Guest Post: "Remedial Injustice" — Delays in Preventive Detention rendering it a Meaningless Remedy

[This is a guest post by Varun Ahuja]

On December 23, 2021, the Madras High Court quashed the order authorising preventive detention of one Mr. Kishore K Swamy, under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber law offenders, Drug-offenders, Goondas, Immoral Traffic Offenders, Forest­-offenders, Sand-offenders, Sexual-offenders, Slum-grabbers and Video Pirates Act of 1982, which in the interest of brevity is commonly referred to as the Tamil Nadu Goondas Act. Kishore Swamy, who has been referred to in reports as a ‘prolific troll’, was well-known for harassing and targeting women journalists on twitter. His preventive detention was authorised for circulating defamatory posts against Tamil Nadu Chief Minister MK Stalin and former DMK leaders Annadurai and M Karunanidhi. While the Act itself is arguably overbroad and its application in the present context warrants scrutiny, this post is restricted to analysing the delay in disposing off the Habeas Corpus petition by the High Court. 

One of the many arguments raised on behalf of the detenu while challenging the preventive detention order was a delay in considering the representation submitted by the detenu against the detention order. The government contended that the detention order cannot be quashed only on the ground that there was delay in considering the representation. However, it is settled [Rekha v. State of T.N., (2011) 5 SCC 244 (Para 12)] that preventive detention orders can indeed be quashed if there is delay in passing the detention order, or delay in executing it, or delay in deciding the representation of the detenu. 

In the present case, the detention order was passed on 24.06.2021, the representation was submitted on 09.08.2021. Government asked the detaining authority to send remarks against the detention order on 11.08.2021 and they were received on 13.08.2021. And then finally, the representation was rejected on 20.10.2021. Therefore, the argument was that there was 2 days unexplained delay (between 11.08.2021 and 13.08.2021) in submitting remarks by the detaining authority and 42 days unexplained delay (there were 68 days between 13.08.2021 and 20.10.2021 but 26 days were government holidays) in considering the representation. In its short order, the Court agreed with the submissions of the petitioner that there had been a delay of 2 days by the Detaining Authority and an unexplained delay of 42 days in considering the representation (Para 10) – thereby quashing the detention order. 

Time at the High Court

Assuming that the detenu was taken into custody when the detention order was passed, i.e. 24.06.2021 (even though media reports indicate, he was arrested much earlier on 14.06.2020), the person had spent 182 days in custody till the High Court ultimately quashed the order. It is important to note, that there was no substantial question of law involved in the case. All that the High Court was asked to do was to look at the case records and require an explanation for the delay from the government. There appears to have been no real delay in filing the habeas corpus petition since the registered date of the case was 23.07.2021 (H.C.P. No.1134 of 2021). The record on the ecourts website reflects that the case was listed on three occasions – 28.07.2021, 22.09.2021, 10.12.2021 — with the judgment delivered on 23.12.2021. As I have been unable to locate order-sheets online, it is not possible to state why these adjournments were granted and, more importantly, why there were delays of 2-3 months at a time between hearings (essentially, was this due to a specific request, or down to the general backlog in the court). 

On the judgment itself, while it is understandable for judgments to be brief and to the point, perhaps in the context of preventive detention a Court ought to provide us with certain basic details about the procedural life of the preventive detention so as to enable observers and the public at large to get a glimpse of the workings of the state machinery. It might not be a need elsewhere, but since preventive detention does not involve court hearings and proceedings before advisory boards are in camera, there is very little scope for a curious and concerned citizen to know what is going on. I would go so far as to contend that it is imperative in the preventive detention context, because while use of this power is sanctioned by the Constitution, it has to be read strictly and even a minor deviation from the procedure makes the order liable to be quashed. And an unavailability of this kind of data removes any possibility to analyse how the State has been using (or abusing) its powers under preventive detention laws. 

A Meaningless Remedy

There is no context in which the homily of “justice delayed is justice denied” rings truer than for the context of habeas corpus. This remedy is at highest risk of being rendered meaningless if courts do not decide cases quickly, one way or another. Sadly, available evidence suggests that Indian constitutional courts have miserably failed to keep this in mind. In an empirical study conducted by Mr. Shrutanjaya Bhardwaj analysing habeas corpus petitions disposed by the Supreme Court from 2000-2019, it found that the Supreme Court generally took more time than the maximum period prescribed for detention (generally one year), to hear and decide a habeas corpus petition. As a result, it reduces the writ of habeas corpus to a meaningless remedy. For instance, in the previous year, the Jammu and Kashmir High Court Bar Association had written to the Chief Justice of India that after the abrogation of Article 370, when many people in the valley were detained, where the letter stated that while over 600 habeas corpus petitions had been filed by persons preventively detained before the High Court of UT of J&K at Srinagar, not even 1% of such cases were decided by the J&K High Court by then. 

