Thursday, March 23, 2017

New Blog Update - Socio-Legal Review Forum / SLR Forum

The Socio-Legal Review is one of the flagship publications of the National Law School, Bangalore, and is currently in its twelfth volume. Readers would note that the Review has now launched the Socio-Legal Review Forum, or the SLR Forum. This blog will serve as a companion to the print edition while retaining the informality and immediacy that the blogosphere offers. 

I am sure that the SLR Forum is soon going to become a very useful resource for practitioners and academics alike. You can access it here. Those interested in submitting pieces can find the necessary information on the first post on the Forum itself.






Monday, March 13, 2017

Guest Post: Justifications, Excuses and General Exceptions

(This post has been co-authored by Kaustav Saha, who is currently a BCL candidate at Exeter College, University of Oxford)

This post considers two issues from the realm of defences in criminal law. The first part, co-authored with Kaustav, engages with the debate concerning treatment of justificatory and excusatory defences. In the second, unrelated, part, I focus on the Indian Penal Code 1860 [IPC] and examine a particular issue regarding the Indian statutory framework surrounding general defences. 

Justifications, Excuses and Wrongfulness
Justifications and excuses differ considerably in their normative implications as well as practical effects. A useful barometer [which may break down on severe scrutiny], is that justifications are attached to the circumstances of an offence, while excuses arise from the personality of defendants. But this does not consider a deeper question, which is whether persons invoking these defences should be viewed differently? Should claiming a justificatory defence as opposed to an excusatory defence attract different consequences?

To answer this, think of justifications and excuses differently. A standard view in the literature is that while justifications deny wrongdoing, excuses deny responsibility. In the former, a defendant is denying that she committed a wrong, while in the latter she asserts that she should not be held liable (be excused) despite the wrongful character of her actions. Professor Gardner argues this distinction is misleading, for by invoking a justification the defendant is not denying wrongdoing but is in fact conceding it. The innate wrongfulness of hurting a person does not change, whether done by a police officer chasing a suspect or a person killing for personal motives. For him, thus, a justificatory act cannot be considered as something that guides conduct. In this, his view is opposed by Professor Simester who argues justifications do indeed offer motivating reasons to engage in certain conduct. These acts, according to him, are not merely tolerated but are morally permissible and this takes away from the wrongfulness of the act. 

We find Professor Gardner's view more acceptable that defences cannot serve as positive reasons for acting. Most importantly, because it supports the desirable principle that accepting this reinforces a cynical view of the law and militates against the idea that people may aspire to standards of conduct that go above and beyond what the law may demand from them.

It may well be argued that this debate about 'wrong' is, well, purely academic. After all, most criminal law functions do not care about the innate wrongfulness and the successful pleading of both justificatory and excusatory defences completely takes away the label of criminality which matters most. The different consequences - insanity may lead to the defendant being admitted to a facility - is not concerned with the issue of 'wrong' either. But we argue that this debate is not without practical utility. For instance, consider this in context of the allegations of police brutalities in the USA. One could argue that maybe, in that setting, Professor Simester's view would resonate with officers often considering the ability to take violent action itself as reason to take that action. The existence of a duty-based justification served as reason to shoot suspects because the justification dissolved the wrongfulness of causing harm.

Could this view be extended to other scenarios? For instance, an over-exuberant exercise of detention powers by officials when dealing with anti-terrorism legislation? Or in India, the carrying out of search, seizure, and arrests when dealing with economic offences which are consistently labelled as 'threats of economic security of the nation' by the State. We are unaware of empirical studies specifically testing the arguments of Professors Gardner and Simester in such duty-contexts. It may offer fantastic insight into how analysis of justificatory conduct is highly context dependant.

The IPC and General Exceptions
This brings me to the second issue. Chapter IV groups Sections 76 to 106 of the Indian Penal Code 1860 [IPC] under the title of 'General Exceptions' (not General Defences, as is commonly assumed). These apply to offences under the IPC and beyond [See Section 40 IPC] and are basis upon which criminal liability can be negated. The IPC does not contain any distinction between how the different defences are treated, and also stays away from the debate of justifications and excuses. Exceptions normally fully absolve the defendant of criminal liability, and the Code expressly indicates where this is not so [Section 86 and voluntary intoxication, for instance]. During trial, the burden of proving the existence of facts to claim an exception is placed upon the defendant [Section 105, Indian Evidence Act 1872]. Is this fair? 

In this regard, the Indian system differs from how criminal trials operated (and continue to operate) in the UK [under common law, the burden was only placed on a defendant when claiming a defence of insanity]. A frequent argument justifying the reversing of burdens [quite prevalent across criminal law today], is how the defendant is best-placed to offer proof for facts especially within her knowledge. The Indian Evidence Act statutorily recognises this principle through Section 106. Does this logic of the defendant being 'best-placed' sufficiently explain away the rule of Section 105? I argue that it  is mostly acceptable, but for the position in Section 81 of the IPC, which is a mixture of both, subjective and objective, positions in the criminal law.

