Conspiracy — The Birth of the Substantive Conspiracy Offence in India

[This entry is part of a multi-post series on conspiracy. For earlier entries, click here]

The previous post considered some broad, theoretical issues, regarding the offence of conspiracy. This one takes a hard look at the offence of conspiracy within the Indian context. The focus is not jurisprudential yet but historical, and so this post will end with the birth of India's standalone conspiracy offence, in the form of Section 120-A and 120-B in the Indian Penal Code. It's a long post, but an interesting one I hope.

Common Law and Conspiracy

Today's standard understanding of the "conspiracy offence"—two or more persons agreeing to commit an unlawful act, or a lawful act by unlawful means—is more or less directly attributable to developments in law made by the infamous Court of Star Chamber during the 17th Century. It was largely due to the Poulterer's Case that the law on conspiracy branched out from being solely concerned with agreements to level false accusations / launch malicious prosecutions where a prosecution could only be instituted by the acquitted party after the trial, to cover all agreements whose object was the commission of any unlawful act. It was held that an indictment was sufficient simply against such an agreement, without any crime having been committed consequently.  

James W. Bryan, in the excellent Development of the English Law of Conspiracy (1909), has demonstrated the significance of this shift beyond the realm of false prosecutions. It was momentous, not only because it vastly broadened the horizons of what was criminal, but also how these crimes could be prosecuted. To prosecute a conspiracy earlier, one needed a trial where the falsity in the testimony and hints of an illegal nexus coming through, and an acquitted defendant to bring the case. Now, with conspiracy itself seen as a separate crime independent of the offence which was sought to be committed, it placed a great degree of emphasis on filtering flimsy and baseless prosecutions, since such allegations were easy to make. 

This line of thought prompted some resistance to the sudden widening of criminal conspiracy in the 18th Century, Bryan's book suggests. It took some time, but rather than go back to a narrower construction of what was a criminal conspiracy, the development of the Common Law turned towards the regulation of how conspiracy prosecutions would be launched. The judges acknowledged that, in theory, the conspiracy offence required nothing more than an agreement to commit a crime. But criminal intent could only be rendered manifest before a jury through something beyond a mere accusation in the form of the overt acts of the accused. A successful indictment would still need examples of overt acts, even though technically the offence of criminal conspiracy stood complete without parties taking any steps towards achieving the object of their conspiracy, because otherwise it would be a useless exercise to go ahead with the trial. 

The Codification Experiment

Bryan's book suggests that by the first half of the 19th Century, the Common Law approach to the criminal conspiracy was almost certain: Lord Denman's 1832 explanation (extracted in here) that a successful conspiracy indictment must at least demonstrate an agreement to achieve an unlawful act or a lawful act by unlawful means, was to quickly find widespread agreement [Bryan demonstrates that the "at least" was lost to history]. But crucial to preventing frivolous conspiracy prosecutions was the process — while the offence required nothing more than an agreement, it would be almost impossible to lead a trial without any evidence of external conduct manifesting this criminal intent.

Famously, many influential Britons disliked the Common Law approach, such as Messrs Jeremy Bentham and Thomas Babington Macaulay. The case-by-case approach to law left it too uncertain and by no means a method availing itself to universal application. Which is why the Utilitarians managed to convince many that codification was a more suitable approach for lands such as India, and began the codification process in earnest. One of the first products of this codification exercise was the Penal Code prepared by the Law Commissioners (headed by Macaulay), which was published in 1837. 

What was their approach to conspiracy? First, conspiracy was not made an offence per se but it was part of the Chapter on Abetment. Clause 86 of the Law Commissioners 1837 Code defined previous abetment of a thing as, amongst other things, "[engaging] in any conspiracy for the doing of that thing" [Subsequent abetment, if you're curious, covered persons aiding or abetting after commission of a crime]. Whoever previously abetted by engaging in a conspiracy was punished with the punishment prescribed for the offence, if such abetment led to commission of that offence [Clause 95]. On the other hand, if the offence did not take place, a person was liable to be punished with up to one-fourth the punishment prescribed, as long as "any act or illegal omission takes place in pursuance of that conspiracy, and in order to the committing of that offence." Nowhere did the Code define conspiracy. But at the same time, it indicated that only those conspiracies were punishable where some act or illegal omission took place in pursuance of the conspiracy, and in order to achieving its object.

We know that the Penal Code prepared by the Law Commissioners underwent revisions between 1837 and 1860, when it emerged as the Indian Penal Code [Sadly, I have not been able to trace the reports revising the Code during the intervening years online]. These revisions also affected the Chapter on Abetment. In Section 107 of the Indian Penal Code of 1860, a person "abets" by engaging "in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing." The Penal Code did not define conspiracy either, but this change did away with a technical distinction in the 1837 Code between punishable conspiracies and those which weren't. Section 107 clarified that the only kind of conspiratorial conduct which could be "abetment", was one where some act or illegal omission followed towards executing the conspiracy. As a result, the punishment scheme was simplified. All kinds of abetment (whether by conspiracy or otherwise) which resulted in commission of offences attracted the same punishment as that of offence (unless specified otherwise) [Section 109]. When the offence was not committed, abetment was punishable up to one-fourth the specified punishment [Section 116]. Besides rationalising the scheme, it also made it mildly more lenient, as persons could not be punished for abetting commission of crimes not punishable with imprisonment, where the crime was not committed.

Drifting away from the Common Law, only to Explosively Return 

On the face of it, the Indian Penal Code did not punish criminal conspiracies like the Common Law — so goes the received wisdom. Well, did it really? The Penal Code did not define conspiracy, so it wouldn't be correct to suggest that that it defined it differently from the Common Law. Could one not argue that what the Penal Code tried to do was to codify the Common Law approach to conspiracy, whereby it codified the regulatory tool which ensured that only conspiracies in pursuance of which some act / illegal omission took place could be prosecuted. The Penal Code didn't specify just what this act or illegal omission might be, and so it was open to contend that the requirement was not onerous at all but much like the Common Law itself where the courts had doing anything could be suggestive of the conspiracy. 

That, of course, is a road not travelled. For by 1870 Sir James Fitzjames Stephen had amended the Penal Code to introduce a specific conspiracy offence — Section 121-A — and hinted that there was, indeed, a divergence between the Indian Penal Code and Common Law approaches to conspiracy. I was unable to find many decisions within the period from 1860 to 1900 where courts contended with this issue. But what I did find was a referencer from 1890, a guide-book of sorts, for Civil Service aspirants which carried a helpful table of differences between English Law and Indian Law; one point of difference noted in the said table was the law on Conspiracy, where it noted that conspiracies were only punishable "if any act takes place in pursuance of the conspiracy" unlike English Law where conspiracy was punishable even if no act took place in pursuance thereof.

Courts in the 20th Century certainly abided by this logic of difference as well which, arguably, had by now been espoused by the legislature as well with the passage of Section 121-A. The Madras High Court in N.A. Subrahmania Ayyar (1900; appealed to the Privy Council in 1901) and Tirumal Reddi (1901) stated this loud and clear:

"Under the English law the agreement or combination to do an unlawful thing or to do a lawful thing by unlawful means amount in itself to a criminal offence. The Indian Penal Code follows the English law of conspiracy only in a few exceptional cases which are made punishable under Sections 311 (Thug), 400 (belonging to a gang of dacoits), 401 (belonging to a gang of thieves) 402, (being a member of an assembly of dacoits,) and 121A (conspiring to wage war). In these cases whether any act is done or not or offence committed in furtherance of the conspiracy, the conspirator is punishable and he will also be punishable separately for every offence committed in furtherance of the conspiracy." (Tirumal Reddi)

The divergence between English Law and Indian Law was, therefore, well established for about 50 years in 1912. But at the same time, upon recognising this divergence, it is critical to remember that nobody was suggesting that the Indian approach was worse off for not having fully embraced English Law. Return to the foundations of the codification enterprise: It was an attempt to streamline the "mess" of the Common Law. Thus, if the conclusion is that the Penal Code had forsaken the Common Law of conspiracy to a certain degree, then it was for good reason and not by accident. Indeed, even as he introduced Section 121-A into the Penal Code to bring it more in line with what was then English Law, it was not Stephen's case that the limited adherence to the Common Law of conspiracy was an error in the scheme of the Code. One might argue that he believed in the correctness of this divergence, which he kept up through Section 10 of the Indian Evidence Act which he played a key role in drafting. 

