   

Voices within the establishment for retention of jury trials were very much exceptional from the point at which the question first came under scrutiny. One can only wonder how many voices outside of the circle of expert opinions held other opinions. Remember, this was the first decade of independence. As Rohit De and Ornit Shani's works have shown, members of the public were by no means strangers to the additional burdens of citizenship and desired to be participants in nation-building. 

Thus, was it really as the Bombay Government stated it in December 1958, that the public was not keen on discharging jury duty? Or was it another case of a government overstating its case to retain control of state affairs and keep citizens distant and controlled? Perhaps there is an archive out there that helps to see this side of the story around jury abolition.

The End of Jury Trial in India — Part III: The Steady Decline of the Jury, 1955-1959

[This is Part III in a four-part series. Links to other parts here: Part I, Part II, Part IV]

The amendments made to the Criminal Procedure Code in 1955 abolished the post of assessors when it came to trials in Sessions Courts, retained the power of state governments to decide whether to grant the right of trial by jury before sessions courts, and also widened the scope for withdrawing the trial by jury in the High Court. Nevertheless, the amendments did not abolish the institution, which continued in various parts of the country. As it would seem, these measures did not eliminate the conversation around juries. By 1958, one year before the Nanavati Trial began, the Law Commission of India unequivocally expressed its views in favour of doing away with trial by jury. 

Given the middle path struck by the Government after a painstaking and laborious exercise just three years ago, how did the conversation around abolition restart so quickly? This post tries to explain this, and takes our story right up to the Nanavati Trial which took place in 1959. 

New Forums, New Personalities, New Conclusions

From 1950 till 1955, the work on judicial reforms within the central government appears to have been led by the Ministry of Home Affairs. For most of this period, the Ministry was helmed by the same man — KN Katju — and the nature of reforms piloted bore his indelible imprint. This included the preference to retain rather than abolish jury trials. In the middle of that year he was placed in-charge of the Defence Ministry and in his place came G.B. Pant; former premier of the United Provinces, during whose tenure a committee recommended abolition of jury trials in the  province.  

The Law Commission

For the latter half of the 1950s it appears that the Home Ministry was no longer in the driver's seat. After many years of mulling over the issue, on July 27, 1955, the Union Cabinet met and approved the proposal to set up an All India Law Commission (the other Cabinet proposal discussed that day, incidentally, was renaming Delhi's roads). 

The Commission was an all-star cast, lest we forget. It was chaired by the Attorney-General M.C. Setalvad, had sitting and retired Justices of the High Courts, and several senior advocates (some became judges of the Supreme Court later). The first item of the terms of reference for the Committee was to "review the system of judicial administration in all its aspects ..." It harked back to the letter floated by the Ministry of Home Affairs and the memo prepared by KN Katju in 1953, and suggests that everything was still on the table despite the amendments of 1955.

What is interesting here is that at least in the formative documents of the Law Commission, there is no explicit reference to the jury issue. It seems that it asked some states on how the jury trial was working (Bihar, for instance, which sent back a copy of its Jury Committee Report), but it is unclear whether any specific query on abolition was put forth. 

We do know, of course, that in Chapter 42 of the 14th Report published in 1958, the Commission dealt with the institution of trial by jury and recommended its abolition. Reading the Report, you get a sense that there were few supporters of the jury within the Commission, which at page 868 states: "Our task is to consider whether this exotic growth transplanted into India by British lawyers and jurists has worked well and should be continued." There is no mention of the demand for jury trials made by nationalist parties during the freedom struggle, and arguments in favour of juries are all seen as "theoretical". 

The test to decide whether juries should be retained was whether they worked in practice, and all evidence suggested that they did not. The issue of corrupt jurors received special mention, as well the expenditure in running such kinds of trials. Citing the experiences of Bihar, U.P., and Bombay (more on that below), the Commission concluded that the jury system in India had been a failure and should be abolished rather than remedied.     

The Law Ministers' Conference

The Law Commission's creation points to the emergence of a new site of study on issues of law reform in the latter half of the decade. It also appears to have been accompanied by the Law Ministry getting more directly involved with the matter of reforming judicial administration. 

As part of this, while the Law Commission was chugging away and preparing its report on the issue of reforms in administration of justice, for the first time in September 1957 a Law Ministers' Conference was convened in New Delhi. Organised by the Law Ministry, the Conference was attended by Law Ministers of all States (accompanied by Secretaries of the respective Law Departments), as well as the Union Home Minister of the day, G.B. Pant. 

Much like the Law Commission, the Law Ministers' Conference also does not appear to have jury trials as part of the initial agenda. The only mention appears to have occurred on the second day of the Conference, at the end of a long discussion on corruption in court administration. The Law Minister for West Bengal, S.S. Roy, lamented that the jury system is becoming "worse and worse" with people hanging about court to get engaged as jurors and receiving bribes. The Union Law Minister A.K. Sen, who was also from Bengal, chimed in assent with this view. Law Ministers from Kerala and Punjab remarked that they did not have juries, and finally the Home Minister replied to S.S. Roy, saying that they had "better abolish this system". 

No further discussion took place. However, curiously, in the summary of discussions prepared after the Conference, the discussion is recorded rather differently. It is not an offhand exchange between the Home Minister and the West Bengal representatives, but framed as a direct suggestion by the Home Minister to all states: "The Home Minister suggested that the States might consider the possibility of abolishing the system." 

The Summary of Conclusions changed things even further. It carried Agenda Item (6) under the heading "Checking of Corruption in the Administrative Machinery of Courts", stating that "The possibility of abolishing the jury system may be considered by the states in which the system is still in vogue." 

Just like that, one year before the Law Commission would publish its Report, the jury abolition issue was brought back into the judicial reforms conversation. One wonders whether it led to the specific focus on abolishing jury trials in the Commission's report too. 

