Wednesday, February 7, 2018

Vignettes - Man Mohan Das and the Supreme Court of India

(This post first appeared on the Law and Other Things Blog)

On March 12, 1968, Justice Amar Nath Grover had completed a month of being on the Indian Supreme Court. His appointment was one of the last acts of K.N. Wanchoo as Chief Justice, who was himself replaced by M.C. Hidayatullah on February 25, 1968. In a tradition continued till today, the newest judge sits together with the Chief Justice and another judge, to ease her in. In this case that other judge was Justice Vaidialingam (on the court since 1966). The bustling hallways of the Supreme Court had seen great controversy in the past few years with an escalating ‘battle’ between the Court and Parliament over the scope of the latter’s power to amend the constitution itself. 

But none of this was in the air on Wednesday, March 13 1968, and the justices were not announcing any decision of comparable importance as Golak Nath. When Man Mohan Das entered the Chief’s Court at around 2:30 PM, the Chief Justice was sitting in the middle, flanked by Justice Grover on his left and Justice Vaidialingam on his right, and was delivering an opinion in a criminal appeal filed by the State of Gujarat (it was State v Chinubhai, a prohibition case). Engrossed in their business, nobody paid attention to Das, in regular clothes and not lawyer’s robe, who entered the courtroom and strode purposefully towards the bench. It must have taken a few seconds for him to cover those twenty odd yards that separate the entry doors from the bench where the judges sit. Before anyone knew it, Man Mohan Das was standing atop the dais and facing the judges. He had a knife in hand, and had now moved from the dais to the judges’ table.

Since the Supreme Court’s security back then did not involve thorough checks and keeping all our biographic data, precious little is known about Man Mohan Das (or Mono Mohan Das, depending on the news report you read). The news reports and the sparse material suggest this much was deduced by the police. Das was probably born in Murshidabad, West Bengal; he was also probably not poor, having been to England to see a doctor regarding issues about mental ‘fitness’, and having otherwise travelled across several parts of India as well. Das reportedly bore some ‘grudges’ against the West Bengal Government, but he was no political activist. 

For some reason though, he certainly harbored a peculiar dislike towards courts. Das had shattered a tubelight in a courtroom of the Bombay High Court while it was in session, and for this he was sent to prison for a year in July, 1967. Evidently, he escaped, and travelled to Delhi. He was probably working at a tea stall on one of Delhi’s two prominent railway stations before this incident. Nothing showed Das had any personal connection to either of the three judges, or Chinubhai (who won his appeal, incidentally). And yet, on March 13, 1968, he climbed the famous steps of the Indian Supreme Court, entered the court, climbed the dais despite the court staff being there and brandished a Rampuri knife before the Chief Justice of India. 

We all know that nobody died in that courtroom on March 13, 1968. That was largely due to Chief Justice Hidayatullah. Appointed to the bench nearly a decade before and as the youngest ever Supreme Court justice, the Chief Justice had gained respect in his time on the Court. In his work on the Supreme Court, Professor Gadbois Jr. comments that Hidayatullah did not get any favors from the Indira Gandhi government after retirement because of his “reputation as a judge to stand up to the government”. He was fearless, never more so than when he faced Man Mohan Das standing before him on the dais. 

The Chief Justice first hurled an inkstand at Das and, in the time he gained, he quickly used the ungainly seat-cushion of his chair as a shield to successfully ward off the blow that came. Das then tried knifing Justice Vaidialingam but missed. As Das was about to strike Justice Grover, the Chief grabbed the assailant’s arm and prevented him from striking a clean blow. In the ensuing scuffle, Justice Grover got a gash on his scalp while Das fell from his table to the ground, where he was finally overpowered by the throng of lawyers and staff members that had probably been transfixed in horror watching the scene before them. Justice Grover was rushed to Willingdon Hospital (since renamed as Ram Manohar Lohia Hospital) near Delhi’s central post office by Justice Vaidialingam and the Chief Justice, “his clothes stained with blood and ink.” Remarkably, court proceedings were not halted for the day – after a brief interruption of about forty minutes, the judges returned to their duties. 

The incident was heavily reported at the time and called for an urgent mentioning in parliament, giving the meagre opposition some fodder to attack the government. The Home Minister made a statement the next day and attempted to defend the vociferous attack made against his government on the supposedly dismal state of security services for the Supreme Court. In the middle of this heated debate, various members took a moment to record the ‘deep sense of appreciation’ towards the Chief Justice. Not only for his courage, but also for his reportedly refusing to make any comments to the media to ensure “the assailant should have a proper and fair trial.” 

What happened to that assailant, Man Mohan Das? He was arrested and taken into custody, probably kept in the guard room where one member (A.D. Mani) reported to having seen him wearing ‘rags’. Das was produced before a Magistrate the next day and remanded to police custody. He would continue to remain in police custody for another two weeks after which his name disappears from records. Why did he do this? Was he really mentally ‘unfit’ as the police seemed to have assumed? Were they merely operating on stereotypes? Was he beaten whilst in custody? Was he ever given that fair trial that the Chief Justice desired for him? We may never know, because barring scattered references in parliament, news reports, and some judges’ biographies, there is seemingly no mention of this shocking event in the history of the Indian Supreme Court.