All this changed with an explosion in Chandni Chowk on December 23, 1912. In a previous post on this Blog, Nishant Gokhale described this turn of history as follows: 

"On 23rd December, 1912 Lord Hardinge and his wife rode into Chandini Chowk on elephant as part of a state procession to the new capital. Huge crowds had gathered to witness the pomp and splendour of the British Empire in India. What the crowd would witness however, would soon be known infamously as the “Delhi Conspiracy Case”. A bomb was hurled from a nearby building housing a branch of the Punjab National Bank. It exploded right behind Lord Hardinge instantaneously killing an Indian attendant, and leaving the Viceroy bloodied and unconscious. Lady Hardinge was unconscious, though unhurt. This audacious attack on the head of the British Empire in India, would not go unpunished. There was an uproar in the British Parliament and MPs demanded to know 'what steps are being taken to hunt down anarchists in India, in view of the fact that the Viceroy has publicly stated that the recent outrages are the outcome of organised conspiracy?'" 

The bomb might have missed its target, but that did not matter. What mattered was the conspiracy which was allowed to flourish unchecked for as long as it was, ultimately culminating in Basanta Kumar Biswas lobbing the bomb on December 23. In that moment, a worried Parliament and India House could not turn to the slew of repressive powers authorised over the course of the previous decade in a bid to address the growing revolutionary violence stemming out of events in Bengal, including passing of laws such as the Seditious Meeting Act (discussed here in some detail). This would indicate that a bomb could be thrown at the Viceroy due to ineptitude in how the colony was run. Instead, the response was to point to a "flaw" in the law itself, and suggest that it was because of this flaw the powers-that-be could not root out such evil conspiracies before they were allowed to blossom. 

This "flaw" was the above-noted divergence between Common Law and the Indian Penal Code in respect of criminal conspiracy, and the decision was to urgently remedy it by way of the Criminal Law (Amendment) Bill which was introduced on March 5, 1913 and in the words of the mover of the Bill Sir Reginald Craddock, the Bill sought to "introduce a new offence, the offence of criminal conspiracy."    

A Substantive Conspiracy Crime for India

Thanks to the Indian Parliament digitising archives of parliamentary proceedings, everyone can now read the brief, but fiery, proceedings which led to the passing of the 1913 Criminal Law Amendment Act and the addition of Sections 120-A and 120-B to the Penal Code. At the outset, I must admit that reading these debates on the Criminal Law Amendment Bill of 1913 at a time in independent India's history where laws are being introduced without adequate notice, are not referred to Committees for proper deliberation, and are then bulldozed through Parliament using the brute force of numbers, was an odd experience. Both Mr. Banerjee and Mr. Vijayraghavachariar called out the egregious procedure adopted by the Government and the "unseemly haste" in getting the amendment through.  

The amendment was billed by Sir Craddock as the solution to remedy a flaw in India's laws which allowed an assassination attempt of the Viceroy, which was unsuccessful only due bad luck. It was not a failure on part of the police to detect this conspiracy or many others, the argument went, but a gap in the legal system, because of police were unable to go after the masterminds of these anarchical conspiracies, who remained in hiding while others did their bidding. The mover of the Bill pointed to the existence of many such dangerous conspiracies throughout the country which necessitated the urgent and immediate passage of the Bill to ensure that yet another bomb could not be lobbed and pistol would not be fired in the open, and ordinary Indians could experience a measure of public safety yet again. 

Not even three months had passed since the attempt on the Viceroy's life at this point. Given that most of the native members also harboured sentiments of loyalty to the Crown, it was unsurprising that many of them openly spoke of their sense of shame at the "dastardly" deed committed by one of their countrymen. Sir Craddock called it the "duty" of the House to pass the Bill unanimously to send a message, and all but two of the members of the House heard his plea. The two dissidents, Mr. Surendra Nath Banerjee and Mr. Vijayraghavachariar, had the temerity to oppose the Bill outright on March 5. Once they lost that motion, put up a slew of amendments to curb what they saw as an unprincipled and unfathomable expansion of the repressive powers of the police. The point was simple — the absence of conspiracy was not a flaw but by design. These members argued it was a sleight of hand to suggest that the police which had at its disposal vast powers of arrest but had been unable to crack various cases would suddenly gain detective abilities by creating a new crime. If anything, this new, boundary-less crime, would greatly enhance scope for police oppression and false accusations.  

The multiple amendments moved by them sought to restrict the scope of the proposed conspiracy offence by tying it to only specific objectives — commission of public order offences, for instance. This was a lost battle from the start given how radically this altered the concept of the Bill itself, and also as the Select Committee had already created some measure of relief by requiring an overt act where conspiracies were to commit lawful acts by unlawful means. 

Much more effort was placed in trying to provide adequate safeguards against police powers and false prosecutions. The Select Committee had provided a mechanism by which prosecutions for conspiracies to commit offences against the state, or offences punishable up to two years, could not be launched without proper sanction. This was better than nothing, but as Mr. Vijayraghavachariar explained to the House, "give me less if you like, but let me have something tangible and really useful" (19th March, 1913). A more meaningful protection in his eyes was to render all conspiracies non-cognizable and bailable, or require prior sanction for all such prosecutions where the object of the alleged conspiracy was the commission of a cognizable crime. It was a salient point, because all it sought to curb was the power of arrest where the only suspicion was that the person had agreed to commit a crime — where police could show more, then arguably such powers would still be available given that abetment was cognizable if the main offence abetted was cognizable. The point was lost on the House though, which saw any suggestions to curb police powers beyond the limited ones already agreed to as undermining the very purpose of moving the amendment in the first place. 

Crisis Lawmaking, and a Dire Warning 

The proceedings on March 19 continued well past six in the evening. After all but one of the amendments had been voted down, it fell to the members to make some remarks to wrap up the debate. Curiously, more than one native member now admitted to having had misgivings when the Bill was first introduced on the floor of the House, but each of these members found themselves on much surer footing with the changes brought about by the Select Committee. Mr. Madhu Sudan Das was evocative in explaining his position, which he felt was the logical position to take for every member, when he reportedly said that:

"I fully share the feeling of shame which my Hon'ble friend Babu Surendra Nath Banerjee said he has when he hears of these things; but then I ask myself, have I been able to help Government or those responsible for the administration of the country, to get rid of these people, through these outrages are committed against my own countrymen, my kith and kin. What have I done? That is really the thing. Two facts stand out prominently before us. They are that the Government has failed to do anything; the people have failed to do anything; to get at these criminals. We don't know where they are and consequently the time is come if they are not to be found in the broad daylight, if they hide themselves in dens, in secret places, something must be done to get at them, and the Conspiracy Bill is nothing but this. If we can't get hold of these men when they have committed overt acts let us try if we can reach them when they are hatching their plots. Now, for instance, taking an analogy from the plague, it is really a case like this: if we can't get hold of the rat when he comes out of his hole and tries to go about the house and spread infection, let us try to enter the hole and kill him there if we can. Well, whether this will succeed or not it is very difficult to say, but certainly I felt that I should not be justified (when I cannot do anything to stamp out this evil from my country) in opposing Government when those people who are responsible for the administration of the country say this is a measure they want to give a trial."

