Special Offences: The White Knight and Heroes we Deserve

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

[A slightly different version of this post first appeared on the Indian Constitutional Law and Philosophy Blog]

Last week a Single Judge of the Delhi High Court decided Girish Kumar Suneja v CBI (Crl. M.C. 3847/2016 decided on 27.10.2016), dismissing a petition under Section 482 Cr.P.C. read with Article 227 of the Constitution as non-maintainable. The petition challenged an order framing charges in one of the many Coal-Block Allocation Scam related matters being tried before a Special Judge in New Delhi (this particular case also had the industrialist Naveen Jindal as a co-accused). It forms part of our series on the Prevention of Corruption Act, 1988, and can be seen as tying in with the third post in the series on appellate jurisdiction. This post begins with some much needed background before going to the decision in Girish Kumar Suneja, with some mild comments to close.

The Genesis – Shahid Balwa and the 2-G Trial

I’ve written earlier about a tendency to idolise the Supreme Court as a White Knight cleaning up the corrupt governance of India. This was in full view in 2010-2011 as the telecom spectrum allocation scandal hit the country, seriously questioning the integrity of the Executive and Legislature. Approval ratings of the Supreme Court automatically skyrocketed while it quashed license-allocations, and, most importantly for this post, monitored a CBI investigation and then vetted the entire set-up (from the particular judge to the special prosecutor) for trial of the offences allegedly arising out of this ‘2-G Scam’. Before ridding itself of the matter, it also directed that any challenge to orders passed by the Special Judge trying the 2-G Scam cases had to be made before the Supreme Court and access to the High Court had been completely barred for anyone aggrieved. This was labelled an exercise of the Court’s extraordinary powers to do ‘complete justice’ under Article 142 of the Constitution.

Procedural rights of accused persons had been restricted before by both Federal and State legislatures [the legality of which came up before the Supreme Court way back in State of West Bengal v Anwar Ali Sarkar (AIR 1952 SC 75)]. But for the first time we saw the Supreme Court itself go ahead and take up the reins. And since the Supreme Court was seemingly handling everything at that point this evoked little criticism. Naturally, though, it was challenged by the accused in the first 2-G Scam case and this was decided in Shahid Balwa v Union of India & Ors. [(2014) 2 SCC 687]. The Supreme Court took the opportunity to rubber-stamp its actions with approval while giving little legal justification. Instead, it turned to coffee-table conversation and served up ‘Larger Public Interest’ as the answer. Larger Public Interest demanded a speedy trial. This meant denying the accused their constitutional remedies to challenge judicial orders, because these challenges were mostly fraudulent abuses by these ‘better-heeled litigants’ of the ‘openings’ offered by the criminal justice system and delayed the trial. In fact, the Court thought the accused owed it to this Larger Public Interest to forego their rights to appeal and challenge decisions to ensure the smooth progress of the trial.

The Coal Scam and Girish Kumar Suneja

The Coal-Block Allocation Scam is the latest opportunity for the Supreme Court to reprise its White Knight act and go through the repertoire of corruption-cleaning remedies. Barring access to the High Court for criminal defendants figured as a part of this and became the focal point in Girish Kumar Suneja. The Petitioner argued a challenge to the order framing charges was maintainable before the High Court and could not be barred by the Supreme Court’s orders. This seemed obvious it was argued, for of course the Supreme Court could never have intended to take away substantive rights, or limit the High Court’s writ jurisdiction under Articles 226 & 227. The focus of those orders was to prohibit challenges that sought a stay against trial court proceedings, and there was no problem here as no stay was sought.

The Delhi High Court disagreed. It did not merely recite Shahid Balwa but gave a lengthy order with three main planks of reasoning. The first was to distinguish the right of appeal and the right of revision/exercise of inherent powers by the High Court. There was no problem in denying the latter, the High Court held, because it was discretionary as opposed to a statutory right of appeal. The second plank was to conclude that no problem arose by denying writ remedies under Articles 226 & 227 as the Supreme Court remained accessible to those aggrieved. And finally, the High Court observed that orders passed under Article 142, such as the one barring access to the High Court in the present case, were binding on all courts and thus had to be complied with here.  