What are these subjective and objective positions? A subjective position in criminal law means that you view the existence / non-existence of facts from the eyes of the defendant. An objective view would view things from the standpoint of an outside observer. Naturally, fidelity to either position can attract very different consequences on issues of liability as it poses questions to the very existence of fault elements [as I explained in context of attempts once on the Blog]. If we look at the General Exceptions in the IPC, it becomes apparent how the Code adopts different positions for the different exceptions it provides. For instance, consider Section 79 which says "nothing is an offence which is done by any person who is justified by law, ow who by reason of a mistake of fact and not be reason of mistake of law in good faith, believes himself to be justified by law, in doing it." The text, together with the illustration, confirm the subjective position is adopted: it tells us that an officer is justified for arresting someone she believed had committed murder, though it may turn out that the person was acting in self-defence

But move to Section 81 which is India's version of a defence of duress: "nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property." This is followed by an important injunction: "it is a question of fact in such a case whether the harm to be prevented was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm." The initial subjective position is interposed with a clear objective caveat!

I argue that where, after claiming an exception, the Code adopts an objective position regarding the existence / non-existence of facts upon which a successful claim depends, it is unfair to place the burden upon a defendant to prove such facts. It is not a fact especially within the knowledge of the defendant. Rather, it is perhaps easier for the prosecution to furnish statistics. Even if we imagine the state of play, shifting the burden on the prosecution would appear more suitable. If the court is unconvinced with the initial plea itself, then the question would not arise. If the court thinks there is an arguable case, then have the prosecution show why the exception cannot be successfully claimed.

Friday, March 3, 2017

Remands to Custody and Bail

A long, long time ago, this blog ran a series on issues surrounding the grant of bail for non-bailable offences. The primary issue focused upon, was how several statutes placed the burden upon the accused to show that there were no reasonable grounds to believe that the alleged offences had been committed by her. In the last of those posts (available here), I covered a section on how the law placed this burden upon on the accused, without providing her any right to access documents prior to filing of the charge-sheet.  Section 207 Cr.P.C., concerning supply of copies for certain documents, only applies after the charge-sheet has been filed. Before that (and this is when bail applications are most commonly filed), no statutory right to copies of documents and statements exists. A brief insight into the case law was provided in that post, which showed courts occasionally had decided to supply a copy out of concerns for fair trials.

Recently, I was part of arguments before a trial court in Delhi where the investigating agency sought remand to police custody. Remand to custody, it may be recalled, stems from Section 167 Cr.P.C. When the police fail to complete investigation within 24 hours, this provision enables the police to make a request to the Magistrate, for detaining the accused person for a further duration in custody. This custody can be of two kinds, police custody or judicial custody. As it normally happens with the Cr.P.C., Section 167 does not explicitly state that an Application has to be filed. It does explicitly demand that Case Diaries (See Section 172, Cr.P.C.) are to be forwarded when the accused is produced. Normally though, for a judge to pass orders an application would be necessary, and so applications are always filed for seeking remand. These are, commonly, cyclostyled applications that merely recount the facts of the case with one or two paragraphs containing the reasons for seeking further custody of the accused. These, again, are usually (i) fear of the accused fleeing the course of justice, (ii) fear of tampering with evidence, and (iii) apprehension of coercing witnesses.  

In our case, when the remand application was filed, copies were specifically denied to the accused persons. The prosecution argued that there was no provision under the Cr.P.C. allowing for such copies to be filed. As I was given to understand, this stand is routinely adopted by prosecutors across courts. Remember, an Application seeking remand is different from the Case Diaries, for which access-restrictions are specifically crafted within the Code. While it could be argued that the Code does not specifically enable the accused to obtain copies of documents and statements before the charge-sheet is filed (an argument which in my opinion is contrary to all sense of fairness), can the same logic be extended to a mere remand application?  

I think it cannot, and in light of the possible merit the other argument has - that no materials can be supplied - it serves all the more reason to ensure a copy of the remand application is supplied to the accused. To make an argument through analogy let us look at preventive detention. While preventive detention laws come with deprivations of standard procedural rights (such as a right to counsel), even persons detained under these laws are constitutionally required to be supplied with the grounds seeking detention! Without having any knowledge of the reasons why the state seeks my custody, what is the point of the accused even contesting the point of custody in that event?

Most judges have a fine sense of balance and often inform the counsel for an accused the basis for the remand application. It is not as if the nitty-gritty of an investigation is being laid bare in the investigation. That remains the domain of a Case Diary which is rightly shielded from prying eyes. Moreover, there is no prohibition on the counsel for an accused inspecting the court record or applying for a certified copy of these records, which are public documents in the eyes of law. If this is the case, then why stick with the charade of non-cooperation? Such a position only worsens the imbalance in resources that the State has at its disposal as against those an accused person can summon. The Delhi High Court rules have a fine chapter on police and custody remands which could sorely do with an amendment addressing this anomalous situation.

