Friday, June 9, 2017

Errantry - Moot Problem on White Collar Crime

A couple of months ago, I took some time out and drafted a moot problem based mainly on white-collar crime. The questions are derived from issues that are yet to be decided finally by the Supreme Court. Now that the organisers have given me the go-ahead, I'm sharing it here for those interested. Comments on the possible arguments would be welcome!

Wednesday, May 31, 2017

The Law Commission of India Report on Bail - Some Concerns

The Law Commission of India [Commission] has released its 268th Report titled "Amendments to the Criminal Procedure Code, 1973 - Provisions Relating to Bail". The Report has been in the pipeline for over a year and has provided a draft Criminal Law (Amendment) Bill 2017 focusing on making changes to the provisions on arrest and bail throughout the Criminal Procedure Code, 1973 [Cr.P.C.]. However, the minutes of meetings and consultations between the contributors are not available. Chapter Eleven contains recommendations covering thirteen broad areas. I briefly summarise these below:

1. Arrest: Amend Section 50 Cr.P.C. to require police officers inform arrested persons of the reasons for arrest in a language she understands.

2. Statutory Bail and Remand: Courts should not authorise remand to custody routinely and examine the case diary [Section 172 Cr.P.C.] thoroughly. Judges must not accept blanket statements that remand is necessary as "accused may be able to give further information". They must enforce the rule that Supplementary Chargesheets [Section 173(8) Cr.P.C.] are filed only to add information subsequently available, to prevent delays. Specific suggestions are made in respect of Sections 167 and 309 Cr.P.C. [the two provisions authorising remand as per the Commission, which is, in fact, incorrect as it ignores Section 209 Cr.P.C.]. For Section 309, amendments are suggested to require judges ascribing reasons for denying bail during trial. Section 167 is sought to be amended for excluding the period an accused spends outside the actual custody of the police from calculations.

3. Conditions for Bail: Bail conditions must consider the socio-economic position of the person and must not be unduly onerous. Courts are encouraged to look beyond financial considerations to enforce appearance. The Report says "bail must be granted subject to the least restrictive conditions to ensure the appearance of the person accused of an offence and the safety of the community", and emphasises that pre-trial detention is exceptional.

4. Modifying Classifications of Bailable and Non-Bailable Offences: Recommendations that there should be correlation between the term of imprisonment and classification of offence [see here for a discussion on the Blog about this issue].

5. Anticipatory Bail: Recommends the proviso to Section 438 Cr.P.C. be retained [contrary to Report No. 203 of the Commission]. Suggests a more careful approach towards granting anticipatory bail, and that it must be made available for a limited period of time, with every order of grant or rejection being accompanied by reasons.

6. Bail in Economic Offences: Economic offences are "crimes which imperil the nation's security and governance" and a stricter approach is recommended while deciding the issue of custody here. The Report says "all forms of economic offences which include tax evasion, customs offences or bank fraud" should be dealt with strictly and amendments are suggested to make bail harder.

7. Special Laws: The Commission suggests that courts must prevent release of persons on bail in special laws on 'technicalities' - with the NDPS and terrorism related offences highlighted. 

8. Modification of Sections 436 and 436-A Cr.P.C.: Recommends amendments to unambiguously reflect that bail is a matter of right which must be communicated to arrested persons. A fresh scheme is suggested for Section 436-A to decide release of persons suffering lengthy pre-trial detention.

9. Centralised Database and Electronic Tagging: Considers the database necessary to confirm criminal antecedents but posits caution about the introduction of Electronically Monitored Bail. 

10. Public Prosecutor and Victims: Victims must be given an opportunity of being heard at the stage of bail itself and be informed when release on bail is imminent. 'Treatment of Victims' should be a principle governing bail decisions, and a 'Victim Impact Assessment Report' may be called for where offences are of a particularly grave of heinous nature. The Commission also recommends adopting the check-list model of the UK Crown Prosecution Service.

11. Risk Assessment: Risk-assessment is a technique to help determine the least intrusive method of policing and investigating offences, maintaining a balance between individual liberty and and community safety. Principles governing these decisions are suggested by the Commission.

