Monday, March 11, 2024

Jail is Not the Rule - Restrictive Bail Conditions, After Independence (Part 1)

(This is the third post in a series on restrictive bail regimes)

The previous post considered restrictive bail regimes in India's pre-independence context. In the first of two posts, we travel through independent India's history to look at such regimes.

Partition and Post-War Scarcity

It appears that the earliest instance of a restrictive bail regime in post-independence India came a few months after independence, in the form of the East Punjab Armed Bandits (Arrest and Detention) Act 1947. This law was promulgated to replace an ordinance that had come in less than a month after August 15, 1947, and its provisions give a glimpse of the enormity of violence which was unleashed in the wake of partition in the Punjab region, and the kind of measures resorted to by the state to try and restore a semblance of normalcy. Section 3 thus conferred powers of arresting without warrant any member of an "armed band"; and where resistance was offered to arrest, it legalised using violence to the extent of causing death. Arrested persons were to be sent to 'Concentration Camps' as per Sections 4 and 5 - one can only imagine the treatment envisaged by the state which adopted this language even after the war had given this term such monstrous connotations. 

In this remarkable statute, what interests us is Section 9, which carried forward the legacy of Rule 130-A of the Defence of India Rules (which had been repealed by now) and prescribed that "no person accused of an offence made punishable by this act shall if in custody be released on bail" unless (a) the prosecution was given an opportunity to oppose bail, and (b) "where the prosecution opposes the application the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence".

Partition was not the only problem for a nascent Indian republic. A serious issue was post-war shortages in the economy which remained regulated through a complicated system of licenses and controls. The acuity of shortages in essential supplies was not helped by corrupt public servants, hoarders, and profiteers. Official sentiment against such undesirables was so severe that debates in India's Constituent Assembly (which functioned in a dual capacity till 1950) and even its Provisional Parliament contain speeches advocating the harshest measures to be deployed, including flogging in the public square. 

You can see where this is leading to. The fight to ensure essential supplies are secured was on a 'war-footing' for the country; an emergency requiring emergency legislation. It was with this mindset that, in 1950, the Provisional Parliament looked to amend the war-time Essential Supplies (Temporary Powers) Act 1946 to enhance its deterrent effect. Besides stiffening penalties and cutting corners in trials, what else did the Provisional Parliament do? Introduce a restrictive bail regime for certain specific crimes through Section 13-A of the Act.

The legislative debates around this specific amendment had been discussed on the Blog earlier. The government accepted that the lineage of the amendment went back to the War, but argued that the issue presented a similar emergency. There were attempts to change the 'not guilty' framing, which placed the burden on an accused, with the old Criminal Procedure Code framing which required the prosecution to first demonstrate that there were reasonable grounds to believe a person was guilty. But these attempts were in vain, and Section 13A was added to the law without any modification.

What the earlier post on amendments to the Essential Supplies (Temporary Powers) Act 1946 did not consider was its history outside of the Provisional Parliament. This suggests that prior to amendments in the central law, there were already provincial statutes covering the same field which had introduced the Rule 130-A style restrictive bail regime, and extended it to any crime under these laws making it much more expansive than the central law introduced later. Furthermore, the proposal to insert a clause identical to Rule 130-A for the central law appears to have been refused initially. Instead, the government seems to have been happy with only adding the requirement for courts to ensure the prosecution was heard, while leaving out the problematic 'not guilty' clause. What prompted the change of heart in the few months leading up to the amendment bill being introduced in the floor of the house? I am sure the answer is in the archives, but I have not been able to locate it yet.

There are some judgments applying the restrictive bail regime found in provincial laws dealing with essential supplies, as well as the central amendment brought in 1950. In Rajulal v. State (1950), the Rajasthan High Court commended on the undesirable state of affairs created by the regime which allowed one party to exercise an undue influence over the course of bail proceedings. Similarly, in Abdul Shakoor (1951), the Rajasthan High Court confirmed that the restrictive bail regime of the central law was comparatively more limited in its reach than the prior state laws. The task of interpreting the central law fell to the Calcutta High Court in Badri Prosad (1951) where a lorry driver was arrested, having been found in possession of bags of rice without a permit. While he claimed lack of knowledge, both the magistrate and sessions court denied bail holding that the presence of rice meant there were no "reasonable grounds" to believe the applicant was not guilty of the offence.