Wednesday, February 22, 2017

Limiting Private Prosecutions in Criminal Law?

Standard criminal procedure lessons in India devote some time on how the Indian criminal process can be set in motion through various ways. Section 190 - on taking cognizance of offences by courts - indicates that a Court may take such cognizance on a police report, and also on a private complaint. It places 'private complaint' [190(1)(a) Cr.P.C.] above 'police report' [190(1)(b) Cr.P.C.], interestingly enough. If a case is begun on a complaint, then the procedure under Sections 200-203 of the Cr.P.C. gets activated, before we arrive at the issue of deciding whether or not persons ought to be summoned for trial [Section 204 Cr.P.C.]. Have you ever thought that, perhaps, this makes it too easy to initiate criminal proceedings and takes away some force out of them? 

Labelling anything is meant to convey a meaning to society, guiding it on how to consider a certain phenomenon or behaviour. So, calling something a crime has historically meant to convey to society that such acts or omissions are wrong. They not only merit censure, and also attract sanctions in the form of fines, or imprisonment. This was one of those fundamental criminal law lectures, where criminal law was portrayed as a affecting society, whereas civil suits were of a more private nature. But how do we know whether something really does affect society, and how is society's will reflecting itself? While the former has never been satisfactorily explained, one method of achieving the latter was to make a public authority responsible for initiating prosecutions. The European Court of Human Rights recognised this as one of the defining features of a 'criminal' proceeding [Benham v United Kingdom, (1996) ECHR 22], and we see Prosecutors being tasked with this responsibility across jurisdiction. The merits of this are obvious; two significant ones are (i) prosecutorial guidelines ensure that only a certain degree of seriousness gets fixed with the criminal label, and (ii) there is greater uniformity in arriving at these decisions. 

In India, private prosecutions are an extremely common route adopted in criminal proceedings. These are not restricted to only the less serious, non-cognizable, variety of offences but can also form the basis of serious prosecutions for offences such as forgery, that are punishable with life imprisonment. In my limited experience, I have seen these provisions being flouted as often as they are genuinely harnessed by litigants. Since there are no few costs to be incurred, it is a common strategy to file complaint cases in order to exert pressure when parties have a set of on-going disputes. The ease with which complaint cases can be filed means that this strategy is adopted with remarkable frequency. Not only does this worsen the judicial backlog and wastes public money (often cases end up getting settled outside of court), I argue that it weakens the symbolic value that the criminal law has. This is a larger problem that private prosecution entails even if it is not mala fide. Allowing parties to invoke criminal sanctions to resolve inter-se disputes reduces the seriousness that the label of criminality attracts. It becomes trivial, reducing it to just another card that the players have up their sleeves. If you don't believe me, try speaking to ten entrepreneurs running a small to medium sized business. I can bet you that at least one of them has been involved in a Negotiable Instruments Act case (cheque bouncing), or has seen a case of Cheating [Section 420 IPC] or Criminal Breach of Trust [Sections 406, 409 IPC]. This is definitely a slippery slope, I admit. Cases where a larger societal interest may be made out will almost always have a very individualistic element with particular parties being wronged by the particular acts or omissions. I must also admit here that my argument has decidedly more appeal in a commercial context - where parties are seen as having parallel remedies in civil proceedings (so a cheating case may well see a suit for recovery of monies). But, this is exactly what supports a more selective process, that helps maintain a balance and prosecute only those disputes that have some larger societal interest.

Should private prosecutions be culled in such a commercial/business context, then? As much as I would like to see that happen, I know it is impossible to realise that idea in the context of Indian criminal law. There are two primary reasons for this - the police, and the prosecutorial system. The police are notorious for failing to register cases and pursue investigations. Investigations, on average, end up taking over a year to complete. In that time it is possible to invoke the jurisdiction of the Court through a complaint and guide a case to the point of summoning potential accused persons. Most litigants, and courts, will admit that the police are often approached in such cases for the pressure that a police investigation brings with it, rather than some investigatorial nous. But a far bigger problem is the prosecutorial setup in India, or lack thereof, despite the introduction in 2005 of a 'Directorate of Prosecutions' by Section 25-A Cr.P.C. As a matter of practice, prosecutors appear seldom involved in the decision that brings a case to Court after a police investigation, while they are statutorily empowered to withdraw cases [Section 321 Cr.P.C.]. That is in respect of cases run by the police. The situation is different for complaint cases, where there is no effective mechanism in place that allows a litigant or court to involve the Directorate of Prosecutions to decide at the outset whether cases should be prosecuted. Again, statutory mechanisms allow for a serious case to be co-opted [Section 225 Cr.P.C.], but there is nothing that allows the prosecution branch to suggest, for instance, that perhaps valuable judicial time should be spent in proceeding to trial in a case which ultimately does not display a need to invoke criminal sanctions. In England and Wales, for instance, a right of private prosecution exists but a private prosecution may be later co-opted or controlled by the Director of Public Prosecutions [Prosecution of Offences Act, 1985]. 