12. Exceptions: Absolute restrictions on grant of bail are uncalled for, suggesting grant of bail where grave circumstances exist - for instance, the arrested person suffering from life-threatening disease for which custodial treatment is impossible.

13. Prison Infrastructure: Recommendation to overhaul the "crumbling prison infrastructure and system". One suggestion is to release the under-trials that currently crowd these prisons, subject, of course, to a proper evaluation of relevant factors.

The Report is a curious creature reflecting a myriad set of concerns, and ultimately does little more than scratch the surface of an extremely problematic area in the Indian criminal process. I make two sets of comments, then; first addressing the Report and what it says, moving on to all that it misses. 

The Report and Amendment Bill
The dissonance between recommendations in Chapter Eleven of the Report and the draft Amendment Bill annexed is striking. A paragraph is spent recommending amendments to Section 309 Cr.P.C. and yet no provisions reflect this in the annexed Bill. The recommended amendments to Section 50 Cr.P.C. do not find a mention anywhere, nor do the suggestions about allowing a victim to contest grant of bail and incorporating a requirement for 'Victim Impact Assessment' Reports. The Bill suggests heightened scrutiny for granting bail in 'economic offences' without ever explaining the term. It would seem as if the Bill was never discussed between the members and consultants. Having access to the minutes of the Commission would have helped ascertain this better.

Airbrushing Issues
The recommendations do not reflect an eye on how issues of arrest and custody are being decided in the district courts, which are the sites of these battles. For instance, recommending 'reasons' of arrest be communicated under Section 50 Cr.P.C. doesn't tell us how that happens. Does it entail handing over a copy of the FIR? Must a formal application be filed for securing these reasons? [In Delhi at least, I have seen applications being required for supplying a copy of the FIR under Section 50 Cr.P.C.]. In situations of arrest and detention, the balance must tilt in favour of bright line rules over vague standards which can be clearly enforced without debate, and the Commission does not follow this principle with any consistency. 

Similarly, when it comes to statutory bail and Section 167 Cr.P.C., the Commission tells us about the problem of detaining undertrials and yet the only amendment is towards strengthening the rigours of custody. Having noted the lack of quality legal assistance [or any legal assistance], the Commission does not touch upon the problems caused by requiring detained persons file an application to secure statutory bail. Considering the increased scrutiny the Commission demands of courts, this would have been an obvious method to help enforce compliance with the provision. Instead, the focus remains on monetary requirements and other conditions.

Finally, a word on the 'economic offences' ghost that continues to haunt the present government. The suggestions are in line with the consistent rhetoric that tells us that 'economic offences' are akin to the plague in terms of their ability to harness devastation for the security of the Indian republic. While that rhetoric helps hammer propaganda, it does not work with the law, especially when it comes to depriving persons of their liberty. 'Economic Offences' is a horribly vague term, spanning potentially the entire gamut of offences having anything to do with a wrongful deprivation of property. Surely trespass on house property doesn't threaten our borders the same way financing terrorism does? 

Missing the Forest?
The Report not only misses small, technical issues, that are currently affecting the process of bail, but it also misses huge problem areas that one would consider a body like the Commission to be uniquely able to address. One technical issue was discussed in great detail on this blog before through a series of posts - that of reversing burdens during bail hearings (see here, for the first post in this series). This is a problem endemic to 'Special Laws', where all the Report has to offer is a rebuke to courts for releasing persons on technicalities. Similarly, no mention is made about the issue of an accused having a right to access materials upon which a remand request is made before courts. while the CBI continues to deny even copies of applications seeking a remand to custody. Another technical issue is that of remands to custody between stages of completed investigations and taking cognizance - where the latter is contingent on grant of sanction for instance. With the continuous din of criticism on delays in securing prosecutorial sanction for public servants, and the general opprobrium that the government projects towards corruption, one would have thought this issue merited some debate.

