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)

Thursday, February 2, 2017

Lalita Kumari, Preliminary Inquiries, and Registration of FIR - Part I

The registration of a First Information Report (FIR) under Section 154 of the Criminal Procedure Code, 1973 [Cr.P.C.] is the commonest way for the Indian criminal process to get kickstarted. It comes as no surprise to learn that the FIR has thrown up a fair share of interpretive questions that have been judicially resolved over the years. The most recent of these judicial engagements came with a Constitution Bench of the Supreme Court considering whether it is mandatory to register an FIR, in Lalita Kumari v. State of Uttar Pradesh [(2014) 2 SCC 1, clarified vide Order dated 05.03.2014]. This two-part post first surveys the statutory history of Section 154 Cr.P.C., and then moves to engage with the Constitution Bench decision.

The Statutory History of the FIR
The current Cr.P.C. of 1973 was the product of intensive consultation and replaced the 1898 Code. This, in turn, was preceded by the codes of 1882, 1872, and 1861. It is worthwhile to see how the idea of providing information to the police develops through these statutes, particularly the jump from 1861 to 1882, where the relevant provision was also numbered Section 154. Along with this provision, I've also extracted the provision detailing the ordinary investigative steps to be taken by police officers when dealing with 'cognizable offences' [Section 2(c) Cr.P.C. 1973, also see here).   

1861 Code
Section 135: Upon complaint or information being preferred to an Officer in charge of a Police station of the commission within the limits of such Station of any of the offences specified in Column 3 of the Schedule annexed to this Act, as offences for which Police Officers may arrest without warrant he shall send immediate intimation to the Magistrate having jurisdiction, and shall proceed in person, or despite on of his subordinate officers to proceed to the spot to enquire into the facts and circumstances of the case, and to take such measures as may be necessary for the discovery and apprehension of the offender. ...
Section 139: Every complaint or information preferred to an Officer in charge of a Police Station, shall be reduced into writing and the substance thereof shall be entered in a diary to be kept by such Officer, in such form as shall be prescribed by the Local Government.
1872 Code
Section 112: Every complaint preferred to an officer in charge of a Police-station shall be reduced into writing, and shall be signed, sealed, or marked by the person making it; and the substance thereof shall be entered in a book to be kept by such officer in the form prescribed by the Local Government.
Section 114: If, from information or otherwise, an officer in charge of a Police-station has reason to suspect the commission, within his local jurisdiction, of an offence cognizable by the Police, he shall send immediate intimation to the Magistrate having jurisdiction, and shall proceed in person, or despite on of his subordinate officers to proceed to the spot to enquire into the facts and circumstances of the case, and to take such measures as may be necessary for the discovery and apprehension of the offender. ...
1882 Code
Section 154: Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a Police-station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the Local Government may prescribe in this behalf.
Section 157If, from information or otherwise, an officer in charge of a Police-station 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 a Magistrate empowered to take cognizance of such offence upon a police report, and shall proceed in person, or shall depute one of his subordinate officers to proceed to enquire into the facts and circumstances of the case, and to take such measures as may be necessary for the discovery and apprehension of the offender. ...
Lessons Through History - The Perspectives Analysis
These extracts offer some valuable insight. The provision detailing the powers of the police and what can and should be done when there is information of a cognizable offence, has remained nearly constant for over 150 years (Sections 135, 114, and 157). Compare this with how the provision on the information and complaint develops from 1861 to 1882, seemingly addressing concerns that the complaint is not genuine, by adding requirements to sign the complaint itself. Importantly, also note that there have historically been provisions that state a police officer may choose not to investigate if after receiving the information or complaint it appears that there is no sufficient grounds for entering on an investigation [Sections 136-137 Cr.P.C. 1861, Sections 116-117 Cr.P.C. 1872, and Section 157 proviso Cr.P.C. 1882]

What is more germane to this post is the intrinsic separation of perspective that these two provisions have historically displayed. Let me explain this using the 1872 formulation, which I think explains this most lucidly. Section 112 therein tells us that persons can prefer a complaint which is reduced into writing, and then we have Sections 113 and 114. If the police thinks it is a non-cognizable offence then a separate entry is made in the station diary and the complainant is sent to the magistrate [This provision was altogether absent in the 1861 Code]. Then Section 114 states the police officer "from information or otherwise ... has reason to suspect the commission within his local jurisdiction of an offence cognizable by the police" he shall either proceed to take action or decide not to. I argue that filing the complaint reflects the perspective of the complainant, and only afterwards does the viewpoint of the police comes into play to decide whether the information disclosed a cognizable offence or not. This, arguably, then indicates support for the view that the filing of complaints does not invoke the police viewpoint, which only comes in later.

