Helping out with the Democracy Deficit?

This is just a quick jotting. 

News items are reporting that a bench of the Supreme Court has referred a petition to the Chief Justice of India, seeking 'quashing' of Section 377 IPC - the anti-gay law as it is now commonly called (Hindu link here, NDTV here, and Times of India here). It is also reported that the petition is fronted by various individuals of public persona, challenging the provision on grounds of it violating their sexual freedom (could be Article 19 and/or Article 21). The Division Bench before whom the petition was posted agreed to send it to the Chief Justice, to decide whether it should be tagged with the curative petitions filed against the decision in Suresh Kumar Koushal v. Naz Foundation & Ors.

If the Supreme Court in Koushal held that the Legislature is the one responsible for deciding whether a statutory provision must be repealed - for that is effectively the import of the submissions in this case - then one asks what has happened in the Legislature regarding this? Very little, lamentably. In the years post Koushal, we have managed to hear the Union Minister for Law stated once in parliament that the Government will engage consultations. A private member's bill was presented by MP Shashi Tharoor, but was not allowed to be introduced in the Lok Sabha. Consequently, no debate has been raised in parliament on this issue.  

Here things become interesting. For one, I do agree with the argument that seeking judicial repeal of statutes is contrary to a democratic setup with an elected parliament. But every theory holds with a certain premise, and the premise behind the separation of powers doctrine is three functioning pillars of democracy. It would perhaps be better to call it the balance of powers, for if one pillar fails the balance must still be maintained. Many would argue that the Indian Legislature is teetering on the verge of collapse, with little or no engaged debate on proposed legislation. In light of this, it becomes important to place the spotlight on the rejection of the private member's bill in the Lok Sabha. Could it be construed as the Legislature considering and then deciding against any change to Section 377 IPC, or as the Legislature failing to consider the question itself?

The Supreme Court, ideally, should address this question as it could help refine an important area in the legal terrain of substantive due process in India. Perhaps, the Constitutional Bench could arrive at some limited exception to allow the Supreme Court to step in and consider issues of substantive due process where the Legislature has just booted the question without consideration. It might go a long way in re-tilting the lop-sided balance between the institutions of our democracy.  

Special Offences: The Supreme Court on Section 7 and 13(1)(d) of the Corruption Act

[This is the fourth post in continuation of a stop-start series  discussing issues arising from the Prevention of Corruption Act, 1988. For earlier posts, see here,  here and here]

Although an instance of malum prohibitum (acts made criminal by virtue of statute but not otherwise offences), many argue that corruption jars the moral fabric of democratic society as harshly as any act that is mala in se (murder, for instance). The criminal justice system in India seems to support this view. The space and attention devoted to public discussions of corruption allegations are a testament to it. In this discussion, the pre-eminent position has often been accorded to the Supreme Court. Circumstances have made it don the mantle of a full-service corruption dousing machine. It oversees investigations, sets up special trials, and then eventually decides cases in appeal. 

Habitual readers of this Blog (if any) would be aware that it is rather skeptical of the efficacy and accuracy with which the Supreme Court dispenses its judicial functions in this era of its heightened importance. This post on the Court's interpretation of the primary offences under Sections 7 and 13(1(d) of the Prevention of Corruption Act, 1988 [PC Act] is of a similar vein. I argue that recent decisions of the Court have conflated the two already-similar offences while ignoring their text. The Court's interpretation casts unnecessary doubts over the position of law and is thus undesirable from the perspectives of both prosecution and defence.

The Offences - Section 7 and 13

The PC Act was designed as an upgrade on its 1947 namesake by combining elements from the predecessor with a scheme of bribery-related offences previously contained in the Indian Penal Code.  Identical provisions can thus be found for most of the PC Act in these historical sources. Section 7 of the PC Act is strikingly similar to the now-repealed Section 161 of the IPC. Similarly, Section 13 is modelled on Section 5 of the 1947 Act. Section 13(1)(d) nearly identical to Section 5(1)(d).

The headnote for Section 7 reads "Public servant taking gratification other than legal remuneration in respect of an official act". The headnote for Section 13 - it criminalises various types of conduct - reads "Criminal misconduct by public servant". The scope for overlap is apparent, as taking illegal gratification falls within the larger, general, field of misconduct. The text of the provisions, Sections 7 and 13(1)(d) parts (i) and (ii) that is, make the possibility of overlaps a clear probability:

Section 13(1)(d): [A public servant is said to commit the offence of criminal misconduct] if he: (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; ...

Section 7: Whoever, being or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever,  other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, ... shall be punishable with imprisonment ... 

Imagine the two offences as concentric circles. The Section 7 offence can be very nearly subsumed within the broader offence created by Section 13(1)(d). Nearly and not completely subsumed, for there is one crucial difference in the preliminary conduct requirements of the two offences. Section 7 criminalises accepting or obtaining illegal gratification in a particular manner. Section 13(1)(d) only speaks of obtaining. Beyond this, the particular manner in which the illegal gratification is accepted under Section 7 can easily be classified as corrupt means and fall under Section 13(1)(d)(i).