These remarks could well be transported across space and time and attributed to men in parliaments, at the battlefront, election rallies, or even in a household. It is the reaction commonly seen in response to a crisis — something must be done. Since you and I have no idea what that must be, let us defer to the counsel of the voice in the room which ventures forth with a suggestion. We are invited to accept the many assumptions that this measure is driven by. We do not know if that will work or whether the assumptions are reasonable, but something is being done. No matter if it arms the police with more powers, threatens individual liberty; all this is better than the alternative, which is nothing. And, after all, innocent persons need not fear bad laws.

Of course, some are able to look past the blinkers placed upon their foresight by a crisis and question these assumptions and the proposed benefits of measures. History is kinder to these voices, such as that of Mr. Vijayraghavachariar. At the time the proceedings were winding up, he reiterated that the "gap" argument was deeply flawed and would worsen the existing law — a point which was supported by the eminent jurist Shamsul Huda some years later in his famous Tagore Law Lectures — and declaimed with utmost conviction that the proceedings of the past two days had convinced him that the "Conspiracy Bill" was unnecessary. He reminded the members that by passing such a law, what they had sanctioned was not only more arrests but also more coerced confessions by police as they gathered evidence of the conspiracies being hatched in secret by shady conspirators. Ultimately, in his eyes, the British Government was using an unfortunate, even tragic event, as cover to arm itself with yet another repressive law. And it was doing so without arming the Indian subjects of the Queen with those safeguards against police power that were enjoyed by their fellow subjects back in London, reminding us that "it is very serious mistake to say that a because a man is innocent, therefore he should not be afraid of bad laws and the abuse of laws."

What path has the substantive conspiracy offence travelled during the century since these heated debates before the Governor General in Council? That will be the focus of the remaining posts in the series.  

The Judgment in State v Tarun Tejpal: Where do we go from here?

In a 2013 opinion piece, Professor Pratiksha Baxi wrote about the injustice that victims of sexual assault have historically suffered at the hands of the criminal process in India, reminding us that even those cases which forced our laws to change were stories of sexual assaults never proven before the eyes of law. That opinion piece was written in the wake of allegations in the case registered as State v. Tarun Tejpal, where on 21.05.2021, the Court of the Additional Sessions Judge at Panaji acquitted the accused on all charges, i.e. for alleged commission of offences under 376(2)(f), 376(2)(k), 354, 354A, 354B, 341, and 342 of the Indian Penal Code 1860. 

The judgment has been critiqued on the court's consideration of the victim's testimony [see, for instance, here, here and here]. It appears that an appeal has been filed by the state challenging the acquittal, where the High Court has initially directed that sections of the judgment ought to be redacted as they reveal the identity of the victim. 

This post does not attempt a microscopic review of the merits of the case, not only because an appeal is pending, but also because the judgment does not give a clear conspectus of the entire evidence on record to allow for such an exercise. Instead, while making some broad observations on the judgment (to the extent possible based on the evidence extracted) it brings up three issues that the judgment throws into sharp relief: (i) appreciating evidence, with a focus on witness credibility and the handling of inadmissible evidence at trial; (ii) consideration of digital evidence from victims in sexual assault cases, and; (iii) consequences of "bad" orders on the system itself.

On the "Sterling Quality" of Sole Testimony

7 years, 2 months, and 25 days: that is how long it took for this trial to finish from the date when the chargesheet was filed, which itself happened four months after the allegations first surfaced. Such delays are endemic to the system because of its structure [see here for a long take on this] — litigants can challenge almost every decision taken by the trial court during the process all the way to the Supreme Court, and this happened here as well. 

A very real consequence of delay is reducing the quality of oral testimony on offer before a court. The importance of oral testimony is a central feature of the criminal process almost everywhere. It is also one of its central fallacies because, despite overwhelming science to show the instability of memory, criminal trial rules still demand that we recall events to an unreal standard. This is something the Serial podcast has played with very well to demonstrate that not only do we forget things often, but we do so very quickly. In spite of this, trial rules play up contradictions in witnesses' recollections by comparing their oral testimony in court with what they said earlier during investigation. The more there are contradictions in versions, the more untruthful the witness supposedly is. Even in a setup like India, where trials take place years after investigations are done, and memories have faded to the point of oblivion, this is the yardstick adopted to judge the credibility of a witness. Sure, courts agree that some leeway is needed because of this, but the more contradictions you can point out, the worse the credibility of a witness. 

Which brings us to the specific context of rape trials and their rules of evidence. Unlike other cases, some special rules of evidence govern these cases in India, such as a rule that the "sole testimony" of the victim is enough to mandatorily create a presumption about the non-existence of consent where the alleged physical act is proven; with it being possible for the accused to rebut that presumption. Alongside this rule is a set of general judicially-ordained directions that ask courts to ordinarily trust the victim's version and not necessarily ask for corroborative evidence. This leads to a position, in practice, where all facts may be proven and a conviction may be based on the sole testimony of the victim. The result of such a situation which permits convictions based on the testimony of a single witness is to amp up the existing yardsticks for judging credibility: The court demands a "sterling witness" and not an ordinary one. 

Take a look at how the Supreme Court has, on one occasion, described it: 

"In our considered opinion, the ‘sterling witness’ should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. ..." (Emphasis mine)

It's hard to fault this reaction which asks for more when it comes to this one witness which can decide a case, but it should be obvious by now that this reaction is illogical and sets an impossibly high standard for any witness to meet, let alone a witness who is the victim of sexual assault and is testifying about it. If anything, the judgment in Tejpal demonstrates the double-edged nature of this process of establishing the quality of a witness. Opening a victim to "cross-examination of any length and howsoever strenuous it may be" in a situation where it isn't enough to merely doubt the witness' narrative but also damage her credibility is an invitation to place the victim on trial rather than the facts. This appears to have been a tactic for the defence in Tejpal and the court obliged: it took the bait that the victim ought to behave in a certain way by setting up false ideals of credibility. 

So, the court found it incredible that the victim could have been assaulted because she was found smiling in the presence of the accused after a few days of the alleged incident. That the victim spoke to persons and legal professionals before moving a complaint, that she was educated, a journalist, and knew more than ordinary persons about cases of sexual assault owing to her professional expertise — all of this appears to have driven the court to expect an impossible level of consistency in narrative, and rendered every contradiction or omission in testimony fatal to her credibility. When the victim testified to having placed her professional responsibilities before other concerns, even her own well-being, it rendered her testimony unbelievable to the court [more on proving consent here]. The extent to which the court engaged in such an exercise is such that, in some places ("the prosecutrix typically gave highly evasive answers"), the judgment appears to be a contest for proving that the victim is an unbelievable liar rather than determining the innocence or guilt of an accused person.   

"Un-Ringing the Bell" and Character Evidence

Returning to the idea of special rules of evidence for rape trials, one such rule renders evidence of past sexual history irrelevant on the issue of proving consent and quality of consent. Another rule also renders it impermissible to pose questions to the witness on such lines during cross-examination. The consequence of terming something irrelevant is to render it inadmissible in evidence — such information cannot be the basis for arriving at any conclusions [more on conflating relevance and admissibility here]. 