Sources:

1. George Gadbois Jr., Judges of the Supreme Court of India, pp. 85, 88, 128, 136 (2011).
2. O. Chinnappa Reddy, Humpty Dumpty with Alice in the Wonderland of Law, p. 23 (2011). 
3. Government of India, Rajya Sabha Debates, pp. 4593-94, 4636-44 (Mar. 13, 1968); pp. 4714-23 (Mar. 14, 1968).
4. ‘Das Remanded Again’, The Times of India, p. 7 (Mar. 26, 1968).
5. ‘Das Remanded to Police Custody’, The Times of India, p. 6 (Mar. 24, 1968).
6. ‘Motive for Das’s Crime Not Established’, The Times of India, p. 7 (Mar. 16, 1968).
7. ‘Das is Remanded to Custody’, The Times of India, p. 1 (Mar. 15, 1968).
8. ‘Judge Stabbed in Supreme Court: Assailant Stated to be Bombay Ex-Convict: Heroic Rescue by Chief Justice’, The Times of India, pp. 1, 9 (Mar. 14, 1968).

Tuesday, January 23, 2018

India Needs to Rethink how we Prosecute Crime

In December 2017, the special court appointed to hear the 2-G Spectrum cases delivered a verdict - each of the defendants was acquitted. Not because of some arcane technicality, but because the court examined the evidence, and at the end of a nearly 1600 page long decision said that where the world was being asked to see a huge scandal, there was none. Little has been said about the verdicts: I doubt many people except criminal lawyers are ever going to actually finish 1600 pages, and then, the entire episode seems like it happened so long ago making it not very newsworthy. In the few days immediately after the verdict though some websites were carrying excerpts out of the decision which contained a stinging rebuke to the manner in which the prosecution was conducted (I am referring to paragraphs 1810-1812 for those interested). The court lamented the disjointed stand put up by those in the government's corner; the Special Public Prosecutor appointed by the Supreme Court, the Senior Public Prosecutor who normally works in court, and the CBI Inspector who had handled the case.

This raises an important question, albeit indirectly: how do the prosecutors and investigators work together in the Indian criminal justice system and whether this is the best way to run things? Speaking to those outside the court system, I found it interesting that not many people knew how things worked to begin with, which gave this post some purpose.

Prosecutors and investigators do not normally work together. Investigations are usually entirely in the hands of the police and once a chargesheet is filed in court, the prosecutor comes in the picture and functions as the voice of the government's case. The police takes a backseat and moves on to the next case while the prosecutor takes charge, and the investigating police officer comes whenever possible to give help. Who are these prosecutors? They have been described as a' limb of the judicial process' and are appointed by government either from a cadre of officers (like most of Indian bureaucracies) or in consultation with the local judiciary, with different states having their own rules for selection etc. Most of this procedure came in with the 2006 amendments to the Cr.P.C. Since the average lifespan of most criminal cases is beyond two years, it is rare for prosecutors to continue with the case from start to finish because administrative transfers happen much more frequently. For instance, while I am personally unaware of the 2-G scam cases, I do know that the prosecutor changed in the ongoing Commonwealth Games cases. This means they have relatively little skin in the game. If we are thinking about comparative examples then Indian prosecutors would seem much closer to prosecutors in civil law systems as against those in common law countries. And extremely far from American prosecutors: to call them apples and oranges would be understating the differences.

Was this strict separation between police and prosecutor always the case? No. In fact, at the time of independence, prosecutors fell under the control of the police rather than the local government or judiciary. While I am unaware of qualitative contributions made by prosecutors during investigations, it is likely that there was still greater synergy in how cases were investigated and prosecuted. But the problems seem to have outweighed the benefits. The Law Commission since the 14th Report onwards is considered to have consistently argued that the police and prosecutor should be separate, and the current legal regime reflects how the Law Commission's ideas have been accepted by successive governments (I say considered, because there is some variance between what the 14th Report says and what the 197th Report thinks it says). Has this helped the Indian criminal process? I would argue that it hasn't and, in fact, is bad for the system. Time and again we get high-profile examples like the 2-G scam which show us that if the police had a keener eye for what might be evidence in a case then the outcome might have been different. Or if the prosecutor knew the facts then she could have presented them better. But we don't need high-profile examples like the 2-G scam to tell us that the system is messed up: the data is right there. Since the 1990s, the police have been filing cases far more regularly than the system can handle them. This reflects that the incentives of police do not include what happens to cases once they reach court. Should that be so? Not at all. Enough studies have shown that if persons know their cases will languish in courts for years, the deterrent effect of sending anyone to prison takes a bit hit. So, one of the key goals of having criminal prosecutions gets defeated.

Indian politicians bemoan low conviction rates (hovering around 50% for IPC offences), and cases like the Arushi murder trial help whipping up sentiment against the supposedly primitive ways of the police. But as the numbers show, blame should also be apportioned to how cases are prosecuted in courts. Prosecutors in the district courts often function on extremely meagre resources, having no office but only a space reserved inside the courtroom they are appointed to serve, and ordinarily handle a complex docket that has upwards of thirty matters, consisting of bail hearings, arguments for arraignments, recording evidence, and final arguments on guilt or innocence. They are often not paid on time as well. The previous lines are describing New Delhi, the capital, so one can only imagine the situation in non-metro cities. Where prosecutors are able to compete effectively in cases where clients cannot afford to put up a good case, the mismatch in cases like the 2-G scam becomes painful to watch. While those defendants may win, there are still casualties in the system, because then we find judges try and make up the handicap by diluting the presumption of innocence and ask defendants to do more than they need to for establishing reasonable doubt. Or they want more from the defence lawyers simply because they get used to the low standards of contribution from prosecutors because of the systemic problems I described. Whatever be the case, the process suffers.

For years India has been gaining infamy for a tediously slow judicial system. If anything, data suggests that things won't change by simply having more judges and more courts as we might be led to believe. This is a complex problem, and has many parts that need to be addressed. Reforming how we prosecute crime needs to become one of these parts, and urgently.