The big issue which I think the Commission fails to discuss was how pre-trial detention is actually seen as punishment in a system where eventual convictions are secured only after enormous delays. Vrinda Bhandari had written about this once (see her paper here). Her comments about pre-trial detention being punitive are quite accurate and one can visit district courts anywhere for a while to experience it. Prosecutors press for custody arguing retributive logic rather than the possibility of a person being a flight-risk. Victims cite their plight as reasons for denying bail. Judges encourage detention to be used as a bargaining chip to force an accused into plea-bargaining or extra-judicial agreements for quashing prosecutions. These are serious issues, and depending on where you stand are either huge problems or ingenious solutions that the criminal process has developed to address the burgeoning backlog. Yet, lamentably, there is not a whisper of this anywhere in the Report.

Conclusions - No Reform in Sight?
News coverage for the Report has hardly been forensic till now, but displays a degree of optimism. In the true spirit of this blog, I conclude this optimism is definitely misplaced. It would be misleading to label this Report as batting for 'reform'. It is, frankly, conservative, and only shifts to the front foot while facing run-of-the-mill deliveries. It would be unfortunate if the annexed Amendment Bill is tabled in the upcoming session of parliament without changes. It would be a tragedy if it becomes part of the statute books in its current form. 

Sunday, May 28, 2017

Snippet - PMLA Amendments Repealed? Not really - Updated

While working on the Prevention of Money Laundering Act 2002, I came across the omnibus Repeal and Amending Act of 2016 (part of the set of statutes available here). The acts specified in the First Schedule to the Repealing Act have been hereby repealed to the extent specified there. This Schedule, notably, states that the Prevention of Money Laundering (Amendment) Act 2012 [Act 2 of 2013] has been repealed in its entirety. You can access the Act here by searching on the page.

The 2012 amendments to the Money Laundering Act were substantial. These were India's efforts at accepting the Financial Action Task Force recommendations, soon after India was made a member of the Task Force in 2010

Below is a summary of the more important changes brought in by the 2012 Amendment Act:
  • It expanded the scope of the statute to cover beneficial owners, and placed positive obligations on various enterprises notorious for money laundering such as real estate agents and dealers in precious stones;
  • It expanded the money laundering offence under Section 3 from merely generating proceeds of crime and projecting them as untainted, to also cover the concealment, acquisition, use, or possession of proceeds of crime and their projection as untainted;
  • It allowed for a provisional attachment of property under Section 5 to happen even without a Chargesheet being filed for the Scheduled Offence;
  • It severed the connection between the trial for a Scheduled Offence and the attachment of property under Section 8. So, an acquittal for the Scheduled Offence did not automatically result in releasing attached properties anymore;
  • It imposed an advanced set of positive obligations on entities under Section 12 to proactively combat money laundering;
  • It created a mechanism for the retention of property seized or frozen during searches conducted under the Act by amending Sections 20 and 21;
  • It relaxed the strict reversal of the persuasive burden of proof and introduced a concept of rebuttable presumptions under Section 24 of the Act;
  • It allowed for a transfer of prosecutions for Scheduled Offences pending before other courts to the Special Court adjudicating the money laundering offence under Section 44;
  • It instituted additional penalties through Section 63 PMLA for non-compliance with notices to furnish information issued under Section 50 PMLA.
The validity of the amendments was subjected to an omnibus challenge in K. Sowbhagya v Union of India (decided on 28 January 2016), but the Karnataka High Court dismissed the petition in a lengthy decision. A few months later, we have the Repealing Act come in May, 2016, striking out the changes from the statute books. Why? None of the four Law Commission of India reports on repealing obsolete laws refer to the 2012 Amendment Act, and I have not found any discussion in the public domain elaborating upon this process (the Press Information Bureau merely carried this note).  The best I found was a draft for the Repealing and Amending Act 2014, where the 2005, 2009 and 2012 amendment acts were all mentioned. That doesn't explain much either.

From what I have been able to find out, then, with effect from 6 May 2016, none of those changes to the PMLA remain in force, and for all prosecutions instituted after this date, the legislation  must operate as it existed prior to the 2012 amendments. Given the magnitude that this possibility carries, I think I might be mistaken, and would definitely appreciate any assistance in this regard in discovering if something has been missed out.


