Thinking about Law and a 'Legal Science' in India

In a recent post on this Blog, we touched upon the idea of criminal law in India being a rather confusing space to navigate. While the post focused on confusion created due to different courts promoting contrary positions on law, the issue is much broader than that. Courts, Legislatures, and the Enforcement Agencies, all appear at times to be speaking at cross-purposes — on matters of both substantive and procedural law. 

I felt that the point about confusion in the law's landscape could do with a longer, standalone post. I say confusion instead of consistency, but perhaps they can be used interchangeably to describe what I have in mind. Which is the absence of any meaningful coherence within the structure of law. No lodestar to guide lawmaking itself, or to guide decision-making within laws by various stakeholders wielding power. 

Law and Legal Science

There are many reason for pursuing this thought. One of them is a recent paper by Prof. Markus Dubber titled 'New Legal Science in the Dual Penal State' (available here). The paper explores the idea of looking at the structure of law, stripped of the baggage that the legal enterprise has acquired over time in different parts of the globe (traditionally divided across the Common Law and Civil Law lines), and then creating a system based upon identified principles which are pursued through the law. 

This idea, of starting from the ground up to develop a system of law, is a thought experiment which we do not end up dealing with much in India. We do not have any scholarship comparable to Hart & Sacks' The Legal Process that has attempted to unpack the many layers of our legal system, and then try and resurrect it on a bed of principles. What would such an exercise look like within the Indian context? It would need a lot of work, for starters, because of how many layers the Indian system consists of. And then there is the conflict about principles. Professor Dubber's paper moves on the premise that a new Legal Science will be in pursuit of a critical analysis of law. However, can we really agree on what those principles will be, and create a system in willing pursuit of critically analysing the exercise of power by the state? I wonder.

Here, I only bear half the burden and explore the layers of our legal system, working backwards, peeling back layers of the onion. The fight about principles can come later, and by others.         

Our Constitution as a Source of Principles?

Before you say "We do have a lodestar, it is the Constitution of India, and this post can end here", let me deal with that at the outset. The Constitution is a political document which proscribes certain legislative acts in Part III, and promotes certain others in Part IV, but it is not a document which actively crystallises principles for lawmaking. Within that broad sphere of activity which the Constitution leaves open, a State is free to do as it pleases. Even the power dynamics that it sponsored have created more problems than we are ready to acknowledge, as Gautam Bhatia has argued in his recent book.

The boundaries of principle have been supplied by our courts, and quite erratically at that. As Sandipto Dasgupta's argues in his book, independent India's judiciary saw independence as an opportunity for the courts to fully embrace Common Law, and the Supreme Court tested the Constitution not on its own terms or those of its founding principles but on the anvil of Common Law principles which the judiciary thought that it had inherited. Whatever scope for principled lawmaking the Constitution may have provided thus proved to be short-lived as a result.

The Common Law in India   

Peeling off this layer of the Constitution and the founding moment of the Republic takes us to the layer beneath; of colonial rule which began formally in 1858. It was the legal traditions introduced during this time which the judges of independent India turned to. Not just the courts, but the move to "Legalize the Revolution" (borrowing again from Dasgupta) meant that a large part of the colonial state apparatus was retained after independence. 

What were the principles which guided lawmaking during this era? Was it really the Common Law as the judges of post independence India wanted to argue — albeit a shackled common law which they felt had been freed with independence? Or was it something more complicated than that. M.C. Setalvad's Hamlyn Lecture titled the Common Law in India is a good place to start unpacking this, but it is necessary to place it in context. Setalvad delivered this seminal lecture in 1960, at the end of the tumultuous first decade of the Constitution of India governing affairs. A decade in which he was the country's Attorney General and at the forefront of the constant tussle for the Constitution that was going on. To think that Setalvad was in England merely delivering a historical or academic lecture is naive — the lawyer was making a case about his vision of independent India's legal system. 

The pitch that the Common Law came into India is one that has stuck since. But it requires more critical scrutiny than what has so far been offered to help us arrive at a more honest appreciation of the conflicting influences that guide India's legal system. To simply wax lyrical about the Common Law in India ignores a large tradition of colonial legal history — that of the Codification enterprise. 

Codification was conceived of, in part, as a response to the Common Law. A set of predefined rules that did not change on the basis of successive judicial decisions. It was meant to be the scientific expression of law, par excellence. And it was in codification that the colonial legal enterprise was birthed originally, in both realms of civil and criminal law. The Common Law that the courts of British India employed was within this context of these codes, and within the broader context of colonial rule. It presents us with the original setting of the common law working in an age of statutes, much before Guido Calabresi would go on to discuss these themes for America.

The principles, motivations, and influences behind the Colonial Codes, which were interpreted by courts using — at times — the set of principles developed in the Common Law of England, are therefore also an inseparable part of how we unpack Indian law today because of independent India's choice to retain these  codes lock, stock, and barrel. 

The Messy, Pre-Colonial, Company Era     

Peeling the layer of colonialism, we find the messy pre-colonial era which preceded the formal assumption of power by the Crown. Much like the peaceful transfer of power that occurred in 1947, the assumption of power in 1858 was no break with systems past. Instead, legislative and administrative projects which began prior to 1858 are what came forth as the first colonial codes in criminal and civil law. 

A shift from colony to independent nation-state in 1947 without changing much of the colonial state apparatus, including the colonial legal codes, meant that independent India chose to avoid confronting the logic of power that underlined the colonial legal system. This was a logic which placed the sovereign above the subject-citizen. Adopting it in a post-colonial setting has, arguably, proved not to be the best of choices from the perspective of creating accountability upon sovereign power. 

If we turn the clock back to 1858, the transfer of power took place by a simple proclamation read aloud by Lord Canning, and all the natives under Company rule became subjects entitled to all protections of a rule of law under the British Crown. But, the foundational premise of Company Rule was markedly different from Crown Rule. Its predominant goal was policing the territory to maintain law and order and maximise revenue; justice, was not a prerogative. And in adopting the police-state as the base for Crown Rule, it was ensured that the justice promised under the Crown would also remain a poisoned chalice. 