The Bar Association in the letter cited the case of its President, Mian Abdul Qayoom, as an illustration of the issue. In the case of Mr. Qayoom, the detention order was passed on 07.08.2019, a single judge decided the writ petition on 07.02.2020 against which an Letter Patent appeal was preferred which was decided on 28.05.2020. Therefore, in this case too, the petition spent about 182 days (6 months) at the High Court. An appeal was preferred before the Supreme Court which was registered on 18.06.2020 [SLP(Crl) No. 002833 - 002834/2020] and finally decided on 29.07.2020. Even then, the Court did not rule on the legality of the detention order but decided the petition on the government’s concession that since the Petitioner had anyway served the maximum period of detention he shall be released. All in all, Mr Qayoom was incarcerated for the maximum period (one year) prescribed under law without trial, without ever receiving final adjudication if his detention order was indeed legal. 

The delay caused by a constitutional court in ruling on a habeas corpus petition has a dramatic effect on how much time the person serves under preventive detention, in case its judgment is challenged in appeal. A High Court being the first judicial body adjudicating on the legality of preventive detention must be more proactive in deciding habeas corpus petitions. This in turn, will allow the Supreme Court enough time in deciding the appeal and not let the remedy become meaningless.

The Curious Case of Pradeep Wodeyar: Cognizance, Confusion, and Delays

The pendency of cases in criminal courts across India is nothing short of scandalous: More than 2 crore cases in total as per government data furnished for the year 2020, with the rate of pendency at over 90%. This means that out of every 100 cases in the system, 90 remain pending at the end of the year; and since the next year does not restart at zero, the total number of pending cases never stops increasing. 

Since 2015, Special CC No. 599 / 2015 registered against Canara Overseas Ltd. and its Managing Director Pradeep S. Wodeyar, among others, for allegedly committing offences under Sections 409, 420 read with 120-B of the Indian Penal Code 1860 [“IPC”] and under Sections 21, 23 read with 4(1), 4(1)(a) of the Mines and Minerals (Development and Regulation) Act of 1957 [“MMDR Act”] has been part of this statistic of pending criminal cases. It is very likely that it remains part of this statistic for some years hence. Why? Because a year into the proceedings before the trial court, after arguments on the point of charge had begun, the accused persons moved the High Court of Karnataka in a petition under Section 482 of the Criminal Procedure Code 1973 [“Cr.P.C.”]. They claimed that due to a legal error — cognizance taken in a manner contrary to law — the case ought to be quashed. The High Court appears to have ordered a stay on the trial court proceedings in 2017, which remained in effect till November 2020, which is when the High Court dismissed the petitions. The litigants promptly moved the Supreme Court, in a Special Leave Petition [“SLP”] under Article 136 of the Constitution, where that Court also granted a stay in February of 2021. On 29.11.2021 the Supreme Court has delivered its verdict in Pradeep S. Wodeyar v. State of Karnataka [Crl. Appeal 1288 of 2021; “Wodeyar”], dismissing the petitions and paving the way for the trial court to proceed. 

I do not mean to pick on any one single case, but Wodeyar is so symptomatic of the various design-flaws in our criminal process that foster repeated occurrence of mind-numbing delays in the disposal of criminal cases — flaws that are inherent in the statutory framework which are made worse by the interpretations courts offer while working within that framework — that it offers a useful entry-point to explain these issues.

Challenging orders up the Judicial Ladder

The idea of a right of appeal is a basic tenet of fairness in any legal system. A court can get things wrong, and the aggrieved person must be allowed to raise this plea before a superior forum. But how far should this “right” extend — what kinds of orders should be open to challenge, and how far up the ladder should a person be allowed to travel? A line-drawing exercise becomes necessary for if we go allow everything to be subject to challenge, all the way to the highest court, it deals a critical blow to securing a sense of finality in cases.

The Indian criminal process under the Cr.P.C. confers a clear right of appeal only against final judgments of conviction or acquittal — a court must hear an appeal against such orders where one is filed. At the same time, the criminal process confers a variety of remedies upon litigants which enables challenges to all sorts of orders or proceedings. What kinds of orders or proceedings? Almost anything short of the final judgment, really. Most common are petitions challenging the very registration of a police case, a judicial order summoning an accused, an order framing charges, and the kind of order that was impugned in Wodeyar, viz. an order taking cognizance. Such orders are, literally, the very opposite of a final judgment and indicate the first stage at which a court is seized of a case (more on that in the subsequent section). These challenges to interlocutory orders can travel all the way up to the Supreme Court, but none confer a right to be heard and a court may dismiss such claims at the outset. These remedies include the approach taken by the litigants in Wodeyar — file a 482 petition before the High Court and then an SLP under Article 136 of the Constitution before the Supreme Court — and include other approaches such as filing revision petitions or writ petitions. 

Challenging all sorts of orders all the way up to the Supreme Court does not make sense from a cost-perspective, or a finality perspective. But since most persons embroiled in the system only have limited means, it engenders some unseen balance where only a fistful of cases out of the total number end up being taken up the judicial ladder at interlocutory stages. Because where one can afford to file petitions, the pay-off in the form of securing a relatively quick closure of the case is simply too good to pass up when the alternative is a long-drawn trial, which may be followed by an even-longer appeal. 