Both of these rules can be seen as the legal system's technique of curbing tendencies to badger a witness and, in turn, help the trial stay rooted to the facts and not extraneous circumstances. Tejpal offers a stark reminder of the truth that these rules are only as good as the context they operate in — the victim went to the High Court to get an order for curbing irrelevant questioning, presumably because the trial court was not doing enough to screen irrelevant questions or the defence counsel was clever enough to frame the line of questioning in a way which made the character-questions not so obvious. 

Possibly poor implementation of trial rules which are meant to screen bad questions is a problem. But it should not distract us from a much bigger problem afflicting criminal trials which renders the special rules of evidence for rape cases anodyne. This is the manner in which evidence recording ordinarily takes place. Normally, irrelevant questions are curbed by way of raising objections when evidence is being recorded, and a court decides that objection before letting the testimony go on. However, in a bid to curb delays, criminal trials in India normally do not address objections this way. While objections are noted during recording of evidence they are decided only at the stage of argument. Using Tejpal as an example, the end result looks something like this: a judge still looks at all of the irrelevant evidence, and then in the end, says that it has to be "glossed over".

Think about what this means for a second: not only does a witness still have to answer the irrelevant questions but the answers, possibly inadmissible in evidence, get recorded as well and form part of the record. Judges are expected to "un-ring the bell" if they uphold the objection at the stage of arguments and not let the inadmissible evidence influence their decision. This is great on paper but, frankly, impossible to either implement practically or to account for subsequently. Decision-making is a complex phenomenon and while judges might not ascribe formal reasons in the judgment to inadmissible evidence, that material can undoubtedly still influence their thinking at a sub-conscious level. Are the special rules offering little more than a placebo, then, to deal with the problems at hand? 

The Victim as a Source of Evidence

A significant feature of the defence strategy in Tejpal arose out of scouring the victim's life for facts which could be used in evidence. This came as a result of the police having seized her mobile phone and also having sought access to her email etc. for purposes of the investigation. As per the rules of disclosure in a criminal trial in India, an accused is required to be provided copies of all materials that are proposed to be relied upon by the prosecution to establish its case at trial. Courts have interpreted these rules broadly of late, and have required sharing even material which the prosecution might not plan to rely upon but had seized during the course of the investigation, especially where this might prove beneficial to an accused. In line with this interpretation, the accused was provided clone copies of the mobile phone of the victim.   

Exploring digital devices in the hope to find material useful as evidence is not extraordinary in any sense for criminal investigations. But, as we know by now in this post, proving sexual assault cases at trial is different from going about this job in other cases. Here, it is unfortunately quite common for the victim to be on trial herself instead of only the facts. Broad rules of disclosure can create unique harms for victims in such cases and I need not elaborate upon the many kinds of dangerous consequences which can arise. In fact, the Supreme Court recognised this to some extent in 2019, ruling that a "copy" ought not to be given to the accused and only an inspection be allowed of some sensitive material as it agreed that giving copies could lead to an accused person duplicating the material to, amongst other things, defame the victim. The Supreme Court did not direct that an accused ought not to be given material because this would be unfair, creating a situation where accused persons must only look at what the prosecution thinks is relevant for a case. Allowing for such a rule in one set of cases is likely to seep across contexts and should be avoided no matter what.

What might be a way out? Better regulation of how investigations handle digital evidence is a good place to start. These are difficult questions as on one hand the police ought to have room to investigate all lines of inquiry but on the other hand a victim ought not to be humiliated via a "digital strip search" of her entire life on the pretext of establishing whether a specific set of allegations are credible or not [see here and here about how the UK was struggling with this problem]. By reducing the amount of access that can be demanded by law enforcement, unwanted intrusion into the private lives of victims can be minimised (a factor often cited as being a hindrance to reporting of sexual offences), while also automatically limiting the access given to an accused at trial. Victims ought to be informed at the outset about how their information can become part of the case and eventually land up in the hands of accused persons as well, giving them an option of not doing so without exposing them to censure while making them aware of how this might also hurt the investigation by closing down lines of inquiry. If anything, such an approach will help make informed decisions about how victims participate in the process, allowing them to retain agency. It might also help police in remaining focused on securing the available independent evidence — a feature which appears notably absent in Tejpal and contributed to castigating remarks from the court.   

Of course, it is impossible to change or hope for change in investigative practices without thinking about the trial as a whole. Investigations are all about collecting material which may be used as evidence — if what the trial wants as evidence focuses upon creating unrealistic "sterling witnesses" then that is what an investigation will also look for, going beyond the allegations and down the rabbit hole of credibility and character.

Being Wary of the Ripple Effect of "Bad" Orders

Public opinion has decried the judgment in Tejpal as a travesty. Beyond the debate about whether the court reached the right result, the criticism has been about how the court went about its task. Naturally, there has also been talk about doing something to prevent such episodes from repeating again. It is earmarked to go down in history as a "bad" order. Bad orders have, historically, carried serious repercussions for the criminal process in India, especially in the realm of sexual assault laws. As Professor Baxi's 2013 piece outlined, most of the notable changes to the legal system were a result of particular instances of injustice being done to women. In that way, Tejpal offers a chance to build consensus around problems afflicting the investigation and prosecution of sexual assault cases in India. That is the only silver lining around this dark cloud.

At the same time, one must be wary about the ripple effects of bad orders. The more recent examples of a consensus did see a response from the legislature, but hardly the kind of response which anybody except vote-seeking politicians supported. In 2013, parliament rushed amendments to the criminal law by picking and choosing parts of a Committee Report, and the outcome was insensible and illogical. In 2018, the outcome to public outrage was simply increasing the severity of crimes and adding the death penalty for some crimes, which many argued was counterproductive to the issue itself. The underlying commonality in these responses is their cost-effectiveness — legislators create new crimes or evidentiary rules but they hesitate in taking steps which cost money, such as improving state capacity to investigate and prosecute a case. 

This post suggests that there are some serious problems as well as red herrings out there when it comes to thinking about how the system deals with sexual assault cases. To make things better it is imperative that the conversation going ahead is rooted in an approach which considers the problems holistically — looking at the entire life of a sexual assault case and its consequences on stakeholders while recognising the unique harms to victims — instead of adopting band-aid measures which only worsen the malaise. 

Mind the Gap: Improving the Links Between Courts and Codes

(This post first appeared on the RSRR Blog)

It has been seventy years since we, the people of India, gave to ourselves the Constitution. But long before we did so, the British gave to us a system of laws, and we continue to live with it till today. This system of laws consisted of lengthy statutes, which were detailed to the hilt, to have the maximum certainty and predictability possible.

Complicated systems end up making law the exclusive domain of lawyers and judges, while simple codes make the law accessible for all, and that is how it should be. However, even the most detailed code might have gaps, and can certainly allow for differences of opinion about the meaning of words. Which is where courts came in, whose primary task was to apply the codes and seam any creases.

For this setup of statutory law to work efficiently, it is only natural for legislators to keep a close eye on what issues emerge in the working of their codes. There must be a feedback loop, where legislators update the law whenever courts reveal serious issues that were somehow ignored or not thought of previously. This update might be an amendment to fill the gap, or a clarification to set any doubts at rest, and ensure everyone is on the same page.

If the update exercise stops happening, the point of having the codes will slowly be lost. It will not be enough to simply read the text of the law; one would also need access to case reports to understand what that text means, or how it is applied in specific cases. Slowly then, we find that the law is no longer accessible to all, but an undemocratic exercise where only those who know the magic words can make things happen.