So we find ourselves in a peculiar situation where the solution to these problems of ineffective police and prosecutorial systems is itself coming with the added costs of inflated dockets and reduced value of the criminal law. In times like these, the criminal law certainly seems like a lost cause.

[This post was updated on 22.02.2017 at 02:15 AM]

Friday, February 17, 2017

Voice Samples and Self-Incrimination

A Single Judge of the Gujarat High Court handed down the decision in Devani v. State of Gujarat [Spl. Criminal Application Direction 5226 of 2015, decided on 18.01.2017], which formed the basis of the previous Guest Post on the Blog. To recount, the decision agreed with the Supreme Court's conclusions in Ritesh Sinha [(2013) 2 SCC 357] that compelling a person accused of an offence to undergo 'Voice Spectrography' does not amount to making her a witness against herself. Having held so, Pardiwala, J. then considered whether there was any statutory basis to permit such testing by the police. This was the issue on which the two judges in Ritesh Sinha disagreed, and is now pending before a larger bench for resolution. Pardiwala, J. found no such basis, and thus held that the Petitioner could not be compelled to undergo Voice Spectrography. This brief post follows up on the analysis offered previously and develops those ideas further.

'Evidence' in Article 20(3) and the Physical-Mental Divide
To decide whether or not the right against self-incrimination, guaranteed under Article 20(3) of the Constitution, is violated, three questions need to be affirmatively answered. First, that the person concerned is accused of an offence. Second, this person is required to give evidence against herself. And, finally, that the person must be compelled to incriminate herself. In Devani, only the second of these questions arose: Pardiwala, J. had to decide whether the taking of voice samples/exemplars could amount to evidence

Section 3 of the Indian Evidence Act contains a very broad definition of the term 'evidence'. Does the same definition apply here? It doesn't. As Gautam pointed out, the interpretation of this part of Article 20(3) is governed by State of Bombay v Kathi Kalu Oghad [1962 (3) SCR 10] which was decided by eleven judges. Deciding whether or not handwriting samples and blood samples were within the pale of Article 20(3), the Supreme Court gave us the term 'physical evidence'. By prefacing 'evidence' in this manner, the Supreme Court excluded blood samples and handwriting samples from the mix. The logic essentially being, that these materials were inherently immutable and were only being used for drawing comparisons with material already collected during the investigation. Enter, Selvi v State of Karnataka [(2010) 7 SCC 263]. Decided by three judges, it considered whether an accused could be compelled to undergo either brain mapping (BEAP), polygraph tests, or narco-analysis. The three judges held that compelling a person accused to undergo any of these would violate the constitutional right under Article 20(3). Now, you may correctly ask, that was it proper to place all three tests in the same bracket? After all, the drugged state of narco-analysis involves persons making statements, as opposed to polygraph tests relying upon physical responses to stimuli (usually questioning). On the issue of polygraph tests, the Court held that such a physical response was as good as a statement. The response involved a unique communicative value, which ordinary 'physical evidence' would lack. 

I agree that Pardiwala, J. is not entirely correct in narrowly construing the contours of Selvi by suggesting that the decision was solely concerned with what he calls 'psychiatric evidence'. The problem really is how broad the conclusions in Selvi were, as Gautam pointed out. While it attempts to distinguish Kathi Kalu Oghad, the logic employed for bringing polygraph tests within the confines of Article 20(3) does not hold firm. This is because even in a polygraph test the physical responses are used to compare. There is a set of normal readings taken when the person responds to supposedly harmless questions. After this, the uncomfortable questions are asked, and the readings obtained by both the sets of responses are then compared. There is a way to keep both Kathi Kalu Oghad and Selvi, perhaps. This would look at how the preliminary readings in polygraph tests are also obtained under coercion, as against a case like blood samples where material is obtained wholly independently.

Self-Incrimination and Voice Exemplars
The previous post made important observations about the logic behind Article 20(3) which receives scant attention. Gautam argues that the employment of the 'physical evidence' concept was an attempt to balance the dual claims of the crime control vs. due process approach. Developing his thoughts further, one may suggest that Selvi shows a shift from focusing on the crime control aspects to the issues of due process. In Kathi Kalu Oghad, we get a clear idea that the Court saw Article 20(3) as a means to ensure the quality of evidence at trial remained of a sterling quality. While persons may give false testimony under pressure, blood never lies, and so it made no sense to exclude it from the possible evidence that a judge may consider to decide issues at trial. Fifty years later, the three judges in Selvi are at pains to link Article 21 to Article 20(3). There is as much attention placed upon the manner in which the evidence is obtained, rather than solely judging its quality. Thus, the Court appears more willing to look at issues such as particular techniques violating the mental privacy of the accused which it earlier would not rarely consider. 