(This post was amended on January 28, 2018 to correct references to the 14th Report of the LCI)

Monday, December 18, 2017

Article Update - Plea Bargaining in India

I have been working away on a short essay on plea bargaining in India which is now up on SSRN. Crudely put, 'plea bargaining' refers to a method where the accused pleads guilty to the crime, and this voluntary plea brings certain benefits in the form of a lenient sentence or conviction for offences that are less serious than the ones initially brought. In the paper, I explore why plea bargaining has become the dominant method of resolving criminal cases and then explain the Indian process. I try and explain the Indian criminal process to present it in contrast with the American model, and argue that the main reason why plea bargaining has failed to take-off in India (currently, less than 0.05% of all cases under the penal code are resolved by plea bargaining as per NCRB data) is the badly designed model that we have. The paper does not address the argument of whether plea bargaining is a good or bad process, but I think my biases become evident through the paper.


The paper is consciously written in a way to make it accessible to anyone and not only lawyers. It is accessible here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3085659

Comments would be lovely. 

Saturday, November 25, 2017

Bail Provisions of Section 45 PMLA Struck Down - Some Hits and Misses

Two days ago, a Two Judges' Bench of the Indian Supreme Court decided a batch of writ petitions led by Writ Petition (Crl) No. 67 of 2017 titled Nikesh Tarachand Shah v. Union of India & Anr. [Nikesh Shah] in which it struck down the parts of Section 45 of the Prevention of Money Laundering Act 2002 [PMLA] which concerned the grant of bail. The Court held that these parts violated Articles 14 and 21 of the Constitution - guaranteeing a right to equality, and protection against deprivation of the right to life and personal liberty by a procedure not established by law. The effect of this judgment is that bail petitions earlier subject to a stringent standard under Section 45 PMLA will now be tested on the less taxing standards of Sections 439 and 437 of the Criminal Procedure Code 1973 [Cr.P.C.]. This post has four parts - (i) explaining how money laundering and the PMLA work (which I'd urge you to skim through even if you're a lawyer, because at times the judgment reflects some lack of knowledge on the Court's part), (ii) charting out how the Court did what it did, (iii) showing where the Court goes wrong, and finally (iv) what this judgment might mean for the many other statutes with similar clauses that have not been examined by the Court yet. 

What is the PMLA, What are the Schedules, and What does Section 45 do?
The PMLA is India's answer to its global commitment to tackle money laundering, which (at the cost of oversimplification) means representing assets obtained through illegal acts as untainted. In line with global standards, the PMLA covers all kinds of conduct connected with this process of representing black as white (doing, aiding, abetting, attempting etc), as long as one knowingly did so [Sections 3 and 4]. The PMLA not only makes this is an offence but also triggers connected civil actions of attaching and confiscating the tainted assets themselves [Sections 5-8]. 

Notice how the entire idea of money laundering is linked to some underlying illegal act which results in generating some proceeds - cash or kind. While some countries don't require that illegal act to be a crime, India does, and the PMLA calls it a 'Scheduled Offence' [Section 2(y)] i.e. offences that are part of the Schedules to the PMLA. There are three Schedules - A, B, and C - and Schedule A contains the bulk of offences and Schedule C is basically the same thing applied in a transnational context. Schedule B contains only one offence - Section 132 of the Customs Act 1962 which criminalises making false declarations before customs officers. Importantly, when the underlying offence is one from Schedule B, the PMLA will only apply if the allegations involve a value of at least one crore rupees. There is no such minimum monetary limit for cases with Schedule A offences. It wasn't always like this, and the history behind these Schedules became quite important in Nikesh Shah which requires me to discuss it here.

When the PMLA came into force in 2005, Schedule A only had two paragraphs carrying offences punishable under the Indian Penal Code 1860 [IPC] for waging war against India and nine offences from the Narcotics, Drugs and Psychotropic Substances Act 1985 [NDPS Act]. Schedule B contained the bulk of offences, along with a lower minimum threshold of thirty lakhs for the value of allegations. Then around 2010 India wanted to join the Financial Action Task Force [FATF] as a member. The FATF is a global body created by the G-8 for money laundering and membership is a big deal [India is the only South Asian member state till today]. When the FATF conducted its evaluation of Indian money laundering laws, it heavily criticised the monetary limit for the cases in Schedule B [paragraph 167 of the linked report]. The logic was that the limit would allow money laundering to escape under the radar as people would just deal in smaller tranches over a slightly elongated period of time. So the FATF recommended the limit be abolished [paragraph 175]. The government sought to do this by simply moving all Schedule B offences to Schedule A, which was done through the 2013 Amendment, leaving Schedule B empty for the time being.

In all this moving around offences, nobody thought fit to look at what impact it would have on the rest of the PMLA - specifically, on Section 45 which spoke about bail. Since the money laundering offence was tied to the Scheduled Offence, Section 45(1) looked at that underlying offence and this decided how difficult it would be to get bail. If it was a Schedule A offence with a sentence of more than three years, the law placed two additional conditions for getting bail: (i) the public prosecutor had to be given a chance to oppose bail, and if the prosecutor chose to oppose bail, then (ii) the court had to satisfy itself that the defendant was "not guilty of such offence" and was not likely to commit any offence on bail, and the burden fell on the defendant to satisfy the court. For all other Schedule A offences, and all Schedule B offences, the regular bail clauses from the Cr.P.C. continued to apply. You can see how the 2013 amendments to the Schedules completely changed the look of Section 45 - the exceptional process became the norm. This new normal was under challenge before the Supreme Court in Nikesh Shah.

