The Criminal Codes are Dead; Long Live the Criminal Codes

[This is a long post]

Prologue

For over a century, the foundations of the Indian criminal process have been identified by its three codes: the Indian Penal Code of 1860 [IPC], the Criminal Procedure Code of 1973 [Cr.P.C.], and the Indian Evidence Act of 1872 [IEA]. Not anymore. Henceforth, unless some last minute surprise is sprung upon us, the three codes are to be replaced by the Bharatiya Nyaya Sanhita [BNS], the Bharatiya Nagarik Suraksha Sanhita [BNSS] and the Bharatiya Sakshya Adhiniyam [BSA] of 2023.

There are many questions that come to mind when considering this development. Perhaps many of them combine into a single, big, question: Why? Was the existing set of laws problematic, and if so, then in what way was it problematic? Were the Codes failing to strike a just, fair, and reasonable approach to questions on defining and punishing crime? Were the structures proving to be outmoded given the fast technological pace of society? Or, all of the above?

None of these questions have uniform answers, or objective positions. One can only speak for oneself. In that regard, I would unhesitatingly state that the 19th Century Colonial Codes (or their 20th century avatar in case of the Cr.P.C.] were deeply problematic and required a brutal re-examination. A comprehensive study of how courts had interpreted the clauses across these Codes was required to update the statutory position. The archaic language of the IPC required revisiting, its punishments needed streamlining, and the general law of crime required to be harmonised with the burgeoning field of laws defining specific crimes. Far more important was the need to tear down the Cr.P.C. and IEA and rebuild again to solve what the most pressing concerns of the criminal process, which have been rotting it from the core since independence (and even before): delays, significant pre-trial incarceration rates, and a complete surrender of personal liberty and privacy to batons and lathis wielded by the police.

The fainthearted would be pleased to note that none of this has come to pass. The Codes are dead, but they gloriously live on in the BNS, BNSS, and BSA. What we have just witnessed is a grand sequence where the villain sheds an exoskeleton to assume a more monstrous form appropriate with the times. In other words, the new Sanhitas do not offer a new perspective on administering the weighty notion of 'criminal justice' for an independent, democratic, republic as we were promised, but merely offer a shiny new vessel to sustain the beating heart of colonial ideas that the Codes represented. 

With that sombre prologue out of the way, it is time to look at what appears to be in store for us.

Repeal and Savings

Now that the new laws are almost here, arguably most important is the question is what happens to all that was done under the old laws? When it comes to offences themselves, the constitutional prohibition of any criminal liability retrospectively allows us to assume that the new BNS offences (deceitful sexual acts; terrorism; organised crime, etc.) will not apply to acts done on a date prior to the date when the BNS is brought into force (whenever that is). However, at the same time experience has taught us that things are never straightforward when it comes to interpreting law. The iron-clad prohibition of Article 20(1) may be done away where offences are continuous, and so we may still be presented with situations where prosecutions are brought under the BNS for acts which began prior to the date of its enactment but continued subsequently to create an unbroken chain of conduct. In respect of acts that were offences under the IPC but are not covered by the BNS, even as the BNS repeals the IPC, nothing in the BNS overrides application of Section 6 of the colonial General Clauses Act 1897 which ensures that such prosecutions do not automatically lapse. So while there is no Section 124-A IPC prosecuting sedition, or Section 377 IPC prosecuting unnatural sexual acts, existing cases would not die a natural death. Similarly, till such time as other laws are amended to erase all presence of the colonial IPC from the statute books, we would have to keep referring to Sections 6 and 6A of the General Clauses Act to make sense of how will such references to the IPC be read [think the PMLA schedule, for instance].

When it comes to the Cr.P.C. and IEA, the general rule being created with repeal is that the entry of the BNSS / BSA will not disturb pending investigations, inquiries, trials, or appeals. However there will certainly be cracks which lawyers will explore to try and make use of. For instance, what happens to a case where the police filed a closure report and it has been accepted, or a case where proceedings have been terminated prior to the enforcement of the BNSS, and the aggrieved party now wishes to revive the litigation. What about cases where the police registers a fresh FIR invoking slightly different offences to now make use of the broader remit of police custody? Would these count as 'pending' cases? Or, what happens for a case that is closed for non-appearance of a person who was declared a proclaimed offender - would it be possible to revive such a case using the new BNSS clauses allowing for trials in absentia? These are only the easy examples, and I am sure more tricky ones will come up in the next few years. Courts will want to turn to the years after the 1973 Code was introduced in 1974 to see how some of these issues were dealt with back then (although many of those dealt with retrospective application of the new Cr.P.C. clauses that enhanced the sphere of liberty, rather than truncate it further).    

Even though the BNSS declares that pending cases / investigations / inquiries will be governed by the Cr.P.C., this is not going to prevent serious changes to their working because the BNSS carries out serious changes to the administrative structures of our courts. I refer to the abolition of the cadre of metropolitan magistrates altogether in the BNSS, without any provisions accounting for how areas where this system is in vogue (Delhi, for instance) will carry out the transition to now erect a new system with Chief Judicial Magistrates, First Class Magistrates, and Second Class Magistrates. One wonders how this transformation will be carried out, and whether it will give rise to service law related issues if metropolitan magistrates — who are at par with First Class Magistrates under Cr.P.C. — will be divided up into the two categories. 