Accepting, Obtaining, and the Supreme Court

Is there a difference between accepting and obtaining in the context so described? This question has arisen before the Supreme Court in context of the PC Act as well as the old 1947 Act and IPC regime. In Ram Kishan & Anr. v. State of Delhi [AIR 1956 SC 476] the Court while reading Section 5(1)(d) of the 1947 Act held that 'obtain' "does not eliminate the idea of acceptance of what is given or offered to be given, though it connotes also an element of effort on the part of the receiver." Such sophistry was shed for clearer dictum by the Court in C.K. Damodaran Nair v. Government of India [(1997) 9 SCC 477], again a decision under the old regime. Implicitly building on Ram Kishan, the Court held that acceptance need not involve an element of demand, but obtaining necessarily involved demand on part of the public servant. Thus, demand was necessary for an offence under Section 5(1)(d) - now 13(1)(d) - whereas it was not necessary for an offence under Section 161 IPC and correspondingly an offence under Section 7 of the PC Act. This reading of the text was upheld in the context of the PC Act by the Supreme Court in A. Subair v. State of Kerala [(2009) 6 SCC 587].

Soon after, though, things begin to get interesting. After Subair, a spate of decisions emerged which hold that demand is the sine qua non for an offence under Section 7, and none of these cited C.K. Damodaran Nair. The list includes C.M. Girish Babu v. CBI [(2009) 3 SCC 779], C.M. Sharma v. State of A.P. [(2010) 15 SCC 1], and B. Jayaraj v. State of Andhra Pradesh [(2014) 13 SCC 55]. Importantly, in all these cases the Appellants were alleged to have committed offences under Section 7 as well as Section 13(1)(d) based on the same underlying transaction. The cases were also factually similar - a trap was sprung to catch the public servant red-handed while taking illegal gratification, with the Accused arguing that the gratification must have been demanded for it to be an offence. Reading these decisions together with the view in Ram Kishan and C.K. Damodaran Nair makes it clear that the Court is wrong to hold that demand is a sine qua non for offences under Section 7. It is certainly necessary, though, for an offence under Section 13(1)(d). [As an aside, it is interesting that the charges against the Accused were under Section 13(1)(d)(ii) in two cases and 13(1)(d)(i) in one.] 

All these cases were decided by co-ordinate benches of two judges. A bench of three judges decided P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh [(2015) 10 SCC 152], yet another trap case involving allegations under Sections 7 and 13(1)(d)(i) & (ii). The three judges cited previous decisions noted above to conclusively opine that "the proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) & (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail." Very recently in April 2016, the Supreme Court in V. Sejappa v. The State by Police Inspector, Lokayukta [Crl. Appeal No. 747/2008, decided on 12.04.2016] used an opportunity to present these decisions - excluding Subiar - as an impenetrable facade for the proposition that demand is the sine qua non for an offence under Section 7. Notably, this case also concerned allegations under both Sections 7 and 13(1)(d).

Cutting through the Rhetoric

I've been at pains to highlight the factual likeness of all the decisions mentioned above. A failure to adequately do so by the Supreme Court in these decisions is what today risks incorrectly conflating both offences. The Supreme Court, most notably in the three-judge bench decision of Satyanarayana Murthy, egregiously speaks in highly-general terms of demand being a necessary element for offences under Section 7 despite this being clearly unsupported by the text of that provision. In fact, the basic difference between the scope of offences under Section 7 and Section 13(1)(d) is the former possibly covers situations where there is no demand. 

Restricting the effect of these cases by considering their facts allows us to limit the extent of damage. Although facts are pithily discussed in the reported decisions, it is clear that the prosecution hinged its case every time on the existence of a demand and acceptance of a bribe for securing a conviction under both offences. By levelling both sets of allegations, the prosecution necessarily only argues that the Accused obtains the gratification - as Section 13(1)(d) excludes mere acceptance. Once the prosecution argues that the Accused obtains a bribe for purposes of Section 13(1)(d) it cannot also argue, on the same set of facts, that the Accused merely accepted the bribe to secure a conviction under Section 7. In this very limited context of trap cases where allegations are levelled under both Sections 7 and 13(1)(d) one can support the logic of the Supreme Court, though nothing can support the unnecessarily grandiose rhetoric.   

Conclusion

Why then, one might ask, are prosecutors insistent on levelling allegations under both sets of offences  in corruption cases despite the onerous requirements of Section 13(1)(d) - establishing both demand and acceptance? Or well, if you persist in levelling allegations for Section 13(1)(d) why must Section 7 also be added? There are reasons, of course. Prosecutors insist on Section 13(1)(d) because it carries a higher sentence - ten years, as against the seven years of Section 7. They continue on adding Section 7, however, because of evidentiary benefits that it entails at the trial. Section 20 of the PC Act contains a reverse-onus clause that applies in trials for Section 7 offences but not 13(1)(d). 