Comment – An Odious State of Affairs

Girish Kumar Suneja leaves much wanting. For starters, if the High Court thought it was bound by Article 142 then this renders the other planks of reasoning entirely superfluous. Those planks, in any event, are made of termite-stricken wood. In distinguishing the right of appeal with revision / inherent powers the High Court missed the point entirely. The issue here was not about the exercise of power but about whether access to court through this means could itself be barred completely for particular litigants. On this point the Petitioner cited Anur Kumar Jain [(2011) 178 DLT 501 (DB)] (which I discussed earlier). A Division Bench of the High Court held that while Section 19 of the Prevention of Corruption Act, 1988 barred a revision against orders on charge, this could not prohibit invoking Section 482 Cr.P.C. and / or Articles 226 & 227 of the Constitution, as such a denial would be unconstitutional. Girish Kumar Suneja tries to side-step the issue of unconstitutionality in denying writ remedies [held contrary to the basic structure in L. Chandra Kumar (1997) 3 SCC 261] by wrongly equating the Supreme Court and High Court as fungible forums which is contrary to the text of the Constitution itself. I would go so far as to argue that reliance on Article 142 was also misplaced here. Because orders passed on 25.07.2014 by the Supreme Court in the Coal Block Allocation Scam did not specifically invoke Article 142 unlike the orders passed at the time of the 2-G Scam.

The biggest problem remains the decision in Shahid Balwa. In Anwar Ali Sarkar (supra) the Court struck down a West Bengal Special Courts Act as it did not provide any principles for the executive to decide which cases could be tried by special procedures that took away some rights of the accused. Larger Public Interest is as bad, if not worse, as that untrammelled executive discretion the Court warned against. The rhetoric about ‘better-heeled litigants’ reminds me of the criticisms levelled by Professor Hart in his exchange with Patrick (later Lord Devlin, where he questioned his conclusions on the relationship between law and morals for lacking any empirical basis. But since Article 142 of the Constitution does not prescribe how the Court must go about dispensing ‘complete justice’, we are expected to keep calm and carry on knowing that our constitutional rights may be withdrawn based on what the Court feels is the Larger Public Interest. One can argue that Shahid Balwa has limited applicability by relying upon the observations of the Three Judge Bench decision in State of Punjab v Rafiq Masih [(2014) 8 SCC 883] which noted that orders under Article 142 are not binding precedent [a paragraph that was cited in Girish Kumar Suneja]. This would prevent blind reliance on Shahid Balwa to pre-empt any debate on the validity of such orders excluding access to justice in subsequent cases. One can only hope that the decision in Shahid Balwa has been cut down to size before the next time the White Knight makes a reprisal.

The Delhi High Court Order in P. Chidambaram v. ED: Three Thoughts

This week saw the arrest of a former Union Minister, P. Chidambaram, in connection with allegations of corruption and money laundering in what has popularly been called the "INX Media" case. In this post, I'm not interested in the arrest itself — the pageantry of which has already attracted much discussion — but the initial order of the Delhi High Court on 20.08.2019 which dismissed Mr. Chidambaram's plea for Anticipatory Bail and set the ball rolling [more on anticipatory bail generally, here].

Please read the order when you can, and if you can't read it in full, then make sure to read Paragraph 21 onwards. This section of the order discusses three different sets of arguments / judicial choices that I want to bring into sharper focus through this post.

Custody and Cooperation

The High Court relied upon an old decision of the Supreme Court in CBI v. Anil Sharma [(1997) 7 SCC 187] to re-iterate that custodial interrogation should be granted when an accused, who has prior judicial protection from arrest, refuses to "cooperate" with the investigation and renders it a "mere ritual". This is good as an abstract principle: people should not be allowed to frustrate legal processes. But what about the specifics? 