Changes to the Criminal Process

For most practising lawyers, what really matters is whether, and how, the rules of the criminal process are being altered by the introduction of the new laws. This post looks at some important changes in this regard that have been introduced. Note, however, that it does not look at specific issues that are going to arise because of, say, the introduction of offences in the BNS that are at present criminalised through special statutes with special procedural regimes. Nor does it look at specific issues arising within the realm of preventive powers of police and magistrates.  

Arrest, Custody, and Bail

There are small tweaks in the arrest provisions of the BNSS from the Cr.P.C. regime, besides the sorry re-introduction of handcuffing. There is hardly any change when it comes to the issue of granting bail in non-bailable cases — either in terms of the guiding judicial discretion in this process, or by reducing the number of non-bailable and cognizable offences. There is rather slight confusion introduced because of the tweaks between the first and final versions of the BNSS. The key changes here are, firstly, to the legal regime on custody post arrest during an investigation, and secondly to granting default bail where a person has spent a significant time in prison as an undertrial.

On the former, the BNSS appears to have done away with the limits on police custody being restricted to the first fifteen days after arrest to allow it within a period of the first forty or first sixty days after arrest. What is more uncertain is whether the BNSS has also done away with the maximum limit on police custody being fifteen days. If so, then it would signal a significant shift in the legal position which has had the duration of police custody capped on fifteen days since even prior to the 1973 Code. The wording of the BNSS clauses would make it seem that the absence of 'police' custody in Section 187(2) of the BNSS is not deliberate but an inadvertent omission. It would, nevertheless, be clarified only after some person suffers the consequences, and courts rule on the issue. Unless parliament acts proactively - which as the passage of the BNSS shows us, it certainly can.  

Why restrict police custody, and what is the consequence of removing the shackles so to speak? A colonial and post-colonial learning about the administration of criminal law in India has been that the police resort to unfair practices to solve a case. This involves extracting pressure on people in their custody to make a false statement. Enhancing the period to take police custody proportionately raises this risk, especially as this enhancement is being conceived of without any increase in the rights of the detained person. Placing a limit on police custody as being available only in the first fifteen days furthers a separate goal of ensuring that the police work with promptitude. Removing this limit takes away any incentive for the police to try and solve cases quickly. This would mean that more and more investigations only end when nearing the upper limit of 60 or 90 days — cementing the perverted turn over the last fifty years (and manifesting the fears of legislators) where ceilings that had been installed by the 1973 Code became default periods for the investigation to complete.        

The extension of police custody also has an impact on bail. In practice, courts are reluctant to grant bail if it appears that custodial detention is required to secure some investigative purpose. Most lawyers thus do advise clients to wait till the first fifteen days expire, or police say that they do not require further custody. Now, police will have a card up their sleeve to invoke custodial detention at any stage during the period of investigation, creating a practical difficulty for courts who had become used to working a certain way. It would require re-programming how courts view these claims if we are to ensure that two / three months without bail do not become default periods of incarceration in all cases.  

In respect of bail, one must mention the lip-service paid to the Supreme Court's endeavours in Satender Antil. The BNSS changes provisions that were being interpreted in some states as mandatorily requiring an arrest before the chargesheet was filed in court, which was what started the litigation in Antil. However, as we know, Antil went far and beyond that to suggest policies on guiding judicial discretion for bail. None of that has made its way into the statute. What the BNSS does do is bring in significant changes in respect of the provisions on default bail. Currently, Section 436A of the Cr.P.C. carried a rule where a person was entitled to bail if she had spent a time in custody that was equivalent to half the maximum possible punishment for a crime. Lets be clear — 436A was not a ringing endorsement to liberty, but a damning hang-your-head-in-shame indictment of the legal process. Section 479, BNSS reduces this period undergone to one-third of the maximum imprisonment but only for 'first-time offenders' [not 'offenders' for undertrials]. But what one hand giveth, the other taketh far more. Section 479 carries a new explanation which excludes persons against whom there is an "investigation, inquiry, or trial in more than one offence or in multiple cases". Make no mistake, this is the overwhelming majority of persons who are ensnared by the system. Practically every FIR has more than offence invoked if you add conspiracy to the mix. Thus, in other words, the BNSS renders 436-A practically redundant, and replaces it with a rule that such undertrials can be released if they have already served out the maximum possible term of imprisonment.   

Investigations and Inquiries

The big-ticket declamations on the floor of the House and outside were the introduction of technology in how police conduct investigations and inquiries. A close look at the BNSS reveals the hollowness of the claim. The bogey is made apparent by the extension for police custody remands and confirms that what the BNSS does is continue how investigations have been (and arguably makes them poorer by encouraging police to rely on custodial interrogations more) whilst using technological means to smooth things over at times. For instance, allowing statements to be recorded over video by police during investigations, or by recording the conduct of a search. Again, this shows that the BNSS does not change how investigations are being done. If anything, this can add to troubles later, because there will be doubts during trial as to reliability of what has been recorded as standardised practices will not easily emerge given vast disparities of funding for police stations across India. A real commitment to introducing technology would mean the introduction of provisions in the BNSS that regulate the practice of agencies when it comes to seizing our personal devices and rummaging through them on the pretext of an investigation to safeguard privacy, but of course the BNSS is silent on all that while simply expanding the scope of what material can agencies demand persons to give and include electronic devices / electronic communications [Section 94, BNSS].   