A helpful friend pointed out Section 6-A of the General Clauses Act 1897, which as interpreted by the Indian Supreme Court in Jethanand Betab (AIR 1960 SC 89) suggests a Repealing and Amending Act merely prunes the statute book, and the effect of the amending act continues. Why only repeal the latest edition of the amending acts? I don't know. But this sure puts the controversy to rest!

(This post was updated on 28 May 2017 at 11 PM IST to add the post-script. Thanks to Nidhisha Phillip for pointing out where I was going wrong!)

Saturday, May 6, 2017

Supreme Court Affirms Death Sentence for December 16 Incident - Some Thoughts

The Supreme Court yesterday affirmed the death sentence awarded by the Trial Court, and confirmed by the High Court, in the case resulting out of the gang-rape incident that occurred in New Delhi on December 16, 2012. The decision was lapped up by raucous applause we are told, as "justice had been done". Seeing the circus that followed on national television led to some thinking and this post follows. The comments are frankly unoriginal, and are merely confirming what many of us know and understand. 

Criminal Law in the Age of Consumerism
Perhaps history will remember the first decades of the 21st century as the apogee of the age of consumerism and service-oriented thinking. Consumerist ideology has affected all facets of life, most notably government and governance. Good governance manuals now emphasise that this is a service being offered to citizens, and citizens have grievance redressal mechanisms galore akin to making complaints at a shopping mall. 

How has this affected the traditional understanding of criminal law? Significantly. There are books (David Garland's The Culture of Control an excellent one) which discuss this phenomenon. One thing that the present incident puts in the spotlight is how the consumerist ideology has brought victims in the spotlight. Criminal law classes begin by telling us how here the state is the victim - which is why most cases are prosecuted by state agencies. Crime is about harm to society, and the victim was not really given much importance. Slowly, though, this changed. If security is a service offered by the state, of which the criminal law was a facet, then it made sense to accede to victims demands for greater inclusion in the decision-making process. This would increase satisfaction with the system. This, like most other things, accelerated drastically with 24 hour television cycles. It became obvious that crime sells, and so maniacal reporting with amazing graphic (more on that later), little insight, and opinion polls through SMS came here to stay. Obviously, all this is class-specific, so the security concerns of the rich and middle class naturally get more air-time and attention than those affecting the poor. 

The legislative changes are there to see - India has allowed for victims to appeal against acquittals for some time now. This was unimaginable around thirty years ago. The present incident and the media coverage surrounding it just shows how far we've come down the road. Here, there is little else but the victim's perspective that is commented upon everywhere. 

Justice seems to have become rather One-Sided
A very wise lawyer once told me that our statutes created courts of law and not courts of justice, and so I should not lament over seemingly bad decisions. But what really is justice? If I was to take a shot at it, justice best serves as an adjective, describing decisions by looking at the means and ends both. A just decision is not only one arrived at in terms with proper processes of law, but also one that takes into account the rights and interests of every party involved. Given how scholars since Aristotle have been taking a shot at this, I'm pretty certain that my crude understanding is rather inadequate. Still, the idea of justice being something wholesome is something that can be found across philosophers, and can serve as one of the markers.

That wholesomeness seems to have been entirely abandoned in the present case. Nearly every news outlet ran pieces titled Justice for Nirbhaya. These ran with images of the adult perpetrators being crossed out with Hanged (eerily similar to the montage in the first Death Race film which was based on a system of lawlessness). Possible arguments advanced by the defence, on both conviction and sentencing, were brushed aside summarily. The bloodlust was chilling, but hardly novel. In all such cases, wherever there is extensive media coverage and sympathy for the victim, it becomes anathema to raise arguments supporting the rights of an accused person. This is mots extreme in terrorism trials, where persons are routinely denied fundamental human rights but those issues are airbrushed because of the threats to national security. 