This framework is not likely to be amended anytime soon. Thus, the jurisprudence on corruption laws in India is bound to see several more cases involving laying of a trap to catch offenders red-handed, with prosecutors then levelling charges under both Sections 7 and 13(1)(d). But there will also be several more cases not involving these scenarios, with only allegations of an offence under Section 7. It is imperative that the Court appreciate the distinctions, rendered ever-so thin by its rhetoric. If not, Section 7 would then collapse completely within Section 13(1)(d) and be rendered redundant. 

Did the Supreme Court just 'Expand' Self-Defence?

I'm on holiday, which means no work-related reading (as far as possible). But it was interesting to see many major newspapers running an article that the Supreme Court had 'expanded' the scope of the right to self-defence/private defence (Times of India, New Indian Express links here). Naturally, it piqued curiosity and got me to read the judgment. At the outset, I cannot fathom why the piece has come in the news only yesterday, i.e. 16th June when the decision itself came on the 3rd. That's a speculative aside, fuelled by conspiracy theories germane to the kind of reading I'm doing right now. Also, I found the description in the Times a tad disconcerting: "one can take the law into hands if parents assaulted". A complex branch of the common law so horribly oversimplified in a tenor with apparently dangerous outcomes. Sigh.

Self-Defence in the Indian Penal Code, 1860

Of course, none of the pieces actually mentioned that there are statutory provisions on the right against self-defence. Sections 96-106 of the Indian Penal Code [IPC] painstakingly detail the various facets of this right, and have to be read together with the Second and Fourth Exceptions to Section 300 IPC. Importantly, the Supreme Court decision in question - Bhagwan Sahai & Anr. v. State of Rajasthan [Crl. Appeal 416/2016, decided on 03.06.2016] also doesn't discuss or mention these. 

Self-defence is a justificatory defence as opposed to an excusatory one. An excusatory defence is not based on the circumstances of conduct but the nature of the actor. For instance, insanity of the actor excuses her conduct from being considered an offence. As against this, if you are not insane or forcefully drunk and were to, say, hit X with a stick, that would normally be an offence. But if you were doing this because X had tried to stab you with a knife, then there is a justification behind your conduct. This justification is what makes it a non-offence.  Although the IPC doesn't bother too much about the different kinds of defences, a little clarity is useful to help understand their operation. 

The contours of this concept are etched through Section 96 to 106 in the IPC. Two things are of primary importance for this post. One, one has a right to defend his own body an the body of another against an offence affecting the body, as well as a right to defend his or another's property from offences of theft, robbery, mischief or criminal trespass [Section 97]. Two, the right of defence begins as soon as a reasonable apprehension of danger to the body arises, and continues till such apprehension remains [Section 102]. Furthermore, one has a very limited right of defence against acts done by public servants, or done under the authority of public servants [Section 99]. 

A last word before we move to the decision itself on the defence under Sections 96 to 106, and the exceptions under Section 300 which I flagged above. If you successfully argue that your conduct was protected under the right of self-defence/private defence under Sections 96 to 106 then it warrants an acquittal. Successfully pleading the conduct falls in the Second or Fourth Exception to Section 300 means the culpable homicide committed would not amount to murder, and thus be punished with the lesser sentence under Section 304 as opposed to Section 302.

Did the Supreme Court Really Expand the Defence?

The failure to actually mention any provision on the issue of self-defence makes it difficult to discern whether the argument was on the defence itself or the Exception to Section 300. But as the Court notes that the Appellant argued an acquittal was warranted, we can safely assume it is the defence itself that was argued at the trial. The facts are conveniently stated: a fight seems to have arisen over land between two sets of parties. The Appellants' father was grievously injured and ultimately died, while the Appellants inflicted various injuries themselves on members of the opposite party. The trial court had convicted the Appellants on inter alia Attempt to Murder but the High Court had reduced that to a conviction for Attempt to commit Culpable Homicide.

The Supreme Court reversed the decision and acquitted the Appellants. The primary reason for doing so was the failure of the prosecution to reveal the exact nature of circumstances before the trial court. It appears that the prosecution had omitted to mention that the injuries arose out of a cross-fight where a case had also been instituted against the alleged victims. This merited adverse inferences against the prosecution case and so the Court viewed the Defence version more favourably. Thus, the Court believed the version that the Appellants were only retaliating to their parents being assaulted by the alleged victims, because of which their father ultimately died. The Court summarily observed that this gave legitimacy to the claim for self-defence. 

Once the Court agrees with the Defence version, that their conduct was retaliatory in nature, the plea of self-defence automatically gains credibility. The lower courts hadn't done so as they agreed with the prosecution version of events, which omits the part about the dispute being a open fight. So is the view that seeing one's parents getting assaulted is grounds for self-defence a significant expansion of the law? A bare perusal of the facts as mentioned in the decision read together with the provisions of Section 97 make it clear that this well-within the current scope of self-defence. I have a right to defend the body, as well as the property, of another person already conferred under the IPC. So, I fail to understand the belated hype generated in the news behind this decision.