The neat division that I draw is a historical relic though, because of Section 154 which came in 1882. From when it was introduced till the current version in the Cr.P.C. 1973, Section 154 has begun with the words "every information relating to the commission of a cognizable offence". Compare this to the earlier provisions - Section 139 in Cr.P.C. 1861 and Section 112 in Cr.P.C. 1872 - when the information or complaint filed with the police was not given any such description. This disturbs the flow that I drew earlier, that a complaint is filed following which the police decides whether it discloses a cognizable or non-cognizable offence. It, thus, raises the question which lay at the heart of the dispute that the Constitution Bench grappled with in Lalita Kumari: who decides whether the information in Section 154 relates to the commission of a cognizable offence?

Tuesday, January 24, 2017

Coal Block Allocation Cases and the Exclusion of Jurisdiction

The Supreme Court did three important things in Order dated 25.07.2014 in Manohar Lal Sharma v. Principal Secretary & Ors. [W.P. (Crl.) 120/2012]:
  • Directing the competent authorities to issue requisite notifications to appoint Mr. Bharat Parashar as a Special Judge to exclusively deal with “offences pertaining to coal block allocation matters”;
  • Transferred all cases pending before courts “pertaining to coal block allocation matters” to the Court of this Special Judge;
  • Clarified that “any prayer for stay or impeding the progress in the investigation/trial can be made only before this Court and no other Court shall entertain the same.”
The Delhi High Court in Girish Kumar Suneja v. CBI [Crl. M.C. No. 3847/2016, decided on 27.10.2016] dismissed a petition under Section 482 Cr.P.C. as being non-maintainable, being of the view that the Order dated 25.07.2014 passed in W.P. (Crl.) 120/2012 by the Supreme Court completely excluded the jurisdiction of the High Court (excluding appeals against judgments). 

Today, the Coal Bench of the Supreme Court posted a batch of eight connected matters for hearing on the 6th of February (including the challenge against the Delhi High Court order in Suneja). These cases, both directly and indirectly, challenge an important issue of law: the exclusion of the High Court in either appeals, revisions, or writ jurisdiction in the coal block allocation cases. This has been discussed earlier on this blog, and I develop those thoughts in this post in support of the position that such an exclusion is unconstitutional. 

Testing Article 14
In State of West Bengal v. Anwar Ali Sarkar [AIR 1952 SC 75], the West Bengal Special Courts Act 1950 was struck down as there was no guidance offered by Section 5 of that Act in prescribing which category of cases merited the special procedure, which greatly differed from the ordinary procedure prescribed in the Cr.P.C. 

The Supreme Court thus upheld, in principle, creation of a specialised procedure through statute to address a particular category of offences. In Kedar Nath Bajoria v. State of West Bengal [AIR 1953 AIR 404], the majority concluded that the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 suffered from no infirmities when it allowed the executive to selectively send certain cases to Special Courts, as long as they were from a selection of economic offences provided for in the Schedule. Similarly, in Asgarali Nazarali Singaporewalla v. State of Bombay [AIR 1957 SC 503], the Supreme Court upheld the validity of the Criminal Law Amendment Act, 1952, which created a special procedure for the trial of offences under Sections 161, 165, 165A IPC and Sections 5(2) of the Prevention of Corruption Act, 1947 (all provisions now repealed). 

In Re Special Courts Bill [AIR 1979 SC 478], the Supreme Court answered a reference under Article 143(1) of the Constitution of India, when the President sought consideration on whether the Special Courts Bill, 1978, was constitutional. On the issue of Article 13, the Justice Chandrachud (as he then was) provided a thirteen-limb test to judge the Bill, and found that it passed muster. 