Challenges in superior courts to interlocutory orders are also the kinds of cases where stay orders become critical, for otherwise the petition itself might be rendered redundant if the trial is allowed to proceed. The Supreme Court admirably took note of the delays caused due to such litigation in Wodeyar (Para 40), both as a general phenomenon and the delays caused in that specific litigation before it. Towards this, it sought to locate challenges to interlocutory orders within the context of Chapter 35 of the Cr.P.C., which speaks of the course of action for courts to adopt when faced with irregularities in proceedings. For petitions which raise the kinds of illegalities and irregularities not mentioned in the specific clauses of Sections 460 to 464, the Court has suggested that such petitions flagging miscellaneous irregularities ought to be considered through the test of “failure of justice” prescribed under Section 465 Cr.P.C. Thus, the Court concludes that “Section 465 would also be applicable to challenges to interlocutory orders such as a cognizance order or summons order on the ground of irregularity of procedure” (Para 41). It then proceeded to examine whether the order in question occasioned a “failure of justice” in the case before it and found that no such failure of justice had been caused (Para 44).

Wodeyar is frankly not a game-changer in this regard, because while courts might not have been using the statutory language, they were already engaging in such an analysis in almost all cases that involve challenges to interlocutory orders by inquiring about the prejudice caused. A good example is the practice of SLP hearings where most of the petitions never cross the first stage of notice being issued because the court is not satisfied about the prejudice aspect. Nevertheless, locating the exercise within the language of the statute is an interesting step in the process and make the whole thing more systematic. Of course, this could only have happened if Wodeyar spent some time explaining how courts ought to engage in this exercise of determining a “failure of justice” beyond merely locating the statutory provisions. The judgment does not suggest any benchmarks that might satisfy this standard except the general point about the petition being delayed. Nor does the Court specify whether this issue must be considered at the outset, like a preliminary issue, or is it part of the overall conspectus of issues which a court must consider.

Compounding Confusion through Judicial Interpretation 

If the judgment in Wodeyar took at least one step forward by engaging with systemic delays and hinting at a way to contain this design-flaw, it took two steps back by needlessly confusing a step as basic as cognizance and inevitably assuring us more litigation on this aspect in the future.

I had discussed taking cognizance under Section 190 Cr.P.C. as a step in the criminal process in some detail earlier in the context of another confusing decision of the Supreme Court, S.R. Sukumar (2015). The upshot of this discussion is that the stage of cognizance involves little more than having the court confirm that a document has come to it which discloses commission of an offence — be it a private complaint [190(1)(a)] or a police report [190(1)(b)], or information that the court itself records [190(1)(c)]. The court is required to do practically nothing at this stage besides confirming (1) whether all sanction related issues are clear, and (2) does the complaint / chargesheet contain facts which make out the basic ingredients of an allegation (If the person alleges murder, does the complaint speak of a person dying due to the acts of another — that basic an exercise). 

No part of Section 190 discloses a requirement for any application of mind beyond this bare minimum requirement. Despite this, the Supreme Court still ends up reading much more into the stage of taking cognizance all too often. In Sukumar, for instance, the Court went ahead and sought to differentiate the “mere” taking of cognizance from “actual cognizance” — whatever that meant. Now, in Wodeyar, the Court has suggested that in cases instituted on a police report, it is “not obligatory for the [court] to issue a fully reasoned order if it otherwise appears that the [court] has applied his mind to the material.” Implying, thus, that in cases other than those instituted on a police report, the cognizance order must contain fully fleshed out reasons.

Why, then, does the Supreme Court confuse us (and itself) on the point of cognizance? At the heart of this issue lies, what appears to me, a conflation of the stage of taking cognizance and the stage of issuing summons to an accused person to face trial. The former falls under section 190 Cr.P.C., the latter under Section 204 Cr.P.C., and the text of these provisions makes apparent that there is a different legal inquiry underlying both stages. Cognizance, as was mentioned above, is a minimal threshold for the case to cross, but the stage of summoning requires a court to form an opinion whether “sufficient” grounds exist to proceed further in the case and summon a proposed accused. 

When dealing with police cases, courts almost always deal with both stages together in one order which contains bare reasons, if any — if a court takes cognizance, it is presumed that the police investigation would have furnished sufficient grounds to proceed further and summon the accused, so courts do exactly that. A similar exercise ends up taking place where complaints are filed by public servants, in respect of which there is no requirement for courts to record pre-summoning evidence before considering whether an accused ought to be summoned. The only situations where trial courts end up clearly delineating the cognizance and summoning stages end up being those cases which are instituted upon private complaints, because the journey from cognizance to the summoning order involves a necessary stop for recording pre-summoning evidence. 

Both cognizance and summoning are stages that take place without the accused in the room — it is either the police / prosecutor, or the complainant’s counsel, who are present to assist the court in forming an opinion. Which explains why accused persons often end up challenging these orders before superior courts, and why superior courts insist upon judges to properly apply their mind to the issue at hand. However, this cannot result in superior courts demanding trial courts to do more than the statute itself asks, only to be satisfied about the propriety of proceedings below. 