Conclusion

I may of course be mistaken. There may exist a decision which constricted the right of self-defence that this significant decision has done away with which the newspapers are aware of and I am not. Sadly, though, neither the significant decision nor the newspapers actually state any such decision. Perhaps this was just another instance of that old saying: don't trust what the papers say, ever.

The Juvenile Justice Act 2015: More Questions than Answers

This blog was skeptical (to say the least) when the legislature mulled changes to the Juvenile Justice Act 2000 at the end of last year. Some searching questions were posed to the proposed modifications at the time the amendment bill was passed in the Legislature, and resignation hit when the Juvenile Justice (Care and Protection of Children) Act, 2015 [JJ Act] was ultimately notified on 15.01.2016. It has now been nearly six months since the law was enforced, giving ample time to consider how do the big changes brought in work. The big changes, to recall, were the introduction of a three-tiered system of offences and enabling certain cases involving juveniles between ages of 16-18 to be tried by a regular court. In my opinion, the legislative scheme so created suffers from poor drafting, which leaves any reader with far more questions than healthy for a statutory provision relating to criminal liability.

Interpreting the Three-Tiered System

The definitional clauses of Section 2 of the JJ Act were considerably changed from the erstwhile 2000 Act. Crucially, we saw the introduction of Section 2(33) defining 'Heinous Offences', Section 2(45) defining 'Petty Offences' and Section 2(54) defining 'Serious Offences'. A Petty Offence includes one for which the punishment was imprisonment upto three years. Serious Offences include those having punishments of between three to seven years. Heinous Offences include those where the minimum punishment is seven years or more. There are apparent similarities between this scheme and the one present in the Part II of the First Schedule of the Cr.P.C. [which we have discussed earlier]. Part II of the Schedule classifies how offences outside the Indian Penal Code [IPC] are to be tried and creates three categories on the basis of punishment: (i) offences punishable for less than three years, (ii) those punishable between three to seven years and (iii) those punishable for more than seven years. 

A closer look here should make the interpretive questions coming in the JJ Act apparent as well. Specifically, three issues. First, the use of an 'inclusive' definition [i.e. Serious Offences include ...]. Second, the definition of Heinous Offences as those having a minimum of seven years imprisonment. Third, the apparent overlap between the three categories. Addressing these issues in turn, it is clear that these are instances of the poor drafting plaguing the statute. The inclusive definition is possibly the least problematic of the three issues. An inclusive definition means it is not exclusive to the terms of the definition. It can go beyond the text if context so demands. Considering the three definitions provided in the statute, one would think that it would be extremely rare for the inclusive nature of the definitions to lead to controversy.

The other two issues are more thorny. The word minimum is conspicuously absent in the Cr.P.C. classification. It is obvious why this is a problem. How many offences on the statute book today have a minimum of seven years as punishment? Only 4*. So we have all the offences that are punishable upwards of seven years, but without a minimum punishment of seven years, falling in the huge gap left in the legislative machinery. If we were to include these offences in a definition, which one would it be? Where there is a gap in the definitions of Heinous and Serious Offences, there is an equally problematic overlap between Petty and Serious Offences. Petty ones include those punishable upto three years, Serious Offences include those with imprisonment between three to seven years. So how do we place an offence punishable with three years imprisonment?

The Section 15 Conundrum

This three-tiered setup was designed with a larger, more publicised, aim in mind: creating a new category of cases that can be excluded from the supposedly lenient framework of the JJ Act and be sent to a regular court. And we get Section 15, which activates if Juvenile between the ages of 16-18 years is accused of committing a Heinous Offence. Section 15(1) requires a 'Preliminary Assessment' [term not defined] "with regard to his [Juvenile] mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence". The Board then may direct under Section 18(3) that the case be sent to a 'Children's Court'. 

Let us first address Section 15 before moving to Section 18. The obvious question is when is this Preliminary Assessment to be made? Is it at the stage of an ongoing police investigation, thus transferring custody of the Juvenile to the Children's Court (which can only send Juveniles to jail after they turn 21)? Or does this provision apply once a Final Report has been filed by the Police, meaning that the Children's Court only comes in at the time of trial of the offence? Looking at Section 18(3), it appears that the question arises at the time of determining how the case must be tried, and thus the Assessment would be made after the Final Report is filed. 

Reading the text, it seems four things are required to be determined in a Preliminary Assessment. But what is the relationship between these factors, and the decision of sending a case to the Children's Court? If a Juvenile is found to have the mental and physical capacity to commit the offence, but doesn't fully appreciate the consequences or circumstances, should that case be sent to the Children's Court? What can the words "understand the consequences and circumstances" actually mean and what philosophy are these tests driven by? If we turn to the IPC, we find that the question of exemption from criminal liability for children was based on the presumption that children cannot entertain a mens rea. Crude, but easier to implement.