SC on Section 45 - Violates Articles 14 and 21
Petitioners argued that the constitutional protections of Articles 14 and 21 were violated by Section 45 PMLA, and the Court agreed to both contentions. Rather than address arguments first and then move to the Court's appreciation, I discuss both together for brevity.

Article 14
The Petitioners argued that linking the stringent bail clauses to offences in Schedule A that carried at least a three year maximum sentence was creating several irrational and arbitrary classifications which the Court encapsulated through examples [Paragraphs 24-27, and 35]. The Court found no basis to differentiate the harsh treatment meted out under Section 45 from the following hypothetical cases which according to the Court did not attract Section 45:
  • When there is only the PMLA charge as the trial for the Scheduled offence was complete;
  • When the PMLA allegation is based on a Schedule B offence;
  • When the PMLA allegation is based on a Schedule A offence carrying a maximum sentence below three years;
  • When a person is tried for a Part A offence with at least a three year term (versus a joint trial where the same person is tried together with the person with PMLA charges);
  • When the person is released on Anticipatory Bail under Section 438 Cr.P.C. for allegations of the Scheduled Offence, before the PMLA charge was brought in. 
The Court was of the view that the seriousness of money laundering cases depended on the amount of money involved [Paragraphs 29-30]. Since Schedule A had no monetary limits, the Court concluded that the likelihood of being granted bail was being significantly affected under Section 45 by factors that had nothing to do with allegations of money laundering [Paragraphs 26-27]. When the Attorney General attempted to defend the scheme by painting the classification as a punishment-based one, the Court easily rebuffed his argument. First, the Court suggested there was no such scheme, but noted that even then, the idea should have something to do with the object of the PMLA. The Court showed how Schedule A had many offences that didn't seem related to money laundering [taking particular objection in Paragraph 34 to offences under the National Biodiversity Act being there], leaving out others that might have more rational connections to money laundering such as counterfeiting currency [Paragraphs 29-30]. The Court also adversely commented on how Schedule A had lumped different NDPS offences together, at the cost of ignoring how the parent Act treated those offences differently [Paragraph 32-33].

The Court noted also that Section 45 of the PMLA was different from other laws that carried similar requirements such as Section 20(8) of the Terrorism and Disruptive Activities (Prevention) Act 1987 [TADA]. The 'such offence' in TADA required a court to be satisfied that the defendant was not guilty of the TADA offence in question before granting bail. But in the PMLA, 'such' offence referred to the Scheduled Offence instead of the PMLA offence. So, the restrictions imposed by Section 45 PMLA were held to have no connection to the objects of the PMLA itself and thus the rational classification, if any, violated Article 14 [Paragraph 28].

Article 21
The Petitioners argued that requiring defendants to satisfy the court that they were not guilty of 'such' offence violated Article 21 by reversing the presumption of innocence and required the defendant to disclose her defence at the outset of the case. In the judgment the Court doesn't really address Article 21 independently - instead the Court suggest that because the provision violates Article 14 it cannot be 'procedure established by law' and therefore violated Article 21. Towards the end of the decision the Court begins discussing the argument though. It labels Section 45 a "drastic provision which turns on its head the presumption of innocence which is fundamental to a person accused of any offence." [Paragraph 38]. In the same paragraph it goes on to observe that "before application of a section which makes drastic inroads into the fundamental right of personal liberty guaranteed by Article 21 of the Constitution of India, we must be doubly sure that such provision furthers a compelling state interest for tackling serious crime. Absent any such compelling state interest, the indiscriminate application of section 45 will certainly violate Article 21 of the Constitution. Provisions akin to section 45 have only been upheld on the ground that there is a compelling state interest in tackling crimes of an extremely heinous nature."  

Hits and Misses
There are two questions that were at stake here: (i) did any part of Section 45 offend the Constitution, and if so, (ii) did the Court have no other option but to strike down the provision. Reading the decision, it seems like the Court felt there was so much wrong in the PMLA scheme it decided to throw the kitchen sink at one point rather than explain the issues. The Court answered both affirmatively but never explained to us whether any argument dispositive, or does every case need this sort of broad argumentation to succeed.

Classification and Article 14 first. After reading the legislative history behind the 2013 amendments and the FATF argument, do you think that the Court is right in concluding that higher the monetary allegations, more serious the PMLA case? I'm not so sure. Nor do I think there is much to be gained by placing emphasis (like the Court does) on how Schedule B today has a higher limit than the initial thirty lakhs to suggest that this is in fact the case. It is far more plausible that the one crore limit was placed keeping in mind the underlying offence (false declarations to customs officials in an enquiry) and the concerns of the export industry, which is already subject to Schedule A through Section 135 of the Customs Act 1962 (evading customs duty). Rather than attempt at answering what might be the basis for such a classification for the PMLA (and indirectly giving hints to the government on what might pass muster), the Court would have done well by restricting itself to answering whether the present classification between (i) PMLA allegations based on a type of Schedule A offences versus (ii) all other PMLA cases was intelligible and connected to the objects of the PMLA. As there was enough to show that the original intent (if any) behind Section 45 had not kept apace with the subsequent amendments to the Schedules in 2013, the Court could strike down this classification. But did that require striking down the whole clause?