Another noteworthy addition is a set of provisions allowing for seizure of property. This is Sections 115 to 122 of the BNSS. This introduces new powers for police officers to effect seizures and even provisional attachments of property [Section 117] and allows for forfeitures of property where a court concludes that these are proceeds of crime even though the trial has not concluded, without specifying any rights for the aggrieved to challenge orders or specify what happens if the trial results in an acquittal. In this fashion, the BNSS may have impliedly repealed the Criminal Law (Amendment) Ordinance of 1944 and replaced it with the broadest civil forfeiture regime ever seen in Indian law, that is modelled on provisions tried by certain states in context of corruption crimes. Provisions which, though deeply problematic, were blessed by the Supreme Court in 2015 [Both the 1944 Ordinance and the 2015 judgment have been discussed on the Blog and elsewhere]. 

There are some crucial new provisions on registration of cases. Practices that had been in vogue for years i.e. the registration of FIRs online and the registration of 'Zero FIRs', are now given statutory force with Section 173 of the BNSS. At the same time, the BNSS dilutes and further muddles the legal position on the very concept of registering an FIR. It gives statutory backing to the police conducting preliminary inquiries for a category of cases (punishable for three years but less than seven years) and determining if a 'prima facie' case exists. If it does exist, then they proceed to investigate. But if not, then what? Logically, they do not investigate. Which then begs the question, what about all other cases — would they be lodged on the basis of some non-statutory inquiry showing existence of a prima facie case? What does that mean for the idea that the police must register FIRs? Again, it is not that the BNSS drafters were helped by the Supreme Court's take on these issues in Lalita Kumari either [critiqued on the Blog]. But what they have done is only make things worse.

There are even more innovations when it comes to registration of cases against certain persons — public servants. The final version of the BNSS does away with some provisions in the earlier draft published in August, but it retains a mighty set of new protections in Section 175 insulating public servants from police investigations being directed by magistrates on the basis of private complaints. This is reiterated when it comes to private complaints filed against public servants directly in court [Section 223] Here, the BNSS has taken a step on an issue which was pending before the Supreme Court after its M.K. Aiyappa decision which had sought to introduce such a protection was referred to a larger bench. It has gone above and beyond even what M.K. Aiyappa envisaged by giving the prospective accused a right to be heard before start of a case. In a setup where prior sanction was already required to instituting prosecutions, introducing this rule only blunts the idea of holding those in power accountable to the public even further. 

Lastly, in respect of completing investigations, a notable addition has been the introduction of some time limit within which further investigation must be completed unless extended by courts [Section 193(9)]. This is a useful addition, which at the same time makes one wonder why not introduce such a clause for completing investigations generally. The answer, as most lawyers know, is because that time limit has long since been seen in Section 167 Cr.P.C. [now 187 BNSS] which directs release on bail unless investigations conclude within 60 / 90 days, making 60 / 90 days the usual time for investigations to conclude. Again, this was, and is a gross misreading of what the law required — 60 / 90 days was the upper limit, which has become the usual course of time for investigations to conclude only because police know they must file something to avoid release on bail. Furthermore, Section 193 requires some communication to victims about the progress of investigations, which is hailed as some revolutionary step since this was absent in the old Section 173 Cr.P.C. In reality, it is a cop-out, and a failure to incorporate mandates of the Supreme Court which require copies of the Chargesheet (or Closure Report) filed by police with victims so that they can pursue their remedies. Adding the requirement to share copies at a post cognizance stage, as the BNSS does, worsens the position of victims by only entitling them to copies where chargesheets are filed but not allowing them to clearly contest the failure of police to do proper investigations by filing protest petitions. 

Trials and Appeals

A case will end in three years under the BNSS was the battle-cry. Well, so what is the response? NCRB data shows that many cases already end within three years. It would be quite something if all cases will end within three years was the claim on the floor of the House. Which, obviously, it was not. And cannot be either, because like all other parts of the BNSS, its parts on governing trials and appeals also retain the beating heart of the Cr.P.C. process while tweaking a few things here and there.

The sales-pitch changes here were time limits and introducing provisions for conducting trial even when an accused obstructs the progress of a trial by refusing to show up, where currently such cases would have to be kept in cold storage as there is nobody to condemn. Let's take both of these in turn. The only time limits are on conducting arguments on charge—for sessions triable and warrant triable cases instituted on police reports, but not warrant triable cases on complaint or summons triable cases—and on pronouncing judgment. There are no time limits on conducting evidence. This begs the question "Was argument on charge or pronouncement of judgment a stage which took so much time that placing time limits on it will solve delay?" The answer, obviously, is no. Arguments on charge in most cases do not take long. Similarly, judgments are pronounced with promptitude and where they cannot be so pronounced the Cr.P.C. allows for a court to release an accused on bail. Where it does take time for courts to hear such arguments or write judgments is where state agencies register FIRs against 40 people based across the country on some amorphous notions of them being involved in a 'larger conspiracy' and file Chargesheets with documents that run into ten thousand pages. And, make no mistake, since the BNSS does not change how such cases are investigated, arguments on charge in 'larger conspiracy' cases that the agencies love will continue to take much longer to finish than the few months that the BNSS has in mind, as will writing judgments at the end of such trials. 

In short, the marginal gains by introducing these time limits are imaginary at best. Especially if we take a look beyond cases instituted on police reports to cases instituted upon complaints. Here, fresh avenues for delay have been created by giving accused persons a right to be heard where previously none existed. Section 223 prohibits taking cognizance on any complaint without giving such an opportunity, and Section 274 provides a fresh right of hearing before framing notice / charge in summons triable cases. Of course, what seems a provision for delay to the victim will be heralded as a boon by defence lawyers to nip false cases in the bud. But, ultimately, it is unquestionable that such cases will take longer under the BNSS. 