None of these questions find any answers in the statute, because none of these questions were considered or answered by the Legislature at the time the JJ Act 2015 was being rushed through Parliament and brought in force. The Board is allowed to call for a psychological report to assist its decision. This means that a Board is statutorily permitted to make this decision without any formal psychological report. The psychological report itself remains of little help, as practice reveals. Today, therefore, it is clear that the amount of discretion vested in the Board (as well as the Children's Court) for deciding how a person's life proceeds is excessive and seemingly ungoverned by any meaningful test. Thankfully, these decisions are expressly made appealable.

Overlaps between the 'Lenient' and 'Harsh'

I hark back to the apparent dichotomy that is entertained by legislators and several commentators in the news media, of the lenient procedure under the JJ Act and the harsh procedure of a normal trial. Some cases, based on this dichotomy, are undeserving of the leniency and deserve the harshness. This is the idea that the Children's Court alternative sought to reflect. But in reality, it presents a halfway-house minded to appease both sides of the divide. Under Section 19, a Children's Court is required to do all that the Board must - make individual care plans and provide reformative services. Further, a Juvenile can only be sent to prison after turning 21. Furthermore, the Court can also try the case as a Board if it thinks the child should not be subjected to the regular procedure. The statute doesn't expressly tell us if the Court's decision is final, or the Board might again disagree and pass orders under Section 15.  

Not only this, there are other general questions that remain unanswered. If a Juvenile is punished by the Children's Court, what is the applicability of Section 21 of the JJ Act? Section 21 says that "no child in conflict with law shall be sentenced to death or for life imprisonment without the possibility of release". To use the example that seemingly drove this statute to fruition, can a Nirbhaya case be sentenced to life imprisonment or not? Further, what about the application of the Probation of Offenders Act, 1958 to such cases? A deeper scrutiny of the JJ Act 2015 together with the various laws on the statute book is bound to throw up further controversies of such a nature. 

Conclusion

A statute hastily rushed through the Legislature while a public outcry rang throughout the country, that is one way to describe the JJ Act 2015. The most important changes it has brought do not appear to have received the critical scrutiny of the legislature that they perhaps might have received if there wasn't such a hurry. The interpretive questions arise mostly out of seemingly poor and inconsistent drafting, a trend that plagues most modern penal statutes in India, but rankles ever so greatly in such situations where lives of young persons are at stake. Currently, there is no decision of any High Court or the Supreme Court of India that has considered these questions. It is hoped, that litigation reaches High Courts to provide greater clarity on how the statute operates. A dispassionate assessment of the statute is critically necessary, and the legislature has already shown once that it could not be trusted with the same.

*Section 304-B (Dowry Death), Section 376 (Rape), Section 397 (Robbery/Dacoity with attempt to cause death/grievous hurt), Section 398 (attempt to commit an offence u/s 397). Of course, Section 302 punishes murder with a minimum sentence of life imprisonment and thus includes a minimum of seven years.

[This post was updated on 31.05.2016, and on 04.06.2016. Many thanks to Ms. Mansi Binjrajka for pointing out certain errors with the earlier version]

Reversing Burdens and the Bombay High Court's Beef Ban Verdict

[A modified version of this post first appeared on the Indian Constitutional Law & Philosophy Blog]

The Bombay High Court decision in Shaikh Zahid Mukhtar v. State of Maharashtra was delivered on 06.05.2016. It determined various constitutional challenges to the Maharashtra Animal Preservation (Amendment) Act, 2015. The Constitutional questions decided by the decision of Justice Oka has been done by the Indian Constitutional Law & Philosophy Blog already. Consideration of the issues discussed by the separate opinion of Justice Gupte was left, which is what I seek to address. Justice Gupte tackles Section 9-B of the Amendment Act [hereafter, the Act], which reads:

“In any trial for an offence punishable under sections 9 or 9A for contravention of the provisions of this Act, the burden of proving that the slaughter, transport, export outside the State, sale, purchase or possession of flesh of cow, bull or bullock was not in contravention of the provisions of this Act, shall be on the accused.”

The separate opinion struck down Section 9-B of the Act as unconstitutional. In this comment, I first give a basic introduction to reverse burden (or reverse onus) clauses, moving on to discuss the specific reasoning adopted in the Separate Opinion for holding the provision unconstitutional.

An Introduction on Reverse Burdens

Ordinarily, in criminal cases the burden to establish the guilt of an Accused rests on the state. This dovetails with the essential principle of every Accused having a presumption of innocence in her favour. Over time, though, many statutory inroads have been made into this principle. Beginning with requiring an Accused to establish certain facts (evidential burdens), today there are several instances of Accused persons requiring to establish innocence itself (legal burdens). The Supreme Court held these clauses to be constitutional even where they impose legal burdens, in Noor Aga v. State of Punjab [(2008) 16 SCC 417]. This blog discussed reverse onus clauses earlier, here and here.

Consider an example from the Narcotic Drugs & Psychotropic Substances Act, 1985 [hereafter, NDPS Act]. This employs two reverse onus clauses. Section 54 of that Act creates a presumption that the Accused is guilty of an offence, if she fails to ‘satisfactorily account’ for possession of contraband. Section 35 states that in a prosecution under the NDPS Act, it would be presumed that the Accused has the ‘culpable mental state’ necessary for the offence.