The verb "cooperate" means to work jointly towards the same end. Taking this to its logical end in the setting of criminal investigations would entail a total negation of the right to silence, which is certainly not what any court could agree to. So, then, it is a question of how much cooperation is enough? In this case, the prosecution argued that the accused appeared for questioning but then gave "evasive" replies, and the Court agreed that this was frustrating the investigation. But it did so without shedding any light on what "evasive" meant, and thus left us in the dark about our spectrum. 

We need to figure out where should an accused person fall in the spectrum of total submission to police, and evading investigation, to satisfy the judicial conscience. Supplying this clarity will not only help future courts make better decisions while dealing with complex problems and give greater certainty to the law. Narrowly tailoring the need for arrest and custody also foster an interpretation of criminal procedure in line with the constitutional commitment to personal liberty.  

Gravity of Offences and Bail 

One of the reasons for rejecting Mr. Chidambaram's bail application was the gravity of offences that are alleged to have been committed by him. Factoring in the gravity of the alleged offence to decide whether or not the accused should be granted bail is today part of the judicial fabric on the law of bail in India, and I do not argue that courts should not consider the gravity of allegations. Rather, the problem is that while this argument might operate well in the realm of abstraction, it does not enjoy smooth sailing when we descend into the particulars [discussed from another angle, here]. 

Let's take an example. If it's a case of alleged murder, then well, it is very difficult to disagree about the basic allegation of someone having died. Some elements of the allegation are, therefore, beyond doubt even at the investigative stage. This logic also works in cases where, say, a public servant is caught taking a bribe red-handed. But this does not work when we infer criminality from neutral facts. To rely upon gravity in those situations is to basically invite the police to create good stories and level serious charges, with a view to ensure that bail is harder to get. 

To make judicial decision-making better, and limit the denial of personal liberty, perhaps courts could interrogate this distinction a bit more and put prosecutors and police officers to stricter scrutiny where the allegations are inferential before relying upon gravity as a ground to deny bail. Maybe this could help prevent cases from ending up in smoke as well, rather than arresting persons and asking them to make statements that will ultimately be inadmissible in court. Just a thought.

Prosecutorial Courts: Economic Offences and the White-Knight Syndrome

The High Court in Paragraph 21 indicates that one reason for dismissing the bail application was that it could not "permit the prosecution in this sensitive case to end up in smoke like it has happened in some other high profile cases." Once the political cheerleading subsides, we should take a long hard look at this claim. Leaving aside everything, it is extremely worrying, and possibly illegal, for a court to subject an individual to arrest and custodial remand because of past prosecutorial failures. Surely we can have better solutions than locking people up to fix lapses in how state agencies investigate and prosecute crimes. 

What is on display here is a trend of the court turning prosecutor, and it is something that has often been on display in the context of economic crimes in the past. The High Court is only following the trends that the Supreme Court has been setting since the 2-G Scam days, when it closely monitored a CBI investigation and found a deprivation of the habeas writ under Article 226 to be constitutional. This "White Knight" syndrome has been discussed on the blog at length, and Paragraph 21 of the High Court with its surface-level anguish about the problem of economic offenders is just the latest variant of that syndrome on display. It will be very interesting to see what the Supreme Court does when it hears the cases in the coming week.

Aircel-Maxis, International Law and Judicial Restraint

A Three Judge Bench of the Supreme Court today passed this six page long order in an application filed by the Centre for Public Interest Litigation which sought directions in the Aircel-Maxis case. The order made headlines in India (Hindu, Business-Standard, NDTV, Indian Express) with extracts of the terse observations in the order being carried. Most of these are focused on the conclusions in paragraph 10 that the sale of spectrum remains stayed. As I explore in this post, the Order is extremely troubling, illegal, contrary to national and international law, and yet another instance of the White Knight complex that many people have so often written about.

What's the case about and Why was there a Petition in the Supreme Court?