The problem with making claims about 'shifts' is that there needs to be something more to suggest a trend. Unfortunately, I can offer nothing by way of evidence, and would rather classify Selvi as a one-off event in the largely depressing judicial history of Article 20(3). On each of the three questions that I identified, the Supreme Court has consistently narrowed the scope, only to render this constitutional protection non-existent for large swathes of the criminal law that are today administered by agencies other than the khaki-clad police.  

Moving on to considering the particular issue at hand, then. I agree with Gautam that the 'physical evidence' conception is not the answer for a conceptually rigorous model for understanding the right against self-incrimination. But I do not think that the issue of voice sample poses any great difficulty to the existing setup and thus calls for reform will not find many takers, yet. If we were to look at this issue of voice samples from the lens of Kathi Kalu Oghad, it would be argued that the voice sample is obtained to compare it with the tape recording. Voice, like handwriting, is quite immutable, making it a fit for the 'physical evidence' category. The approach offered by the Selvi would offer the same result. The voice samples here have no communicative quality of their own: they are purely for purposes of comparison with evidence that exists independent of the person. The big flaw in this entire claim is the idea that the human voice is immutable since there is material to suggest otherwise (something that Devani does not fully address). Assuming there is some certainty on that front, it is difficult to argue that the technique of Voice Spectrography would violate Article 20(3).

Creating a Statutory Basis
The second part of the decision is a familiar tale of woe. Pardiwala, J. traverses through the entire gamut of statutes in the field in his search for some basis to ground this technique, only to end his search in vain. He concludes that Voice Spectrography could therefore not be compelled upon an accused, and offers pointers to the State Government on how to remedy the situation before finishing his decision. The tale is familiar because it can be recounted for most investigative developments in India. This blog had earlier considered one example in Section 311-A of the Cr.P.C.; how it took several decades for such a common investigative tool (taking handwriting samples) to receive statutory support, only for it to be riddled with problems.

The Criminal Procedure Code, 1973 is a curious mixture of highly particular rules combined with vague standards. The part on police investigations are a good example. Police discretion on when to investigate a case is couched in vague terms, coexisting with provisions stipulating meticulous rules for things such as inquests. Do we, then, really need a clear statutory basis for what techniques can the police administer? Pardiwala, J. himself suggests that there may not be such a need when he invites the State Government to consider bringing in Rules to permit Voice Spectrography. Regardless of where one stands on the security-liberty paradigm, few would dispute the need for law to keep pace with technology and for the police to have up-to-date investigative tools at its disposal. This raises  questions on whether it makes sense to continue requiring concrete statutory backing for the particular techniques that the police can adopt, in an environment that is notorious for belaboured law reform. The spectre of abuse and misuse looms large though, leaving us with that familiar feeling: of being between a rock and a rather hard place. 