This parable of the gradual transformation of statutes nicely captures the current situation of the Indian criminal process. Once at the vanguard of a codification project where legal statutes were periodically updated based upon feedback from courts and administrators, India’s criminal law codes are now the pre-eminent examples of laws whose meaning cannot be gleaned without copious references to a gargantuan and complex body of judicial opinions. And considering that it is the poor who are most in contact with criminal law, we can imagine the especially insidious nature of this transformation—those who cannot afford lawyers in India are most in need of them for the simple task of understanding just what the law says.

For instance, consider Section 167(2) of the Criminal Procedure Code 1973. This provision says that a person cannot be detained in custody for longer than sixty or ninety days in a pending investigation (depends upon the alleged offences), and upon expiry of this period the accused “shall be released on bail if he is prepared to and does furnish bail”. Unfortunately, there are some gaps here, for instance: (i) must an accused file an application to trigger this process? (ii) what if the accused cannot furnish bail within sixty days? (iii) when do sixty days expire? Now, if one opens a legal commentary on these aspects, a copious set of citations can be found. And even after that, there are local practices to account for in respect of issues (i) and (ii). This is the kind of situation that cries out for a statutory update: If there is ever a need for clarity in law, it is on questions of personal liberty. And yet, the law remains as it was in 1973.

I also want to highlight a set of connected and very problematic consequences that follow if gaps between the courts and the codes continue to grow. The first of these is the disastrous impact had upon the cutting edge of law—cases where individuals are engaging in conduct at the limits of legality. This could be the case of a free speech activist testing the limits of obscenity law, or the case of a start-up engaging in bitcoin or medicinal marijuana business.

Disputes about where the lines of legality are drawn will certainly come to court, and the status quo will shift. A law might be struck down as unconstitutional, or courts might insert restrictions upon how the text can be interpreted. But if that changed legal position doesn’t get reflected in the statute itself, how can we be sure that the same issues will not crop up in respect of other persons engaging in the same conduct?

I wish this was a hypothetical, but it isn’t. One glaring example of this is the afterlife of Section 66-A of the Information Technology Act, 2000. Struck down as unconstitutional by the Supreme Court of India in 2015, a study reported that the police across many states continued to arrest persons under this zombie law well into 2019. It bears importance that within those four years, the statute itself wasn’t updated to remove all references to Section 66-A. All that was done, and it was done only in 2018, was to add a footnote declaring the provision was no longer valid law.

A different example is the rampant misuse / abuse (call it what you will) of sedition laws across India. Despite numerous judicial decisions clarifying that there must be incitement to imminent lawless action and not mere advocacy of certain conduct for a speech act to be called seditious, there has not been a single update to the text of Section 124-A of the Indian Penal Code. Of course, it can and should be argued that the police and other agencies have a duty to keep abreast of the law, and so not updating the legal text is no excuse for the police arresting persons on sedition charges in connection with a primary school dramatic play. But a clearer code would help curtail such abuses of discretion, leaving lesser room for ambiguity and unnecessary argument.

How difficult can it be to update laws periodically? There are state law commissions, as well as a Law Commission of India, and one of the primary responsibilities of these bodies is to improve the Indian legal system. Could there not be a process of periodical review of the laws, much like our decadal census, to take care of the situation? That there is almost no country with a concrete process in place mandating the periodic review of legislation gives us an indication of how hard this can be. After all, legislatures have tons of work, and there is little political mileage in tinkering a law that is doing alright for the most parts. Although it must be noted that today, most of the classic civil law jurisdictions (if one accepts this crude classification between “common” and “civil” law terrains) are governed by EU law, which comes with its own difficulties of execution and implementation.

If this necessary periodic review by legislature appears to be a bridge too far, then why not the legislature depute a body to work actively at creating a criminal practice manual? This could link the courts and the codes by having small explainers, distilling the essence of how judicial decisions have interpreted the text. By having a government-appointed body at the helm, rather than a group of private persons, that distilling exercise will have the weight of authority and avoid critiques of bias and nepotism. This body could perhaps be modelled on the lines of the Sentencing Commission, which is tasked with rationalising law and practice on sentencing to craft Guidelines that can be applied by courts. Of course, this exercise of technocrats distilling the law suffers from the criticism of being just another undemocratic scenario to replace the already existing one we are suffering.

Even though it has not completed a full year in power for its second term, the government has repeatedly stated that it is considering amendments to the criminal laws to bring them in tune with the aspirations of 21st Century India. As this short essay argues, perhaps the best way for any government to fulfil this promise is to create a process of periodical legislative review, rather than one that happens once every fifty, or even one hundred and fifty, years.

Errantry: Where is our Criminal Justice Data?

In December, the news machine went into a tizzy when a government notification authorising several agencies to intercept communications became public. The "snooping order", as it was labelled, was stoutly defended by the Government at the time, which stated that a look at past data would confirm the order was nothing out of the ordinary. That did not stop challenges to the notification being filed with the Supreme Court, but it did encourage persons to find that "past data" through requests under the Right to Information Act, 2005 [RTI]. 

This past week, it was reported that the Government has refused to provide any of the concerned data, citing it to be "top secret". Mind you, this includes data on how many agencies have been similarly authorised in the past, as well as a figure for how many interception orders have been issued — one finds it difficult to imagine either being "top secret" material. Nevertheless, when the very basis for classifying items as "secret" has been refused to the public on account of secrecy, I guess this is par for the course.

My concern here, though, is not with this spat over the snooping order. Instead, my issue is with the government not publishing the annual Crime in India Report for a year. Crime in India is an annual publication by the National Crime Records Bureau that dates back to 1955. For a lot of years, it forms the only source of macro-level data on the criminal justice system in India. While it is no longer the only data source, it continues to represent the single most comprehensive data source for the criminal justice system even today. 

Despite this pre-eminent position, the Annual Report for 2017 is yet to be released. It is usual for the Report to come out in the middle of the subsequent year, but we are now in February of 2019.

By no means am I suggesting that Crime in India is a "good" source. Far from it. The methodological gaps and erroneous figures, all the way back from 1955, mean that most researchers treat the data with a generous dollop of salt. Nevertheless, in the absence of any comparable source, the same set of researchers — myself included — continue to swear by the Report and devour the statistics to find some meaning and patterns amidst the numbers.

Without the Crime in India 2017 Report, discussing the Central and State Government's performance on issues of criminal justice is nothing but clutching at straws. While these assessments would have helped in the State level elections that went by, it will certainly contribute to people making a more honest assessment of just how much, or how little, has changed at the macro-level. Have police gotten any better and quicker at solving crime and filing cases? Have courts become any quicker in dealing with the cases that are actually filed? These are not purely academic questions, but make a real difference to all our lives.

Crime in India is not the only publication relevant to criminal justice statistics. The Government had also been publishing the annual Prison Statistics Report since 1995, an extremely valuable resource to figure out just who it is that faces the brunt of the criminal sanction. While we do have similar sociological data on the death penalty — arguably better quality data — there is still nothing as comprehensive as the Prison Statistics Reports. 

Unfortunately, even this has suffered under the current regime. The last time Prison Statistics was published was for 2015. Thankfully some states have been very active in giving updated information about the prisons under their control, but again, it does not excuse the NCRB from discharging its burden as the central agency responsible for this data-collection and analysis. 

The point of this rant is pretty simple. To be able to make things better, we need the unvarnished facts about just how bad things are. It is fair to say that no government has managed to provide that honest assessment of the criminal justice system in India till date, and nor has any government managed to do good by keeping that data to itself. But by taking away even that imperfect set of information, the government denies the most basic tools needed to spur innovation and change in a sector that is crying out for some fresh thinking. So please, give us our data!     