Unfortunately, this is exactly what has happened in Wodeyar. Here, the Petitioner contended that the order taking cognizance was vitiated as it suffered from a non-application of mind by the judge. Since the case was instituted on a police report, the court had done the usual thing of taking cognizance and issuing summons by the same order. This appears to have affected the nature of arguments at both the High Court and the Supreme Court levels as the Petitioner raised a generic plea that the order suffered from non-application of mind [Note: there were also separate grounds assailing the cognizance order claiming it was contrary to the statutory provisions, which I do not discuss here]. 

While the High Court managed to retain the distinction between the two stages in its reasoning, the Supreme Court lost the plot. Prior precedent which explained the kind of application of judicial mind required for issuing summons — Pepsi Foods, Mehmood Ul Rehman, Sunil Bharti Mittal etc. — has resultingly been imported into the domain of taking cognizance, requiring trial courts to do much more than the letter of the law seems to require. By creating this mess about requiring detailed reasons or not depending on the kind of case, the Court has not only created confusion for trial courts, but also opened avenues for more litigation on preliminary issues. Where on the one hand the Court appeared to close doors for such litigation which inevitably delays the trial process, it has simultaneously opened new doors for curious (and well-heeled) litigants to explore. 

Conclusion

Nothing in this post ought to be taken as an aspersion on the litigants in this case, or in any other case where parties challenge orders at a pre-trial stage in the hope of getting the case closed. Filing such challenges before a High Court under Section 482 and then taking them up to the Supreme Court in an SLP, albeit at the cost of often causing serious delays in the process, are legal remedies available to all of us — it is not the litigant’s fault that the costs involved are such that only a select few can end up exercising these options. Which is why I argued elsewhere that pendency in the Indian criminal process is not because of the system malfunctioning due to a lack of resources alone, as some argue, but a feature of its very design. 

Take Wodeyar for instance. The case remains stuck at the same stage since 2016 because the accused persons raised a belated plea on a hyper-technical issue. Now, four years after the arguments on charge had been heard by the trial court, the case will head back there. But since the judge who was hearing the case is likely to have been transferred, it will probably take some more months and years for the trial court to conclude arguments on charge. Then that order will be challenged before the High Court or Supreme Court. Maybe, by the time some of the Justices of the Supreme Court who authored the opinion of November 2021 have retired, Special CC No. 599 / 2015 will have reached the stage of judgment before the trial court. And then, after several years (because there is a huge backlog in hearing appeals), the case will reach the Supreme Court again. 

In the meanwhile, who knows how many more petitions challenging cognizance orders end up in the Supreme Court, claiming that such orders ought to be set aside for not being “fully reasoned”, when all that such orders are supposed to indicate is that the court is seized of a matter which is disclosing commission of an offence.

Criminal Procedure Reform: The Dangers of Overvaluing the Ends and Forgetting the Means

This Blog has consistently argued that changes to the laws forming the bedrock of the Indian criminal justice architecture — The Indian Penal Code of 1860, Indian Criminal Procedure Code of 1973, and the Indian Evidence Act of 1872 — are necessary. No legal system is, or can be, foolproof; but when the flaws end up defining the system, then there is a real problem at hand. That, unfortunately, is how things stand at present — the Indian criminal process is notorious for a distrust of police agencies, illegal and unnecessary pre-trial custody of persons, and unending delays that drain all hope without quenching the thirst for justice. 

Thus, it was a welcome surprise to read that the Union Government's was considering criminal justice reforms early on in its second term. The expectation diminished drastically when, in the immediate aftermath of reports alleging that a young lady had been raped and murdered in Hyderabad, it was reported that the Government's proposed "reforms" to the criminal justice system would erode away the accused's right to appeal and instead require everyone to travel to the Supreme Court at New Delhi to file an appeal, among other things. 

The expectations took another blow — on January 2, the Economic Times ran a report with quotes from unnamed government officials suggesting that amendments on the following lines are being seriously considered for India's criminal justice architecture: 

• Reducing the opportunities for accused persons to appeal against judgments, especially in cases involving crimes against women, towards ensuring speedy justice;
• Vesting judges with greater control over the criminal investigation, similar to the setup in jurisdictions such as France and commonly called an "Inquisitorial" system;
• Making forensic evidence "Compulsory" in cases where punishment is seven years or more; 
• Creating a new classification of offences to help police in their threat assessment for "internal security" purposes.

Since there is no White Paper or Draft Bill out yet, any such reports should not be treated with a high degree of seriousness. But, the repeated references to the idea that curbing the right of appeal is a "reform" measure towards securing "speedy justice" requires us to take it seriously. On doing so, this idea gets exposed for what it really is: not a reform measure, but a pig-headed, anti-poor, and ill-considered move that will only worsen the existing state of affairs. It is an arm-chair fix from the Union for a complex problem, which just cannot be subjected to a one-size-fits-all solution.  