This brings us to the other part of what did that classification achieve. If it sought to serve as a filter for PMLA cases when it came to administering a strict bail clause, we are left with no filter. Does that mean no PMLA case is serious enough to warrant an application of the clause, or will the clause apply to every PMLA case? Deciding this would need the Court to decide whether clauses such as Section 45 that required a court to find defendants 'not guilty' at the bail stage were constitutional. Rather than directly address this, the Court turned to how the text of Section 45 was flawed, as it referred back to the Scheduled Offence on deciding bail petitions. Since the scheduled classification had been struck down, there was nothing to refer to, and so the clause had to go. While there is little to fault this approach, I remain unconvinced that the Court had no option but to strike down the clause because of the text. The Court has performed far greater feats of legislative reconstruction than being asked to read 'such offence' in Section 45 PMLA as referring to the PMLA allegations rather than only the Scheduled Offence. After all, it stands to reason that a bail provision in the PMLA would want a PMLA special court to consider the PMLA allegations. In fact, many High Court decisions show this is how they were doing it. Heck, this is how the Court itself was doing it in Rohit Tandon at the start of November [Paragraphs 21-23 of the link]. I think this course was adopted as it helped secure two objectives. Not only did this take care of the PMLA clause which this bench of the Court clearly did not like much, it also helped to protect other statutes with similar clauses which the Court held met a 'compelling state interest' test.

This brings me to one last bit about Article 21 and the Eighth Amendment of the U.S. Constitution. The Court cites a previous decision in Rajesh Kumar v. State (NCT) of Delhi [(2011) 13 SCC 706] for the proposition that Article 21 of the Indian Constitution has incorporated the Eighth Amendment and its protection against excessive bail [Paragraphs 13, 19 of Nikesh Shah]. The Court also cites two American decisions [Paragraph 37] on bail for good measure. This is, unfortunately, wrong. Rajesh Kumar cited previous precedent in Sunil Batra to suggest that even though India did not have the Eighth Amendment or the 'Due Process' clause, the consequences were the same to prevent cruel and unusual punishment. Not only did both those decisions not mention the excessive bail clause, the references to the cruel and unusual punishment clause itself are highly contentious as an earlier bench of the Supreme Court had held it couldn't be pressed in India, and that decision continues to be cited

Conclusion
The slapdash manner in which the PMLA Schedules were amended in 2013 to appease the FATF had already caused some High Courts to address this issue of Section 45. The closest it came to striking down the clause was the Punjab & Haryana High Court's decision in Gorav Kathuria v. Union of India & Anr. where it held the bail provisions would not apply retrospectively to offences previously in Schedule B [Paragraphs 43-45 of Nikesh Shah]. When the Court declined to hear an appeal against the High Court order in Kathuria I thought that it had indirectly affirmed the validity of Section 45. The judgment in Nikesh Shah comes as a surprise, and marks the first occasion when the Court has looked at any part of the PMLA through a constitutional lens. There are other parts that are equally problematic - the asset forfeiture scheme and the compulsion on witnesses to make truthful declarations, for instance - that litigants may take to the Court being encouraged by this judgment.

As for the future impact of Nikesh Shah on other statutes that carry the same 'drastic provision', the stage is set for some litigation on that front as well. The Supreme Court has only approved of the TADA and the MCOCA provisions in the past, leaving the many others open to scrutiny on this new test of whether the provision furthers a 'compelling state interest'. The Court never answered that for the PMLA context while deciding the petitions in Nikesh Shah. Do you think it might conclude that the PMLA does not meet the test? What about the other statutes? I've re-pasted my list of statutes containing the clauses below after accounting for the ones that are not relevant anymore. Comments, as always, are welcome.
  1. Section 437(1), Cr.P.C. (in cases of death and life imprisonment).
  2. Section 12AA (inserted in 1981), of the Essential Commodities Act, 1955.
  3. States of Punjab and Tripura inserted this provision as Section 439-A to the Cr.P.C. so applicable within their territory, in 1983 and 1993 respectively. This restricted bail to persons accused of certain offences, inter alia Section 121, 124-A IPC.
  4. Section 37 (amended in 1989) of the Narcotic Drugs and Psychotropic Substances Act 1985 [NDPS].
  5. Section 7A (inserted in 1994) of the Anti-Hijacking Act, 1982. 
  6. Section 6A (inserted in 1994) of the Suppression of Unlawful Acts against Safety of Civil Aviation Act 1982. 
  7. Section 8 of the Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act 2002.
  8. Section 51A (inserted in 2002) of the Wildlife Protection Act, 1972.
  9. Section 43D (inserted in 2008) of the Unlawful Activities Prevention Act, 1967 [UAPA] (nearly identical).
  10. Section 36AC (inserted in 2008) of the Drugs and Cosmetics Act, 1940.