Adopting the tests laid down by the Supreme Court, it is apparent that the Order dated 25.07.2014 is bad in law. It creates a distinct category of cases “pertaining to coal block allocation matters” without specifying the scope and extent of this classification. Nothing is provided to show how the present classification carries any objective, and how it is connected to such an objective in the first place. 

Just, Fair, and Reasonable?
The particular classification enforced by the Order dated 25.07.2014 creates a procedure that violates Article 21 of the Constitution, for it is not just fair and reasonable following the test of Maneka Gandhi v. Union of India [AIR 1978 SC 597]. The Supreme Court has, since Vineet Narain [(1996) 2 SCC 199; (1998) 1 SCC 226], reluctantly agreed to monitor investigations in certain sensitive cases. These ‘Court-Monitored Investigations’, have the agency report directly to the Supreme Court during investigation to the complete exclusion of other forums. However, as clearly held in Vineet Narain, the exclusivity came to an end with the completion of an investigation, and regular criminal procedure resumed.

In the present case, the exclusivity continues for the entire duration of the trial, and thus offends Article 21 of the Constitution. The concept of a fair trial is embedded within the notion of Article 21, and the idea of a fair trial encapsulates within it the concept of effective forums of Appeal. The adjudication in appeal or extraordinary situations by a constitutional court, i.e. the High Court, is certainly part of the fair trial guarantee under Article 21. The decision by a Division Bench of the Supreme Court in Shahid Balwa v. Union of India [(2014) 2 SCC 687] where such an exclusion was upheld must be reconsidered. The nebulous concept of ‘large public interest’ cannot override the concrete constitutional guarantees made to every person under the Constitution of India.

As the denial of adjudication by the High Court for only a vague category of persons is clearly contrary to Article 21, it must then be determined whether there is any law to save such discrimination. The order dated 25.07.2014, would not be law for the purposes of Article 21, and therefore nothing saves the violation of Article 21 in the present case. 

Violating the Basic Structure?
The very exercise of the judiciary creating a special procedure for the trial of certain offences is contrary to the Basic Structure. The creation of offences, and the creation of their procedure, is a function well-vested with the Legislature in the separation of powers fundamental to the Constitution’s basic structure. Such usurpation of power offends the system of checks and balances that is inherent in the Constitution. It is akin to the process of re-promulgating ordinances, which a Seven-Judge Bench of Supreme Court recently held to be a fraud on the Constitution [Krishna Kumar Singh & Anr. v. State of Bihar & Ors, Civil Appeal No. 5875/1994, decided on 02.01.2017].

Furthermore, the Supreme Court in L. Chandra Kumar v. Union of India & Ors. [(1997) 3 SCC 261] found the complete exclusion of judicial review by the Administrative Tribunals Act, 1985 to be contrary to the basic structure of the Constitution. The power of the High Courts under Article 226/227 was specifically found to be part of the Basic Structure by the Constitution Bench in L. Chandra Kumar. Therefore, the exclusion of jurisdiction perpetrated by the Order dated 25.07.2014 is illegal, and accordingly cannot be given effect to.

Although it is settled that judicial orders are outside the purview of Part III of the Constitution [Naresh Sridhar Mirajkar, AIR 1967 SC 1], this cannot be utilised to do indirectly what is impermissible directly. A Seven-Judge Bench of the Supreme Court in A.R. Antulay v. R.S. Nayak & Ors. [(1988) 2 SCC 602] reviewed and set aside orders passed by another bench of the Court in proceedings whereby a special, but illegal, procedure was created to address the trial of certain offences against the erstwhile Chief Minister of Maharashtra. While doing so, it was observed that “the power to create or enlarge jurisdiction is legislative in character, so also the power to confer a right of appeal or to take away a right of appeal. Parliament alone can do it by law. No Court, whether superior or inferior or both combined can enlarge the jurisdiction of the Court or divest the person of his rights of revision and appeal."