Studies conducted by the government and judiciary itself have shown that the real stage which takes time in a case is recording evidence. Time limits or schedules to finish this process are not introduced. What the BNSS does is introduce a peculiar provision [Section 336] which allows for recording evidence of 'successors in office' when the original government officer who prepared a report is unavailable. This even includes police officers. The provision has been retained in the final version despite criticism by the Select Committee; and, naturally, the ceremonial debate on the floor of the house did not explain why this is the case. It pains me to say this, but in a bid to rush reform, the government appears to have sponsored a move that would encourage acquittals by asking that prosecution leads incompetent evidence of witnesses who are not the authors of documents to sustain its charge. 

Which brings us to the second major reform under Section 356 of the BNSS. Conducting trials against a person who has absconded is, thankfully, not a bludgeon. It appears to create a procedure that needs some application of mind before a court proceeds on that path, and allows for the decision to be revisited once an accused does show up either voluntarily or after being apprehended. I say 'appear' because it is unclear exactly how the procedure will operate. What is meant by giving the accused an opportunity to 'examine' evidence? What impact will conducting trials on mobile phones have on the reliability of what has been recorded? What will be a constitutionally compliant reading of sub-clause (8) which allows extending the clause to any absconder by notification? A well-drafted code would not leave all this up for grabs. 

Execution of Sentences

Despite the Select Committee recommending some more clarity on community service as punishment, no such clarity came in the final version of the BNS or BNSS that have now been passed except for helpfully telling us that community service is punishment that benefits the community [Section 23, BNSS]. So much for a new dawn.

There are two other important developments in respect of the execution of sentences which I would want to mention here. First, we have legislative sanction for imposing solitary confinement [Sections 11, 12, BNS], allowing it to be granted in any case where rigorous imprisonment is imposed for a sentence of six months or more in prison. In other words, practically any convict may be subject to solitary confinement. One wonders if this is in consonance with Article 21 and its reformative ideals. 

Second, we have a procedure outlined for filing mercy petitions [Section 472 Cr.P.C.]. In theory it is not a bad idea as it now allows every convict to know that such a right exists and how it is to be availed. The devil, as always, lies in the details. There are unnecessary restrictions on who may file such a plea on behalf of the convict. More potentially problematic is the idea that there is a time limit of thirty days on filing such plea based on when the convict is informed by jail authorities of the rejection / dismissal of her petition by court. That the statute does not clarify that the intimation must be clearly recorded in writing and must be communicated separately to family members / counsel is startling, considering what is at stake and knowing that there will be precious time lost in the convict informing the persons on the outside who will study the order and frame the plea. Or, perhaps it is not so startling, given that the statute allows for practically all convicts to be subjected to solitary confinement for up to a week if not more.

Summing Up: Little Reform Amidst much Posturing?

Many commentators found it difficult to describe a system comprising of the existing trifecta of the IPC, Cr.P.C., and IEA as a system of 'criminal justice'. It is quite unlikely that they will find it any easier to do so with the BNS, BNSS and BSA triumvirate that will soon be upon us. There is little reform in these pages amidst the posturing, if we stick to the classical notion of reform as a measure which seeks to improve the lot of the individual. Rather, in sync with the communitarian ideologies in vogue today, the emphasis of these laws is to strengthen the already powerful state by enhancing police powers while reducing the scope for liberty. 

Such an approach is expected from a government which places duties before rights, demands that citizens do not question but obey, and treats all those who do question as potential threats to the stability of society and thus wants as much power as possible to adequately deal with the threats to restore stability. To use a now infamous analogy from another era in India's past here, these are laws to ensure that the trains run on time.    

Worryingly enough, once the dust settles, I wonder if the very fact that the BNS, BNSS, and BSA do not attempt any meaningful reform will ensure that they manage to embed themselves within the system without evoking fervent protests from various quarters. The baseline for acceptable incursions by the state into a citizen's life and personal liberty having been lowered even further will probably stop mattering after a while, since it was not very high to start with.

Guest Post: Examining the Proposed Uttar Pradesh Special Security Force

(This is a guest post by Vaishnavi Prasad. Please note that the author’s analysis of the functioning of the force is based on press statements by public officials on the issue as the official state notification regarding the Uttar Pradesh Special Security Force has not yet been released. This post may be updated / supplemented once the notification is made public.)

On 13 September, the Additional Chief Secretary to the Government of Uttar Pradesh informed reporters that the State Government has given orders for the constitution of a special security force. The Uttar Pradesh Special Security Force is meant to provide security to the high court, district courts, administrative offices and buildings, metro rails, airports, banks, financial institutions, educational institutions and industrial units. However, the defining feature of this force is that it has the powers to arrest and search individuals without any warrant or the orders of a magistrate. The basis for this force is allegedly an order from the Allahabad High Court in December, 2019. In this piece, I will examine that order and the validity of such a force.

On 17 December, 2019, three men opened fire in the Court of the Chief Judicial Magistrate in Bijnor. The Allahabad High Court immediately took suo moto cognizance of this incident. The Bench recognised that this was not an isolated incident and over the past few years, similar incidents had taken place in various district judgeships. They recommended certain steps to ensure security in these district judgeships which included the following:

“(4) A specialized well-trained force be provided for the purpose of maintaining security in District Judgeships throughout the State of U.P. and whenever required, personnel from that Force may also be deployed in this Court along with existing security provided by C.R.P.F., if necessary.”