In this regard, the Supreme Court deserves to be lauded for the effort it took to hear arguments on sentencing. The Court accepted specific affidavits addressing mitigation factors to consider whether the case fell within the rarest of rare standard (something which was not done in either of the courts below).

Extreme Cases and Lessons to Learn
Make no mistake, this case was extreme in terms of its brutality and violence. Extreme cases often lead to extreme reactions, so it is said, and therefore must not be used as markers to gauge a system. There is much merit in this. It is also valid to argue that extreme cases bring out latent tendencies and show exactly what each of us expects from the criminal justice system. Reactions to the present case leave me with little doubt that debates on abolishing the death sentence in India are a tad redundant. This is saddening, for there is nothing as arbitrary as the infliction of the death sentence in India. Perhaps more disturbing is the perception that those arguing for the defence are somehow bogeymen, delaying the inevitable. Such a view distorts the crucial role that the defence plays in ensuring that justice is not only done but in fact seen to be done. Alas, it would seem that the idea of justice, itself, may no longer be the same.

Tuesday, April 18, 2017

A Heretic's Guide to Section 154 CrPC and Registration of FIR (Part II)

A while back, this blog begun a discussion on Section 154 Criminal Procedure Code 1973 [Cr.P.C.], the provision considered as the basis for perhaps the First Information Report [FIR]. The previous post had covered important history and ran through the previous incarnations of the procedural code. This exercise laid bare the various little tweaks that eventually resulted in the current Section 154 Cr.P.C. We left the post with one pointed observation: till the 1882 Code, the relevant provisions merely spoke of every information or complaint given to the police. From 1882 onwards, though, the statute now referred to situations where the public gave information relating to the commission of a cognizable offence. The issue, then, was this: who decided whether the information provided to the police relates to a cognizable offence?

Revisiting Lalita Kumari 
This question lay at the heart of the reference made to a Constitution Bench of the Supreme Court in Lalita Kumari v. State of Uttar Pradesh [(2014) 2 SCC 1]. The Court was called on to decide whether it was mandatory for the police to register an FIR in each and every case. If Section 154 Cr.P.C. privileged the viewpoint of the police, then discretion was inbuilt into the provision to allow police to not register cases where it thought information did not relate to commission of a cognizable offence even where the complaint stated otherwise. But, if the viewpoint of the informant was seen as driving Section 154, then every complaint stating a cognizable offence is committed must result in an FIR.

Before this, an overwhelming majority of decisions had held no discretion ought to be present with the police, barring some very particular cases. For instance, Jacob Mathew [(2005) 6 SCC 1] held  an FIR ought not to be immediately registered on a complaint alleging medical negligence against doctors. At the same time, the Supreme Court was not ignorant of how one's liberty could potentially be curtailed if an FIR was registered naming her. This possibility of abuse had led various states (led by Maharashtra) to argue for a discretionary model. The fallacy of the argument was that possibility of improper enforcement does not make the law bad, and it was not surprising to see the Supreme Court reaffirm the line of authority which held an FIR had to be registered

This meant the Court thought the perspective of a complainant / informant is what guides the phrase "information relating to the commission of a cognizable offence" found in Section 154 Cr.P.C. Before concluding, though, the Court gave a set of 'conclusions / directions' [In Paragraph 120 of the SCC version]. These allowed for the police to conduct a 'preliminary inquiry' in cases where "the information received does not disclose a cognizable offence". This preliminary inquiry can last for 21 days [the initial time-limit of 7 days was changed in March 2015] and if the officer concludes no cognizable offence is made out then the informant must be notified. The court indicated that "as to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case" but went ahead and specified five areas as illustrations where an inquiry may be conducted: (i) matrimonial cases, (ii) commercial offences, (iii) medical negligence cases, (iv) corruption cases, (v) cases with abnormal delays on reporting (over 3 months). 