Thursday, November 23, 2017

Flash - Supreme Court declares PMLA bail provisions unconstitutional

The Supreme Court has today held that Section 45 of the Prevention of Money Laundering Act, 2002, is unconstitutional. While the decision is not yet out here is an excerpt from the news:
A bench led by Justice Rohinton F Nariman struck down Section 45 in the PMLA to the extent that it refuses bail to the accused on the basis of twin conditions. 
The first condition says that no bail can be given without giving the public prosecutor an opportunity to oppose the bail plea. The second condition stipulated that the bail can be given only when the concerned court is prima facie satisfied that the accused is not guilty of the offence alleged against him. 
These two conditions made grant of bail virtually impossible in money laundering cases and the maxim tend to be shifted from “bail is rule and jail an exception” to “jail is rule and bail an exception”.
If the Supreme Court has really done as the news suggests, this is potentially a ground-breaking decision. This Blog had discussed in an earlier series of posts how such reverse-onus clauses in bail provisions are littered across various statutes. The Blog had also argued how their operation renders bail an illusion while drastically curbing the presumption of innocence (for those posts, see herehere, and here). More to follow once the judgment comes out. In the meanwhile, I've copied the list of statutes here that can potentially be affected:
  1. Section 437(1), Cr.P.C. (in cases of death and life imprisonment).
  2. Rule 184 of the erstwhile Defence of India Rules supplementing the Defence of India Act 1971. 
  3. Section 12AA (inserted in 1981), of the Essential Commodities Act, 1955.
  4. States of Punjab and Tripura inserted this provision as Section 439-A to the Cr.P.C. so applicable within their territory, in 1983 and 1993 respectively. This restricted bail to persons accused of certain offences, inter alia Section 121, 124-A IPC.
  5. Section 20(8) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 [TADA].
  6. Section 37 (amended in 1989) of the Narcotic Drugs and Psychotropic Substances Act 1985 [NDPS].
  7. Section 7A (inserted in 1994) of the Anti-Hijacking Act, 1982. 
  8. Section 6A (inserted in 1994) of the Suppression of Unlawful Acts against Safety of Civil Aviation Act 1982. 
  9. Section 21(4) of the Maharashtra Control of Organised Crime Act, 1999.
  10. Section 8 of the Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act 2002.
  11. Section 45 of the Prevention of Money Laundering Act, 2002.
  12. Section 51A (inserted in 2002) of the Wildlife Protection Act, 1972.
  13. Section 49(7) of the Prevention of Terrorism Act, 2002 (nearly identical). 
  14. Section 43D (inserted in 2008) of the Unlawful Activities Prevention Act, 1967 [UAPA] (nearly identical).
  15. Section 36AC (inserted in 2008) of the Drugs and Cosmetics Act, 1940.

Thursday, November 9, 2017

The Rajasthan Ordinance, and Seeking Sanction to Prosecute and Investigate Public Servants in India

In September 2017, the Rajasthan government issued an ordinance that sought to (i) make it necessary for investigating authorities to first get sanction from the government before pursuing allegations against a public servant, giving the government up to six months to consider, and (ii) bar any person from disclosing any details about the concerned official until this permission had been granted. The Government has since moved a bill in the legislature to make the law permanent, while the ordinance itself has been challenged before the Rajasthan High Court which is yet to decide the case. News media has seen few supporters barring a Junior Law Minister in the Union government supposedly considers the ordinance 'perfect and balanced'. Most others are challenging it for stifling investigations and illegally curbing the constitutionally protected freedom of speech.  

Are there any merits to, if not all, then some parts, of the Ordinance? Might we see more such ordinances across states in the near future if Rajasthan's version passes judicial muster? I have been thinking about these questions, and here, I try and understand them through this post. Understanding needs context, which is often absent from discussions of sanction in India. This post begins with a brief historical introduction to the 'sanction to prosecute', flagging the recent constitutional problems surrounding the concept. I then try and suggest that the Rajasthan ordinance is the logical aftermath of the judicial treatment of sanction. This means, unfortunately, that this is a rather long post. I hope it isn't long and pointless.

The Imperial Lineage of Sanction to Prosecute
Most legal systems recognise the right of an individual to pursue legal remedies when her rights are violated. If you beat me up, I have the right to pursue a case in court against you. In India, this can happen by either approaching the police who might take the case to court after investigation, or by going to court yourself. Now, it is easy to imagine the possibility of this (or any) right being abused - I might bring a false case to harass my opponent. We address this through preventing or punishing such conduct. The idea of seeking permissions to bring lawsuits fits in the former, which is basically what seeking 'sanction to prosecute' is. An administrative superior acts as a filter to ensure frivolous cases are not brought in court against public officials. The Criminal Procedure Code 1973 [Cr.P.C.] carries this filter in Section 197, which requires prior sanction to 'prosecute' (this is important) public servants (both serving and retired ones) only when allegations concern things they did actually in the course of duty, or purporting to be so.      

But why public officials, you might ask. An educated guess is India's colonial context informed this decision to protect those associated with government. The colonial regime introduced sanction in its first comprehensive criminal procedure code of 1861 [Section 167, at page 186 of the link], and kept it in the 1872 Code [Section 466, at page 509]. The modern version of this which I referred to above came in the 1898 Code [also Section 197, at page 141]. Broad protections shielded those working for the government who, to put it mildly, did not hesitate to step beyond the bounds of law while discharging their duties. A harsh terrain mandated harsh methods, and to allow prosecutions would stifle the governance project (opening for potential historical research examining if native and British persons were treated differently when it came to granting sanction!). Though speculative, I think this idea fits better than the arguments floated in London to defend similar restrictions to prosecute (the link is for debates in 1934, but the law remained the same even before). English law focused more on the nature of the offence rather than the offender - sedition, corruption and other potentially sensitive allegations could only be pursued with the Attorney General's consent, while the Indian version focused on the identity of the defendant and covered every person under the pay of the government

Over time it seems this justification changes, as seen from debates in the House on the Government of India Act 1935, which gave constitutional bases to protections for public servants from suits and prosecutions [Sections 270-71, at page 105. Fascinating, showing the crown was concerned about soon-to-be-elected local governments possibly changing the law on this front]. The legislature spent more time discussing civil suits, but the debates are useful for the criminal prosecution issue nonetheless. Mr. Thorp (column 54) spoke of how it was 'introducing a dangerous principle'  to India and could hurt genuine cases, while the Duchess of Atholl (column 55) spoke of apprehensions that the clause 'falls short of what civil servants feel to be necessary'. This largely mirrors the divide that we see today. Bureaucrats consider it necessary to have these protections to perform their duties while aggrieved persons consider them as impediments of entitlement. 