The Law Ministers' Conference was quite the high-level meeting, so naturally the summary of discussions was circulated to states for their formal opinions and comments by the year end. Going through the responses received throughout 1958, we find that at this juncture, trial by jury was already practically non-existent outside of West Bengal and Bihar. Since abolition of juries seemed to carry full weight of the centre now, even West Bengal and Bihar wrote back saying that the proposal was "under consideration". By 1959, Bihar wrote an additional response to the centre, stating that the Patna High Court judges were also no longer in favour of the jury system.

Nanavati, and Trial by Jury in Bombay

I mentioned West Bengal and Bihar as bastions of jury trials in 1957-58. What about Bombay State? In the previous round of consultations lasting from 1950-54, we saw both Bench and Bar offer a spirited defence of the institution from various parts of the Bombay State, as it was then. By 1958, in no part other than Greater Bombay — the administrative name for the City — were jury trials still in operation across the entire state. How did this happen?

After passage of the Criminal Procedure Amendment Act in 1955, it appears that there was some internal review of the working of sessions trials across the state. The review condemned trial by jury in districts other than Greater Bombay largely because of the poor quality of jurors available. As a result, the Government in consultation with the High Court, withdrew jury trials from all districts other than Greater Bombay with effect from September 3, 1956. 

Another review of the sessions trials took place after reorganisation of Bombay State in 1956. To maintain uniformity of procedure, the Government decided (again in consultation with the High Court) to withdraw jury trials from Nagpur and five other newly added districts, with effect from September 2, 1957. 

I have not come across contemporary material to discern whether jury trials remained in Greater Bombay because they were a success. If anything, official papers suggest otherwise. After some deliberation and consulting with the High Court, in December 1958 the State of Bombay wrote to the Centre seeking permission to amend the law to abolish jury trials for Greater Bombay. That it came in the aftermath of the Law Ministers' Conference hints that the proposal was not entirely unrelated to the nudge from the centre. 

The State Government had not heard back on its letter by the time that Commander Nanavati infamously pulled the trigger on April 27, 1959. A reply came on September 17, while the trial was ongoing, advising the Bombay Government to wait till the proposals of the Law Commission had been finally reviewed. When the jury acquitted Nanavati next week, it did not prompt any fresh reappraisal or reconsideration on abolishing jury trials by the State Government. It waited, just as it had been advised to. 

The End of Trial by Jury in India — Part II: The Issue goes to Parliament

[This is Part II in a four-part series. Links to other parts here: Part I, Part III, Part IV]

By writing to the Ministry of Home Affairs on August 3, 1950, the Madras Government had unknowingly set in motion a long consultation on the position of trials with assessors and jury in India. This consultative process, which began in 1950, soon became geared to the prospect of statutory amendment. In 1952, the wheels were set in motion in the Home Ministry, which began exploring the prospect of carrying out general amendments to the criminal procedure. While preparations were ongoing, a Private Member's Bill seeking deletion of the clauses on trial by jury and assessors was sought to be introduced in 1952 by SV Ramaswamy (Salem). Both Mr. Ramaswamy's Bill and the Government Bill introduced in 1954 were referred to a Parliamentary Committee, and the outcome of this long consultative process was the passage of Act No. 26 of 1955.  

Split Verdicts and Opinions

The Central Government mulled about the course of action for a bit and finally began to solicit opinions from states in November 1950. At this point, most experience with jury trials lay with the 'Part A' States (the British Indian provinces), and the file suggests that the government also gave more emphasis to the opinions sent by these states than the 'Part B' states (such as Rajasthan). As it so happened, the issue was alive and under consideration before a Committee appointed by the Bihar Government (headed by SK Das J., who would go to the Supreme Court in 1956), and the government wrote separately to Bihar asking for copies of that report when it was ready.

Opinions trickled in, slowly. The Bihar report itself took more than a year to come. Though even by 1952 opinions were not in from all states, a general picture had begun to emerge. There was a split where 'important' states like Madras, Punjab and Uttar Pradesh appeared against the jury trial, and other 'important' states like Bombay and West Bengal seemed wholeheartedly in favour of it. 

It is interesting to see whose opinions were being solicited by the states, in response to the letter sent by the centre. The question was never posed to the public, but to the experts: bureaucrats, judges, and lawyers. Some storied names wrote in. For instance, the Government of Madhya Pradesh sought opinions from the Nagpur High Court, where the Chief Justice Vivian Bose (later of the SC) writing that "I have no experience of trials by jury in a High Court but in general I am opposed to the jury system." His view was the majority view of that Court. Contrary to which, you had most of the Orissa and Calcutta High Court judges holding the view that the jury should be retained. 

Even within the central government, it seems that there were split verdicts and opinions. The file noting recalls that BR Ambedkar had expressed a view against retaining juries, but at the same time, it was well-known that the Home Minister from 1951—KN Katju—was very much in favour of the jury trial. Diverging opinions were also expressed by the mandarins of these ministries on the file as it went back and forth from 1950 till 1954. Their opinions offer helpful summaries of arguments that were being advanced at the time.

We know what the main arguments for removing juries were: they were inefficient, susceptible to corruption, and led to perverse verdicts. We did not have persons with the requisite character to discharge jury duty. The biggest argument against an amendment was not one of principle, but pure pragmatism: There was no need to amend law, because the flexibility within the law already allowed states to render jury trials practically redundant if they wished. The arguments about the wrong kind of persons were, again, not arguments against the system but about its workings, and this could be fixed.

In this regard, it is interesting to get a glimpse of what happened when the file went outside the narrow sphere of solicited expert establishment opinion. This is through a letter from the Bombay Bar Association sent on September 17, 1951, to the Bombay Government. The letter does what the mandarins did not; expressly link the jury to values of citizenship, democracy, and also how long and hard people had fought to get this right during colonial rule.      