Effectively, the Court bought the abuse argument and undid all the previous 119 paragraphs telling us that registration of an FIR is mandatory and how immediate registration brings various benefits. Not only this, but as subsequent practice across courts would reveal, the case has perversely given birth to an argument that preliminary inquiry must be conducted in the cases that find specific mention in the concluding paragraph. So, not only did the Supreme Court permit 21 day delays on the registration of an FIR, it also compounded delays by giving rise to petitions challenging the registration of FIRs where no inquiry was done. On a more theoretical level, we see how the Court never really answered the reference. In fact, the concluding paragraph leaves the basic question in limbo. If anything, it tells us that at the end of the day, it is the police whose word decides whether or not information is relating to commission of a cognizable offence in Section 154 Cr.P.C.

A Heretic's Guide to Section 154 Cr.P.C.
Since this part of the post offers proposals that are never going to see the light of day, we can call it my purely academic pursuit and proceed further. Reading Sections 154, 155 and 157 together, I argue that Section 154 was never meant to deal with something like the FIR as it exists today across most police rules. In this reading, I am buttressed by history and the evolution of these provisions over the various re-drafts of the code. The FIR is a historical oddity, for which the correct statutory basis, if any, is Section 157.

Take a moment and go back to the 1861 and 1872 versions of the Code. The evolution seems focused on (i) record-keeping through entry into a diary, and (ii) ensuring the genuineness information by making informants sign on it. Nothing in these provisions, and even in Section 154, spoke about the investigative powers of the police. That, always, had been the prerogative of Section 157 and its predecessors. 154 talks about information, 157 says that "from information or otherwise" the police can investigate. Before 1882, this scheme neatly refused to comment upon the kind of offences disclosed in the information sections which, at the cost of repetition I state, was unfortunately blurred in 1882 by Section 154 and Section 155.

Even so, what is clear is that Section 154 neither speaks of reports nor does it speak of investigations. Section 157 speaks of both. Section 157 says that if the police officer "has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to the Magistrate ..." If the officer thinks there is insufficient grounds to investigate, then the officer is required to explain this in the report and notify the informant. If you look at an FIR [I have not been able to find one blank FIR online] you will find all these requirements etched out in various columns. This, together with everything before, confirms my suspicions that the big header that reads "First Information Report under Section 154 Cr.P.C." on an FIR is certainly legally incorrect. It should have always been Section 157. If we do that now, then all this confusion is taken care of as well. Just insert the time-limit of 21 days into Section 157 and the entire Lalita Kumari architecture is rendered superfluous.

To conclude, I offer my alternate reality. In my world, Section 154 would simply mean registering the information received by the police in a diary / register / notebook / computer. Section 155 would operate if the police thought that the information disclosed a non-cognizable offence. The informant would be referred to the Magistrate, who may yet be convinced that the information disclosed a cognizable offence and then Section 156 allows necessary directions to be passed. Section 157 talks about cases where the police thinks a cognizable offence is disclosed / is told that such an offence is disclosed [Section 156(3)] and decides what to do next. This creates a report, which would be called a First Information Report, since this is the first information the Magistrate receives of the possible offence. Lalita Kumari would never have happened, and the docket might have been a shade lighter.

Tuesday, April 11, 2017

Snippet: Increasing Penalties for Traffic-Rule Violations Makes Roads Safer?

The short answer to the titular question here is, no. The Motor Vehicles (Amendment) Bill, 2016 is soon going to become law and is being largely hailed across platforms as a gamechanger. It brings in a lot of new things which are necessary - revamping definitions, including aggregator services, reworking the insurance and compensation provisions. But, sadly, it simply treads the all-too-familiar path of hiking penal tariffs in a bid to curb bad road behaviour. 

I have argued on this blog (a long time ago here) that this routine understanding of deterrence is fraught with problems. A rational decision-maker will consider costs posed by breaking the law, and the likelihood of being caught at that moment. The lesser the likelihood of being caught, the lesser any possible sanction will impact my behaviour. Duh, right? The fact that nobody seems to be stating the obvious at this moment is pretty infuriating, forcing me to say it all over again. To assume that adding another zero to the quantum of fines is going to deter people from driving rashly, or taking the wheel when drunk, is daft. Anybody who travels by road can tell you that the problem isn't just the existence of sanctions, but it is their enforcement. 