Independent India and the Opportunity Doctrine 
What became of the requirement of sanction in independent India? Well, it was quickly subjected to a constitutional challenge. In Matajog Dobey [AIR 1956 SC 44] the petitioner argued that Section 197 violated the equal protection clause by giving public servants protections from legal proceedings that others did not have. The Court swatted this aside by holding that public officials 'have to be protected from harassment in the discharge of official duties' while ordinary citizens did not. The vast category of public servants under the pay of the government - both union and state - was thus recognised as a class separate from all others, a distinction that has not been displaced. 

This did not mean the judiciary was not concerned with the debates that I highlighted above. In fact, the concern was palpable. High Courts before independence, and later the Supreme Court too, were acutely aware of the tightrope being tread - read the requirement too narrowly and you render the protection illusory, but read it to cover everything a public servant does and you make accountability a mirage. The judicial device created to navigate this problem was what I will call the 'Opportunity Doctrine' - if public office merely gave an opportunity to commit crime, then there was no need to get sanction. But where the alleged criminal acts were inseparable from the office and were 'integrally connected' to official duty, sanction was a must. So, if a public official misuses the privileges of office (goes on a joyride with government sponsored fuel) then prosecuting that offence should not require sanction. But if a municipal authority colludes with one real-estate developer to allot land at cheap rates, then we may need prior sanction to prosecute.          

The malleability of the Opportunity Doctrine should not go unnoticed - beyond the obvious cases it left a huge middle ground to be navigated with little more than gut instinct. For instance - what about the bank official who pilfers funds for his own use? Did his job merely grant an opportunity, or was it integral to the crime? The judicial grappling with sanction had a significant impact on the text itself. For starters, the test ignored that Section 197 never required an integral connection with duty: it's needs were met even if the acts were purportedly in discharge of duty. Since sanction was a tool to filter cases at the outset, it naturally required this broad scope. Considering whether sanction was needed in post-conviction review (appeals) by courts slowly dislocated it from its preventive roots. After all, how willing would a judge be to reverse a conviction arrived at after a lengthy trial on the technicality of there being no sanction to prosecute an official? This version undoubtedly tapers over the cracks but it would be difficult to argue that the broad shifts are not as I suggest.  

The Intra-Branch Dialogue and Sanctions to Investigate 
Thus we see how courts assumed control of the sanction to prosecute after having refused to strike it down as unconstitutional. Did this happen in a vacuum? Or did the legislature and executive - consisting several public servants protected by sanction - react? They did, and pretty quickly. In 1969 the government passed directions to the Central Bureau of Investigation that prevented it from starting any investigations against high-ranking public servants before getting permission. This was the 'Single Directive'. The thinking is clear - courts are applying a hindsight test which does not filter well, so lets go further back in time and filter at the institution of criminal cases. While doing this, the government impliedly admitted that the sanction protections are too broad to justify the rationale of their protecting public decision-making. Of course decision-makers must be treated differently from the ordinary rank-and-file bureaucrats, and so the latter would not be granted these protections.    

The Supreme Court did not agree that the public servants could be segregated like this. When the Supreme Court held this arrangement illegal, the government responded by re-introducing it almost immediately. When the Court slapped on the government's knuckles it retreated and withdrew the proposed change. But in 2003, it went ahead and amended the law to give it firm footing. While India's major political parties often don't look eye to eye, these moves were made both by the Congress and BJP led governments, showing a fairly clear indication of legislative will. What happens next? This statutory provision [Section 6-A of the Delhi Special Police Establishment Act 1946] was also struck down as invalid by the Court in 2014. On both occasions when the court struck down this protection, it did not overturn the Matajog decision to find sanction requirements were bad for creating an invidious classification between persons. Instead, the Court held that protecting only a class of bureaucrats was bad. How do you read this? Is the Court saying sanction should be limited to instituting prosecutions as done in the CrPC? Or is it saying that some public servants are not more equal than others, but all public servants are more equal than the rest of us. The second is a fair reading, and it was something the Court had agreed to in MK Aiyappa while handling sanction requirements under the Prevention of Corruption Act 1988 (a blistering commentary on the case can be read here). If the court reads the law this way, does it come as a surprise that others, such as the Rajasthan and Maharashtra governments, are doing the same? 

Past, Present, but what of the Future?
Maybe it is just me, but I can't help but notice patterns in how the law on sanctions to prosecute has been developing over time. There is a constant back and forth between the court and government - the court restricts its scope, the government expands it again. All of this was happening within the bounds of the constitution until the Supreme Court upped the ante and held the Single Directive to be unconstitutional in 1998. The government had been running the initiative for nearly thirty years to ensure lax sanction rules did not affect decision-makers, and the Court decided it didn't matter in the language which it could use - the Constitution. Was it inopportune? Perhaps. If the Court had a problem with having a sanction requirement then it should have said it outright. If it didn't, then there were better methods of dealing with the situation than refusing to acknowledge the few merits in the Single Directive scheme and starting a power tussle with the government. Today, because of how the Court avoided the forest for the trees, I think it will be hard for the Rajasthan High Court to hold that needing permission to start an investigation against public servants is unconstitutional. That might just convince the remaining BJP led states to pass similar laws, eventually bringing us back to the Supreme Court. Might the Court finally reconsider its position on all public servants being a separate class from the public?  