The core interest of Company Rule was revenue collection: administration of law was a by-product. For ease of administration, procedural systems similar to the British law were introduced for civil and criminal proceedings. The core interest structuring these proceedings was not justice but regulation and maintaining order for maximising extraction of wealth. Company Rule coexisted with a sliver of pre-1858 Crown rule, in the form of Crown Courts for certain areas (Presidencies) and peoples (the British).  

The shift from Company to Crown Rule did not eliminate the Police State components while introducing or expanding the just rule of a benevolent sovereign — assuming that the Crown Courts administered any such thing in the first place. But rather 1858 and the subsequent years assimilated them together to form a composite structure akin to the kind of Dual Penal State which Dubber has identified in different contexts. This is perhaps most visibly seen in the complementarity and later assimilation of the Police Act and the Criminal Procedure Code which were enacted by the Crown after 1858. 

Forerunners to Company Rule

The police state of Company Rule is as much part of the foundations of Indian Law as is the Constitution. But it is not the last layer of the onion. We can continue to peel it further and reach the 18th Century. At this point, different parts of the subcontinent were under different legal regimes. Those parts in which the British East India Company took root were no terra nullius either. The legal systems which the Company introduced through its regulations were designed to either nullify, or complement, the pre-existing regime that the Company encountered. This meant, therefore, that the Company's law was also influenced in turn by what came before it. 

The recognition that what came before Company Rule mattered to how the British went about their task in introducing legal rules and schemes for governance is important to help understand just how complicated the structure of present-day Indian Law is. These influences are also not of mere historical significance but can be felt even today, both indirectly in terms of how they influenced the British-era law as well as directly in how various practices can still trace roots back to this period. It is a shame that an effort to go and 'decolonise' the criminal law made no attempt to unravel the substantive foundations of the present-day Indian criminal law, which appear to be largely a 19th Century creation.  

Why a Legal Science?

Without fully engaging with, and deconstructing, all of these influences upon our legal system, it is impossible to carve out the principles that do guide its functioning, or identify ones that ought to guide it.

There is no need for this exercise if all that we want from 'Law' is that it provides some kind of rickety and uncertain basis for how social, political, and economic relationships can function. But if we want to go a step further, then a project of the kind that Dubber bats for — call it by whatever name — is obviously a desirable effort. Especially, in a jurisdiction like India, which has so far not had any time for a true and honest reckoning with its legal history to organise its legal present.

There are numerous examples where a consistent, principled, approach would reap benefits in how the law is created and applied. Within the criminal law, one can easily think of how it would transform the regime of bail and arrest. Again, I might add, for better or for worse depending on where you stand. Either which way it would be better than the present system where outcomes appear determined largely by the luck of the draw, and personal moral compass of individual officers and judges who wield near total discretion in deciding matters pertaining to individual liberty.           

Anticipatory Bail and Jurisdiction - The SC Weighs in

A long time ago, this Blog discussed some issues arising in the law under Section 438 of the Criminal Procedure Code 1973 [Cr.P.C.], the provision which confers a right to seek bail in a case involving allegations of non-bailable offences prior to the police actually carrying out an arrest. This is more popularly referred to as 'anticipatory bail'. The issue that had been discussed was one of territorial jurisdiction — suppose you are in one State, say Maharashtra, and learn that a case has been registered against you in Delhi alleging commission of non-bailable offences. Can you file for anticipatory bail before the Maharashtra courts, or must you travel to Delhi?

While this issue has not received the legislative scrutiny that it deserved either in terms of the existing Cr.P.C. or the law that might replace it, the Supreme Court weighed in on the issue in Priya Indoria v. State of Karnataka & Ors. [SLP (Crl) No. 11423-26 of 2023, Decided on 20.11.2023 ("Priya Indoria")]. A case was registered in Chirawa, Rajasthan, and the accused persons sought and obtained anticipatory bail in Bengaluru, Karnataka. The validity of these orders was sought to be challenged by the victim, as well as the counsel for the State of Rajasthan, on grounds that the Bengaluru courts lacked jurisdiction to grant anticipatory bail. Priya Indoria noted the absence of any clear precedent on the issue and took this opportunity to fill the gap.

Three options were possible for the Court: (i) to hold there is no jurisdiction on courts other than the place where the case is registered; (ii) to hold that there are no fetters on jurisdiction of courts other than the place where a case is registered, such as the place where the accused is ordinarily residing, or; (iii) to hold that courts at places other than where the case is registered can grant limited reliefs in the interests of justice. It held in favour of the third view, which according to the bench struck a balance between the interests of the investigation while safeguarding personal liberty. 

The judgment discusses some of the existing judgments on the issue delivered by High Courts [Paras 17-18], besides also citing foreign law [Paras 19-20], to conclude that an interpretation totally excluding all courts outside the jurisdiction of the state where the case is registered "may lead to an anomalous and unjus consequence for bona fide applicants who may be victims of wrongful, mala fide or politically motivated prosecution." [Para 26] This is not only in light of the constitutional promise, but also because the text of Section 438 militates against the restrictive view [Paras 25, 31 to 35, 37, 42, 43, 44]. Importantly, it clarified that applications for anticipatory bail could be filed even before the concerned Sessions Court as opposed to being restricted only to High Courts which is what the existing orders had suggested.   

However, to ensure that the balance is properly struck, the Court supported only a "limited anticipatory bail in the form of an interim protection" be granted in "exceptional and compelling circumstances" where refusal to grant relief would cause "irremediable and irreversible prejudice", and set out various conditions for the same [Para 36] and reiterated that the Court must satisfy itself as to the territorial proximity of the accused with the jurisdiction where the petition is being filed [Para 40].

The 'middle path' approach enabling other courts to grant some protection to aggrieved persons was the view favoured in the earlier post on the Blog too. Nevertheless, it must be said that while Priya Indoria does arrive at this conclusion, it places a much higher burden upon litigants seeking relief than what was the existing position emerging from the judgments of various High Courts. One can reasonably wonder whether the onerous language of Priya Indoria will do more harm than good by condemning many genuine petitions by the wayside simply because the highly subjective, and also highly arbitrary, standards could not be met. One can also reasonably wonder what was the need for such high thresholds when all that the Court endorsed was limited interim reliefs to enable a person to appear before the other courts. 