Not so long ago in 2012, the corruption scandal surrounding allocation of 2-G spectrum arrived on the scene and refuses to leave. Investigations are still on-going and are linking supplementary sales of spectrum to be part of the initial scam that allegedly involved Shahid Balwa, Sanjay Chandra, A. Raja and the like. One of these linked cases concerns the sale of spectrum by Aircel to Maxis in 2006. The CBI has alleged that this sale was vitiated by corruption and has filed a chargesheet against Dayanidhi Maran (the then Minister for Communications), Aircel, Maxis, and the responsible officers of these companies. The case is currently pending at the stage of charge before the Special Court hearing 2-G Scam cases in Patiala House, New Delhi. 

The 2-G Scam petition itself was filed in 2010 and continues to be pending. This Application - filed by the Centre for Public Interest Litigation - sought directions to prevent the sale of spectrum by Aircel-Maxis that was said to be on the cards. The Application stated (as per news reports) that allowing the sale would mean the accused persons would profit despite not appearing before the courts despite summons having been issued against them [This Blog had earlier discussed the issue of summoning foreign entities here].

The Order Passed Today

The news media reports on proceedings as they happen inside court and often differ from the eventual order that is published for proceedings online. Something like this seems to have happened here as well, but not to a great extent. Naturally, all that matters is what is in the order itself. 

The Court notes the background:

3. The predicament expressed in I.A.No.82/2016, and the eventual prayer made therein, emerges on account of non-service of summons on Mr. Ananda Krishna Tatparanandam (Accused No.iv) and M/s. Maxis Communications, Berhad, Malaysia (Accused No.vii), and the other accused referred to above (Accused No.iii and vi). 

4. In so far as, the instant aspect of the matter is concerned, the factual position depicted in the reply affidavit, filed on behalf of the Central Bureau of Investigation, reveals as under : “21. That on 31.08.2016, a letter was received by the Ld. Special judge from the Attorney General's Chambers, Malaysia, dated 17.08.2016, inter alia stating that upon consideration of the facts disclosed in the Request for Assistance and further clarifications supplied by the CBI, the requirements as per the provisions under section 20(1)(f) of the Mutual Assistance in Criminal Matters Act, 2002 [Act 621] were not fulfilled, and hence the requests to serve the summons could not be acceded to.” 

So, the Malaysia-based accused persons (not Indian) had not appeared in court due to non-service of summons. In cases like this, when investigation requires processes to happen in another country, we resort to Mutual Legal Assistance Treaties. India and Malaysia have one such Treaty, and the service of summons etc. would have to comply with this in order for summons to be served. If not, the recipient country is under no obligation to enforce service of summons. The Malaysian Act of 2002 referred to is the Malaysian domestic law on how to treat requests by Treaty states for assistance in criminal matters. Section 20 specifies when assistance is to be refused by the Attorney General, and 20(1)(f) states that the request for assistance shall be refused if the Attorney General is of the opinion that "the request relates to the investigation, prosecution or punishment of a person in respect of an act or omission that, if it had occurred in Malaysia, would not have constituted an offence against the laws of Malaysia". Paragraph 4 extracted above shows that non-compliance with this provision is what prevented the service of summons rather than the accused persons wilfully avoiding the process of law. Basically, it shows that the CBI is yet to satisfy the Malaysian Attorney General's office that the acts/omissions alleged are also crimes under Malaysian law.  

In the next paragraph, the Court notes:

5. It is imperative to ensure, in our considered view, that the process of law should not be permitted to be frustrated by non-service of summons to the accused. In order to enforce the presence of accused ... we propose to restrain, earning of any revenue, by using the 2G Spectrum licenses, which were originally granted to M/s Aircel Communications ...

The Court has permitted the accused to make representations before the Special Court (paragraph 8), and has instructed the Union of India to ensure publication of this order in two leading Malaysian newspapers (paragraph 9). Starkly, the Court states that "it will not be open to any of the accused, to raise an objection with reference to any monetary loss, emerging out of the proposed order."  

And All That is Wrong With it

A non-sequitur if there ever was one. That, in short, sums up what has happened here. After all, how else can one explain the Court noting in paragraph 4 that the non-service of summons is due to a failure on part of the Union to fulfil the requirements of the Mutual Legal Assistance Treaty, and then moving on to squarely placing the blame on the accused persons for their fault of residing abroad.