However, the Bench also stated that such recommendations are merely broad ideas and are subject to modifications and they invited suggestions from various District Bar Associations on the same. The matter of the participation of the State in the matter of security of court complexes was subsequently fixed on 20 December, 2019.

On the issue of specialised security personnel, the Allahabad High Court in its order on 20 December, 2019 stated that the Additional Chief Security (Home) must inform the Court regarding the formation of such a force via an affidavit and until such a time, an appropriate number of police personnel must be made available.

The matter was further listed to be heard on 2 January, 2020. The order includes an affidavit of compliance sworn by Sri Awanish Kumar Awasthi that stated that the State Government proposed to establish the Uttar Pradesh Special Security Force so as to maintain security of this Court at Allahabad, Lucknow, and other district judgeships. Further, the Special Security Force can be utilised for providing security of other installations and institutions, establishments or individuals notified by the state government for this purpose.

Two questions arise here: One, whether the High Court can direct the constitution of a special police force? Two, whether the present powers of the Uttar Pradesh Special Security Force are in consonance with the provisions in the Code of Criminal Procedure.

The State’s Authority to constitute a Special Police Force

The Constitution holds that Police is a subject governed by the State. The Police Act, 1861 governs the police in States such as Uttar Pradesh, Madhya Pradesh, Manipur and Nagaland. The State government shall exercise control over the police force and the superintendence of the police shall be vested in the State Government. The State Government’s executive function encompasses the creation and control of police forces. This power, to some degree, extends to police officers as well.

The Police Act, 1861 also gives police officers the authority to appoint special police-officers. Section 17 states that any police officer, not below the rank of inspector, may apply to the magistrate to appoint citizens as special police officers. Further, Section 18 specifies that these special police-officers have the same powers, privileges and protection as ordinary police officers.

The Supreme Court has established certain limitations to the State’s exercise of executive power in maintaining law and order. In Nandini Sundar and ors. v. State of Chhattisgarh, the Supreme Court discussed various aspects of the constitution and functioning of the Salwa Judum— an armed civilian vigilante group who acted as temporary police officers promoted by the Government of Chhattisgarh.  The respondent-State argued that due to the severe security issues caused by the threat of Maoist violence in Chhattisgarh, they have the executive authority to enforce law and order.

The Supreme Court held that while the State has the exclusive executive responsibility to provide security to its citizens, if it conflicts with core constitutional values such as the right to life and equality of its citizens, the Court is forced to intervene. Irrespective of the efficacy of such groups, they may not be used as a yardstick to measure constitutional permissibility. Therefore, the necessity of developing a well-trained and professional law enforcement capacity than function within the limits of constitutional action is emphasised.

Therefore, while the U.P. State Government may constitute a special police force, the members of such a force must be well-trained professionals and must operate within the boundaries of due process.

Arresting and Searching Property without a Warrant

From the perspective of a police-officer’s power to arrest, offences are broadly divided into cognizable and non-cognizable offences. Cognizable offences are those offences for which the police may arrest an individual without a warrant. This is specified in Schedule I of the CrPC. This includes offences such as kidnapping, murder, rape etc. Other offences are non-cognizable. A police officer cannot investigate a non-cognizable case without the order of a magistrate having jurisdiction over such a case. Further, a police officer has no powers of arrest without orders of a magistrate in such non-cognizable cases.

Section 41 of the Code of Criminal Procedure, 1973 provides certain circumstances where an individual may be arrested without a warrant. Section 41(1) of the Code of Criminal Procedure empowers a police official to arrest without a warrant, any person “who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned.”

Clear guidelines on the police’s power to arrest without warrant has been held in Joginder Kumar v. State of UP. The Supreme Court held that no arrest can be made simply because it is lawful for the police officer to do so and the police officer must justify their arrest beyond the fact that it is lawful for them to do so.

The Third Report of the National Police Commission suggested that an arrest during the investigation of a cognizable case may be justified in certain circumstances: One, if it involves a grave offences like murder, dacoity and rape and it becomes necessary to arrest the accused; two, the accused is likely to abscond and evade the processes of the law; three, the accused is given to violent behaviour; and four, the accused is a habitual offender. However, the police officer making such an arrest must record the same in a case diary and conform to due process. An arrest may be made only if there is reasonable satisfaction of the genuineness of the complaint after some investigation and there is necessity to arrest.  

Further, if arrest is effected, the individual who is arrested is entitled to certain rights guaranteed by Article 21 and 22(1) of the Constitution. They must have a relative or friend informed of their arrest and where they have been detained. The police officer must specifically inform the arrested person of this right and record the arrest in their case diary.

The aforementioned guidelines were reaffirmed in Som Mittal v. Government of Karnataka. Both Section 2(c) and Section 41 of the CrPC state that the police officer may arrest therefore implying that they’re not bound to arrest even in cases of cognizable offences. The Supreme Court observed the trend of immediately arresting individuals accused of cognizable offences even if the situation doesn’t meet the high threshold for arrest as held in Joginder Kumar.

Interestingly, the Supreme Court in this case also noted that due to the trend of arbitrarily effecting arrests as well as there being an absence of a provision for anticipatory bail in Uttar Pradesh, there is excessive overcrowding of jails, and hardship caused to both the public and the courts.