The need for placing such a high threshold is seemingly justified in the mind of the Court because it wanted to discourage forum shopping [Paras 35, 36]. This point proceeds upon an assumption that while Section 438 Cr.P.C. does not place territorial fetters, there is still a proper forum for granting the relief of anticipatory bail, and it is the courts where the case is registered. This assumption is never really explored or explained at any place in the judgment, which is unfortunate given how it is central to the operative portions of the judgment.

For now, the judgment in Priya Indoria will at least ensure that those jurisdictions which, wrongly, stuck to a rigid territorial view of Section 438 Cr.P.C. can no longer deny applications only on such grounds. 

Crafting Accessible Remedies to deal with Multiple FIRs and Complaints

2020 (and January 2021) witnessed a series of high-profile cases where the potential accused persons were sought to be prosecuted across the country for their conduct. Arnab Goswami, Amish Devgn, the makers of Tandav; in all these cases, specific speech acts of the accused persons attracted the ire of people across states and led to the filing of multiple cases. All these accused persons had to go to the Supreme Court for reliefs, asking for quashing the multiple cases or at least clubbing all cases to one place. As an interim measure, the Supreme Court agreed to the transfer request (except, in Tandav).

These kinds of cases are quite common, and before TV news and OTT it used to be newspaper / magazine articles that prompted such a flurry of litigation. This does not mean, however, that there is no problem here. Multiple cases for the same underlying offence potentially expose a person to double jeopardy — not only in the limited sense of double punishment, but the hazards of facing the threat of arrest from different police forces as well during an investigation. Further, in a legal system crushed under the weight of its pending cases such litigation is sheer wastage of what are scarce resources of judicial time and money. 

The problems, therefore, are really quite serious. This post discusses with the remedies that are in place to address them, and argues that these are inadequate and ineffective. The primary remedy — arguing that a second FIR cannot be registered for the same offence — is found wanting not only because it cannot offer preemptive help and requires intervention either by the Supreme Court or a High Court, but also because of how (justifiably) the Supreme Court has narrowly read this test to prevent frustration of legitimate investigations. Building on the logic of the second FIR line of cases, I argue that it is possible in 2021 to try and invent remedies at the magistracy level, focusing on the twin problems identified above of the harassment faced by an accused as well as wastage of judicial time and money.

The "Second FIR" Law

Since at least 2001, when the Supreme Court decided T.T. Antony [(2001) 6 SCC 181], no doubts remained that a second FIR could not be registered for the same incident. As a result the prosecutions launched against Antony and the others in 1997 (by a new government) for a police firing incident of 1993 were set aside, as these persons had already been prosecuted for the same incident in 1994. The judgment went into the logical problems of having two "first" information reports to back its conclusion, but thankfully it also made more substantive arguments touching issues of the jeopardy such multiple prosecutions would bring:

"However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report"

Notice the use of "same incident" here, and note that within Antony, the phrase "same offence" finds no mention at all. The potential width of same incident versus same offence is worth pointing out, as while an incident can contain many potential offences, the offence itself is a much narrower formulation. This is evidently a double-edged sword which could frustrate more serious investigations from taking place where a lousy first FIR gets registered for an incident. Over time, the law on this position has been repeatedly clarified to prevent such situations. Thus, within Antony itself, an exception was carved out for what are called "cross-cases" arising from this same incident, i.e. cases depicting the conflicting versions of two sides to a dispute. Then in Upkar Singh [(2004) 13 SCC 292] it was clarified that a second FIR for other offences in the same transaction is not always barred when new facts come to light. A decade later in Anju Chaudhary [(2013) 6 SCC 384] and Amitbhai Shah [(2013) 6 SCC 348], different benches of the Court re-iterated the narrowness of the Second FIR logic, and in Anju Chaudhary it was stated that:

"It will, thus, be appropriate to follow the settled principle that there cannot be two FIRs registered for the same offence. However, where the incident is separate; offences are similar or different, or even where the subsequent crime is of such magnitude that it does not fall within the ambit and scope of the FIR recorded first, then a second FIR could be registered."

The Court did not refer to either Amitbhai Shah or Anju Chaudhary while passing orders dated 19 May 2020 in Arnab Ranjan Goswami [WP (Crl.) 130 of 2020], but its analysis of the issue was telling. The Court looked at the several complaints that were filed and was persuaded of their similarity not only because they pertained to the same incident, but also their content was in near-identical terms, leading to the irresistible conclusion that there was an "identity of cause of action".

What is the upshot of this? The Court has consistently held that a multiplicity of criminal proceedings for the same cause of action is impermissible. At the same time, the remedy it has crafted is necessarily post-facto and requires in-depth examination of the multiple cases to determine their purported similarity. As it is probable that the cases may fall across state boundaries, it also means that the only court unequivocally competent to hear such cases is the Supreme Court itself. All of which creates a fairly long period of time in which there is no protection for accused persons from various state police forces; police forces which spend taxpayer money investigating into the same underlying acts.

Crafting Remedies 

Is there really no better way to solve this problem apart from taking a gamble and going to court hoping to convince a court that the many different complaints against a person all stem from the same incident, to an extent where the court is agreeable to grant urgent reliefs? Note, that the focus here is on police cases (not complaints) and on the stage before a case comes formally to a court after an investigation is over. For complaints, it is possible to also explore proceedings under Section 186 Cr.P.C. which would be filed before a High Court and become open once cognizance is taken, i.e. at the outset of a complaint case. Similarly, transfer applications are yet another remedy, but they also limited to cases where cognizance has been taken in normal course. For our specific problem, there is no ready solution on the statute book. 

The history of "Second FIR" cases makes obvious the limitations in this remedy: (i) its costs, as going to the Supreme Court and getting a relief is not cheap and something only the rich and powerful can afford; (ii) the risk in doing a top-down litigation, as any observation from the Supreme Court can sway the course of the litigation before lower courts; (iii) the necessarily standards-based nature of the evaluation of facts, and; (iv) the lack of any preventive aspect. It is far from true that the problem itself is limited to those who might be rich and powerful. With the spawning of complaints based on social media utterances, it is fair to state that this is an issue to which any person can face today. As a result, it is all the more imperative that an accessible remedy exists to help deal with this problem. One that begins at the level of the magistracy or sessions court judges, rather than works in a precarious top-down manner starting with the Supreme Court first.  