Consideration in Parliament

Ultimately, since there was no consensus, the call in December 1952 was to recommend against permitting Madras to change the scheme of the law to fully abolish provisions on jury trials. 

By this time, though, talk about amending criminal procedure had assumed a wider conspectus. After a couple of months, on January 3, 1953, the Ministry of Home Affairs issued a fresh memo to states, noting that "it has been felt for some time past and particularly since the transfer of power to Indian hands in 1947 that the structure of our judicial system with the rigidity and complexity of its procedure is wholly unsuitable to modern conditions." It noted that many states had begun reviewing criminal procedure, prompting the centre to undertake this exercise. The purpose of this memo was to help the government decide whether it was necessary to set up an all-India commission for reviewing the criminal law, and to this end it had annexed a note with broad thoughts and also 23 specific questions for states to formulate the opinions. (PS: besides the letter, the Home Minister prepared a lengthy primer on this issue as well, which was printed and circulated in 1953).

One of these, question no. 8, was "Abolition of the system of trial by assessors or the curtailment of the right of trial by jury in highly complicated cases like dacoity and criminal conspiracy by providing other safeguards if considered necessary in the interest of the accused". The framing of the question — abolition for assessors, and curtailment of the jury — is perhaps indicative of the general view formed in the previous two years that it was unsuitable to abolish jury trials, and that the Minister in-charge was in favour of its retention. 

Opinion-seeking, as we have seen, takes time. Before this process could conclude, the issue of abolishing jury trials reached Parliament. SV Ramaswamy, Member of Parliament from Salem, introduced a Bill to amend the Criminal Procedure Code and abolish the systems of trial by assessors and juries in July 1952. As it so happened, he got his chance to speak again only on August 28, 1953. The lengthy debate which followed strayed far and wide from the topic and invited all members to chip in with thoughts about what was wrong with the system. 

Ultimately, a motion to circulate the bill for public opinion was accepted. This was supported by the Government. While extending his support, the Home Minister also mentioned that a bill with proposals for the "entire field of administration of justice" was also in the works and would likely be tabled by the end of the year. A draft bill published in the gazette in December, and an official bill on these lines was finally introduced in April 1954. As promised by the Minister, and teased by the correspondence which began in January 1953, it touched a wide array of matters relating to criminal procedure. What is relevant for us are clauses 41 to 59. These proposed to do away with the system of assessors, and introduce a set of provisions to streamline jury trials, including by empowering a High Court to intervene and decide if a case should not be tried by jury due to its complexity.

Public Opinion and the Committee's View

The opinions solicited by Parliament on the Ramaswamy Bill are comparably more voluminous than what the central government managed in 1950-52. Naturally, though, there was no great shift of opinions during this time. But there are some interesting ones to flag. 

There is a dilution of sorts in the view from Nagpur, with the High Court Judges only writing in support of abolishing assessors and not juries. Justice SK Das of the Patna High Court (chair of the Bihar Jury Committee) also wrote in expressing his wholehearted support of the jury trial and a need to improve rather than abolish it as "to abolish the system will be like killing the patient instead of treating him" (though, at the same time, condemning the quality of jurors). We also have future CJI Y.V. Chandrachud, writing as Hony. Secretary of the Advocates' Association of Western India, in support of retaining juries. Finally, there are powerful expositions on the values of jury trials by lawyers from Hyderabad, one of whom noted that a jury helped to keep the legal system accountable to the public, and that "one man's benevolent despotism is as detestable as single judge's benign administration of justice with unfettered discretion in law and determination." 

When the Ramaswamy Bill was taken up for consideration again on March 12, 1954, the Home Minister jumped at the opportunity to inform the House about the impending government bill and a proposal which would be made to refer that bill to a Joint Select Committee thereafter. The Minister suggested that SV Ramaswamy agree that his bill also be referred to the Committee at that time, otherwise his government would have to oppose its further consideration. Naturally, it was decided that this Bill would also be taken by the Committee, whenever it was constituted. 

The Joint Select Committee was in place by May, and submitted its Report in September 1954. The important and interesting parts of the document all pertain to topics other than what we are looking at. On the subject of assessors and juries, it simply noted at Paragraph 22 that it found the Government Bill more acceptable — delete assessors, while retaining juries. In some of the Minutes of Dissent, this stand was criticised, arguing that by permitting a de facto erosion of jury trial by leaving it up to courts and states "the real purpose of the jury is not likely to be served." At the same time, other dissents condemned the Committee for not suggesting abolition outright.

Passage into Law

The Criminal Procedure (Amendment) Bill 1954 took a while to finally clear Parliament and be gazetted in August of 1955. It was debated extensively both before and after the receipt of the Committee Report in both Houses. Only a sliver of the debate pertained to jury trials, though. In striking out assessors completely while retaining the prospect of jury trials, the government had struck a middle path. In theory, this retained the possibility for renewing jury trials in the hands of any government minded to do so. In practice, the establishment was content as long as juries were not the norm but an exception. 

One wonders how happy the Home Minister himself was with this state of play, given how vocal a proponent he was of the jury trial. As it so happened, he did not continue for long in the Home Ministry portfolio, moving out to the Ministry of Defence that year. He would not be around for the next round of conversations on the jury trial, which would resume in a couple of years.

The End of Trial by Jury in India — Part I: New Concerns for the New Republic

[This is Part I of a four-part series. Links to other parts here: Part II, Part III, Part IV]

If you ever ask someone what led to the end of jury trials in India, chances are that they will point you in the direction of the trial of K.M. Nanavati. A jury acquitted Nanavati, who was accused of murdering his wife's alleged paramour. The judge disagreed with the verdict and referred the matter to the High Court, which reversed the acquittal, convicted Nanavati for murder, and sentenced him to imprisonment for life [the High Court judgment, though not reported, was discussed on the blog here]. Legend has it that a jury acquitting a good-looking navy officer in the face of clinching evidence was the final straw which broke the camel's back, and convinced the powers that be that jury trials in India must go.