When one examines the prospective Uttar Pradesh Special Security Force, the officers of that force may arrest an individual without a warrant merely if they have reason to believe that a crime has been committed. This is a sharp contrast to the aforementioned threshold. The power of arrest is clearly based on the nature of the offence, and demolishing this legal requirement while vesting this power in any security force is arguably illegal.

Further, the UP Government has stated that Courts may not take note of actions of employees of such a force without government permission. This immunity from prosecution is not unknown in statutes in India. However, even then, there must be a showing that duties were discharged in "good faith" — if the proposed immunity clause here goes beyond this, it is a quick step into the realm of impunity.

Law and Order in Uttar Pradesh

This prospective move is yet another nail in the coffin of due process in Uttar Pradesh. The past few years displayed a shocking trend of rise in encounter killings by police (with reportedly media being "invited") and a spike in hate crimes against marginalised groups. Further, the jails are overcrowded, the courts overburdened, and the justice delivery system remains extremely inaccessible to ordinary citizens. It’s important to understand that the creation of another security force in a State where police atrocities go largely unquestioned is only diverting focus from the real issue of enforcing due process and improving transparency in police functioning. Even in the context of crime reduction, excessive policing is a poor (and expensive) replacement to actually improving welfare, quality of life and accessibility to justice, which have proven to effectively reduce crime rates in countries.

Guest Post: The Police Violence in JMI and AMU — What does the Law Say?

(This is a guest post co-authored by Naeemullah Azeem and Rudraksh Lakra. It is in anticipation of an upcoming report published by Citizens against Hate where the thrust of the report is upon disproportionate use of force by police and paramilitary forces in JMU and AMU, based on testimonies of more than 200 students. The report also makes a detailed legal analysis of powers governing use of force by police / other forces.)

On 15th December 2019, in response to largely peaceful protests against the Citizenship (Amendment) Act 2019, the police and paramilitary forces forcibly entered Jamia Millia Islamia University's campus and subjected students to indiscriminate violence. On the same night, a similar story played out against students at Aligarh Muslim University. They were protesting the crackdown on students of Jamia Millia Islamia. UP police and Rapid Action Force personnel entered their campus late at night and subjected protestors to lathi charge, teargas shells, stun grenades, and even bullets.

This post assesses the legality of these actions by the law enforcement agencies (LEA) against the largely peaceful and unarmed protests by Jamia Millia Islamia (JMI) and Aligarh Muslim University (AMU) students discussed above. It attempts to answer three specific questions: whether LEA’s can enter university campuses, whether they can use force against protestors, and what ought to be the magnitude of force they employ.

It has been asserted that LEA’s have the power to enter campuses and to use force to carry out arrests and to disperse unlawful assemblies. To answer the questions that follow this initial line of inquiry, this article is divided into two parts: the first section examines and analyses the power of LEA’s to effectuate an arrest, examining whether or not they can enter education institutes to do so, and if yes, then to what extent force may be used to enforce an arrest. The second section explores the power of LEA’s to disperse an unlawful assembly and explores the extent of force that can be deployed to facilitate such dispersal. The article considers India's domestic and international obligations.

It concludes that while the LEA’s did have the power to enter the JMI’s and AMU’s campus, the state’s use of violence against the students amounted to unlawful use of force.

Power of LEA’s to effectuate an Arrest

Police can forcefully enter the campus for effecting an arrest under Section 41 and Section 48 of the Criminal Procedure Code 1973 [Cr.P.C.] allows police personnel to pursue individuals without warrants into places that are not within their territorial jurisdiction. The Cr.P.C. authorises LEA’s to enter any place (Section 165, 166) or any jurisdiction (Section 48) to effect an arrest, the degree of force that may be deployed by the police to effect an arrest ought not to be to more than that is necessary to prevent the target’s escape (Section 49).

The Kerala High Court in Vijayakumar v. State Of Kerala [2004 (2) KLT 627] clarified that “students indulging in criminal activities inside the college campus are liable to be dealt with just like any other offender and if the situation warrants the police can enter the college campus without anybody's request or permission to prevent such criminal activities or to take action against persons who commit criminal offences.” However, within the same judgment, it went on to caution “considering that the college is a 'temple of learning' any action of the police inside the college campus shall, as far as possible, be with the knowledge of the Principal.” (Paragraph 9)

The Bureau of Police Research and Development, which addresses the functioning and methods of police, has also clarified that the police should “keep the head of the institution informed of visits to the campus as far as possible.” 

Therefore, although there is no legal restriction upon entering campuses under circumstances where an official is “authorised” to effect an arrest, however permission is sought as a matter of custom.

Fact Matrix Analysis

While the police could have entered the JMI and AMU campus for effectuating lawful arrests, given the sensitive situation they should have consulted with the administration before entering the campus, on how best the situation could have been handled.

Moreover, the range of police activities that were carried out on JMI and AMU campus reportedly went well beyond merely arresting students. It was reported that police had deployed arbitrary and excessive force in their dealings with the students and targeted minorities. For instance, the instances of reported use of force in the library and reading room, would appear wholly unconnected to the purpose of locating and arresting students, and so could not possibly be justified because it fell within the police's power to effectuate an arrest.

In JMI, it was reported that over 1000 police and paramilitary forces were present; surely not all of them could have been positioned to arrest students. Therefore, the power of the police to effect an arrest cannot be used to legitimise the range of the LEA’s activities on these campuses.