The Court seems to have conflated the domestic methods of ensuring service of summons as provided under Chapter VI of the Criminal Procedure Code 1973 [Cr.P.C.] with such process as applicable under international law which are covered in Chapter VII. This is apparent with the Court suggesting publication in Malaysian newspapers as if it were dealing with an issue of proclamations for absconders under Sections 82 and 83 of the Cr.P.C. If we go a bit further and see Section 105 Cr.P.C., it provides for the specific manner in which this service of summons must happen. 

Now, someone may argue that Article 142 allows the Supreme Court to do nearly anything it wishes so why not this? Well, while I strongly resist that submission itself and argue that nothing in Article 142 allows the Court to transgress existing statutory law, that still does not justify the violation of International Law. Adopting this ad-hoc method for serving summons and processes would violate India's obligations under the Mutual Legal Assistance Treaty with Malaysia. Action taken pursuant to these orders by the Indian authorities would be open to challenge, though I am not an expert on what shape that challenge may take. 

I still cannot understand the conclusions that the Court arrives at. But if we return to the idea that the judiciary has been burdened with expectations of cleaning up the system of corruption (White Knight complex), it definitely makes sense. So what if the Executive is proving unable to comply with the law? Or, in case of the National Anthem Order, what if the Executive wants to do something but is fettered by the law. The Judiciary seems to suggest that it is willing to go ahead and change the law itself, all for the cause of Justice. One interim order at a time - but please, no final judgments.

[this post was updated on 7 January to add the portions on the Malaysian Mutual Assistance in Criminal Matters Act of 2002]

Justice Must Not Only Be Done ....

[caveat: this post can fall in the rant domain unlike the usual content on this blog]

I must admit, I have not always fairly appreciated the contribution made by the Indian Supreme Court to our legal system. Its not without reason that a general sentiment prevails in country that the Court remains a white knight amidst the prevailing corruption. The problem is, and pardon the recurring rhetoric, we forget that with great power came great responsibility. The bigger problem actually is, that we forget appearances are often deceptive. What appearances? The appearance of the judiciary having more power than it possesses. The Court has taken up the role of investigator, judge and executioner. What it has stopped doing over time, is providing steady and coherent adjudication of legal issues. The multitude of voices emerging from the Court usually lends itself to a noisy cacophony contributing to the chaos. That's not all. This hyper-activism is corroding our democratic process. A graph would plot well how increased judicial activism correlates with decreased public participation in democratic processes. Maybe that's why Justice Frankfurter advised Sir B.N. Rau against investing the judiciary with power to set aside laws made by an elected legislature. He believed in a democracy, that must remain the prerogative of the electorate, and not the decision of an un-elected judiciary. 

Yesterday, the Court had donned its executioner hat, and in fine form. After what has been labelled as an "unprecedented day" in its history, it confirmed the death sentence for yet another human being, who was hanged to death merely hours later. Imagine, dying because you managed to convince only 1 rather than 2 other human beings that you deserve to live. We condemned the white men who sent Indians to the gallows. It seems like our condemnation was only with the choice of executioner. Mr Seervai observed the same in context of our retention of the ordinance powers with the executive. In any case, the curious case of death by judgment is the procedure seemingly invented over time by the Supreme Court. Its procedure which the Court itself seems only too happy to ignore. Take this latest episode from the start:

a. The TADA Court issued a 'suo motu' death warrant on 30.04.2015 without giving the accused any opportunity to defend himself. The execution was fixed for 30.07.2015, a decision conveyed to the convict only on 13.07.2015. As opposed to the guaranteed 90 day period for alternate remedies to death row convicts [Shabnam v. Union (WP Crl. 89/2015)], the convict here had only 17 days, for no fault of his own.

b. This interpretation of procedural laws was held by Justice Misra as not being retrospective, thereby setting aside this objection. Its rather settled though, that retrospective operation doesn't concern procedural rules. Just look at how many appeals are getting affected by the recent re-interpretation of Section 65-B of the Indian Evidence Act.