James Jaffe had written some time ago about how inaccurate this historical retelling is, demonstrating that not only did jury trials continue long after Nanavati, but suggesting perhaps that they were already heading for their demise by the time the jury acquitted the man in 1959. Beyond this, there is surprisingly little writing on the subject. 

Through this new series on the blog, the idea is to try and help fill these gaps (to the extent possible through a blog), by taking a deep dive into the first decade of the republic and what it meant for this question of continuing with jury trials. 

This first post lays out the land and takes us back to 1950, a time when there were new concerns for a new republic. One of these was how to reshape criminal justice and whether jury trials had any place in that conversation. The story moves forward in the second post to look at the debate about juries as it enters Parliament, as part of a broader discussion around framing criminal procedure for India. Part II ends with the passage of the Criminal Procedure Amendment Act of 1955, and Part III looks at the aftermath of  this law and lays out the state of things as they were in September 1959 when the Nanavati jury returned its verdict. The last post closes out the series, looking back at the shifting sands and how a split verdict at the start of the decade had decisively firmed up to reject juries.          

Setting the Scene: Criminal Law and the Federal Structure

Conventional retellings around law reform in the 1950s don't include practically anything about criminal law or procedure. The closest you get is preventive detention. The dominant view has been to assume that pressing administrative concerns of the time (managing post partition resettlement in the north and east, and managing economic vulnerability across the country) led to a conscious decision to not tinker with the existing criminal justice architecture. On closer scrutiny, I would argue that while this view may still hold good for changing structures of policing, it does not hold good on matters of judicial administration in the criminal law sphere. I would stake a bold claim that the changes made to criminal procedure in this decade — primarily through the 1955 amendment act — have been the most consequential changes on the subject in independent India. Far more consequential than the name-changing exercise carried out in 2023.

A little history lesson is required about legislative power on criminal law matters and the reorganisation of India's map post independence before we proceed further. Since the assumption of direct control in 1858 by the British Crown, criminal law and procedure had been subjects legislated for at the central level in British India. The famous codes — the Indian Penal Code, Criminal Procedure Code, and Evidence Act — were passed within the first 15 years of direct rule, and applied to all territories in British India by the time of India's independence in 1947. 

Between this time, British India had introduced provincial legislatures, and matters of criminal law and procedure came to fall on the 'concurrent list' of legislative power. This meant that provinces could amend the law, but in case of any radical change to the scheme real power remained with the central government. The Constitution of 1950 did not change this scheme of dividing legislative power for matters of criminal law. Perhaps this is why we see that while the conversations on changing criminal procedure began at the provincial (now state, level), they were soon coopted at the central level.

Another reason for this cooption and overarching central control over the process of possible amendments was also the reorganisation of India's map post independence. Post 1947 India was an amalgamation of parts of British India with several hundreds of princely states. While many of them had treated the laws of British India as a template to frame their own laws, it was not a case of wholesale duplication. Integration of the princely states, thus, required introduction of the existing laws of British India into these areas; an exercise which naturally warranted close scrutiny from the centre.    

These aspects of constitutional law and governance are of specific importance when we think about any changes to the scheme of trial by jury. As of 1950, the Criminal Procedure Code 1898 was in operation across British India. Under this Code, trials before Sessions Courts (seniormost courts at the trial level) were by default conducted without a jury, but for some offences they required the aid of assessors — two laypersons sitting with the judge to, essentially, offer a sounding board and enhance public participation in justice-delivery. The 1898 Code did provide for trial by Jury for sessions courts and High Courts (and not others), but under Section 269 left it to a State Government to decide whether to introduce the measure and to what degree when it came to sessions courts. Trials before High Courts were mandatorily by jury.  

The rarity of trials being conducted by High Courts and the discretion conferred by Section 269 meant that juries were far from ubiquitous even in British India, and almost non-existent anywhere outside. Further, while assessors were mandatory in some trials within the British Indian territories, they did not exist in most princely states. Now, integration meant that at least in theory, all parts of India would require the idea of jury trials, and furthermore create new schemes for selecting and using assessors.

Jury Trials: The State of Affairs in 1950

Keeping aside the issue of assessors for a minute, let us think about this possible expansion of jury trials. Since the late 19th Century, the demand for expanding jury trials — both in terms of categories of cases to which it applies but more importantly by broadening the class of jurors to allow Indians to serve — had been part of the list of demands of the Congress Party, as well as some other political outfits. One would imagine that state governments in independent India would seize this chance to expand jury trials and democratise the administration of justice. 

If a strong feeling for juries did exist within the people after independence, it was certainly absent within their representatives. The overwhelming feeling within a majority of the establishment appears to have been that juries were easily corruptible and a useless expense at a time of scarcity. A lot of this feeling was driven not by any practical experience — juries were unknown in most parts — but by received wisdom, which in most cases was received not from ordinary members of the public but the legal establishment in the form of lawyers and judges. This is seen quite well through two reports published around this time: the Report of the Uttar Pradesh Judicial Reforms  Committee and the Bihar Jury Committee.  

Looking back at these reports, the cynic in me finds it unsurprising that lawyers and judges wanted to keep the public at arms' length. A key element of the legal profession and administration of justice in India has been the idea of it being a specialised field requiring expertise of procedures. Juries work to democratising the field and work best with less procedural rigour, which threatens this key plank on which the entire system was based. It is difficult, therefore, to shake that feeling when reading the replies of lawyers and judges; these were not independent observers or experts, but people who had real skin in the game, and who stood to suffer instability and uncertainty in their profession if jury trials expanded. 