Could Section 156(3) Cr.P.C. provide an answer? Since the decision in Sakiri Vasu [(2008) 2 SCC 409], a renewed emphasis has come to be placed on the role played by the concerned magistrate in ensuring a fair investigation takes place. Accused persons have also been given locus to assist the court in securing this objective through this interpretation of the clause. Could an accused person, or the magistrate herself, not insist on a report from the police on the status of other cases that might have been filed? With the advent of the CCTNS system in which details for accused persons named in FIRs have been rendered accessible to police and courts across the country, it is not that hard to execute such a task. But the problem is, what can a trial court do with this? At best, the trial court could pass an order saying the multiple investigations seem bogus and the accused can use this in the High Court. Even this exercise, to remain fair, must carry the kind of subjectiveness in review that is on display in Arnab Goswami and other cases however.

In addition to this, one other remedy can be the crafting of a new kind of temporary anticipatory bail order in such cases, coupled with the time that it takes for a court to decide the plea of closing the multiple FIRs, that could be granted. This would not only ensure that a potential accused is not harassed while a court is in seisin of the legal challenge, but also indirectly spur the court to dispose of this matters urgently so as to ensure that the interests of ongoing investigations are not forsaken in the process. Instead of clubbing this as an interim prayer only available before the Court in which the main petition is filed, however, I suggest it remain an option available even for the sessions court. This could work in the way that a convicting court can grant bail for thirty days, allowing a convict to prefer an appeal against conviction. Here, that time would be significantly shorter, but at least would ensure that a person cannot be picked up while she attempts to pursue her legal remedies.

Lastly, perhaps courts or government could craft certain rules or procedures to help stem the tide when it comes to prosecutions for online speech or even speech on TV channels. The recent Intermediaries Rules 2021 provide for a grievance-redressal mechanism that focuses on the complainant but it does not account for the potential harassment faced by content creators and users. While the Supreme Court has now asked the government to go back to the drawing board with the Rules as in its eyes it lacked "teeth", perhaps the government could use this opportunity to add this kind of a safeguard to streamline potential prosecutions in this arena.   

Conclusion        

The problem identified in this post is an obvious one that has been a part of the system, and one which is only becoming more prolific over time — multiple complaints for the same alleged acts which not only expose a person to double jeopardy but also waste judicial time and taxpayer monies. It was identified two decades ago by the Supreme Court as well, but unfortunately, the remedies crafted by the Court have failed to keep up with the times and offer little succour to those hounded by multiple law enforcement agencies and criminal complaints, all of which show an "identity of cause of action". A more effective solution is urgently necessary to ensure that personal liberty is not reduced to a pipe-dream.

Anticipatory Bail and Jurisdiction

Suppose you are ordinarily a resident of Delhi, but come to know that a case has been filed (or is about to be filed) against you in Mumbai, alleging you committed non-bailable and cognizable offences such as "Cheating", punishable under Section 420 of the Indian Penal Code 1860 [IPC]. Your law-savvy friends tell you that it is wise to urgently move an Application under Section 438 of the Criminal Procedure Code 1973 [Cr.P.C.] to get "Anticipatory Bail" and diffuse chances of an arrest. 

For those who are unaware of the term, "Anticipatory Bail" refers to a legal remedy where a person can go to court to seek bail in anticipation of her arrest on allegations of having committed a non-bailable offence, which may or may not have yet been registered as a case. If the court finds the apprehensions are genuine, and that there are reasons to protect against arrest, then it can direct the police to release the Applicant on bail in the event of her arrest.  

This, obviously, makes sense in our example, and so you get the papers ready. But here's the problem: where do you move the Application? In Delhi, where you reside, or in Mumbai where the case is filed? This post discusses the issue of jurisdiction in context of seeking Anticipatory Bail. I explain why the issue persists, and then try and make sense of the different opinions prevailing across High Courts. I argue that the wisest course seems to be to chart the middle course, and allow persons to file the Application in both places.

Some Necessary Background 

Section 438 Cr.P.C. was not part of the old Criminal Procedure Codes passed in British India. It was a new feature in the 1973 Code, based on a trend emerging in some states that was endorsed for statutory recognition by the Law Commission of India in its 41st Report (see pages 320-321 of the document), and its 48th Report (see page 10 of the document). Why was this new remedy added? In the 41st Report, the Commission argued that it was needed "mainly because sometimes influential people try to implicate their rivals in false cases for the purposes of disgracing them or for other purposes by getting them detained in jail for some days." It recommended that the power to pass such orders not be given to Magistrates, and be reserved for the Sessions Court or High Court. What the Commission recommended as Section 497-A for the old 1898 Code, has become Section 438 in the current Cr.P.C. 1973. 

As mentioned above, the idea of anticipatory bail was to ensure that persons be released on bail after arrest. Which is why many judicial decisions on the subject state that it is not a protection from arrest per se. However, in practice, anticipatory bail ends up working as a protection from arrest, because rather than arrest a person and release her on bail the police choose to not conduct any arrest at all. As a result, a person ends up requiring to file for bail once again after the police investigation is over. In a later section, I will come back to how this practical aspect of anticipatory bail also contributes to the issues of jurisdiction.       

The Jurisdiction Problem in Anticipatory Bail

Take a look at Chapter XIII of the Cr.P.C., which explains how to determine the jurisdiction of criminal courts. It is striking how this set of provisions regularly confers jurisdiction upon more than one place. This is not accidental, as it is guided by the idea that technicalities should not override the criminal process. So, if the Cr.P.C. itself is happy with multiple jurisdictions for the inquiries and trials, why am I suggesting there is a jurisdiction problem? Why can't both places, i.e. the site of accusations and the site of my fear of arrest, have jurisdiction in cases of anticipatory bail? 

This is because throughout Chapter XIII, the jurisdiction of criminal courts is based on places having connections to the alleged offence, not where the accused lives. This leads some people to argue that jurisdiction, as a concept in Indian criminal procedure, is offence-based.