c. Suddenly there is an objection with the second mercy petition, where it is often seen that multiple clemency petitions are preferred by convicts when new grounds emerge. Short shrift was given to the new grounds here - schizophrenia - despite the recent concern shown by the Court to such cases in Shatrugan Chauhan & Ors. v. Union [WP Crl. (55/2013)].

d. The aforementioned case also held that 14 days must pass between rejection of the mercy petition and the execution, for the prisoner to "mentally prepare himself". Justice Misra observed the delay in filing the fresh mercy petition meant staying the execution would be a travesty of justice. So we mean that although someone is certainly being executed, it would be a travesty to postpone that death for a few more days?

e. Given these new grounds, it still took less than half a day (record time in fact) to reject the mercy plea. If any important decision is taken by the executive within hours, would it not normally become suspect for lack of due application of mind? Was there a fair consideration of the fresh grounds? 

In hindsight, it appears that the only reason the Court was convened at 3 AM was to ensure no changes were required of the Nagpur execution. Take a moment and go back to the narration of events which you'll find splashed across the news. Forget about the sensationalism. Take a look at that supposedly neutral chimera called the law as it stands today on the issue of executing another person. Just ask yourself: was justice done, and was it seen to have been done if viewed from the eyes of an outside observer? Any law student will tell you that justice must not only be done, but be seen to be done, and I don't think the answer is an easy one here. Our Court is Supreme but not infallible. Days like this are painful, and costly, reminders of this harsh reality.

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. 

A Dangerously Populist Practice?

A friend messaged that the DCW moved the Supreme Court in a last ditch attempt to stall the release of the juvenile involved in the Nirbhaya case [note: I refrain from calling him a convict or accused, because he is neither, and labels matter]. This was at 1 AM. I slept fearing the worst, but waking up to news reports indicating no stay had been granted while the matter was posted for hearing on Monday before the Vacation Bench. Hearings last night were concluded swiftly, but still did happen to some extent. Hark back to the execution of Yakub Memon and we had full-fledged hearings. This is dangerous trend, only further revealing how dangerously populist our criminal justice system is becoming. Lets start at the roots of the malaise. 

Understanding Penal Populism

In 1993, a 3 year old toddler was brutally murdered in Walton, Liverpool. His killers were two 10 year olds. Since Britain allowed trials for people aged 10 and above, these boys stood trial and were convicted. Immediately after the trial the Judge allowed the media to report on the case, and the boys' names were splashed across the world. They were to serve ten years in prison. Immediately, though, The Sun [a U.K. Tabloid] petitioned against it and it worked. The sentence was increased to 15 years, in a move roundly condemned as playing to gallery. It was overturned by the House of Lords, the highest court in England at the time. Contrast this with a similar incident in Norway, where two 6 year old boys beat up and killed a 5 year old girl. There was no release of details in the newspapers. No trial. There were formal proceedings determined to rehabilitate the children which decided that a change of setting would be best.  

David A. Green has a brilliantly informative book called 'When Children Kill Children', where I take this from. He attributes these starkly different responses primarily to (i) different political cultures, and (ii) different media cultures of the two countries. The U.K. has highly competitive politics, where every issue is treated by the Tory and Labour as a zero-sum game, Norway has more political outfits but no zero-sum game. Dialogue is more prominent in their approach. As for the Media, the U.K. again has a notoriously capitalist media with everyone fighting for readers and stories. Attention-grabbing headlines, innovative gimmicks, all of this is but an attempt to ensure support. The capitalist regime also ensures there are links between the politicians and the media: papers are known to have leanings, and politicians greatly benefit from the support bestowed on them. Norway does not have a capitalist setup, and there is one clear leader in the newspaper race. The support, if any, by the media for politicians is also of no great consequence. All of this impacts how elected representatives respond to crime. Crime is one of the most reported segments for newspapers everywhere. The large personal element of crime makes public opinion increasingly voluble, and easy and profitable to report. The large noise so created has to be responded to by the politicians, for this zero-sum game has important first-mover advantages. The decisions made in such an atmosphere for penal policies are primarily populist, and usually end up being the wrong ones as well.