What is surprising, though, is that the opinion against retaining juries was not restricted to areas where it was a novelty or oddity, but even those where it had been part of the lay of the land for over a century. I refer, of course, to the Presidency Towns of Bombay, Madras, and Calcutta (as they then were). It was in these parts that the idea of juries had taken deepest root over the course of the previous century. 

The Madras Government gets the Ball Rolling

Within the three cities, the strongest lineage was arguably of Madras, where Sir Thomas Munro had during his reign as the Governor of Madras in the 1820s pushed aggressively for introduction of juries; a measure which came to be passed after his untimely demise, before being withdrawn under a cloud. Two chief reasons for the withdrawal of the regulation introducing jury trials in certain parts of Madras were, firstly, the failure to find the right kind of people, and secondly, the costs of the measure. Nevertheless, slowly, jury trials did start and take root in parts of Madras after this initial uproar. What would Thomas Munro think to learn that in August 1950, the Madras Government wrote to the Central Government seeking consent to enact proposals for removing jury trials precisely for these two reasons? 

In this letter dated August 3, 1950, the Madras Government argued that assessors were entirely useless and an unnecessary expense, and this scheme must go. Rather than replace trials with the aid of assessors with trial by jury, it would be better to also do away with the jury trial because it was little better, and solely retain bench trials. It noted that the Judges of the High Court were  in favour of these changes as well. The letter from Madras specifically asked the central government whether proposals of this nature were under consideration, and if not then would there be any objection to permit the state government in going ahead. 

Prior to this letter, there had been suggestions to remove trial with the aid of assessors under consideration at the centre, (received from Uttar Pradesh) but nothing about juries. Given the preference for retaining uniformity in the general criminal process across India, it was decided by both the Home Ministry and Law Ministry that it was best if Madras was asked to wait, because it did not appear that the desire to do away with the jury was as yet uniform across the country. The course of action decided upon by the centre was to use this chance to begin nationwide consultations on the issue of jury trials, and see what it yields. 

As it so happened, the Madras Government would end up waiting for five years for an answer (in the meantime, though, in October 1950 it issued a circular withdrawing jury trials from sessions courts across the state). No sooner had replies from provinces begun coming on this issue of jury trials that the centre had begun fresh consultations on a much wider scale, inviting views on generally amending the criminal procedure. The consultative process would reach Parliament in 1952, and finally culminate in the passage of Act No. 26 of 1955. I turn to this in the next post.   

Guest Post: A Battle Between Bail and Silence — Comparing Section 45 PMLA with US Pre-Trial Prosecutorial Discovery

(This is a guest post)

The present post analyses the constitutionality of restrictive bail conditions in the Indian anti money laundering law from the perspective of the right against self-incrimination. Section 45 of the Prevention of Money Laundering Act, 2002 (“PMLA”) imposes twin conditions that an accused must meet to secure bail: (i) satisfy a court that there are “reasonable grounds to believe” that the accused is “not guilty of the offence”, and (ii) that the accused is unlikely to commit any further offences while on bail. By way of background, the Indian Supreme Court dismissed a challenge to Section 45, PMLA in Vijay Madanlal Choudhary v. Union of India. Petitions seeking a review of the judgment are pending). However, neither the original judgment nor grounds taken in the review petition sufficiently discuss the interplay between Section 45, PMLA, and the right against self-incrimination.

This post employs a comparative analysis of case law pertaining to pre-trial prosecutorial discovery rules in criminal cases in the United States to explore the intersection between Section 45, PMLA, and the right against self-incrimination.

Hypothetical Scenario: The Conflict Between Self-Incrimination and Disclosure of Material During a Bail Hearing

Imagine an accused is facing charges of money laundering, with one of the key allegations being that they received the proceeds of a crime from person X at location Y on a specific date. Aware that they must provide prima facie evidence of innocence to secure bail, the accused submits an affidavit to the court asserting that their mobile phone’s GPS data places them far from location Y at the relevant time. In response to this assertion, the prosecution requests the accused’s phone password to verify the accuracy of the GPS data. Apprehensive that failure to comply with this request could result in their bail application being denied, the accused agrees to provide the password to unlock the phone voluntarily.

Upon inspection, the prosecution confirms accuracy of the GPS data, but in the process, examines other files and data on the phone, discovering additional incriminating material that they were not aware of. The prosecution subsequently submits a counter-affidavit, which includes this newly discovered material. In response, the accused argues that this material should not be taken into consideration, asserting that it was obtained through their compelled disclosure and is therefore subject to the protections afforded by the right against self-incrimination. The prosecution argues that the password was provided voluntarily without any court order, and it does not amount to compelled disclosure.

I’ll build on this example and examine the constitutionality of pre-trial disclosures made by an accused during the bail stage.

US Case Law

The Indian guarantee against compelled self-incrimination avowedly borrows from the self-incrimination clause of the Fifth Amendment to the U.S. Constitution. Historically, the values of the American accusatorial system required the state to shoulder the entire burden in a criminal prosecution without any compelled help from the accused and the accused is not required to disclose their defence until the prosecution has presented its case. However, this privilege has been eroded through legislative provisions that require the accused to disclose certain portions of their evidence before trial.

In Williams v. Florida (“Williams”), the rule under challenge required the accused to disclose a list of alibi witnesses before trial. The accused was convicted and appealed against conviction on the ground that compelling him to reveal the name of his alibi witnesses violated his right against self-incrimination. However, the challenge was dismissed by the U.S. Supreme Court. To reach its conclusion, the Court first recognised that the privilege against self-incrimination consists of three elements: (i) compelled disclosure (ii) related to testimonial matter (iii) incriminating nature of the communication. The Court held that two elements, i.e., testimonial communication and ‘tendency to incriminate were present in the rule requiring disclosure of alibi witnesses. However, it concluded that the relevant rule did not compel the accused to disclose alibi witnesses. It reasoned that the defence had intended to present the alibi witnesses at trial regardless, and by providing the prosecution with this information prior to trial, the defence was simply ‘accelerating the timing of the disclosure’, thereby facilitating a more efficient trial process. It was held that even during the trial, the accused would still face the same choice: (i) to remain silent, or (ii) to offer a defence that could potentially lead to self-incrimination through cross-examination.