The Supreme Court and The Crisis of India's Criminal Justice System - Part 2

(This is the Second Post in a Two Part Series. Read part one here)

The 1990s are considered by some to be the heyday of the governance avatar of the activist Supreme Court. Impatient with the teeming corruption, incompetence, and lethargy in other branches of State, the Court went beyond merely telling them how to do their job and began doing their job itself. The previous post in this series highlighted that the Court's interventions into criminal justice could also be explained along these lines. It suggested that a trend was revealing itself by the end of the 1990s: Guided by the premise of "doing justice" in the cases before it, the Court did not shy away from changing the rules of the game itself. It resulted in a remarkable increase in the court's powers to bring about the desired results, and an expansion of the opportunities for litigants to be heard beyond those provided by the Criminal Procedure Code 1973 [Cr.P.C.]. This concluding post charts the Supreme Court's interventions in the criminal justice system since that decade.   

Trial Courts and the Erosion of an Adversarial System

Over the course of this millennium the Court has developed its remedial jurisprudence for writ courts to intervene in pending cases. In 2010, the Court concluded that separation of powers could not limit its duty of doing justice and thus the Court had powers to transfer cases to the CBI even if the statute suggested otherwise [Committee for Protection of Democratic Rights, (2010 3 SCC 571)]. The Court has suggested broad categories of cases that can merit a transfer of investigations, and has almost always agreed to requests where allegations involve interference by holders of public office [See, KV Rajendran, (2013) 12 SCC 480]. But, more importantly, the Supreme Court has buttressed this jurisprudence by also recognising similar powers in trial court judges. It is to the latter that I turn. 

The legal footing for this innovation was found in Sections 156(3) and 173(8) of the Cr.P.C. In Sakiri Vasu [(2008) 2 SCC 409] the Court recognised implied powers within the power of magistrates to "direct" investigations under Section 156(3), Cr.P.C. Directing, the Court held, also implicitly included an ability to monitor investigations to ensure they are "proper". Later, in Vinay Tyagi [(2013) 5 SCC 762], the Court recognised even further supervisory powers under Section 173(8), Cr.P.C., as it held that a magistrate could herself direct police to conduct further investigations to clear any doubts that she has and to satisfy her "judicial conscience". These new supervisory powers had their limits though. Unlike writ courts, magistrates could never direct a specific agency to investigate the case when it directed investigations to be conducted [CBI v. State of Rajasthan, (2001) 3 SCC 333], and nor could they call for fresh investigations to take place [Vinay Tyagi].

Sakiri Vasu and Vinay Tyagi rarely make it to discussions about criminal procedure in India. But in the cacophony of judgments that emerges from the Supreme Court, they demand our attention and offer valuable insight on the Supreme Court's engagement with the criminal justice system. 

• First, they show that the Court's distrust of police together with its commitment to fairness has deprived the police of functional autonomy even during investigations. Today, trial judges can guide investigations, either based on their own assessment of the facts or on an application by a litigant. While the criminal procedure and evidence statutes always encouraged active judicial participation during trial, the Court has expanded this logic into investigations paying little heed to the long-held beliefs of minimal judicial intervention into this space. In doing so, the Court has cast grave doubts over some core tenets of our system of criminal law: can it still be called an adversarial system if the trial judge can guide the police to investigate a case in a manner that satiates a "judicial conscience"? While the Court has continued to insist that the adversarial system is a bedrock of the Indian system, these questions remain unaddressed [See here, for an earlier discussion on the Blog]. 
• Second, Sakiri Vasu and Vinay Tyagi are illustrative of exactly just how fractured the Court's jurisprudence of doing justice and seeking fairness has become. On the one hand, the Court admitted that judicially created time-limits were unconstitutional because of the possibility that undue expediency could harm a defendant's right to a fair trial [P. Ramachandra Rao, (2002) 4 SCC 578]. But on the other, in Sakiri Vasu and Vinay Tyagi, the Court paid little heed to how heightened judicial involvement in investigations could also harm that fair trial right. The double-standards were glaringly apparent when the Court concluded that the rights of defendants were curtailed by its intervention - by which the Court had made itself the court of first and last resort for any challenges to any aspects of the investigation or trial. But, it justified this curtailment of constitutional rights to file writ petitions before the High Court as necessary for public interest [Shahid Balwa, (2014) 2 SCC 687; Girish Kumar Suneja, (2017) 14 SCC 209] [See here, and here, for earlier discussions on the Blog]. 
• Third, and finally, Sakiri Vasu also suggests that besides this bunking the idea of trial court deadlines, the Court began to treat trial court delays as qualitatively different from those in appellate courts. For according to the Court, one of the reasons for broadening Section 156(3) Cr.P.C. was to curb petitions for such reliefs clogging the docket of High Courts, implying that the resulting delays in trial courts were more palatable.

              

Investigative Agencies and False Dawns

The previous post discussed how the distrust of the police led to sweeping directions for reform in D.K. Basu. But as the Court found out soon enough, the issuance of directions did not translate into change. Despite knowing about this non-compliance with D.K. Basu, the Court went ahead and took an even bolder step in Prakash Singh [(2006) 8 SCC 1]. It is one of the rare instances where the Court directed states to implement a draft legislation. Unsurprisingly though, compliance with the Prakash Singh directions has been woeful.    

This open defiance of judicial authority would not have bothered the Supreme Court too much. None of it would've been surprising: the Court made a similarly bold attempt to fix India's prisons in the 1980s and struggled. In fact, I argue that in this context the non-compliance helped the Court: the problems of alleged corruption and incompetence that reform failure generated continued to supply justifications for the Court to use its powers to transfer cases altogether, either to a different police station, or to the CBI, or take it up themselves. But by the mid 2000s the cracks in this scheme had begun to appear: Almost a decade had passed since Vineet Narain but the reforms suggested for the CBI had not been implemented. Faced with this situation, in hindsight, the Court could've done many things. It could have taken up the issue itself (a step that it did take up in other contexts). Or, it could perhaps address it in any of the several transfer cases that continued to be filed. But it did none of this and kept transferring cases to the CBI where it deemed fit. Thus, the Supreme Court chose to actively build a myth of the CBI being a premier, independent, investigating agency despite the absence of adequate structures to warrant this label.  

In this decade, though, the problems first identified in Vineet Narain have begun to make themselves visible again through all the myth-building. I'd say the bubble burst in the Aarushi case, when the indefinite and inconsistent position of the CBI attracted much negative publicity. The cracks, now visible, worsened with allegations of political interference in the agency's functioning made in many high-profile cases. 

• First came Narmada Bai [(2011) 5 SCC 79]: Contesting transfer of a case which had already been investigated by the Gujarat Police to the CBI, counsel for Amit Shah argued that the CBI had "lost all its credibility as an independent agency and is being used the political party in power in the Central Government". The Court still transferred the case, perhaps brushing aside the insinuations as political bombast. 
• Then in 2014, counsel for the states of West Bengal and Odisha resisted transferring cases in the Saradha Chit Fund Scam to the CBI arguing that the agency had "in a great measure lost its credibility and is no longer as effective and independent as it may have been in the past." Interestingly, there was no stern rebuke from the Court. Rather, after curtly stating that these apprehensions were baseless, it noted that "a lot can be said about the independence of CBI as a premier Investigating Agency but so long as there is nothing substantial affecting its credibility it remains a premier Investigating Agency. Those not satisfied with the performance of the State Police more often than not demand investigation by the CBI for it inspires their confidence." [Subrata Chattoraj, (2014) 8 SCC 768]
• In a horrible case of be careful what you wish for, less than a year after this order the Court was presented with that something "substantial". A petition filed by Common Cause claimed that the-then CBI Director Ranjit Sinha had allegedly met persons accused in the Coal Block Allocation Scam that was being investigated by the CBI, but for no apparent reason. The CBI pleaded that "any adverse order that [the Court] may pass in this regard would irreparably damage the credibility of CBI". But this plea was rejected, and the Court ordered an independent inquiry [Common Cause, (2015) 6 SCC 332]. 