In fact, if there were a hypothetical menu of "reforms" on offer, then taking away the right of appeal against the judgment of a trial court (or substituting it with only having a right to challenge the judgment before the Supreme Court), would rank as the worst possible policy choice our legislators and bureaucrats could make for the Indian setting. This is for several reasons:

• From the due process perspective: Almost every aspect of society works on the basis that there can be errors in decision-making, and so our social processes incorporate means to remedy this by allowing a second chance. The consequences of errors in criminal cases are potentially life-threatening, and therefore, the need for a right to challenge the verdict of a court is essential to prevent travesties and gross injustice. Taking away the right to appeal against a judgment most directly upends this sense of fairness.       
• From the delays perspective: At the same time, efforts to completely eliminate errors can make proceedings inordinately long and end up causing delays. This requires every system to strike a balance between the commitment to fairness and undue delay. Is taking away the the right to file an appeal / limiting it to only the Supreme Court justified when considered through this lens? Absolutely not. Simply looking at the number of years it takes to decide appeals and concluding that they are prone to delays is farcical. A closer look at how appellate courts function would show that the reason behind long gaps between two dates of hearing is courts being overburdened with miscellaneous hearings, where people challenge interim orders or investigative processes, with a view towards avoiding a trial altogether. Thus, taking away appeals won't expand judicial time for other, more proper, hearings, and the free time is likely to be filled up with more miscellaneous hearings and little else. If anything, removing or reducing the scope of miscellaneous hearings may help. 
• From the justice perspective: Not everyone has the financial means to file miscellaneous cases to avoid trials; they take serious money. As a result, criminal appeals end up being the only chance for people having limited means to clear their name from a badly reasoned judgment of the trial court. For similar reasons, a system where everyone in India must travel to New Delhi to file appeals against their local judgments is, again, going to selectively hurt those who need the protection of laws the most. 

News reports about the government's criminal justice reform agenda suggest that discussions have already become one-note and uninspired. Most of these proposals have been on the table for decades, now, and it seems that the exercise is simply directed towards searching the old closet for decent options (even the inquisitorial process idea has been mooted in some respects). It will be difficult to change anything by adopting this approach. Instead, some core beliefs may need to be thoroughly re-examined: For instance, why should everything with a mere "pulse" (as Divyang Thakur put it while writing here) filed by the police trigger the trial process? Or, to go one step further, why should the default setting of our legal system be directed towards carrying out trials for all kinds of cases and why should parties need several months to get permission for withdrawing a case which would ease the courts' load? Maybe, rather than try and cut down on appeals, legislators and bureaucrats should spend some time in redesigning the trial court processes — as I argued in a recent paper.        

Privileging the ends (speedy justice) is not a bad idea per se. But from an approach that considers the means but ultimately privileges the ends — which seemed to have been the Government approach back in August — the current mindset being revealed hints at a single-minded focus on achieving specific ends which will end up decimating all concerns about the means used to get there. What we will end up with are not courts of justice but bureaucracies, processing files at breakneck speed, all in a race to close them as quickly as possible.    

Snippet: New Report on Judicial Delays for Delhi

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

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

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

In short, make sure to read the Report!

The Supreme Court Decision in Asian Resurfacing of Road Agency

Yesterday, a Three-Justices' Bench of the Indian Supreme Court decided a batch of forty-six petitions referred to it, with the lead petition being Asian Resurfacing of Road Agency P. Ltd. v. Central Bureau of Investigation [Crl. Appeal Nos. 1375-76 of 2013, (Asian Resurfacing)]. The decision carries two separate opinions - one by Justice Goel for himself and Justice Sinha, and a concurrence by Justice Nariman. The issues common to these petitions (which date back to 2013), were (i) what is the scope of Section 19(3)(c) of the Prevention of Corruption Act, 1988 [PC Act] (which places some prohibitions on granting of stays in corruption trials), and (ii) whether an order on charge in trials for PC Act offences can be challenged in Revision proceedings before a High Court under Section 397 Cr.P.C. The Court answered these questions as follows: (i) Section 19(3)(c) of the PC Act prohibits granting of stays for any reason, but does not take away the inherent powers of High Courts to grant stays under Section 482 Cr.P.C., and (ii) an order an charge in PC Act cases can be challenged via Revision proceedings before the High Court, as it is not a purely interlocutory order [orders on charge being the judicial stamp on the allegations by the prosecution, where the judge concludes there is enough basis to start taking evidence in the case]. 