This becomes important when we compare anticipatory bail with regular bail. In the latter, a person is taken into custody, and then moves for being released. In those situations, there are no qualms about where to file for release: you either go to the relevant police officer, or the court which extends your custody beyond 24 hours. And if you want to challenge your remand to custody, you go before the appellate courts within that area. Thus, custody is the key factor for deciding jurisdiction in regular bail cases, and thus ties in nicely with the Chapter XIII concepts. 

Anticipatory bail, on the other hand, precedes custody. What triggers this process is the apprehension of being taken into custody for committing a non-bailable offence. And since this apprehension is person-specific, it is quite possible for the place of potential custody to be divorced from where I reside and harbour my apprehensions of arrest. So, it appears that there are two key factors to decide jurisdiction: accusations of committing an offence, and apprehension of arrest; and it is not necessary for them to always overlap. And the place of residence for a defendant, as we saw, is not a principle for determining jurisdiction under Chapter XIII.

Besides relying on principles, the argument of particularity in deciding anticipatory bail jurisdiction also gets support from the text of Section 438(1) Cr.P.C. itself:

When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this Section; and the Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. [Emphasis mine]

The words in Section 438(1) are clear: you can apply to the High Court or the Sessions Court, not a / any High Court or Sessions Court. This "the" cannot be accidental, and therefore, must be seen as specifying one court as the court of competent jurisdiction. And since one provision of the Cr.P.C. cannot be contradicting the overarching principle on jurisdiction identified above, this particular court must be the place where the alleged offence occurred / case was registered. 

Diverging Judicial Opinion

In State of Assam v. Brojen Gogol / R.K. Krishna Kumar & Ors. [(1998) 1 SCC 397], the Supreme Court had a chance to address the issue. The case involved a batch of petitions where the Bombay High Court had granted anticipatory bail to accused persons in a case registered in Guwahati. When the State of Assam moved the Supreme Court, it transferred the cases to Assam, but while doing so expressly chose to leave the jurisdiction question undecided. 

As a result, today there is still a spectrum of divergent judicial opinion on the issue.* On one end are courts which subscribe to an expansive view on jurisdiction and allow applications to be filed in the place where the accused resides. This set includes some orders of the Delhi High Court. These courts do not bunk offence-based jurisdiction, but consider the expansive view necessary because of another, equally fundamental, principle of criminal procedure: ensuring the widest possible protection for personal liberty. 

At the other end of the spectrum are courts which subscribe to the restrictive view sketched out in the previous section. Further textual support for their view is derived from Section 81 Cr.P.C., which expressly confers jurisdiction in bail cases on a court other than the court within whose territorial jurisdiction the case is filed. Thus, the Patna High Court, Calcutta High Court, and Punjab & Haryana High Court all hold the view that only courts having jurisdiction over the place of alleged offences can entertain anticipatory bail applications.** 

Somewhere in the middle of this spectrum fall the Kerala High Court, Karnataka High Court, Bombay High Court and Gujarat High Court. The Kerala High Court held that an application can be filed where the accused resides. But, the scope of protection is limited to any arrests carried out within the territorial jurisdiction of the state. The other three High Courts don't impose territorial limits on the scope of protection, and instead place a time limit on the duration of protection from arrest, so as to enable to person to subsequently move an application before the other court. Both these views highlight different ways of expressing a judicial compromise between the rule of offence-based jurisdiction, with the other rule of protecting personal liberty from unnecessary restraint.   

Solving the Muddle 

Let me state at the outset that, in my view, the restrictive approach to jurisdiction is incorrect. 

This is because courts have wrongly derived from Chapter XIII that offence-based jurisdiction is an immutable principle in Indian criminal procedure. Chapter XIII applies to "inquiries and trials" in respect of cases. A hearing to decide whether anticipatory bail should be granted is certainly not a trial, but is it an inquiry? A Constitution Bench of the Supreme Court in Hardeep Singh [(2014) 3 SCC 92] said that the "inquiry" stage commences after filing a Charge-sheet. While this decision was in context of explaining the scope of Section 319 of the Code, the views on what is an "inquiry" are not limited to that context, are in fact supported by earlier cases as well.

Anticipatory bail hearings are at the start of the investigation process, very distant from the filing of a charge-sheet. It can be argued, therefore, that the principles of offence-based jurisdiction located in Chapter XIII are thus not applicable to the anticipatory bail context at all. Thus, while the principled opposition to residence-based jurisdiction falls, the support for such jurisdiction definitely remains, as there is nothing contrary to the principle that protecting personal liberty is a paramount consideration in the criminal process. If anything, the legislative history behind Section 438 Cr.P.C. confirms that this protection of personal liberty was the main reason why anticipatory bail was inserted in the new Cr.P.C. of 1973. To adopt a reading of the provision contrary to this express legislative intent is surely to be avoided.  

Therefore, the restrictive approach end of the spectrum is clearly undesirable. For different reasons, the views at the opposite end of the spectrum are equally undesirable — and, frankly, even the Delhi High Court has moved away from this position slowly — and make the middle ground arguably the most viable approach to follow. Even though it involves creating technically incorrect jargon — such as "transit" anticipatory bail, or "interim" anticipatory bail.

These reasons are two sets of practical considerations. The first, is how anticipatory bail orders are treated in practice (discussed a few sections above). Recall that technically anticipatory bail is not a protection from arrest. Thus, technically, the residence-based court would cease to matter after the urgent issue of anticipatory bail is decided. Because if a favourable order is passed, then the police would arrest the person and execute a bail bond, which would cement the offence-based jurisdiction henceforth. Any issues about bail etc. will have to be litigated in the local court now, because in law, that is the forum supervising the liberty of the accused person who is out on bail. 

However, we know that in practice anticipatory bail doesn't work this way. Rather, it becomes a protection from arrest because police refrain from carrying out the formal exercise of arresting the person and consequently releasing her on bail. To allow for an accused to be at liberty on the basis of orders passed by courts in a different state altogether is a problem. For starters, since there is usually no actual arrest, it means that there are, technically, no conditions on the person's liberty yet, which increases the chances of absconding; something already high if the accused lives in another state. Beyond this, I would argue that once we have moved away from the state of urgency that a scenario of anticipatory bail can entail and the principle of personal liberty is duly considered, it makes lesser sense to derogate from the logic of offence-based jurisdiction that the Cr.P.C. does subscribe to.