While the lawfulness of the arrest can only be determined on a case to case basis, on the face of it, a case could be made that the force use by the police to effectuate arrests was illegitimate, as the force employed was not limited to the extent that would have been necessary to prevent suspects from escaping. PUDR’s fact-finding report concluded that the police used force to inflict “maximum damage,” and the force was deployed for reasons entirely unconnected to the object of arresting students, for instance, forces engaged, in the destruction of property of students and other residents vehicles in and around JMI, of window panes, of CCTV cameras, and library property.

Power of LEA’s to use force to disperse an Unlawful Assembly

Indian Law

Cr.P.C. Sections 129 and 130-131 encapsulate the powers of police and armed forces to use force to disperse an unlawful assembly. The Cr.P.C. does not place any territorial-jurisdictional limitation to the power of the police or armed forces under the sections, and therefore, it follows that they can even enter educational institutes.

The Supreme Court in Karam Singh v. Hardayal Singh [1979 Cri. L.J. 1211] noted an assembly being unlawful will not by itself warrant the use of force, the object of the unlawful assembly must be to commit violence or breach of peace, and it must be likely to commit violence or breach of peace (Paragraph 6).

The term “breach of peace” may be better understood by referring to SC’s articulation of the term public order, this is supported by the fact that Section 129 is placed within the chapter titled “[m]maintenance of public order and tranquility.” In Ram Manohar Lohia [AIR 1966 SC 740], the Supreme Court gave us the concentric circles logic for understanding the overlapping concepts of "law and order", "public order", and "security of the state" — law and order is the widest, public order narrower, and state security the narrowest (Paragraph 55). 

Therefore, for the use of force under Section 129 the object of the assembly, must be to carry out an act which rises to the level of disturbance to the public order – the public peace, safety, and tranquility in the society and such an act must be likely; consequently, a mere infraction of the law, would not invoke Section 129 CrPC.

Amount/Quantum/Extent of Force?

Section 130(3) of the Cr.P.C. indicates that “as little force as possible” is to be used by armed forces while dispersing an unlawful gathering. This section is indicative that even LEA’s are required to use “as little force as possible.”

In Anita Thakur v. Union of India [2016 SCC OnLine SC 814], the Supreme Court noted that the police's use of force in response to an unlawful assembly has to be reasonable and cannot be over the limit required to control and disperse the crowd. Even in a case where the protesters pelted stones at the Police, the Court held that the police’s use of force surpassed what was required to control the situation and amounted to a violation of human rights and human dignity (Paragraph 17-18). The same Court unequivocally noted in Ramlila Maidan Incident v. Home Secretary [(2012) 5 SCC 1] that the disciplinary action ought to be taken against those police officers who indulged in lathi charging, brick battling, and “excessive use of tear gas shells upon the crowd” and stated that these actions had “an element of criminality” (Paragraph 286.17(a)).

This is also found in Delhi Police Standing Order 72, which notes that the least force possible is to be employed.

Guidance is further provided by the Model Conduct Code for the Police (1961) and the Model Rules on the Use of Force by Police against Unlawful Crowds (1964), which state that minimum force necessary is to be employed to achieve the desired object, with the latter specifically stating that the object of use of force must not be punitive or repressive. These guidelines have been cited with approval in P. V. Kapoor v. Union of India [1992 Cri. L.J. 128] (Paragraph 35) [and the latter with approval in Anita Thakur (supra)]. In P.V. Kapoor, the Delhi High Court noted that “in maintaining order, the police should use the method of persuasion, advice, and warning” and only on the failure of these methods, the absolute minimum force employed as required in the situation (Paragraph 34-35).

Thus, force used under Section 129 of the CrPC should strictly be limited to what is strictly necessary to disperse the crowd, must halt once the crowd starts to disperse, and must not be deployed for punitive or other such purposes.

International Law

Basic Principles on the Use of Force and Firearms by Law Enforcement Officials [BPUFF], and the Code of Conduct for Law Enforcement Officials [CCLEO] are authoritative laws regulating the use of force by LEA’s and many of their principles are part of customary international law [CIL].

BPUFF’s principles are part of customary international law as recognised by the European Court of Human Rights in the Benzer v. Turkey (2013) (Paragraph 90) and by the Inter-American Court of Human Rights in Cruz Sánchez et al v. Peru (2015) (Paragraph 264). Principle 5 states that the exercise of force should be proportionate to the seriousness of offence; Principle 13 states the force employed to disperse an unlawful assembly should be to the minimum extent possible, and principle 14 states that legal force should be the last resort.

Fact Matrix Analysis

Indian legislation, judicial decisions, and its international obligations, therefore, require LEA’s to exercise minimal proportional force to be used to disperse an unlawful assembly, and once the crowd starts to disperse, the use of force must stop, and the object of force employed should not be punitive. Moreover, force should only be employed where the object of the unlawful assembly is causing violence or breach of peace (or likely to do so).

Consequently, we argue that the use of force in JMI and AMU was excessive and unlawful. On 15th December 2019, a protest was organised by the JMI body crossed the JMI campus, and started walking toward Mathura road. It was at this point that the police started lathi charging and used tear gas because of which the crowd started dispersing, running towards the campus. Even if the assembly was unlawful, Section 129 could not authorise the use force, as the majority of these protestors were unarmed and peacefully protesting, and therefore is nothing to suggest the object of the protectors was to cause violence or breach of peace and that they were likely to.