Neither opinion answers both issues - Justice Goel mainly addresses the Revision petition problem [Paragraphs 25, 35], and Justice Nariman engages with the issue of stays [Paragraphs 8-11]. If one was to be a purist, these parts of the opinions are what form the ratio, or that part which should be followed in later cases. But such fine lines are hardly ever drawn with Supreme Court decisions, especially so with those by three Justices. And Asian Resurfacing might well prove more important for the large parts of obiter in Justice Goel's opinion, for he created new rules for how stay orders will be granted by courts - "stay orders" here being orders by which the proceedings can be halted by a superior court while it decides a petition brought before it. Now, stay orders shall lapse in all civil or criminal cases upon the expiry of six months unless "in an exceptional case" the presiding judge passes a "speaking order" explaining why continuing the stay was more important than proceeding with the trial [Paragraphs 35-36, Goel J.]. Having explained the effect of the decision, let me now turn to the reasoning adopted for deciding the two questions, before addressing the other remarkable parts in both opinions.

What Was The Problem?

The problem arose because of a decision by a two judges' bench of the Delhi High Court delivered by the current CJI in Anur Kumar Jain [2011) 178 DLT 501 (DB)] (previously discussed here and here). In that case, the Delhi High Court had held that (i) there can be no revision proceeding against orders on charge in PC Act cases, and (ii) while proceedings under Section 482 Cr.P.C. or under Article 226 / 227 of the Constitution were not barred, no order staying the trial could be passed because it was barred by Section 19(3)(c). The practical effect of this was that litigants challenged orders on charge through petitions under Section 482 Cr.P.C. but without getting a stay of proceedings. It should be clear why stay orders were so sought after - if the trial kept proceeding, then any order from the High Court on the point of charge could potentially be useless. Since the High Court could not grant a stay, litigants turned to request the trial court to defer recording of evidence until the High Court decided the petition. Now, High Courts have clogged dockets, and without extremely reputed counsel one is unlikely to get a petition disposed fast enough, and even then most petitions would eventually prove futile. This legal position made it unfairly prohibitive for litigants (both with means and without) to challenge orders on charge despite having good bases to do so.

The legal basis of the Delhi High Court's opinion was tenuous on both issues. It had decided that the order on charge in PC Act cases was an "interlocutory" order, and so could not be challenged through a Revision petition because of the specific bar against this under Section 397(2) Cr.P.C. But it had come to this conclusion by attempting to distinguish earlier Supreme Court precedent in Madhu Limaye [(1977) 4 SCC 551], by suggesting it had been modified by another Supreme Court decision in V.C. Shukla [1980 (Supp) SCC 92] (discussed previously here). With respect to the ban on stay orders, the High Court relied on the Supreme Court decision in Satya Narayan Sharma [(2001) 8 SCC 607] which had held that Section 19(3)(c) of the PC Act completely prohibits granting any stay orders by any court, including by the High Court under Section 482 Cr.P.C. The Supreme Court had arrived at this conclusion in Satya Narayan Sharma without discussing the nature of inherent powers under Section 482, and how several decisions including Madhu Limaye had interpreted the scope of these powers being untrammelled as they were intended to do justice and prevent abuse of process.

How did the Supreme Court Decide the Issues?

The Court held that the Delhi High Court in Anur Kumar Jain was wrong on both counts, while it did correctly hold that exclusion of Revision petitions did not control the scope of a High Court's inherent powers or constitutional jurisdiction. The issue on the nature of orders on charge was straightforward enough - the Court approved the legal position in Madhu Limaye, which had held that "interlocutory" for purposes of Section 397(2) Cr.P.C. was not to be seen as referring to everything except the final judgment. In doing so, it relegated the decision in V.C. Shukla to historical insignificance by holding that that the decision was purely limited to the special statute it was concerned with, and did not affect the position of law. So, the position of law governing PC Act cases remained what the Court had held in Madhu Limaye, and by that standard, orders on charge were not "interlocutory" and remained open to challenge through Revision petitions under Section 397 Cr.P.C. [Paragraphs 24-25, Goel J.].

The legal aspects of the issue regarding granting stay orders in PC Act cases was addressed by Justice Nariman. He reasoned, first, that while Section 19(3)(c) of the PC Act did go beyond merely sanction issues [contrary to what the Petitioners argued (Paragraphs 7-8, Nariman J.)], it did not cast an absolute ban on granting stay orders. Rather, he read this together with Section 19(3)(b), and said that the power to grant stay orders to prevent failures of justice did exist [Paragraph 8, Nariman, J.]. The second part of his reasoning extended this power to High Courts. For this, he reasoned that inherent powers of a High Court were not granted by the Criminal Procedure Code but arose because of the High Court being a Court of Record with powers to punish for its contempt, and the origins of inherent power were thus properly traced to the Constitution itself. Section 19 of the PC Act, by overriding application of anything in the Criminal Procedure Code, therefore could not affect exercise of the constitutional authority by High Courts - under Section 482 Cr.P.C. as well as Articles 226 / 227 of the Constitution [Paragraphs 9-11, Nariman, J.]. High Courts had full powers to grant stay orders even in PC Act cases, and this conclusion meant that the Court's earlier decision in Satya Narayan Sharma was no longer good law.

Everything Else - Rules on Stay Orders and the Ghost of Suneja

Both opinions are curious things - Justice Goel says nothing about the legal issue on stays, and yet his opinion will shake up how courts across the country regulate stay orders in all sorts of cases. And then there is the ghost of Girish Kumar Suneja v. CBI [(2017) 14 SCC 809 (Suneja)] - another decision by three Justices where the Supreme Court considered the same issues. Let's take up both in order.