Tuesday, October 10, 2017

Prosecuting Public Officials for their Mistakes

(This post first appeared on the Global Anticorruption Blog and has been cross-posted with permission)


In July 2011, Yingluck Shinawatra became Prime Minister of Thailand after her party (founded by her brother, former Prime Minister Thaksin Shinawatra) won a decisive electoral victory. One of her principal campaign promises was to establish a program to purchase rice from farmers at above-market prices then store the rice to reduce supply. The hope was that doing so would increase world prices—because of Thailand’s position as the leading global rice exporter—ultimately allowing the government to sell at a profit. Shortly after the election, Yingluck’s government implemented this program, and it worked well for a few months—until other global players increased their supply of rice, causing Thailand to lose billions of dollars in the process. This economic debacle was entirely predictable—and indeed was predicted by many experts. And the program itself was beset by allegations of fraud and corruption in its implementation.
But should the failure of the rice-buying program be the basis of a criminal charge of corruption and a prison sentence against Yingluck herself, in the absence of evidence that she was directly involved in any embezzlement, bribery, or other more conventional forms of graft? Section 157 of Thailand’s Penal Code allows for just such a prosecution, as this section makes it a crime for a public official to either dishonestly or “wrongfully discharge or omit to discharge a duty so as to expose any person to injury.” And last month, the Thai Supreme Court found Yingluck (out of power since she was deposed by a military coup in 2014) guilty and sentenced her to five years in prison. She fled the country before the verdict.
Thailand is not alone in adopting anticorruption laws that criminalize not only dishonest conduct (bribery, embezzlement, conflict of interest, etc.), but also negligence or incompetence. When India updated its anticorruption law in 1988, it added a new provision that makes it a criminal offense for a public official to “obtain for any person any valuable thing or pecuniary advantage without any public interest.” This broad offense was interpreted by a state High Court to not require any proof of dishonesty or criminal intent, and the Central Bureau of Investigation (India’s premier anticorruption agency) has routinely employed the provision in grand corruption cases to avoid the problem of having to prove corrupt intent. In perhaps the most high-profile such prosecution, the agency went after an ex-Prime Minister, Dr. Manmohan Singh. Dr. Singh was the Minister of Coal at a time when the Government decided to liberalize allocation of coal-blocks and to sell mining rights to private parties. In 2014, the Comptroller and Auditor General’s office reported the policy had caused losses worth billions of dollars because the rights had been sold for too little, through a process that was too ad hoc to be considered legal. Dr. Singh was subsequently charged under India’s broad law, though his trial has currently been stayed while his challenge to the constitutionality the law is pending before India’s Supreme Court. (There are clearly concerns in other quarters about the breadth of this statute: In 2016 a Select Committee of the Upper House of India’s Parliament submitted a report that suggested India eliminate this offense. Parliament hasn’t yet acted on this recommendation, but there are signs that it has some support.)
Is it appropriate to enact broad anticorruption laws that allow government officials to be convicted for dereliction of duty, acting in a manner contrary to the public interest, and the like? Anticorruption activists and prosecutors may find such statutes appealing: It is easier to secure convictions of elected officials who are suspected of corruption, but where it is too difficult to prove the specific intent necessary for traditional corruption offenses. But in fact these broad laws are likely to do more harm than good, and countries like Thailand and India would be better off without them. There are three main reasons for this:
  • First, criminal prosecutions carry immense expressive value and signal to society that certain acts ought to be condemned. The message sent to society, when a court convicts a senior official for a policy failure absent any showing of dishonesty, is not likely to be that the government will not tolerate corruption, but rather that prosecutors and judges have broad power to jail leaders that they don’t like. This is only worsened by the inherently subjective nature of the crime in question. These prosecutions also blur the lines between genuinely dishonest conduct and policy mistakes, undermining the special condemnation that ought to be reserved for the former. On balance, even if prosecutions for dereliction of duty might enable prosecutors to convict leaders suspected of actual but unprovable graft, in the long term such prosecutions will only worsen the respect for rule of law in societies troubled by corruption in governance.
  • Second, and connected to the first point, such broad offenses raise the very real risk of politically motivated prosecutions. In countries where voters are angry about corruption, politicians often stress increased anticorruption prosecutions to show their commitment to reform. What better way to show such commitment then by attacking the alleged corruption of the previous regime? And this is much easier to do when the prosecutors (influenced by the new government) need not actually prove dishonesty, but need only find some alleged failure to fulfill a duty, or some act not in the “public interest.” Not only are partisan witch-hunts contrary to the rule of law, they also don’t always make for sound cases, and can ultimately dilute both the strength of using the courts as an anticorruption force and the faith of the public in the integrity of the institutions of justice.
  • Third, broad anticorruption laws that effectively criminalize negligence are likely to have an undesirable chilling effect on decision-making by public officials. When elected officials take bold moves they already run a risk of alienating their electorate and losing a re-election. Add to that the specter of eventual criminal liability once they’re out of office, and it officials are likely to become too timid to try anything even slightly bold or controversial. This fear of risk trickles down to any official tasked with implementing government policy.
To be sure, elected officials owe a duty to the citizenry to act in the public interest. If they fail to do so, and the failure can be proven to be due to dishonesty or greed, then more narrowly-drawn laws against bribery, embezzlement, and conflict of interest would apply. For serious errors that are made in good faith – or even in those cases where there’s suspicion of wrongdoing but it can’t be proved – there’s an alternative remedy already in place: elections. The political process is of course imperfect. Many Thais were likely frustrated that Yingluck didn’t seem to pay a serious political cost for the failure of the rice-buying scheme, and may have been relieved both by the coup that removed her from power and by her eventual conviction for dereliction of duty. But in the long term, the democratic process offers a better safeguard than allowing for politicians to be sent to jail for mistakes.