‘Acceleration of timing’ is an established principle today based on which pre-trial discovery by prosecution has been expanded vastly over the years. It is widely believed that prosecutorial discovery enhances the state’s ability to rebut the accused’s case and effectively cross-examine their witnesses. In light of the analysis of Williams, the issue arises as to whether the prosecution is entitled to seek any and all forms of disclosure under the guise of the ‘acceleration of timing’ principle. The subsequent cases suggest a different interpretation.

There are two ways in which pre-trial discovery from an accused can assist the prosecution. It can either (i) help prosecution in investigating the grounds of defence taken by the accused and consequently, help in preparing rebuttal evidence to the defence of the accused; and (ii) provide leads to the prosecution that can help in building a case-in-chief against the accused.

Various commentators have argued that Williams was only concerned with and envisaged the preparation of rebuttal evidence using pre-trial discovery by an accused. The Court's reasoning supports this argument. Firstly, the court equated the situation of pre-trial discovery with the stage of defence evidence at a trial, where the accused must reveal the identity of their witnesses and submit them to cross-examination, which may furnish the State with leads to incriminating rebuttal evidence. Therefore, the court only intended to confine itself to rebuttal evidence while testing constitutionality of the discovery rule requiring disclosure of alibi defence. 

In this regard, it is further pertinent to recall that in Williams, the Court held that the alibi discovery rule did not amount to a compelled disclosure since the choice between (i) remaining silent and (ii) presenting a defence that might incriminate the accused through cross-examination or provide leads to the state to impeach their witness is ‘inherent in the trial process’. The natural corollary of this reasoning is that choices compelling an accused to make choices not inherent in a trial process amount to a compelled disclosure and, hence, violate the right against self-incrimination. In a case where the accused’s disclosure can be used to build the prosecution’s case-in-chief, the accused’s decision whether or not to disclose requires them to choose between defending by affirmative evidence or defending by failure of government proof. 

In his article on prosecutorial discovery, Prof. Eric Blumenson argues that such a choice is not inherent in the trial process, since at a trial, the accused leads evidence only after the government proves a prima facie case, and hence, the adversarial criminal process protects an accused from aiding the prosecution in building its case in chief. Therefore, if the prosecutorial discovery rule, as approved in Williams, is used by the prosecution to build its case in chief, the said discovery would not pass the ‘acceleration of timing’ principle in Williams and, accordingly, would violate the right against self-incrimination.

Secondly, the fact that the majority opinion’s focus was only on rebuttal evidence can be gauged from the examples it cites in the opinion. The Court gave an example to the effect that if the disclosure rule was not in place, the way alibi testimony would have played out is that the prosecutor would have asked for a continuance / adjournment after the alibi witness’s examination-in-chief and would have found rebuttal testimony to impeach the alibi witness before cross-examining them. The Court concluded that since the said sequence of events would not violate the accused’s right against self-incrimination, neither would the pre-trial discovery rule at issue in Williams. Therefore, the said example makes it evident that the scope of Williams was limited to rebuttal evidence and the judgment did not envisage use of prosecutorial discovery as a tool to build a case-in-chief.

The Scarcity of Jurisprudence on the Use of Pre-Trial Discovery from the Accused to Construct the Prosecution’s Case-in-Chief

There appears to be a dearth of case law addressing whether pre-trial discovery from the accused can be used by prosecution to build its case-in-chief. Before Williams, the California Supreme Court in Prudhomme v. Superior Ct (“Prudhomme”) delineated two important points concerning the right against self-incrimination: (i) the right against self-incrimination is compromised when the disclosure could potentially ease the prosecution’s burden of proving its case in chief and the accused’s disclosure cannot be used for the said purpose; (ii) any disclosure that could serve as a “link in a chain” of evidence establishing the accused’s guilt is prohibited under the principle of right against self-incrimination.

Another Californian case took the same view as Prudhomme. In re Misener (“Misener”), a broader interpretation than Prudhomme was taken when the majority held that Fifth Amendment privilege does not end upon the establishment of a prima facie case by the prosecution and that it barred any prosecutorial discovery that prevented the prosecution from carrying the entire burden of proving the accused guilty beyond a reasonable doubt, whether compelled disclosure might serve to make the prosecution’s case or to unmake the accused’s.

Therefore, in Prudhomme and Misener, the California Supreme Court explicitly recognised that any pre-trial disclosure that lessens the burden of the prosecution in proving its case-in-chief is unconstitutional. However, none of these cases dealt with a scenario in which the prosecution used pre-trial disclosure to build its case-in-chief.

Both Prudhomme and Misener were subsequently overruled in Izazaga v. Superior Court. Here, the California Supreme Court sustained a broad reciprocal disclosure requirement, rejecting the Prudhomme analysis. The California Supreme Court held that under the rationale of Williams, pre-trial discovery does not constitute compelled self-incrimination. Therefore, Prudhomme and Misener were overruled based on the reasoning in Williams, which was itself confined to envisioning pre-trial discovery for the purpose of collecting rebuttal evidence, rather than for building the prosecution’s case-in-chief.

It is pertinent to note that the issue of whether the prosecution can use pre-trial discovery to build its case-in-chief was not answered and has remained unanswered. There is no denying that prosecutorial pre-trial discovery over the years has become broader. For example, trial court rulings, based on the ‘acceleration of timing of disclosure’ laid down in Williams, have accepted a requirement of advance notification of defences, of expert witnesses, and of all other witnesses. Nevertheless, it can be fairly argued that these pre-trial disclosures should serve solely to counter defence witnesses and cannot be utilised by the prosecution to establish its case-in-chief. 