Wednesday, February 15, 2017

Guest Post: Voice Spectography and Self-Incrimination

(In this guest post, Mr. Gautam Bhatia offers his take on the recent decision by the Gujarat High Court in Devani v State, which considered the issues posed by using voice spectrography during investigations. This essay has been cross-posted with permission from the Indian Constitutional Law and Philosophy Blog
On the 18th of January, in Devani vs State of Gujarat, a single judge of the Gujarat High Court handed down an interesting ruling on the constitutionality and legality of voice spectrography as an investigative technique during criminal proceedings. The writ petitioner had been charged with offences under the Prevention of Corruption Act. The main piece of evidence was a telephone conversation between the petitioner and the person from whom he had allegedly demanded a bribe. The Investigating Agency wanted to subject the Petitioner to a voice spectrography test, so that it could compare the two voice samples. The Petitioner challenged this.
The Court’s decision was delivered in the context of a split opinion by a two-judge bench of the Supreme Court, delivered in 2012, in Ritesh Sinha vs State of U.PJustice Aftab Alam had held that in the absence of express statutory authorisation, investigative agencies could not compel an accused to undergo a voice spectrography test. Justice Ranjana Desai had disagreed. While the two judges were in apparent agreement over the proposition that voice spectrography did not violate the right against self-incrimination under Article 20(3) of the Constitution, in view of the disagreement between them, they referred the case for resolution by a three-judge bench. This bench has not yet been constituted.
In Devani, the Gujarat High Court agreed with Justice Alam and disagreed with Justice Desai, holding that the investigating authorities could not legally compel an accused to undergo a voice spectrography test. The Court based its judgment on statutory interpretation, finding no warrant for the taking of voice samples under the existing criminal procedural framework. However, it also found that the taking of voice samples did not violate Article 20(3) of the Constitution. It is to this finding that we turn first.
Article 20(3)
The Court’s examination of the self-incrimination issue took place – as it had to – in the context of the Supreme Court’s 2010 decision in Selvi vs State (previously, on this blog, we have discussed Selvi and the right against self-incrimination under the Indian Constitution in some detail). Readers will recall that Selvi – a three-judge decision of the Supreme Court – had clarified some of the conceptual underpinnings of the right against self-incrimination that had been left open in the previous judgment of Kathi Kalu Oghad. The question in this case was how the Gujarat High Court would interpret Selvi, and how it would thread the needle between Kathi Kalu Oghad, which had held the taking of fingerprints and handwriting samples was consistent with Article 20(3), and Selvi, which had held that narco-analysis, brain mapping, and the polygraph test, were not. In other words, what was the deeper conceptual basis that underpinned the spectrum between fingerprints and narco-analysis, and where did voice spectrography fall on this spectrum?
The Gujarat High Court’s reading of Selvi was as follows: Selvi, it held, had prohibited the compulsory psychiatric examination of the accused. However, a voice spectrography test – which only involved the subject speaking something into a recorder, and subsequent analysis of his voice patterns – did not come within the ambit of “psychiatric examination“. Consequently, voice spectrography was not hit by the Selvi bar, and was therefore constitutional (paragraph 44).
It is submitted, with respect, that the High Court’s reading of Selvi is unnecessarily narrow, and is not borne out by the decision and reasoning in that case. Recall that, in the last analysis, in Selvi, the intellectual foundation of the Court’s judgment was the idea of mental privacy. In paragraph 160 of that judgment, the Court held:
Even though the actual process of undergoing a polygraph examination or a BEAP test is not the same as that of making an oral or written statement, the consequences are similar. By making inferences from the results of these tests, the examiner is able to derive knowledge from the subject’s mind which otherwise would not have become available to the investigators. These two tests are different from medical examination and the analysis of bodily substances such as blood, semen and hair samples, since the test subject’s physiological responses are directly correlated to mental faculties. Through lie-detection or gauging a subject’s familiarity with the stimuli, personal knowledge is conveyed in respect of a relevant fact.” (Para 160)
On, in other words, the right against self-incrimination (among other things) was aimed at protecting the mental inviolability of an accused during the course of a criminal proceeding.
The Court in Selvi went on to note:
“The compulsory administration of the impugned tests impedes the subject’s right to choose between remaining silent and offering substantive information. The requirement of a `positive volitional act’ becomes irrelevant since the subject is compelled to convey personal knowledge irrespective of his/her own volition.”
And:
While the ordinary exercise of police powers contemplates restraints of a physical nature such as the extraction of bodily substances and the use of reasonable force for subjecting a person to a medical examination, it is not viable to extend these police powers to the forcible extraction of testimonial responses. In conceptualising the `right to privacy’ we must highlight the distinction between privacy in a physical sense and the privacy of one’s mental processes… so far, the judicial understanding of privacy in our country has mostly stressed on the protection of the body and physical spaces from intrusive actions by the State. While the scheme of criminal procedure as well as evidence law mandates interference with physical privacy through statutory provisions that enable arrest, detention, search and seizure among others, the same cannot be the basis for compelling a person `to impart personal knowledge about a relevant fact’. The theory of interrelationship of rights mandates that the right against self-incrimination should also be read as a component of `personal liberty’ under Article 21. Hence, our understanding of the `right to privacy’ should account for its intersection with Article 20(3)… a conjunctive reading of Articles 20(3) and 21 of the Constitution along with the principles of evidence law leads us to a clear answer. We must recognise the importance of personal autonomy in aspects such as the choice between remaining silent and speaking.An individual’s decision to make a statement is the product of a private choice and there should be no scope for any other individual to interfere with such autonomy, especially in circumstances where the person faces exposure to criminal charges or penalties. Therefore, it is our considered opinion that subjecting a person to the impugned techniques in an involuntary manner violates the prescribed boundaries of privacy. Forcible interference with a person’s mental processes is not provided for under any statute and it most certainly comes into conflict with the right against self-incrimination.” (Paras 190 – 193)
Consequently, Selvi went much further than simply prohibiting compelled “psychiatric examinations”. It located its decision within the framework of personal autonomy, the right to remain silent, and mental privacy.
However, it is precisely within this context that the issue of voice spectrography attains an almost intractable difficulty. If you look at the issue from one perspective, it seems clear that voice spectrography falls squarely within the Selvi prohibition. The mind is centrally involved in the act of speaking, and if “mental privacy” is to be understood in this sense, compelling a person to speak, and then using his voice to determine other relevant facts in a criminal proceeding, is certainly an invasion of mental privacy. Compelling a person to speak certainly violates their choice between speaking and remaining silent. It is certainly an interference with her “mental processes“. And finally, it does seem that what happens in a voice spectrography test is very similar to polygraph tests and brain mapping – bodily stimuli are mapped and measured. The fact that in one case, it is stimuli from the brain, and in another, voice patterns, ought not to make a difference, because – as discussed above – speaking is direct result of mental activity.
Examined another way, however, the issue is much more complex. While speaking is a result of brain activity, the crucial thing to note in a voice spectrography test is that it is not about what the speaker is saying – that is, not about the content of her voice – but about her voice as a bodily, physical phenomenon. In this sense, voice spectrography seems much closer to fingerprints, blood samples, and DNA, than it does to narco-analysis. In a similar sense, it seems a stretch to say that the examiner is deriving knowledge from the subject’s mind. Although speaking is a result of a mental process, given that the brain is, ultimately, responsible for keeping the human body alive, every other bodily function can, ultimately, be traced back to the brain. Here, again, given that the content of what the speaker says is not at issue, it does seem that voice samples are physical phenomena, in the same sense that blood or DNA is.
What this reveals, I suggest, is that ultimately, Selvi’s neat distinction between the physical and mental, between the taking of physical samples (blood, DNA, hair swabs, fingerprints) on the one hand, and interference with mental processes and invasion of mental privacy on the other, breaks down on closer examination. It breaks down in cases such as voice spectrography, where the physical/mental binary simply loses its valence as an explanatory device.
As I had argued in my essay on Selvi, the distinction between the physical and mental in that case was drawn in an attempt to strike a balance between two models of the criminal process: the crime-control model, which seeks to remove obstacles from investigating agencies in their attempt to discover the “truth”, and the due process model, which places great stress on the fundamental rights of the accused. By limiting the right against self-incrimination under Article 20(3) to invasions of mental privacy, the Court attempted to balance the two models. A case like Devani suggests that more work needs to be done to achieve a clear and coherent balance.
Statutory Analysis
Although not strictly within the scope of this blog, a word ought to be said about the second part of the judgment. The Court undertakes a thorough analysis of laws such as the Identification of Prisoners Act, the Code of Criminal Procedure, and the Evidence Act, all of which allow for various situations – and methods – by which investigating agencies and judges can act upon the body of the accused (compelling her to yield blood samples, DNA, sputum, hair swabs, fingerprints etc.) The Court finds that nowhere is there an express authorisation to take a voice sample, and nor can such an authorisation be read into the statutes. Consequently – and despite its misgivings on this issue as a matter of policy – the Court holds that, under the existing legal regime, compelled voice spectrography is not permissible. The Court’s analysis – from paragraphs 47 to 100 – repays close study, not simply because it is an excellent piece of statutory interpretation, but also because the Court subordinates its own sense of what might be desirable as a matter of legal policy to an autonomous reading of the existing law as it stands, and refuses to step an inch beyond the law. This is a phenomenon that has been falling distressingly out of fashion in recent years.