Penal Populism in India

I will assert, and not seek to prove, that India is a populist democracy where decisions are swayed by populist tendencies more often than not. It is much closer to the English experience highlighted here than the one in Norway. The zero-sum game is played between the Ruling Party and the Opposition on every issue. Instances of a united front being put up are very, very rare indeed. The views on penal policy are treated no differently. Consider the Yakub Memon hanging: the Congress condemned the decision while the BJP stood by its views of no mercy for terrorists. The Finance Minister called Congress leaders irresponsible in their statements. Both sides were covered by different news outfits. When the Law Commission was making its recommendations on abolishing the death penalty, its conclusions were tempered due to populist stands taken by representatives of the Ruling Party [it recommended abolishing the death penalty for everything but terrorism related activity].

Nirbhaya was no different. The issue presented itself in the form of a horrific killing. Everyone likes a good crime in the news and it was heavily reported. Sexual offences were not always so heavily reported. But the public outcry following the media releases here in fact contributed to an increase in overall reporting of sexual offences by every outfit. This massive public outrage became easy fuel for politicians, who now adopted a universal position of condemnation but took different and seemingly irreconcilable positions on what to do. The debates raged on aggressively dealing with sexual offences, and juveniles committing offences. Their positions were supported by different news outfits, ensuring everyone had something to talk and shout loudly about, and make money from. Capitalism won, and continues to win, with every 9 PM news debate.

The Current (Actually Old) Debate

Between 2012 and 2015, little or no movement occurred outside of these verbal sparring battles. One slew of amendments was passed with clear hues of populist dementia (introduce the death sentence for an offence to make everyone think its serious now, while they've forgotten the problem really was enforcement). Juvenile policy was worse. In 2012, there was a movement to change the law making 16 year olds responsible. It was reviewed by the Law Commission and the Supreme Court. Both concluded that the shift was possible if there was some scientific data to support the theory that 16 year olds understood ideas of responsibility. Populism alone was rejected as a basis for legislation. What happened between the three years? You guessed it. There was one Bill introduced, no scientific study conducted, and in fact no verbal sparring also. Callous statements only began to emerge closer to the Day of Reckoning. Reports with dubious credibility surfaced with the media showing no remorse. The Ruling Party blamed the Opposition for stalling its reforms (cue, applause). For good effect, they brought in ISIS! Because terrorism and sex offenders are perhaps the only things that get our public opinion really moving. 

And then there is the Supreme Court. Perhaps the only real development between 2012 and 2015 was that the Supreme Court began to play to the gallery. Its always good to be looked upon as a White Knight in a bleak world (no, I will not use the line from Batman here), and the Supreme Court played its part publicly to great effect. The midnight hearings for Yakub Memon were yet another exercise in boosting that image, while showing the 24 Hour newscycle that the 12-5 AM segment could have new material. So as the clock struck midnight and brought upon us the end of the world, the politicians ran to the Supreme Court again. Hoping, I believe, that the great work they've done - of verbal sparring in the media, using victims, shouting, and not doing any real work - will be duly rewarded. It hasn't, yet, and I hope good sense prevails. The Supreme Court will do good to recall its earlier position of wanting clear data to effect legislative change. A reading of When Children Kill Children would be handy as a starting point. It would also do good to remind the media that the juvenile was never tried, and must not be called a rapist among other things. And finally, maybe it will stop entertaining petitions at midnight before it becomes the next in-thing. 

Exclusion of Jurisdiction and the decision in Girish Kumar Suneja

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

Excluding Jurisdiction: Missing the Forest for the Trees

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

Sections 397 and 482 Cr.P.C.

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

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

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

Article 226 and 227 of the Constitution

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

Article 14 and Judicial Legislation

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

Public Interest and the Rights of Accused Persons

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

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

Conclusion

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

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