Today, less than three years after this episode which ended in a corruption case being registered against Mr. Sinha, the Supreme Court finds itself dealing with the punches and counterpunches being thrown by the two senior-most officers of the CBI. It would be an understatement to suggest that the CBI's sheen has been lost. No matter how these proceedings conclude, one wonders how the Court will handle the next request for transferring investigations to the CBI. Will it still make loud declarations about its status as a premier agency? Or will this decade mark an inglorious end to the Court's maverick remedial jurisprudence of opportunity in favour of more sustainable approach? 

Conclusion: A Criminal Justice System with little "System" or "Justice"?

Ultimately, these posts highlight that the Supreme Court's noble pursuit of justice has brought us to a point where there is left a semblance of a system, helping to achieve a very strange kind of justice in the context of criminal law. I would be stating the obvious in saying that any policy interventions to improve existing systems would first require considering data to evaluate possible benefits or drawbacks of any intervention on many parameters. Instead, the Supreme Court has done exactly the opposite: selectively shooting from the hip as and when it deems fit. 

It mattered little to the Court if this pursuit of justice came at the cost of subverting core institutional concepts, like a separation of powers between the branches of State. In the same vein, it did not matter if it came at the cost of the criminal justice system itself. As the reticence with which the Court had first approached this topic of altering the existing criminal procedures in Vineet Narain gradually disappeared, the system became little more than clay putty in a child's hands, subject to any tweak for hasty fire-fighting purposes. The slow-burning embers of such an intervention lay hidden for a while, but have finally made themselves brightly visible this millennium. Today, it is becoming clear that the Court's intervention has brought more work to an already overburdened judiciary, and invited blatant disregard for judicial orders by successive governments which refuse to support structural reforms in investigating agencies at both central and state levels.

What makes all the short-sighted compromises much worse is an appreciation of the kind of justice that the Court is helping to realise through its work. Yes, the new remedial jurisprudence of the Court opened doors that were once closed to litigants left feeling short-changed by local authorities. But take a moment and ask yourself: who are the litigants standing to gain? Can anyone afford to go to New Delhi and knock on the doors of the Supreme Court, or even a High Court? Can anyone afford lawyers to navigate this complex area of law and present their case? Of course not. There aren't even enough legal aid lawyers to help defendants take benefit of the prisons' jurisprudence that the Supreme Court developed, forcing the Court to periodically intervene to ensure compliance with existing laws. And yet, the Court has pressed through on an agenda which not only makes it more difficult to get relief from the trial courts, but implicitly undermines the quality of that relief. All of which suggests that while justifying its interventions for purported benefits to the have-nots, a closer look suggests that the Court has perhaps ended up only worsening their lot. 

If the 1990s were the apogee of the promise of reform that judicial intervention held in the field of criminal justice, this millennium has confirmed that the promise was a hollow one. Yet, the need for reform remains urgent as ever. Perhaps one lesson to be learnt is that quiet, yet effective pursuits of justice, will undeniably achieve a lot more than a slew of unenforceable or irreconcilable orders. Thus, any interventions directed towards reforms in criminal justice must represent the co-equal will of the Indian State, rather than an isolated action forced upon the rest by one branch that causes more harm than good.

The Supreme Court and The Crisis of India's Criminal Justice System - Part 1

(This is the first of a two part series. Read part two here)

This blog has often denigrated the Court's institutional position of activism in context of criminal law as suffering from a "White-Knight" complex. The Court takes up the work of other branches of State that are projected as being bogged down by corruption and politics, while the Court remains the last bastion of hope. Soon, this becomes a self-fulfilling prophecy and makes the Court take upon more of these tasks, making one branch overlord over others and slowly destroying that quaint idea called separation of powers.

An inherent structural limitation has limited the effects of this decades-long slide: the Court can't enforce its solutions without help from the other branches of State. Thus, the activism ends up being partially hollow; with the hollowness more pronounced if the concerned parties don't comply. This two-part series engages engages with the Supreme Court's intervention in the criminal justice system over the last three decades through this lens. I argue that apart from the inaction of the legislature and executive, judicial intervention has also played a major role in bringing about the crisis that engulfs the system today, where the independence and integrity of all the investigating agencies appears under question, and the courts cannot hope to keep up with the mountain of backlog. 

The Court and Criminal Investigations

Let's return to the middle of the 1990s. The reputation of state police, steadily decreasing ever since independence, had seemingly hit rock-bottom and prompted the Court to note that "The increasing incidence of torture and death in custody has assumed such alarming proportions that it is affecting the credibility of the rule of law and the administration of criminal justice system." [D.K. Basu, (1997) 1 SCC 416]. Besides issuing directions curbing police powers to arrest [D.K. Basu; Joginder Kumar, (1994) 4 SCC 260], the Court did two other notable things during this decade that affected criminal investigations.

First, through Bhajan Lal [1992 Supp (1) SCC 335] it significantly expanded the kind of situations in which criminal investigations could be quashed by the High Courts and Supreme Court. Second, it broadened the horizon for aggrieved victims' to get justice by legitimising new judicial interventions into the investigative process before magistrates and constitutional courts. Thus, the Court called for greater scrutiny of the chargesheet by Magistrates and gave victims a right to be heard before the police closed a case [Bhagwant Singh, (1985) 2 SCC 537]. Further, in a string of petitions by victims the Court granted requests to transfer cases out of state police into the hands of a "neutral" and "impartial" agency like the Central Bureau of Investigation [CBI], at times even after the investigation had been completed [Gudalure MJ Cherian, ((1992) 1 SCC 397]. 

Unintended Long-Term Consequences? 

All of this was necessary, the Court argued, for "doing justice" in the cases before it. This was telling: although the Court making interventions with lasting, systemic consequences, the considerations that guided this exercise were highly specific facts unique to that case. This short-term focus of giving the aggrieved victim remedy seemingly blinded the Court to the long-term consequences that its ruling might have. And there were inevitable downstream effects that the Court was setting in motion.

For starters, by giving stakeholders new rights to be heard in the criminal process the Court blessed more litigation in a system already struggling with delays - something that the Court itself often noted and took steps to curb. Crucially, rather than provide new post-conviction remedies and offer a more harmonious balance between fairness and finality, the Court sanctified pre-conviction intervention. This meant that the justice which the Court sought came at the cost of delaying the finality of the entire process. Both investigations and trials stood to become longer, and appellate courts got lesser time to decide appeals as they were burdened with new petitions in this mould.
          
Besides this, transferring investigations constituted an erosion of two long-held legal principles. The first was the idea that the functions of police and courts were complementary and not overlapping [Khwaja Nazir Ahmed, 71 IA 203]. Second, was federalism: policing was a core state function, with intervention by central agencies only possible with prior consent by the state. Because of these twin reasons, transferring investigations, and too from the state agency to a central one, had been an extremely rare occurrence before the 1990s. As the Court slowly unravelled the existing position, it naturally bolstered the perception of the state police as being incompetent and corrupt, and the central agencies being independent and much better at the job. 