An example of this principle can be found in a trial court judgment in State v. McClaren in which while allowing pre-trial discovery, the court held that “any concerns defendant has concerning the disclosure [itself] potentially being used by the prosecutor in the case-in-chief could be addressed by an in camera review by the circuit court.” Further, even in Izazaga, which overruled Prudhomme and Misener, the concurring opinion by Justice Kennard mentions that there is a limitation on the manner in which the prosecution may use the discovery, and that it would be “impermissible for the prosecution to use, as part of its case-in-chief, evidence gained through discovery of statements of potential defense witnesses.” Therefore, while courts have been liberal in allowing prosecutorial pre-trial discovery based on Williams' acceleration principle, they are cognizant of the possibility of violation of the Fifth Amendment Principle if the said discovery is used for building prosecution’s case-in-chief.

Applying U.S. Pre-Trial Discovery Principles to the Hypothetical Scenario in Bail Proceedings under Section 45, PMLA

The principles discussed in the preceding section regarding pre-trial prosecutorial discovery should be applied in bail proceedings under PMLA. The justification for this is evident: Section 45, PMLA forces the accused to reveal their defence at a pre-trial stage. Consequently, bail proceedings under PMLA mirror the function of pre-trial prosecutorial discovery, insofar as they afford the state early access to key aspects of the accused’s defence before the commencement of trial.

Accordingly, applying these principles in the Indian context, the argument remains that if the prosecution uses the information disclosed by the accused to build the ‘foundational facts’ in its counter-affidavit (or the chargesheet later), the same would violate Article 20 (3) of the Constitution. Currently, the prosecution is not restricted from doing this, and in practice, the prosecution routinely files supplementary reports / complaints based on arguments made by the accused at the bail and charge stage to plug loopholes in its case-in-chief. Accordingly, even as per a broad interpretation of discovery rules under U.S. jurisprudence, the current use of Section 45, PMLA is violative of Article 20 (3) of the Constitution.

In light of the discussion of jurisprudence surrounding pre-trial prosecutorial discovery in the U.S., it can be concluded that Section 45, PMLA directly impacts the right against self-incrimination. The compelled disclosure of the accused’s defence at this stage undermines the privilege against self-incrimination. The argument that such disclosure is voluntary overlooks the coercive nature of the choice between liberty and silence. Courts must adopt a restrictive interpretation of Section 45, PMLA to prevent its misuse by the prosecution as a tool to build its case-in-chief through the accused’s pre-trial disclosures at the bail stage. This approach ensures that bail proceedings do not become a prosecution strategy session.

Justice in Courts of Inquisition? The Delhi High Court on UAPA Remand Extensions

A person should not be condemned without knowing why. One would think that this precept is not a point of debate in the legal system of a constitutional, democratic, republic. After all what personifies the shift from a culture of impunity and subservience to one of justification than the ability of individual citizens to ask questions and demand answers from those in power. This does not stop at the ballot box, but pervades deep into the fabric of how things are done, and ought to be the unshakeable cornerstone of how criminal law with its censure and punitive sanctions is administered. 

Yet, time and again, we are politely reminded to not take anything for granted. Slotting in nicely within this bucket is the recent decision of the Delhi High Court in a batch of appeals concerning the application and interpretation of Section 43D(2)(b) of the Unlawful Activities Prevention Act 1967 [UAPA] [Zeeshan Qamar v. State of NCT Delhi, Crl. Appeal No. 405 / 2021 and other connected petitions, decided on 24.02.2023 ("Zeeshan Qamar")]. 

Time Limits on Investigations and their Consequences

What was the issue? Let's read the provision:

(2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub-section (2), -- 

(a) the reference to "fifteen days", "ninety days" and "sixty days", wherever they occur, shall be construed as references to "thirty days", "ninety days" and "ninety days" respectively; and

(b) after the proviso, the following provisos shall be inserted, namely:--

"provided further that if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days."

[Emphasis mine] 

In a previous post on the blog, we discussed Section 167 of the Criminal Procedure Code 1973 [Cr.P.C.] and its time limits for investigation. The logic behind having these limits was an implicit recognition by Parliament that custodial detention was an integral part of investigations and the status quo allowed for persons to be detained for prolonged periods during an investigation, and bail in non-bailable cases was not easy to get. The time limits were supposed to act as a means to speed up investigations, by sending a message that failure to complete investigations on time would entitle a person to release. The move came with a clear-eyed recognition that giving these time limits may send the wrong signal and suggest that the law treated pre-trial detention of up to sixty (and later also ninety days) as acceptable, and a hope that the police and courts would not get the wrong idea.   

Section 167 was possibly one of the most radical interventions made in the administration of criminal law yet. It was only natural for it to have its detractors. In 1975, the Supreme Court in Natabar Parida [AIR 1975 SC 1465] made its displeasure apparent when it observed that such a law "may be a 'paradise for criminals', but surely it would not be so, as sometimes it is supposed to be, because of the courts. I would be so under the command of the Legislature." Hardly a year later the Gujarat state government had taken steps to increase the time limits, and a few years after that we had Parliament itself amend Section 167 to provide for the ninety day limit for certain crimes. It was no longer obvious as to whether the idea of sixty / ninety days being an acceptable pre-trial detention was a wrong one or not.

The introduction of Section 167 Cr.P.C. and its swift amendment suggests the sense of unease within the state machinery which naturally accompanied such a radical departure from the norm. It was unsurprising for further, and significant departures to be made to Section 167 when Parliament sought to confront armed separatist movements in the 1980s, and suggest to the world that it took its international obligations on enforcing drug laws seriously. Detention up to a year became permissible if it could be shown that the investigation could not be concluded within the time period, and unsurprisingly, it also became the norm as these special laws made getting bail even harder than what was possible in ordinary circumstances. 