This is why the middle path makes most sense. It appreciates how anticipatory bail works in practice, and in this practical context gives due consideration to both principles, of protecting personal liberty and also securing local jurisdiction for prosecuting crimes. This view knows that ultimately, an order granting anticipatory bail proper is going to apply for the remainder of the investigation. Which is why it allows residence-based courts to protect against arrest for a sufficiently long period within which a person can approach the offence-based courts for anticipatory bail. One might argue that the view of the Kerala High Court, that protection from arrest cannot go beyond state-boundaries, is one that respects the federal system. But since we don't follow hard-federalism at all, and High Courts are constitutional creatures, one can also argue that the effect of a High Court's orders should certainly be allowed to travel beyond state-boundaries.

Conclusion
The issues regarding anticipatory bail and jurisdiction discussed in this post should not be issues in 2019, when we have had the provision on the statute books for almost half a century. Parliament could solve this muddle with a simple pen-stroke — delete "the" from Section 438(1) Cr.P.C. and it would seriously dilute the force in the restrictive view. But hoping for Parliament to amend criminal procedure is akin to Waiting for  Godot, and so we must wait, for the day when the Supreme Court might change its mind to settle the conflicts.

*Note, that none of these courts clearly tell us whether or not applications can also be filed before a Sessions Court.

**Note, that while the judgments don't say it, this view naturally means that if a case has not yet been filed in a particular place, then a plurality of courts can exist based on the jurisdiction rules of Chapter XIII.

[Post amended on 30.07.2019]

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.   

Exclusion of Jurisdiction and the decision in Girish Kumar Suneja

On 13 July 2017, a three-judges bench of the Supreme Court dismissed the petitions clubbed together with Girish Kumar Suneja v. CBI [SLP (Crl.) 9503 of 2016, hereafter Suneja]. The preliminary issue raised in these petitions was a challenge to the Supreme Court's order dated 25.07.2014, whereby aggrieved persons were confined to only approaching the Supreme Court with a "prayer for stay or impeding the progress in the investigation / trial", and jurisdiction of High Courts was thus excluded. This Blog, on an earlier occasion, had considered the Petitioners' case and argued that the impugned order of 25.07.2014 was bad, and readers may refer to that post for a recap. Here, I argue that the decision in Suneja does not offer any convincing justification for why the Court disagreed.

Excluding Jurisdiction: Missing the Forest for the Trees

In Suneja, the Court takes up three key arguments assailing the exclusion of jurisdiction caused by the order of 25.07.2014 and its effects - (1) Curtailment of the High Court's power to entertain petitions under Sections 397 and 482 Cr.P.C; (2) Exclusion of writ jurisdiction under Articles 226 and 227 of the Constitution; and (3) A violation of Article 14 caused by treating the 'coal-block allocation scam' cases under this special procedure. On all three counts, it disagreed with the Petitioners' claims. On closer examination, one can see how the Court does so not by engaging with the argument, but by avoiding it altogether.

Sections 397 and 482 Cr.P.C.

On the first issue of curtailing statutory powers of entertaining revision petitions [Section 397 Cr.P.C.] and quashing petitions [Section 482 Cr.P.C.], the Court reminds us that these are not rights, such as appeals, but entitlements. A High Court may refuse to entertain these petitions. This characterisation was never in doubt - the issue, was whether it was unconstitutional to deprive the High Court of even this ability to entertain such petitions. For this, the Court turns to the legislative history of Section 397(2) Cr.P.C. [which prevents revision petitions for challenging interlocutory orders] to elaborate that the scope of revision jurisdiction was restricted to prevent delay. But the Court does not conclude that the present petitions fall within this category, which renders these observations obiter. Perhaps proceeding with that assumption, the Court moves on to consider the scope of inherent jurisdiction under Section 482 Cr.P.C. Again, it talks of a 'rarest of rare' level for quashing petitions being entertained, implying that the issue must be very serious to warrant intervention. Still, no answers are offered to explain what warrants an exclusion of this jurisdiction altogether. One may then assume that the Court implies the exclusion was illegal, which is why it considers the tests for considering whether the present cases could have triggered an exercise of jurisdiction under these provisions. 

In doing so, the Court makes notable errors in law. For instance, in considering the interplay between revision and quashing the Court notes that "it is quite clear that the prohibition in Section 397 Cr.P.C. [of not proceeding against interlocutory orders] will govern Section 482 Cr.P.C. We endorse this view." This means that for Court, Section 397 applies to all final and intermediate orders, while Section 482 applies to interlocutory orders. Such a reading ignores the notwithstanding that comes at the start of Section 482, which has led the Supreme Court to conclude on several occasions that the scope of Section 482 remains untrammelled by the terms of Section 397 - most recently clarified by another bench of three judges in Prabhu Chawla [Crl. Appeal No. 844 of 2016, decided on 05.09.2016]. Remember, all this is irrelevant, because the present cases actually involved a question of why recourse to this jurisdiction could be barred. The Court only engages with that issue in its terse refusal to consider the decision in Antulay [(1988) 2 SCC 602]. Antulay was a decision by seven judges, but it is distinguished because the facts were different and it involved a trial before the High Court itself, and the impugned provision therein - Section 9 of the Criminal Law Amendment Act 1952 - in turn used the 1898 Cr.P.C. The facts, though different, led the seven judges in Antulay to consider why any court's jurisdiction could not be ousted, which would nonetheless be relevant here. That the bench in Suneja even raises the second point about the Cr.P.C. is simply shocking, since the allegations in Antulay concerned a period after 1973 and by which time the 1952 Act was being read with the new Cr.P.C. [as required by Section 8 of the General Clauses Act 1897].  