Vineet Narain and the First Crisis

The premise of the central agencies being independent and competent was a major cog in the new justice-oriented jurisprudence that the Supreme Court was spawning. This premise was exposed as a myth in the Vineet Narain litigation, where the CBI was accused of dragging its feet in bringing allegedly corrupt politicians to book. Initially slow to react, once the Court got going it took the unprecedented step of "monitoring" CBI investigations. During the years of monitoring the Court received updates on the investigations in sealed covers and in camera hearings: steps ordinarily anathema to the idea of open justice but justified as a set of necessary "innovations" to ensure justice was done.

The Vineet Narain saga ended with the Court issuing a string of directions designed to secure greater autonomy for the CBI and other central agencies [(1998) 1 SCC 226]. Significant among these was ridding the executive notification that protected certain classes of bureaucrats from investigations; giving the Central Vigilance Commissioner [CVC] oversight duties over the CBI; and asking the federal government to bring in appropriate laws to secure autonomy of all agencies. Thus, it seemed that the CBI was back from the brink. So was the new remedial jurisprudence of constitutional courts, with a new arrow in the quiver to boot. Not only could the High Courts and Supreme Court continue to end state police investigations or transfer them to the CBI, but they could now also monitor the investigations itself if the case so warranted.

Conclusion: Identifying Patterns
Thus, after almost half a century of being committed to an adjudicatory role, within a decade the Court had cast an indelible stamp on the daily functioning of the Indian criminal justice system. Most of the judicial intervention was framed as an exercise in "doing justice", often in cases alleging failures of justice being occasioned by other state actors. Since the costs of this intervention were of a kind to only become visible in the long-term, it made it easy to ignore them in the face of the short-term gains at stake. And these gains were substantial. Sold on the narrative of pervasive corruption, the public could rest easier knowing that the Supreme Court was still untainted and committed to justice, a notion the Court itself repeatedly invoked. This helped to widen the popular appeal of an otherwise-elitist Court, and legitimised the many derogations from classical legal positions as necessitated by the failings of the other branches of State.

As the next post elaborates, the Supreme Court continued to perpetuate this narrative since the turn of the millennium, operating the same playbook of remedial justice in which the system was constantly malleable to the whims of "doing justice" in individual cases. By 2018 though, it appears that the sum is surely greater than the sum of its parts: giving succour in the many individual cases has helped to usher in the present collapse. 

The 2-G Spectrum Case

(This post first appeared on the Global Anticorruption Blog) 

It all started in May 2009 with a report filed by an NGO, Telecom Watchdog, with India’s Central Vigilance Commission. The NGO claimed that there were gross irregularities, likely due to corruption, in the allocation of licenses to operators for the 2nd Generation mobile communication standard spectrum (2G spectrum for short). By October 2009, India’s premier investigating agency, the Central Bureau of Investigation (CBI), had opened an investigation into the allegations, and in November 2010, the Comptroller and Auditor General of India estimated the losses to the government from the alleged misconduct at a whopping US$29 billion. Indian media called it the “biggest scam in the history of Independent India.” Time Magazine put it just behind Watergate as the second worst case of abusing executive power.

Petitions were filed in the Supreme Court of India pressing for cancelling the allocation and making sure that those behind the corruption would be held responsible. In 2012, the Supreme Court obliged, canceling all 122 licenses and imposing huge fines. The Court declared that the then-Minister for Communications and Information Technology, A. Raja, had used an inappropriate allocation procedure (first-come-first-served rather than an auction) to “favour some of the applicants … at the cost of the exchequer.” In an unprecedented move, the Court also ordered the creation of a “Special Court” to try the cases, and modified regular criminal procedure by curbing intermediate challenges, in order to ensure a speedy trial. The first case was instituted against the former Minister, senior bureaucrats, and prominent businessmen for conspiring to rig the allocation process and cheat the government of revenue.

On December 21, 2017, the Special Court announced its verdict—and it was not what many had expected: The Special Court acquitted all the accused, declaring that “a huge scam was seen by everyone when there was none,” and that “some people created [the perception of] a scam by artfully arranging a few selected facts and exaggerating things beyond recognition to astronomical levels.” The Court also found that, notwithstanding the earlier 2010 report (which others had already suggested was methodologically problematic), the actual losses to the government were marginal at most.

Many commentators were stunned and dismayed by the Special Court’s decision, denouncing it as “shocking” and “flawed.” But after reading the Special Court’s decision, I find myself in agreement with the Special Court’s reasoning. While it’s impossible, in a short blog post, to wade through the merits of the Special Court’s analysis for each of its conclusions, here I want highlight some of the most important arguments in support of the Special Court’s controversial decision.

• First, it’s worth addressing the apparent conflict between the Special Court’s ruling and the 2012 Supreme Court decision. The latter had quite clearly ruled that wrongdoing had occurred. But it’s a mistake to say that these two decisions are at loggerheads, for two reasons: For one thing, in 2012 the Supreme Court was dealing with an omnibus petition that put the allocation of 2G spectrum under a cloud and only sought initiation of prosecutions. At that stage, all one needs are grounds for suspicion of wrongdoing (something akin to probable cause). In fact, even the Special Court thought the material presented in to the Supreme Court had created a valid basis for suspicion, as it emphasised in a lengthy order refusing to discharge the cases back in 2012. But suspicion is not proof, and it was only after a careful examination of the evidence that the Special Court came to the conclusion that there was no proof beyond a reasonable doubt to convict the accused persons. Rather than condemn the Special Court’s decision, we should laud the Special Court for confirming that a trial court can function independently in spite of the strong preliminary observations made by the Supreme Court.

• Second, the Special Court’s verdict strongly suggests that the controversial government decisions were mistakenly depicted as corrupt, when in fact the controversy was due to the inefficiency and opacity of the bureaucracy. A review of the official records led the Court to conclude that the decisions allegedly initiated and pushed through by the disgraced Minister had hardly ever been taken by him alone. Other officials, who ended up as key prosecution witnesses, were fully involved in the decision-making process. The record revealed these officials were passive and happy to pass the buck rather than take responsibility at the appropriate time. Further, the Court also faulted badly-drafted government policies, and found that bidders had not acted wrongfully in exploiting gaps that the government had created. Remarkably, the prosecution could not prove that the accused companies were ineligible under the policy governing the spectrum allocation process, despite strong suspicions of this being the case, because none of the government’s witnesses could testify that the relevant words in the policy carried a definite meaning.

• Finally, the Special Court’s decision strongly suggests that the investigators and prosecutors simply botched the case. Some vital records were never collected or produced. For instance, no records of any kind were presented to show the Minister and private persons were meeting very frequently at the Minister’s office, which was a key government allegation in connection with the conspiracy charges. Even more problematic was how witnesses were examined, both by the investigators pre-trial and by prosecutors in court. As the Special Court emphasised (and illustrated with a helpful chart), although the investigation began in 2009, the CBI did not examine the most important witnesses until 2011 or 2012, in some instances doing so merely a few days before filing the dossier in court. Star witnesses often gave deposition testimony that contradicted the official record, which led the Court to reject their testimony as unreliable. The Special Court also lamented the failure of the prosecution to lay proper evidentiary foundations for its main arguments, noting that “arguments alone do not prove a case … For proof, legally admissible evidence is required.”

Once the dust settles, it is highly likely that an appeal will be filed, as acquittals can be challenged under Indian law. Overturning acquittals in appeals carries a tougher standard than challenging convictions, and it will be interesting to see how the government chooses to attack the Special Court verdict. One suspects that the speed of governmental action over the case might hinge on the upcoming national elections in 2019, as the verdict is bound to become an election issue. While ordinarily appeals continue slowly through the Indian judicial system, the government could push for a speedier resolution, and these special circumstances might yet see more twists in the 2G spectrum saga.