Limits on Stay Orders 

In recent years, several government bodies have cast a beady eye on stay orders and the delays they cause in the legal system (see here and here). The Court itself has been quite vocal about stay orders being granted too loosely and matters dragging on endlessly. In Asian Resurfacing itself, the Court notes how the FIR was registered in 2001 - seventeen years ago - and the case is still at the stage of charge (although no explicit mention of stay orders is made). Thus, a move which tightens this process can arguably be considered as a positive move for the Indian legal system. To this extent, I agree, but I maintain a cautious optimism over what this case could achieve. We must remember that this is happening in appeals where two specific legal issues regarding the PC Act were referred to a larger bench of the Supreme Court, and none of them was about delays through stay orders in the entire legal system. Thus, it remains fully possible for a subsequent bench of the Court to go ahead and remind us that these observations could not be binding. The chances of this are not remote, considering how a large part of litigation in India involves lawyers strategically using stay orders. On a related note, it should also concern us that the Court was ready to come at these sweeping conclusions without citing any recent data on the problem - it cited portions of a 2012 decision in Imtiaz Ahmed [(2012) 2 SCC 688] which had nothing to do with civil litigation either. Do we know how many cases will be affected by this ruling? Was there a better way than to issue a diktat sitting from New Delhi, that will now rumble on slowly through the vast legal system across India and cause havoc in several cases? Perhaps there was, but now, unless something changes one can expect a fair bit of turmoil as all courts across the country determine the impact of what the Supreme Court said in Asian Resurfacing.

Girish Kumar Suneja

Which brings me to Suneja - a decision that had been the subject of some criticism on this blog (see here, and here) [Full disclosure: I was involved in the litigation in a connected petition for petitioners who had challenged the impugned order, and thus lost in the Supreme Court]. Suneja also addressed both of these issues (unnecessarily, as I argued previously), and had come at diametrically opposite conclusions: the Court had held that (i) Revision proceedings against PC Act orders on charge are barred, (ii) that this prohibition also barred challenging such orders under Section 482 Cr.P.C. as this indirectly lifted the ban on Revision proceedings, and finally (iii) that Section 19(3)(c) of the PC Act completely barred stay orders from being granted. Now, since Suneja was also decided by three Justices, the Supreme Court could not overrule it in Asian Resurfacing. So we find both opinions trying to arrive at a compromise - holding that the conclusions in Suneja were incorrect without actually saying that the decision was wrong. And it makes for a sad spectacle. Justice Goel's opinion admits that "seemingly conflicting observations" were made in Suneja, but it did not displace Madhu Limaye, which remained good law through all these years [Paragraph 25, Goel J.], and strangely enough, goes ahead and favourably cites Suneja to begin his lament against delays [Paragraph 26, Goel, J.]. 

Justice Nariman tries to salvage Suneja by indirectly admitting that some parts of that decision were incorrect and conflicted with other parts which contain "an exposition of the law correctly setting out what has been held earlier in Madhu Limaye". But judgments must be read as a whole, and thus he asks that these parts be read "harmoniously" to arrive at the correct conclusion, i.e. the one that he has arrived at [Paragraph 17, Nariman, J.]. I am yet to fully wrap my head around how this happens: the parts of Suneja that are admittedly incorrect are in fact the holding of the case on two PC Act issues that we have flagged here [Paragraphs 25, 29 and 32 of Suneja]. The lone paragraph in Suneja that Justice Nariman says is "correctly setting out" the law [Paragraph 38 of Suneja], comes when the Court is deciding whether or not litigants could challenge orders on charge through Article 226 / 227 of the Constitution, after the Court has already decided that litigants cannot challenge these orders under the Cr.P.C. And even if one agrees that Paragraph 38 of Suneja should control, I struggle to understand how it controls on the issue of granting stays, which it says nothing about. 

Conclusions

Asian Resurfacing has already made headlines for its limits on stay orders. Those observations are of undoubted significance, but for reasons that I already expressed above, I remain wary of hailing it as a game-changer just yet. The decision is also striking for providing an insight into a peculiar problem that the Supreme Court has often faced - genuine disagreement between two sets of benches on what the law should be. The institutional dynamics of the Court have not always been conducive to neat solutions in these scenarios, and something similar has happened between Asian Resurfacing and the 2017 decision in Suneja. The Supreme Court in Asian Resurfacing has tried to remove the ground on which Suneja stood without finding it incorrect, but the reconciliation is far from satisfactory. Despite how both opinions refused to call it so, the conclusions in Asian Resurfacing are certainly in conflict with what was held by the three Justices in Suneja, which makes the conclusions arrived at in Asian Resurfacing of questionable legal force. This means that, technically, one can argue that the decision in Asian Resurfacing is little more than a bright facade with a hollow core and should not be followed by courts. Only time will tell how the decision is received.   