Thursday, February 9, 2017

Electronic Evidence and the Commercial Courts Act 2015

Electronic evidence and Sections 65-A and 65-B of the Indian Evidence Act 1872 [Evidence Act] were the subject of a four-part series on the Blog (see, here, for the first of these). I try and follow up on developments in the law to discuss them here and was pleasantly surprised when I stumbled upon an interesting anomaly that has crept in today, which I discuss here.

Section 65-B Certificates 
Recall, that Sections 65-A and 65-B of the Evidence Act provide a special procedure for determining the admissibility of secondary electronic evidence in proceedings. These were inserted in the Evidence Act through the Information Technology Act 2000.  Section 65-B postulates that in order to treat the electronic material as evidence, certain preliminary issues need to be resolved. Such as, authenticity of the data-source, proper functioning of data-extraction methods etc. The provision allowed for this information to be furnished via a Certificate. It does not require that the Certificate be accompanied by an affidavit, since it is regular for the person making the certificate to be examined as a witness during the proceedings.

The Supreme Court in 2014 through the decision in Anvar PV v PK Basheer [(2014) 10 SCC 473] held that a Section 65-B Certificate was mandatory to prove electronic material. While I continue to stick by my argument that the decision is patently incorrect, that discussion is now purely academic since the decision has quickly been adopted into the processes of law. Today, then, electronic material such as emails is filed along with a Certificate under Section 65-B, where the maker of that material certifies its correctness etc. This Certificate does not contain an affidavit. It is exhibited in evidence, and the maker regularly questioned.    

Commercial Courts Act, 2015
Enter the Commercial Courts Act, 2015 [CCA]. This was the direct result of the Report No. 253 of the Law Commission of India and was announced to some fanfare. The CCA received Presidential Assent on 31.12.2015, but has been made retrospectively operative since 23.10.2015. This Act creates a special procedure for cases involving a 'commercial dispute' [Section 2(c)] that are above a specified monetary value that each State must fix [Section 6]. Rather than create a new procedure, the Legislature, through the CCA, made wholesale amendments to the Civil Procedure Code 1908 [CPC] for cases involving commercial disputes. We are concerned with the amendments to Order XI CPC, pertaining to disclosure, discovery and inspection of documents. 