How these operate was clarified by the Supreme Court in Inder Sain v. State of Punjab [(1973) 2 SCC 372, a case under the old Opium Act, 1878]; Noor Aga v. State of Punjab [supra]; Dharampal Singh v. State of Punjab [(2010) 9 SCC 608]; Bhola Singh v. State ofPunjab [(2011) 11 SCC 653]. According to these decisions, the prosecution must prove initial facts – there was contraband, and it was in the conscious possession of the Accused – which creates a presumption of guilt, shifting the burden on the Accused to rebut that presumption. Note, though, that the prosecution is not required to prove that the Accused was knowingly in possession of the contraband itself. For instance, in Dharampal, 65 kg of Opium was recovered from the boot of the car owned and driven by the Accused. The prosecution was not required to prove that the Accused knew that the boot had the contraband. The presumption was cast as soon as the prosecution proved the material was contraband, and that it was in the boot of the car owned and driven by the Accused. It was now on the Accused to rebut this presumption.

The Separate Opinion’s Analysis of Reverse Burdens

At the outset, I must applaud the opinion for having extensively discussed the issue of reverse burdens. The vociferous opposition initially faced by these clauses across the common-law world has certainly shifted to a resigned acceptance in light of the perceived needs of law enforcement. However, we are now in a time when legislatures resort to such egregious provisions at the drop of a hat, exhibiting a numbness to the severe curtailment of liberties they entail. Parts of the opinion specifically address this problem, as Justice Gupte attacks the very need of having such a clause while dealing with a substance such as beef, which, as admitted by the state, carries no intrinsic harm or threat to society as opposed to say drugs [Paragraph 215, Pages 235-236].

Moving on to considering the opinion more substantively. Justice Gupte bases his attack upon Articles 14 and 21 of the Constitution of India. After citing various decisions, both Indian and foreign [Paragraphs 202-212, Pages 210-231], Justice Gupte arrives at the following four-fold test for considering the validity of any reverse onus clause [Paragraph 213, Pages 231-232]:

1. Is the State required to prove enough basic or essential facts constituting a crime so as to raise a presumption of balance facts (considering the probative connection between these basic facts and the presumed facts) to bring home the guilt of the accused, and to disprove which the burden is cast on the accused?
2. Does the proof of these balance facts involve a burden to prove a negative fact?  
3. Are these balance facts within the special knowledge of the accused?
4. Does this burden, considering the aspect of relative ease for the accused to discharge it or the State to prove otherwise, subject the accused to any hardship or oppression?

The First Condition restates that the provision must require basic facts to be established by the prosecution before talk of any presumptions and reversing burdens. This must bear enough of a ‘probative connection’ with the presumption sought to be drawn. Going back to the example of Dharampal above, we can usefully juxtapose it with the decision in Bhola Singh. In the latter, the Supreme Court set aside the conviction for a co-owner of a truck which was caught transporting contraband based on the presumption. The Supreme Court held the presumption was not attracted, as the prosecution didn’t prove any basic facts connecting the Accused with the contraband. The prosecution didn’t show the Accused knew how his truck was being used by the contractor, let alone him knowing that the truck was being used to smuggle contraband.

From this, the Second and Third Conditions address the kind of facts that are to be presumed. The idea behind this is an understanding that reverse onus clauses only make sense where the issue is lying within the ‘special knowledge’ of the Accused or to prove ‘negative facts’. ‘Negative facts’ are the existence of permissions such as licenses or tickets, which play a role where offences rely on the inexistence of these permissions. ‘Special knowledge’ is a reference to mental states of an Accused. This is trickier. Any culpable mental state will always be a matter for the ‘special knowledge’ of an Accused, inviting the argument that in every trial the burden must be on the Accused to disprove intention after the prosecution establishes the physical act. Enter, the fourth condition, which places the handbrake on extending such logic too far. It reminds us of the fundamental David v. Goliath nature of the contest though, and how difficult it is for an Accused to find and present evidence to establish his innocence beyond his own word for his deeds.

Overall, then, there is little to disagree with the framework Justice Gupte establishes for evaluating reverse onus clauses in his separate opinion. The first and fourth conditions are the actual ‘tests’ upon which the reverse onus clause will be tested. If you clear the first test, the framework requires determining what kind of presumption is placed on the Accused, before considering whether placing such a presumption is unduly burdensome and oppressive. Considering there is no such clear test available in judicial decisions at present, it is a welcome contribution which should prove helpful in providing a systematic consideration of the various reverse onus clauses we have at present, and are bound to have in the future.