Assuming the invocation of Section 129 was lawful when the assembly was marching towards Mathura road, even then force employed should have halted as and when the police were successful in dispersing the crowd which was heading back to the campus.

Lastly, even if the police claim that entry into the campus was important for dispersing the crowd and finding out who was pelting stones is accepted, the force used inside the campus remained vastly disproportionate to the extent required, lending itself an element of criminality [Ramlila Maidan (supra)].

The LEA’s use force only was not restricted to only those who were allegedly throwing stones; they “were certainly not being thrown by students in the reading room and library, the washrooms that they had to be gassed out or from the History and Urdu departments which were vandalized by the police.” The police targeted individual students and used force which was intended to brutalise and not merely to disperse the crowd. Islamophobic and targeted slurs were used against students indicating the action was punitive, targeted, and reprehensible.

In AMU, reports suggest that the actions of police were similar to those undertaken by them in JMI. The police arrived to disperse a crowd protesting at Bab-e-Syed​ and used non-lethal force including tear gas shells, rubber bullets, stun grenades, pellets, and other kinds of explosives into the crowd inside the gate. The crowd, at this point, reportedly began to disperse, which means that there was no need for further use of force. Despite this, LEA searched the campus to target student, the “nearby buildings such as Guesthouse No. 2 and 3 along with the mosques were raided by police and RAF and all the unarmed students (estimated 12-15) were heavily lathi-charged.”

A fact-finding report shows that in Morrison Boys’ Hostel, AMU, soldiers beat up guards and fired teargas into the rooms of the students to smoke them out, and one of the rooms caught on fire. Doctors from the university medical college rushed more than ten ambulances to pick up the injured students, but the soldiers refused to allow them to rescue the students, and even broke the bones of one ambulance driver. As in the JMI incident, the kind of force reportedly used was disproportionate, targeted, and was employed to penalise and brutalise minorities.

Conclusion

The LEA’s and paramilitary forces did have the power to enter the campuses of JMI and AMU, however, the extent of use of violence against JMI and AMU students was disproportional and was unlawful. In our opinion, such use force of force was not towards securing a lawful object, but rather the purpose was something else entirely — an attempt to subjugate minorities and to suppress dissent from resilient and autonomous educational institutes, by sheer coercive action, in complete disregard for rule of law.

[This post was updated at 12 PM on 12.09.2020 to add details to the introduction and correct a typographical error regarding the date of incident]

Mobile Phones and Criminal Investigations

I've put out a short primer / paper (made with friends) explaining the basics about mobile phones and criminal investigations. This is meant to help convey the legal issues that arise in context of the following: (i) seizure of a phone by police; (ii) police compelling the person to unlock the phone, and; (iii) police accessing the contents of a phone.

Broadly, the takeaways are:

• Police have broad powers of search and seizure which they can use to seize a mobile phone during an investigation, which is treated just like any other object;
• There is greater ambiguity in the law that might authorise regular police, and courts, to compel individuals to provide passcodes and / or open locked devices by using biometric ID;
• There are no prior limits on the use of the seized phone and the kinds of content that might be accessed;  
• There are legal limits present under statutes that serve as avenues to restrain these powers. The misuse / abuse of these powers also threatens possible violations of the fundamental rights to privacy and that against compelled self-incrimination;
• However, the value of legal tools to contest seizure of mobile phones and / or any compulsion used by police in getting them unlocked, is often lost due to the situational dynamics in which the law operates. The power differential between police and a witness / suspect inside a police station is simply too much to bear and results in most persons unlocking their devices. The myriad difficulties in holding police officers to account, and quickly, only makes this worse. 

To put it simply: The police can take away almost anyone's phone if they think it might be useful to the investigation, see anything inside it without accountability, and the law confers potentially useful rights against compelled testimony which often don't matter inside the confines of a police station. 

At a time when a mobile phone is a close substitute for real life, the many problems posed by the status quo are not too difficult to imagine. For starters, the problems from ordinary life will obviously be replicated: investigating agencies will have to draw inferences from conversations and thus might impute criminal intent where none existed. 

But, given the massive amounts of information floating on a mobile phone, they bring their unique problems to the table. For most people, real life is never squeaky clean, and so it is safe to imagine that their phones reflect this reality. So by having relaxed laws that permit easy seizure of mobile phones, and having almost no legally defined limits on what the police can do with these devices once they've seized them, we create a situation where the police can go on a roving and fishing inquiry to find leverage against a person to either make her say things against her will. 

The document suggests some avenues for reform, but there are no short-term fixes to what is only a reflection of a broader, systemic, malaise. Let me explain how.

Sir James Fitzjames Stephen thought that having a law that excludes confessions made to the police was necessary in India because for them "it is far pleasanter to sit comfortably in the shade rubbing red pepper into a poor devil's eyes than to go about in the sun hunting up evidence." Amazingly, the law regulating investigations has changed little from Stephen's time. The past 150 years have taught us that without drastically improving the resources for policing, mere legal rules can do little to stop coerced confessions / statements and improve the quality of investigations. 

A police force that is short on money and staff, but pressed for time to deliver results, is always going to find shortcuts to give the public an answer. The risks of a fallout are also minimal, since any eventual unravelling of a case only happens many years after an investigation is completed, by which time nobody is around to blame. It is perhaps inevitable for the situation to get worse now, as mobile phones have meant that police don't need that proverbial red pepper anymore.