The new procedure created by the CCA requires a Declaration on Oath by the plaintiff that "all documents in the power, possession, control or custody of the plaintiff, pertaining to the facts and circumstances of the proceedings initiated by him have been disclosed ... and that the plaintiff does not have any other documents in his power, possession, control or custody." [Order XI, Rule 1(3)]. The Law Commission Report referred to above cited improvements in the procedural law on the point of disclosure, and I guess this is what they went for. However, I found no discussion at all for the new Rule 6 in Order XI, which deals with Electronic Evidence and has been extracted in full below:
(1) In case of disclosures and inspection of Electronic Records (as defined in the Information Technology Act, 2000), furnishing of printouts shall be sufficient compliance of the above provisions. 
(2) At the discretion of the parties or where required (when parties wish to rely on audio or video content), copies of electronic records may be furnished in electronic form either in addition to or in lieu of printouts. 
(3) Where Electronic Records form part of documents disclosed, the declaration on oath to be filed by a party shall specify
(a) the parties to such Electronic Record;
(b) the manner in which such electronic record was produced and by whom;
(c) the dates and time of preparation or storage or issuance or receipt of each such electronic record;
(d) the source of such electronic record and date and time when the electronic record was printed;
(e) in case of email ids, details of ownership, custody and access to such email ids;
(f) in case of documents stored on a computer or computer resource (including on external servers or cloud), details of ownership, custody and access to such data on the computer or computer resource;
(g) deponent’s knowledge of contents and correctness of contents;
(h) whether the computer or computer resource used for preparing or receiving or storing such document or data was functioning properly or in case of malfunction that such malfunction did not affect the contents of the document stored;
(i) that the printout or copy furnished was taken from the original computer or computer resource. 
(4) The parties relying on printouts or copy in electronic form, of any electronic records, shall not be required to give inspection of electronic records, provided a declaration is made by such party that each such copy, which has been produced, has been made from the original electronic record. 
(5) The Court may give directions for admissibility of Electronic Records at any stage of the proceedings. 
(6) Any party may seek directions from the Court and the Court may of its motion issue directions for submission of further proof of any electronic record including metadata or logs before admission of such electronic record.
Does Rule 6 render 65-B Certificates Redundant for the CCA? 
The Declaration on Oath (i.e. a statement on affidavit) must contain all the information mentioned in Rule 6(3) for it to be accepted. While this may seem to be invoking the spirit of Section 65-B, it makes no mention of the provision whatsoever. It would be interesting, then, to compare Rule 6(3) with the requirements specified by Section 65-B that are found in the Certificate. It becomes clear that the procedure under the CCA is more exacting than the ordinary procedure under Section 65-B. Not only does the Section 65-B Certificate warrant lesser information, but it is also not on oath. 

So does Rule 6(3) render it absolutely redundant to secure a separate Certificate under Section 65-B for cases under the CCA? To my mind it does, and the CCA allows for this kind of an override  as well [Section 21]. I am told however that Section 65-B Certificates are still filed in cases before Commercial Courts together with this information that the new Rule 6 requires. That this is creating confusion is made apparent upon reading the order of a Single Judge of the Delhi High Court in Eli Lilly [CS (Comm) 1472/2016, order dated 09.11.2016]. Repeatedly, an affidavit under Section 65-B is referred to, or the certificate is constantly treated as being an alternative word for affidavit: "counsel for the plaintiff states that such a certificate/affidavit was not filed ... Such certificate/affidavit under Section 65-B" and so on. 

Endlaw, J. in passing refers to how the claims of the counsel ignored clear precedent perhaps because it pertained to criminal cases without considering that the Evidence Act applies to both civil and criminal proceedings equally (referring to the Division Bench decision of the Delhi High Court in Kundan Singh). I think he may be on to something bigger. It is no coincidence that the Evidence Act has rarely been amended through the vehicle of procedural law through time. Legislatures have been careful to maintain the equal treatment it metes out to both civil and criminal proceedings in the context of questions of admissibility and proof. So, while the standard of proof might have been different in civil and criminal cases (balance of probabilities versus proof beyond reasonable doubt), the Evidence Act ensured that how documents and material became evidence was common unless mentioned otherwise. The CCA has ignored that precept, and has created a situation where commercial cases are being subjected to stricter rules of proof than other cases. It would be ideal for this to be addressed by a bench of higher strength, or the Supreme Court, to put the confusion to rest before any egregious consequences ensue.

(hat tip to Suveni Bhagat, Viraj Parikh, and Aditya Vikram Singh)