Applying the Tests to Section 9-B of the Act

Section 9-B is meant to apply to every offence under the Act, i.e. offences under Sections 5, 5-A, 5-B, 5-C, 5-C and 6:

• Section 5 makes it an offence to slaughter cows, bulls, or bullocks in any part of Maharashtra;
• Section 5-A makes it an offence to transport and/or export cows, bulls or bullocks (or cause to, or offer to do so) within or outside Maharashtra in contravention of the Act or with knowledge that the animal will, or is likely to be, slaughtered;
• Section 5-B makes it an offence to purchase/sell/otherwise dispose of cows, bulls or bullocks (or offer to do so), knowing or having reason to believe the animal will, or is likely to be, slaughtered;
• Section 5-C criminalized possession of the flesh of a cow, bull or bullock slaughtered in contravention of the Act;
• Section 5-D criminalized possession of the flesh of a cow, bull or bullock slaughtered outside Maharashtra;
• Section 6 regulated the slaughtering of cows, bulls or bullocks and made it an offence to slaughter such animals without obtaining a certificate.

The obvious problem with Section 9-B is its broad and indiscriminate phrasing, placing the burden upon the Accused for proving every ingredient of the offence. In order to make the section apply to all offences in the Act, it burdened the Accused with proving “that the slaughter, transport, export outside the State, sale, purchase or possession of flesh of cow, bull or bullock was not in contravention of the provisions of this Act.” The basic fact concept would require the State to at least prove that the cow or flesh in question was slaughtered, transported, exported, sold or purchased. It would also require that a connection be drawn between that cow or flesh in question and the Accused. Section 9-B allowed the prosecution to get away without doing anything, violating the very basic First Condition.

Justice Gupte, however, begins by specifically looking at the possession offences under Section 5-C and 5-D of the Act through the lens of the Second Condition [Paragraph 214, Pages 233-235. After immediately concluding that the Accused could never establish the ‘negative fact’ of the flesh not being that of a cow or bull, Justice Gupte immediately also concludes that the Accused could never establish that the flesh was obtained in contravention of the Act to begin with, and immediately thereafter concludes this violates his Fourth Condition of oppression. At the end of these assertions, he states that it would be easier for the State to prove these foundational facts, and absence of any such requirement was itself a problem. While having created a clear four-fold test, Justice Gupte doesn’t maintain these neat distinctions in his scrutiny of the provision on its anvil. The confusion is apparent in the Paragraph, and blunts what would have otherwise been a forceful criticism of the provision.

These objections were in some measure expected by the State. As recorded in the Separate Opinion, the Advocate General for Maharashtra conceded Section 9-B would apply only after the prosecution established certain initial facts. At one point, it is recorded how the Advocate General interpreted Section 9-B to apply only to create a presumption after every physical act had been established. This interpretation would have meant Section 9-B operated to presume that the concerned physical act – transport/export/possession etc. – was done knowing that it was contrary to the Act.

This would have made Section 9-B akin to those clauses which presume the existence of the mental state, considering it to be within the ‘special knowledge’ of an Accused. However, as Justice Gupte rightly noted, “Constitutionality cannot be a matter of concession by the State at the hearing” [Paragraph 215, Page 235-236]. Justice Gupte doesn’t stop there, though, and then proceeds to attack the ‘special knowledge’ justification offered by the Advocate General [Paragraphs 216- 217, Pages 237-240]. As I mentioned above, it is here that Justice Gupte criticizes the usage of reverse burden clauses in this context of possessing cow meat, citing the inherently harmful nature of substances such as narcotics which can warrant possession-based presumptions. This is critical, and exposes future legislation employing reverse burdens with possession based offences to closer scrutiny under Article 14 of the Constitution.

The Opinion then moves to Section 5-A and 5-B. Section 9-B would have placed the entire burden on the Accused, which was naturally unsustainable. A version that kicked in only to create a presumption that the Accused had knowledge that the offending acts of transport/export/sale/purchase would lead to slaughter or were otherwise in contravention of the Act was also found unsustainable. The basis for this conclusion was an insufficient connection existed between the prosecution proving the physical acts and the ultimate presumption of knowledge (violating the First Condition). The offence was purely based on knowledge, and presuming that very ingredient would subject the Accused to oppression (violating the Fourth Condition). Section 9-B was unconstitutional when applied together with Sections 5-A and 5-B as well.

Lastly, Justice Gupte arrives at Sections 5 and 6, which were present before the Amendment. The analysis is crisp as it is brief – Sections 5 and 6 read with Section 9-B would involve a presumption of foundational facts, which would render its use unconstitutional for a violation of his First Condition.

What to Expect Now?

Newspapers have already reported that the State of Maharashtra plans to challenge this decision in the Supreme Court. A part of me hopes this happens, as it would enable the Supreme Court to, hopefully, endorse the exposition of the Separate Opinion on reverse onus clauses. The test created is clear, and potentially allows for greater clarity in examining these provisions which currently abound our statute book. In its current form, Section 9-B is far too broad to be considered sustainable. One would assume that the chances of the Supreme Court overturning the verdict are unlikely.

The higher probability is of a modified Section 9-B emerging from the Maharashtra legislature, incorporating the position espoused by the Advocate General during the hearing before the Bombay High Court. A version of Section 9-B which explicitly places an initial burden on the prosecution would then place the focus squarely on the other condition created by Justice Gupte, of such a provision placing an Accused under oppression and undue hardship. That consideration, whenever it does happen, will prove to have a lasting impression on how reverse onus clauses are viewed in our criminal justice system.