We are then left without any answers for the actual issue. For some reason the Court continues to miss the forest for the trees, and refuses to tell us why recourse to revision and quashing was made impermissible in the present batch of cases. It painfully continues to develop on the obiter by considering whether the batch of petitions met the standard of seriousness for interference under Section 482 Cr.P.C., and concludes that "challenge to orders of this non-substantive nature that can be agitated in a regular appeal is nothing but an abuse of the process of the Court." The observation is entirely misplaced. The Petitioners raised issues of law, arguing that certain findings suffer from impropriety - express grounds for interference under Section 397. But if recourse to that provision is barred, then what? Should recourse to Section 482 still remain impermissible? The Court ignores the peculiarity in the present set of facts, which have come about by its own hand. 

Article 226 and 227 of the Constitution

The conclusions on Article 226 and 227 also proceed on an assumption that the issues raised in the batch of petitions are 'trifling' and therefore would not warrant interference under writ jurisdiction. With due apologies for sounding repetitive, the bench again fails to explain how this jurisdiction can be ousted entirely. In fact, here, the bench expressly says "there can be no doubt that the jurisdiction of a High Court under Articles 226 and 227 cannot be curtailed, yet extraordinary situations may arise where it may be advisable for a High Court to decline to interfere." This volte-face is completed at the end of this part of the decision, where the bench says that "there is nothing extraordinary if the High Court ought not to interfere and leave it to this Court to take a decision in the matter in larger public interest". But this is not what has happened in the present case! In unequivocal terms, the High Court was barred from entertaining petitions. The Supreme Court is now attempting to portray the scenario as a willing refusal by High Court's to entertain cases, when it is actually an exclusion of jurisdiction by the Supreme Court itself. It is fair to say that nobody is fooled. 

Article 14 and Judicial Legislation

The argument under Article 14 in Suneja was twofold - the 'coal block' cases do not constitute an identifiable class, and even if they do this differentiation must be created through statute. The Court, expectedly, whips up the rhetoric to justify why the cases are an identifiable class in themselves. But the decision does not engage at all with the more pressing issue of how such classes can be created. It says that "the order passed by this Court does not amount to legislation in the classical mould but according special treatment to a class of cases for good and clear reason and in larger public interest as well as in the interest of the accused." There are obvious legal issues in judicially created classes for perpetrating discrimination. Judicial orders are imprecise, are creations of un-elected persons thus unrepresentative of the democratic process, and finally cannot be subjected to a challenge under Part III leaving no recourse for those aggrieved. The Supreme Court attempts to conveniently sidestep all of this by resorting to verbiage. Since nobody really knows what the 'classical mould' of legislation is, this is doublespeak for "the Supreme Court can do whatever it wants" - a highlight of the Court's White-Knight tendency in this arena of economic offences [previously discussed here].

Public Interest and the Rights of Accused Persons

There are three other heads of argument that are considered in Suneja - (1) violation of Article 21 by the procedure created by the impugned order, which is not established by 'law'; (2) illegal use of Article 142 of the Constitution to curtail both Statutory and Fundamental Rights of the Petitioners, and; (3) Illegally preventing a stay of proceedings. Rather than consider each of these in turn, it is easier to attack the common thread underlying these strands - the idea that public interest is a satisfactory justification to proscribe rights of accused persons. With great vigour the bench notes that "it is now time for all of us including courts to balance the right of an accused person vis-a-vis the rights and interests of individual victims of a crime and society. Very often, public interest is lost sight of while dealing with an accused person and the rights of accused persons are given far greater importance than societal interests and more often than not greater importance than the rights of individual victims. ... It is not as if the appellants have been denuded of their rights. It is only that their rights have been placed in the proper perspective and they have been enabled to exercise their rights before another forum." 

While the Court merely makes a cursory reference to Shahid Balwa [(2014) 2 SCC 687], the same issue reared its head on that occasion. Here, again, it uses the arguments of the Petitioners against them in observing that in pressing for a stay of proceedings it seems that the conclusion of the trial is not an objective for them. These are serious cases of corruption, the Court notes, and so a stay order cannot be given for the asking. Such logic is fit for the pulpit, not for the Supreme Court. At the most basic level, the bench ignores the practical realities that plague the judiciary. The present petitions were filed sometime around winter 2016, and have been decided in July 2017. For whatever it is worth, the Petitioners did allege severe illegalities in the trial, and by refusing to consider the issue of stay at the earliest the Court allowed a potentially illegal trial to continue for six months. Within that time most of the evidence has been completed in two sets of petitions [Y. Harish Chandra Prasad v. CBI (Crl. Appeal No. 1145 of 2017) and P. Trivikrama Prasad v. CBI (Crl. Appeal No. 1153-54 of 2017]. How is that fair, and how is that a correct utilisation of judicial time? At a deeper level, the Court is effectively denouncing a class of persons from seeking an enforcement of their fundamental rights for no better reason in law than because it thinks it is against public interest. It does not realise that such rhetoric ultimately trickles down to trial courts, where an accused is then painted as guilty simply for choosing to remain silent [a fundamental right] and is thus subjected to lengthy pre-trial detention.

Conclusion

On all counts, Suneja is a bad decision. We get no further answers to why is it fair to exclude the High Court as a forum for jurisdiction beyond the bench re-iterating that this is in public interest. For this, it could have merely expressed agreement with the previous decision of Shahid Balwa and saved time. When the bench does try to engage with the legal issues, it fails to grasp what was at stake and flounders. Ultimately, the decision may result only in compounding uncertainty by using previously unheard of tests and expressions to explain what is, essentially, another instance of abusing the vast discretion vested with the unelected judges of our Supreme Court. 

(Disclaimer: The Author was engaged as a part of the team arguing for the Petitioners in Crl. Appeal No. 1145 of 2017)

Coal Block Allocation Cases and the Exclusion of Jurisdiction

The Supreme Court did three important things in Order dated 25.07.2014 in Manohar Lal Sharma v. Principal Secretary & Ors. [W.P. (Crl.) 120/2012]:

• Directing the competent authorities to issue requisite notifications to appoint Mr. Bharat Parashar as a Special Judge to exclusively deal with “offences pertaining to coal block allocation matters”;
• Transferred all cases pending before courts “pertaining to coal block allocation matters” to the Court of this Special Judge;
• Clarified that “any prayer for stay or impeding the progress in the investigation/trial can be made only before this Court and no other Court shall entertain the same.”