How often do traffic cops cut challans (fines) after stopping vehicles suspected of violating traffic rules? A simple attempt to map the disparity between these two events (the stopping of a vehicle vs. issuing a fine) and then reducing the arrears would probably achieve far more towards making our roads safer than another increase in penalties. And it is simple - just add recorders on the motorcycles that the traffic police use. That technology is inexpensive and easily accessible, and would deter the corruption that is rife in this field. Maybe this solution is also too naive. In fact, I'm sure it is. But it is surely better than simply raising the sceptre of more stringent punishment, ignoring how this will also proportionately increase the corruption plaguing the system at present. 

Tuesday, March 28, 2017

The Shifting Sands of Adversarial and Inquisitorial Systems in India

In his Hamlyn Lecture titled The Common Law in India delivered in 1960, MC Setalvad argued that the Indian criminal process contained several similarities with the British system. For him, India had adopted the Adversary System of Trial (page 45-47), which was a core precept of the Common Law. He went ahead to observe: "Equally rigorous is the application in India of the rule of Common Law which is said to put justice before truth. The decision, whether in a civil or a criminal trial, has to be rendered solely on the evidence put forward by the tribunal." To recap, this Adversarial system is in contrast with the Inquisitorial system that was a hallmark of Continental Europe. There, the judge has a far more active role to play towards eliciting the truth rather than merely administer justice.

Contrast his observations with those in the Order dated 26.08.2016 in CC No. 01/2016 titled 'CBI v Gondwana Ispat Ltd & Ors' passed by the Court of the Special Judge appointed for the 'Coal-Block Allocation Scam Cases'. Throughout this 27 page order, the Court is at pains to remind us that "the ultimate quest of a trial is to ascertain truth and this journey of ascertaining the truth cannot be defeated merely on the whims and fancies of an accused." This rhetoric is in place to support logic relied upon by the Court to conclude that the fundamental right against self-incrimination under Article 20(3) of the Constitution is not available during the process of admission-denial in a criminal trial. Though the Special Judge does not invoke the term 'inquisitorial', the extract would snugly fit into the court orders from Continental Europe where countries adopt the inquisitorial method.

So, what is it to be for India, the adversarial or inquisitorial? The Criminal Procedure Code 1973 [Cr.P.C.] and the Indian Evidence Act 1872 [IEA] offer our criminal process a convenient shape-shifting ability. So the only answer is, well, either that India has a unique method that combines bits of both worlds. This intermixing is quite thorough and can be found in the investigation stage as well. When the police are investigating the courts are not supposed to interfere and decisions since the Privy Council verdict in Nazir Ahmed [AIR 1945 PC 18] offer support for this view. But together with this we have Section 156(3) in the Cr.P.C. which empowers a Magistrate to direct the police to investigate. This was extended to include a power to monitor investigations by the Supreme Court in Sakiri Vasu [(2008) 2 SCC 409] to further bump the shift away from an Adversarial System. One might argue that the views of Mr Setlavad were restricted to trials and so this is an unfair criticism. But even in trials, we have devices such as Section 165 IEA, which allow a court to ask any question from a witness or summon any document, regardless or relevance. Since this had always been on the statute-book, we can rightly question whether Sakiri Vasu is nothing but a restatement of inquisitorial tendencies that have always been around.

The Coal-Block Allocation Scam Cases
If an outside observer, akin to Professor Hart's companion throughout The Concept of Law, came to India and only looked at the trials before the Court of the Special Judge appointed for the Coal-Block Allocation Scam Cases then I am quite certain she would go home with a view that we are steeped in the inquisitorial tradition. The proceedings have explicitly and / or impliedly carried further the views of decisions such as Sakiri Vasu to bring about some very interesting consequences. As I have argued above, this is something that is bound to happen owing to the inherently ambiguous stance in our laws, and isn't a problem in itself. Ambiguity in law generally nourishes problems though, and it has so happened on a few occasions in these proceedings. I focus on two of these here, one from the realm of investigations and the other based on the trial.