Conspiracy and Abetment - Legislative Oversight or Crucial Distinctions?

The Law Commission of India has twice recommended (in its 42nd and 156th Reports) that Section 107 of the IPC be amended to remove the part of abetment by conspiracy. This recommendation argues that in light of Sections 120-A and 120-B having been inserted into the IPC, there is no need for the abetment by conspiracy clause. But these recommendations have not been implemented. How should we be treating these recommendations? Maxwell on Interpretation of Statutes suggests that recommendations not being accepted indicates the Legislature disagrees with the view promoted by the recommendation. So in this case, that would lead us to argue that the Legislature considers the conspiracy clause in Section 107 useful and not redundant. The inertia that plagues India's legislature offers an easy counterpoint; of this being just another instance of legislative oversight with the recommendations having been buried beneath all the protests happening in Parliament at that time. Does retention of abetment by conspiracy under Section 107 IPC together with the independent conspiracy offence under Sections 120-A and 120-B IPC reflect legislative intent or is it mere inertia? This post grapples with this question. Given no parliamentary debates are available online on this aspect, all I can offer is my take.

Demarcating Spheres of Influence
For abetment by conspiracy, there must be a conspiracy, and an act/illegal omission must be committed in pursuance of it. For the offence defined under Section 120-A, there is no need for any act/illegal omission to be committed so long as the conspiracy involves an agreement to commit an offence. Barring this distinction, it is clear that Section 107 and Section 120-A are covering more or less the same field. Interestingly, Section 120-B punishes conspiracy by relying upon the abetment provisions [Section 120-B(1) IPC: "whoever is party to a criminal conspiracy ... shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence."].

Why did the need arise to insert the broader offence? Some answers lie in the position of the IPC before the Criminal Law (Amendment) Act, 1913 inserted Sections 120-A and 120-B. Prior to this, conspiracy was criminalised generally under Section 107 IPC, and also through specific provisions, such as Section 121-A IPC. It was only these specific conspiracy offences that did away with the act/illegal omission requirement. The early 20th century was a time heady with revolutionary movements, especially in Calcutta following the Partition of Bengal. Reading reported decisions on conspiracy from High Courts around this time, one finds the accused persons were nearly always alleged revolutionaries. Section 120-A allowed the police to cast a wider net than before and would have been very desirable from a colonial law-enforcement perspective.

With this context, the demarcation of what Section 107 and Section 120-A cover should be clear. Both criminalise agreements (read conspiracies) to do a thing where some act/illegal omission is committed in pursuance thereof. But Section 120-A also creates an exception for this act/illegal omission requirement, where the conspiracy involves an agreement to commit an offence.

Judicial Appreciation of the Problem
The existence of two separate frameworks criminalising conspiracies was not lost on the courts. Different High Courts came to the conclusion that having Section 107 IPC together with Sections 120-A and 120-B IPC curtailed the application of the latter. Section 120-A was found to be applicable only where the allegations involved a conspiracy without any commission of substantive offences. As soon as any act/illegal omission occurred towards commission of the offence, the case became one of abetment and excluded Section 120-A IPC. This view was held by the Madras High Court in Re Mallimoggala Venkatramiah & Ors. [AIR 1938 Mad 130], by the Patna High Court in Jugeshwar Singh v. Emperor [AIR 1936 Pat 346], and also in S. Satyanarayana v. Emperor [AIR 1944 Pat 67].

This, in my opinion, was a smart move that prevented Section 107 from being rendered completely otiose. What's more, it also led to understanding the 'offence' of conspiracy under Section 120-A in tune with its purportedly inchoate nature. Even in the Law Commission Reports lamenting Section 107 IPC, we find conspiracy is characterised as an inchoate offence. By restricting charges under Section 120-B to cases where there was nothing but a conspiracy, the High Courts merely reinforced this logic. After all, if a person committed an offence pursuant to a conspiracy, it made little sense to charge him for the original inchoate crime too. It made more sense to hold persons liable as abettors, rather than conspirators.

Conclusion - An Opportunity Lost?
India's unintentionally unique statutory framework allows for a lot of clarity in employing conspiracy. There is significant literature in the USA criticising the broad nature of the conspiracy offence, and how it remains separately chargeable despite the main offence having been committed in execution of the conspiracy. Here, the combination of Section 107 IPC and Section 120-A IPC allowed Indian courts to restrict conspiracy to a purely inchoate offence. The prosecutors didn't lose much either, as they could use the abetment route to rope in the various persons jointly liable.

That there is perhaps no decision today that questions the usage of Section 120-B where offences committed pursuant to a conspiracy are complete shows how the logic that I advertise has been significantly brushed aside. Rather than having a line of cases where the boundaries of Section 120-B were clearly drawn out, we find that today the opinion of the Law Commission seems to have become received wisdom. An opportunity lost, then, for the IPC provided a unique solution to some common problems faced by various jurisdictions while prosecuting conspiracies.