The issues and conclusions in Zeeshan Qamar

In this context is how we must view introduction of safeguards for how this extension of the permissible maximum period of pre-trial detention could occur. The law introduced a requirement for a report to be filed by the public prosecutor indicating the progress of the investigation and giving clear reasons why the further custodial detention of an accused was required. 

What was in issue before the Court in Zeeshan Qamar — and not for the first time as such — was whether this report by the public prosecutor ought to be shared with the accused at the time when a court is hearing the request for extending the period of maximum permissible pre-trial detention under Section 43D(2)(b) of the UAPA. The batch of appeals were all filed at separate points of time challenging the extension, and in most of them the accused were denied a copy of the prosecutor's report. This led to them being clubbed together for hearing, and the High Court framing and deciding issues on the process of Section 43D(2)(b) extensions besides deciding on the validity of the extensions in these specific appeals. 

These issues which the High Court framed were as follows (Para 4):

• Whether the prosecutor's report should be shared with the accused at the time of extension of time for a further period beyond 90 days?
• Whether the court "should satisfy three requirements" at the time of extension of remand i.e. (i) what is the progress of investigation, (ii) whether further investigation is required, and (iii) whether continued detention is required for this further investigation?
• Whether the court can extend remand for ninety days in one go, or should it be in a truncated manner to oversee the progress of investigation.

The conclusions that it returned (in serial order) were as follows (Para 13):

• The report is not required to be provided at the stage of extending remand, but the accused should be "informed" about the same to ensure she is not a "silent spectator" and the court must consider the submissions on behalf of the accused. 
• The "essential requirements" to be considered are: (i) reasons for the prosecutor's satisfaction about progress of investigation, (ii) reasons why 90 days are not enough, and (iii) details of what further investigation is required for which further time is sought. These three considerations must be part of the prosecutor's report.
• The court must consider the report carefully and can grant 90 days in one stretch, and if it does not then the agency can re-agitate its demand for the remaining period if need be. 

I will turn to the first conclusion, which is the focus of this post, in the next section. But before that, a word on the other two answers offered. The discussion on issue (ii) suggests that the court did find that the prosecutor's report must also indicate why continued detention is necessary, although the conclusion itself is somehow silent about that aspect. What is perhaps unsurprising is that the High Court offers a rather low threshold of just what must be shown to satisfy a court that the completing the investigation was not possible. On issue (iii), the High Court in its discussion encourages courts to carefully peruse the facts and determine just how long an extension is necessary and not grant blanket extensions for a further 90 day period. This is not captured fully in the conclusion, which merely focuses on it being legally permissible for a court to indeed grant 90 days in one stretch if it feels this is necessary. 

The 'Silent Spectator' Paradox

Which now brings us to the first issue, on sharing a copy of the report. To its credit, the High Court did not try and avoid a discussion but gave its own independent reasoning for why the report ought not to be shared (Paras 6.11 to 6.14). 

This logic is straightforward — the report must necessarily have details about the investigation which if shared with the accused could prejudice the ongoing probe and, in any event, this material would be inextricably linked to material in case diaries that the accused has no right to see in the first place. The main plank for the court's reasoning, therefore, was that an accused "has no right to know the progress in an investigation." 

With due respect, this is deeply flawed at multiple levels. At the most fundamental level, if we assume that India is a constitutional republic recognising and guaranteeing the right to personal liberty (arguably an acceptable assumption) then while a person may not have any independent right to know the progress of an investigation, she certainly has a right to know about it if this investigation is the basis for keeping her in pre-trial custody when she is presumed to be innocent. 

It would be different if my custody was independent of the merits of an investigation. But the very nature of Section 43D(2)(b), UAPA makes it clear that it is only because of the merits that my further custody is being sought. Pre-trial detention is the most obvious and glaring deprivation of personal liberty, and my right to contest it is meaningless if I do not know on what grounds am I being kept behind bars. Being able to question deprivations of liberty and demand justifications cannot be de-linked from being a constitutional republic. Its non-negotiable.  

It is equally flawed at one level removed from this most basic argument. Accused persons are regularly given some kind of update as to the investigation every time police oppose bail applications by way of filing a response during the pendency of the investigation. Similarly, the accused is also given update on the investigation when police seek custodial remands (and not judicial custody). It is nobody's case that the contents of these replies and applications are not derived from case diaries, but this linkage only means that it is incumbent upon the agency to walk that tightrope between securing its sources and giving enough of a clear answer to the accused whose fundamental rights are being deprived with each day in custody. 

If we accept the logic in Zeeshan Qamar, then the nature of remand and bail hearings (where bail is filed during investigation) stands irrevocably and disastrously transformed by taking out the most affected party — the accused in custody — from the equation by which we expect the court to make a fair decision on whether or not custodial detention should be extended further. Remand becomes a fiefdom of the State — one arm (executive) talks to the other (judiciary) to decide what's best and the citizen should sit back and accept her fate as a collateral consequence. 

One senses that the High Court recognised this was a problem when it agreed that an accused cannot become a 'silent spectator' to the process by which her liberty is being decided. But the court answers this problem by tying itself in knots rather than offering any meaningful safeguard, for the only real safeguard had already been denied.  

Facing the Facts

We can view Zeeshan Qamar as an aberration and continue preaching the gospel of India's transformative constitution and its dharma of fairness. Or we can face the facts, that criminal justice was and continues to be deeply entrenched in a feudal mindset where the perceived brightness of the constitution is yet to shine all too brightly. An accused has a qualified right to get a copy of the first information report, does not have the right to a lawyer during questioning, does not have the right to a lawyer even during custody for some kinds of cases (PMLA), and now does not have the right to know the basis upon which the state wants to extend the permissible period for his custodial detention. 

Transformative indeed.