First, is the device adopted by the Court of refusing to accept Chargesheets / Closure Reports filed by the CBI if it thinks certain areas have not been covered. Effectively, the Court tells the CBI to further investigate and then come back with a fresh report. In some cases, the Court has rejected multiple Closure Reports before it took cognizance once the CBI had filed a Chargesheet that it deemed acceptable (just search "coal closure reject cbi" in Google). Given that the same court is going to hear the case, issues of bias naturally arise. If the court thrice rejected the CBI view that certain persons had not committed any offences, would a trial before the same court not give rise to the appearance of a reasonable apprehension that the court is biased against the accused persons and they would be denied a fair hearing? In my opinion it would certainly give rise to a reasonable apprehension, warranting the case be tried by a different judge. In fact, this problem is also present when a Magistrate rejects a Closure Report to summons the accused persons for trial. These proceedings can perhaps be seen as nothing but the logical conclusion of that process in a world where Sakiri Vasu allows Magistrates to monitor investigations.

Second, is the use of Section 294 Cr.P.C. by the Court, which was referenced at the beginning of this post. This provision concerns the process of admission-denial of documents, and was the issue at hand in Gondwana Ispat. It was argued there that accused persons could not be forced to make any statement under Section 294 Cr.P.C. as it contravenes the guarantee against self-incrimination. The Court held otherwise and concluded that Section 294 Cr.P.C. consciously excluded a right to silence for accused persons. The Court reasoned that allowing an accused to remain silent would defeat the very purpose of Section 294 Cr.P.C., and the Legislature was aware of Article 20(3) but intended to exclude it from this area. This conclusion was largely driven by drawing an analogy with Section 313 Cr.P.C. (which deals with the statement of an accused, given without oath), which expressly speaks of an accused choosing to remain silent when faced with a question. This argument is incorrect for it holds a statute can be interpreted to exclude the application of Part III of the Constitution. This is contrary to the very idea of Part III. Whether or not there are specific allusions to a right to silence within the Cr.P.C., it nonetheless remains subservient to Article 20 of the Constitution.

The other logic employed by the Special Court is more interesting for this post - that allowing an accused to remain silent and possibly adopt different stands would not only "lead to an unending trial but it will rather cause impediment in the course of justice as it will be extremely difficult for the Court to render justice based on truth." I have read this a few times and yet, I cannot appreciate the genesis of this concern. When, if ever, would an accused willingly adopt multiple stands in a case in respect of evidence? But assuming such an example does exist, and the accused is happily changing stands as frequently as players change football clubs, from where is the Court deriving an obligation on the accused to help render its justice based on truth? Historically, an accused was not a competent witness till the late 19th, early 20th century. And even then, it is only if the accused chooses to come in the witness box. Given that answers under Section 294 Cr.P.C. are also made under oath, the Court has done indirectly what could not have been done directly.

What's in a Name?
A lot, clearly. MC Setalvad was not entirely accurate to state that India wholeheartedly adopted the Adversarial System. On a deeper scrutiny, it is clear that our criminal process has always had traces of both, the Adversarial and Inquisitorial Systems. Such an equivocal position is far from ideal, and the problems with having backdoors are being realised in the litigation that is currently taking place in the Coal-Block Allocation Scam cases, and to an extent occurred before in the 2G Scam as well. There is one common element between these settings, and that is the pervasive involvement of the political with the judicial branch of the State. Could it be that the court is more willing to resort to its inquisitorial powers because it is pressurised to deliver results? We may never know. What we do know is that in its efforts to deliver truth-based justice, the judiciary is clearly cutting far too many corners. The 2G Scam cases saw the rights of accused persons being traded for nebulous values of 'public interest' and 'speedy justice'. These have been further employed in the Coal-Block Allocation Scam hearings to achieve new results. As things stand, all of these issues are pending before the Supreme Court which means nothing is settled. But, with the speed at which cases are being heard before the Special Court in Patiala House, it may be that 'speedy justice' comes at a cost too dear.

(Disclaimer: The author has assisted in proceedings arising out of the Coal Block Allocation Scam cases, arguing for the accused)