Criminal Procedure and Clogged Dockets - Reverse Engineering Solutions?

The delay and docket logjams in the Indian criminal justice system have been so abysmal for so long that, at some level, they've lost their shock value. Year on year, local and international reports will be dutifully published highlighting the plight of the system. The government has done its bit too, with the Indian Law Commission having reviewed the issue of delays on multiple occasions (the reports can be accessed on its website). Beyond losing their shock value, while reading most of these reports I also saw that the pervasive nature of the problem has also rendered discussions on solutions stale, with the same drum being beaten incessantly (for exceptions, see this piece by Vrinda Bhandari).

The solutions (give or take a few) range from (i) increasing courts, (ii) increasing fast-track courts, (iii) increasing alternate dispute mechanisms like Lok Adalats, (iv) make judges work more, (v) introduce time-limits for cases, (v) reinvigorate the dormant plea-bargaining system, (vi) enhance quality of investigations. If the criminal justice system were to be viewed as a funnel (to borrow an old and often-repeated imagery) with the persons who don't commit crimes at the broad top of the funnel and those who go to court at the narrow tip, then we see that these solutions are all focused at the tip. Everyone is talking about what happens when we reach the end of the funnel - why not look at what happens at the start itself?

If you think that there are no steps from the top of the funnel till its tip, you're quite mistaken. There are various steps, and each involves an exercise in discretion. Take speeding on the road as an example. First, not everyone who breaks the law gets apprehended - so the first filter is how many people get caught. Out of those who get caught, the second filter is how many of those are arrested and proceeded against at all (a talking to is all that you get). Next, out of those proceeded against, how many are actually made accused persons with a charge-sheet against them. After which, there is the possibility of discharge / dropping proceedings / settlement. Only after this do we get to cases that stay in courts.* So, what I am suggesting is that the current debates are (at best) only looking at when the courts get involved. But there is so much that happens before that needs to be looked at as well.   

At this stage you might have two conjoint objections arguing basically that everyone who gets caught in the web of law enforcement should be prosecuted and taken to court. Should they, really? The view is based on a gross assumption that the criminal justice system is capable of handling so many cases, which it is not. And in our already bloated criminal justice system, the capability to add fresh cases each year is especially reduced. Do the police know this? Of course they do. Are they encouraged to exercise greater restraint in taking cases forward? I don't think so. Should they be the ones making the decision to take the case forward? That is the big question that I think is not being asked often enough in our system. Most reports on police reform that I saw did not discuss this either and were more focused on improving administrative structures and the quality of investigations, rather than discuss the exercise of discretion (see, Model Police Bill 2015, PRS Report on Police Reforms 2017, Model Police Act 2006, Human Rights Initiative Report) 

If I am a police officer who invested months in an investigation, and then another few months in preparing the file of the case (all thanks to our cumbersome processes), will I ever think that the case should not be tried and justice not be done? If my track record rests on how many charge-sheets I file, am I not incentivised to add cases to the courts? The case is different from the crime and since the police are experts at dealing with the latter, they often make bad decisions about the former. This why the Criminal Procedure Code 1973 [Cr.P.C] stipulations in Section 169 requiring police officers to not take cases forward when there is deficiency of evidence are rarely applied in practice. Cases may not get taken ahead for many reasons when a crime is certainly committed - lack of evidence is obvious, but equally important are cost-benefit considerations since each trial imposes sever costs on the exchequer (as a judge constantly reminded me in the District Courts at Saket in New Delhi, you lawyers make citizens pay for each adjournment you take).  

Should, then, we have greater discretion being invested in prosecutors to take the decisions of what cases reach the court? This is common practice across the globe. Owing to certain issues with political interference in prosecution office across states with several posts in the Directorate of Public Prosecutions lying vacant without court intervention, I don't know how useful will it prove to have prosecutors make those calls. But I don't merely proceed on an abuse basis to make a claim - there are legal objections towards such a re-orientation. This comes from the primarily inquisitorial model that the Cr.P.C. contains in which judges have supervisory powers over the investigations being conducted by the police. The Supreme Court has already construed this to include a pro-active duty to monitor investigations in Sakiri Vasu and so I argue that this duty requires courts to throw bad cases away as well. This opportunity will not only present itself at the start when a police officer has to report to a magistrate upon beginning an investigation under Section 157, but will come periodically if a person is in custody due to the limits placed upon pre-trial detention under Section 167. Moreover, if the case is sent to the Magistrate after completion of investigation then the Magistrate can only recommend cases be sent for trial after considering various factors such as evidentiary satisfaction, costs, docket control etc. This would, naturally, mandate that the trial not proceed before the magistrates.     

This is a germ of an idea which is riddled with problems that I hope get exposed in the comments. But I do think that in reversing the focus and looking at the top of the funnel rather than the end, we might be able to come up with better solutions for our ailing criminal justice system. 

* The funnel analogy and this discussion are not my own ideas and were exposed to me as part of a class that I am currently enrolled in for my LLM at Harvard Law School.