Sunday, January 15, 2017

The Sahara-Birla Diaries Controversy

The Supreme Court of India recently dismissed a plea demanding a 'court-monitored investigation' into the allegations of corruption arising out of papers seized from prominent Indian business houses, given the tabloid-friendly 'Sahara-Birla Diaries' moniker. Naturally, news reports that the Petitioners treat this as a setback, stating that the Court "abdicated its constitutional responsibility" in dismissing the claims. The Wire carried an interesting piece, arguing the dismissal ignored binding precedent in Lalita Kumari [(2014) 2 SCC 1], which was decided by five judges. This is my take on the affair, as it has unfolded so far.

The Ordinary way to Begin Criminal Investigations
The Criminal Procedure Code 1973 provides a clear process for bringing information of an offence to the notice of police [Section 154(1)]. The Constitution Bench in Lalita Kumari held that the police must register an FIR on this information, if it discloses a cognizable offence. What if the police fails to do this? The Supreme Court has repeatedly stressed how the ordinary procedure itself provides sufficient remedies as well, which is what aggrieved persons must trigger before running to the High Court or Supreme Court [See here, for a recent example]. If the police do not register an FIR, the law asks the complainant to move a superior officer [Section 154(3)], and eventually petition the jurisdictionally-proper Magistrate to look into the matter [Section 156(3)].

Did the Sahara-Birla Dismissal Ignore Precedent?
Lalita Kumari is a curious case which I hope to discuss properly soon. For now, it is enough to note that besides stating that registering the FIR is mandatory, the Supreme Court also legitimised a 'Preliminary Enquiry'. According to Paragraph 120 [SCC Version] of the decision, the Enquiry is a measure to prevent the immediate dismissal of complaints. The police were tasked with double-checking whether a complaint did not disclose cognizable offences before discarding it. In all of this, the Court insisted that the quality of information cannot be judged at this stage. 

The Wire piece uses this conclusion in Lalita Kumari to argue that the Supreme Court ought to have decided differently, rather than dismissing the information as lacking any cogent material to support them. Attractive as it may seem, the argument is devoid of substance. First, the Wire piece does not engage with why the ordinary procedure was ignored to begin with. If we are talking about Lalita Kumari, where do the Petitioners show that the FIR was not registered on a complaint they filed? The second and third problems are linked, and these concern the failure to appreciate subtle differences between the Enquiry as spoken of in Lalita Kumari with a Preliminary Enquiry done by the CBI. The Wire piece does not note how Lalita Kumari expressly does not deal with a CBI investigation or Court-Monitored Investigation, which is what this case was all about. Since Lalita Kumari never came into the picture, there is no question of the Bench ignoring it here. 

The Court Monitored Investigation as a process started with another set of diaries, the 'Jain Hawala Diaries'. Then, as now, papers were found linking payments to politicians and a Writ Petition was filed in 1993 alleging inaction by the CBI [the political nature of which was noted recently on the Blog]. Only after carefully considering the matter and the allegations did the Supreme Court decide to 'monitor' the investigations. This meant the case was regularly listed, with investigating agencies providing regular updates while insulating the matter from the executive. So, one could in fact argue that the Supreme Court has upheld precedent in the 'Sahara-Birla Diaries' case by not immediately moving to a court-monitored probe. 

Conclusions - Another Arrow for Independent Investigations
There is nothing, anywhere in the law, about why some sensational claims should deviate from the ordinary procedure. Yet living in the times of the 2-G, Coal, and Black Money Scandals, many think it only natural that the non-partisan judiciary take care of such sensitive investigations. It seems to be forgotten that the Supreme Court itself in Vineet Narain [while dealing with the Jain Hawala Diaries] repeatedly emphasised on how the ad-hoc procedure it created was not ideal and in fact showed the necessity for immediate structural changes in our investigative agencies. Simply put, handling investigations ought not to be the Court's job. The dismissal of the request for a probe can be given a positive spin - the Court puts the foot down and presses for changes that India's investigative agencies so desperately require. The lamentable state of affairs is summed up nicely by the case at hand: the Writ Petition here was filed in 2015 alleging corruption surrounding the appointment of the Chief Vigilance Commissioner, head of the institution that birthed from the ashes of Vineet Narain. Lets hope the future contains fewee false dawns.