The Delhi High Court in Girish Kumar Suneja v. CBI [Crl. M.C. No. 3847/2016, decided on 27.10.2016] dismissed a petition under Section 482 Cr.P.C. as being non-maintainable, being of the view that the Order dated 25.07.2014 passed in W.P. (Crl.) 120/2012 by the Supreme Court completely excluded the jurisdiction of the High Court (excluding appeals against judgments). 

Today, the Coal Bench of the Supreme Court posted a batch of eight connected matters for hearing on the 6th of February (including the challenge against the Delhi High Court order in Suneja). These cases, both directly and indirectly, challenge an important issue of law: the exclusion of the High Court in either appeals, revisions, or writ jurisdiction in the coal block allocation cases. This has been discussed earlier on this blog, and I develop those thoughts in this post in support of the position that such an exclusion is unconstitutional. 

Testing Article 14

In State of West Bengal v. Anwar Ali Sarkar [AIR 1952 SC 75], the West Bengal Special Courts Act 1950 was struck down as there was no guidance offered by Section 5 of that Act in prescribing which category of cases merited the special procedure, which greatly differed from the ordinary procedure prescribed in the Cr.P.C. 

The Supreme Court thus upheld, in principle, creation of a specialised procedure through statute to address a particular category of offences. In Kedar Nath Bajoria v. State of West Bengal [AIR 1953 AIR 404], the majority concluded that the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 suffered from no infirmities when it allowed the executive to selectively send certain cases to Special Courts, as long as they were from a selection of economic offences provided for in the Schedule. Similarly, in Asgarali Nazarali Singaporewalla v. State of Bombay [AIR 1957 SC 503], the Supreme Court upheld the validity of the Criminal Law Amendment Act, 1952, which created a special procedure for the trial of offences under Sections 161, 165, 165A IPC and Sections 5(2) of the Prevention of Corruption Act, 1947 (all provisions now repealed). 

In Re Special Courts Bill [AIR 1979 SC 478], the Supreme Court answered a reference under Article 143(1) of the Constitution of India, when the President sought consideration on whether the Special Courts Bill, 1978, was constitutional. On the issue of Article 13, the Justice Chandrachud (as he then was) provided a thirteen-limb test to judge the Bill, and found that it passed muster. 

Adopting the tests laid down by the Supreme Court, it is apparent that the Order dated 25.07.2014 is bad in law. It creates a distinct category of cases “pertaining to coal block allocation matters” without specifying the scope and extent of this classification. Nothing is provided to show how the present classification carries any objective, and how it is connected to such an objective in the first place. 

Just, Fair, and Reasonable?

The particular classification enforced by the Order dated 25.07.2014 creates a procedure that violates Article 21 of the Constitution, for it is not just fair and reasonable following the test of Maneka Gandhi v. Union of India [AIR 1978 SC 597]. The Supreme Court has, since Vineet Narain [(1996) 2 SCC 199; (1998) 1 SCC 226], reluctantly agreed to monitor investigations in certain sensitive cases. These ‘Court-Monitored Investigations’, have the agency report directly to the Supreme Court during investigation to the complete exclusion of other forums. However, as clearly held in Vineet Narain, the exclusivity came to an end with the completion of an investigation, and regular criminal procedure resumed.

In the present case, the exclusivity continues for the entire duration of the trial, and thus offends Article 21 of the Constitution. The concept of a fair trial is embedded within the notion of Article 21, and the idea of a fair trial encapsulates within it the concept of effective forums of Appeal. The adjudication in appeal or extraordinary situations by a constitutional court, i.e. the High Court, is certainly part of the fair trial guarantee under Article 21. The decision by a Division Bench of the Supreme Court in Shahid Balwa v. Union of India [(2014) 2 SCC 687] where such an exclusion was upheld must be reconsidered. The nebulous concept of ‘large public interest’ cannot override the concrete constitutional guarantees made to every person under the Constitution of India.

As the denial of adjudication by the High Court for only a vague category of persons is clearly contrary to Article 21, it must then be determined whether there is any law to save such discrimination. The order dated 25.07.2014, would not be law for the purposes of Article 21, and therefore nothing saves the violation of Article 21 in the present case. 

Violating the Basic Structure?

The very exercise of the judiciary creating a special procedure for the trial of certain offences is contrary to the Basic Structure. The creation of offences, and the creation of their procedure, is a function well-vested with the Legislature in the separation of powers fundamental to the Constitution’s basic structure. Such usurpation of power offends the system of checks and balances that is inherent in the Constitution. It is akin to the process of re-promulgating ordinances, which a Seven-Judge Bench of Supreme Court recently held to be a fraud on the Constitution [Krishna Kumar Singh & Anr. v. State of Bihar & Ors, Civil Appeal No. 5875/1994, decided on 02.01.2017].

Furthermore, the Supreme Court in L. Chandra Kumar v. Union of India & Ors. [(1997) 3 SCC 261] found the complete exclusion of judicial review by the Administrative Tribunals Act, 1985 to be contrary to the basic structure of the Constitution. The power of the High Courts under Article 226/227 was specifically found to be part of the Basic Structure by the Constitution Bench in L. Chandra Kumar. Therefore, the exclusion of jurisdiction perpetrated by the Order dated 25.07.2014 is illegal, and accordingly cannot be given effect to.

Although it is settled that judicial orders are outside the purview of Part III of the Constitution [Naresh Sridhar Mirajkar, AIR 1967 SC 1], this cannot be utilised to do indirectly what is impermissible directly. A Seven-Judge Bench of the Supreme Court in A.R. Antulay v. R.S. Nayak & Ors. [(1988) 2 SCC 602] reviewed and set aside orders passed by another bench of the Court in proceedings whereby a special, but illegal, procedure was created to address the trial of certain offences against the erstwhile Chief Minister of Maharashtra. While doing so, it was observed that “the power to create or enlarge jurisdiction is legislative in character, so also the power to confer a right of appeal or to take away a right of appeal. Parliament alone can do it by law. No Court, whether superior or inferior or both combined can enlarge the jurisdiction of the Court or divest the person of his rights of revision and appeal."