Both Justices Mukharji and Mookerjee agreed that the applicant ought to be released on bail, but the seriousness of Section 13-A prompted them to write separate opinions. Mukharji J. stressed on the limited reach of the clause, and cautioned courts to ensure that allegations against an accused genuinely fit the contours of the specific offences to which the restrictive bail regime applied. In respect of the application of Section 13-A itself, Mukharji J. noted that there were similarities between the Section 13-A and Section 497 of the Code, but went on to observe that:

Here, however, a word of caution is necessary. It is time that there under Section 497, Criminal P. C., what prevents bail is the reasonable ground for believing that the accused is guilty. That in actual practice works more favourably to the accused in the sense that at the early stages, before the regular trial has started, it is easier for the Court without the full materials to say that there are no reasonable grounds for believing that he is guilty and thus admit him to bail. But in a case, however, under Section 13A, Essential Supplies Act, it is the converse and more difficult case of reasonable ground for believing that the applicant for bail is not guilty. It is difficult because in actual practice it is bound to be unfavourable to the applicant for bail in the sense that at the early stages, before the regular trial bas started, it will ordinarily be difficult and may in some cases be impossible for the Court to say without sufficient materials that there are reasonable grounds for believing that he is not guilty. But that is the handicap which the statute has imposed in this case. [Emphasis mine]

Mookerjee J. agreed, noting that Section 13-A was a "drastic departure from the Code and as it undoubtedly works to the prejudice of the accused its seriousness cannot be underrated."

How to proceed then in considering a bail application and deciding whether there were reasonable grounds to believe a person was not guilty? Here both Justices appealed to a judicial logic built upon care and "utmost circumspection" in handling the material which was scanty at best at this stage and geared to assist the case of the prosecution. And, crucially, both Justices were emphatic in their belief that this clause did not oust the presumption of innocence, and rejected arguments by the state that this presumption did not operate at the bail stage. This presumption, according to Mukharji J., was a factor for courts to consider while deciding bail applications and ignoring it would be an "entirely erroneous" approach at the stage of bail. Thus, even though the inquiry required a court to discern whether there were any reasonable grounds to believe a person was not guilty, this was undergirded by respecting the presumption of innocence. 

Changes to the General Law

Living as we are at a time when the existing criminal codes are due to be replaced, there has been a fair bit of commentary around previous efforts at bringing reform, or lack thereof. In this regard, the received wisdom is that there was hardly any change in administration of criminal law during the early years of independent India, and proposals were consolidated and pushed through with the introduction of a new Criminal Procedure Code in 1973. 

Research suggests that this view is quite incorrect and the 1950s were, in fact, as dynamic an era as any in respect of conceiving and considering amendments to administration of criminal law in India. As early as 1951, the central government began consultations on revamping the criminal process, and introduced a draft bill in 1953. This bill, which was finally passed by both houses in 1955, towers above both the 1973 Code as well as the 2023 Sanhita, in terms of the kinds of changes it introduced to the process. While a much longer study is required to fully appreciate the place of these efforts and their impact on the law, for now let us focus on what it did for the bail process. 

There are three sets of changes relevant here; the first two pertain to the bail clauses, and the third to the overall administration of criminal law. First, it is interesting to note that the central government refused proposals to make bail stricter, raised by some states such as Uttar Pradesh. The U.P. government had sought to amend the general law on bail and take it back to something like the pre 1923 position, i.e. depriving magistrates of the discretion to grant bail for certain offences where reasonable grounds for inquiring into guilt could be shown. The proposal was rejected as being too restrictive on matters of liberty, as it meant that no bail would be granted during investigations. Second, in consonance with the belief that bail needed to be made more liberal, what the 1955 Act did was to introduce sub-clause (3A) in Section 497, which made bail a matter of right even for non-bailable offences, where trials before magistrates could not be completed within six weeks after having begun. It was the first time that a 'default' bail logic would find its way into the statute.

Third, is the changes in matters of administration of the law. In a bid to speed up the trial, two critical shifts were made. The committal process was radically altered: taking it away outright for many prior kinds of cases, and shortening it where it was retained by, for instance, taking away the right of cross-examination of witnesses. Recognising that this would leave accused persons short-changed, the 1955 Act introduced a parallel change mandating that the copies of the chargesheet, along with copies of statements of witnesses and documents relied upon by the police, were to be supplied free of cost to an accused person even before trial began. 

Members of Parliament who were lawyers could not contemplate doing away with committal. They argued that framing of charge had to be conducted without any proper evidence but only on the basis of the chargesheet and unsigned statements recorded by the police which were notorious for their unreliability and legally barred from being treated as evidence. In other words, charge had to be framed based only on the police version, that too upon inadmissible police statements. Not much attention was paid to the potential impact these changes would have on how bail applications are considered. The gradual easing-out of committal meant that the unreliable and inadmissible police statements would now dominate how courts would decide whether reasonable grounds to believe guilt existed or not, further worsening the position of an accused and enhancing the power of the police in ensuring bail is rejected.  

Turmoil, and War Again    
The end of the 1950s witnessed great turmoil across various parts of country, and India was at war with China at the start of the next decade. The turmoil in Punjab over the Punjabi Suba movement saw the state government invoke various measures to curb the agitation, which included an amendment (following an ordinance) in 1960 which introduced the restrictive bail regime for certain kinds of crimes. When the War came, the central government re-introduced the Defence of India Act — now the Defence of India Act 1962 — with its Rules. This time, the restrictive bail regime was there from the start, in the form of Rule 155 which copied verbatim the text of Rule 130-A of the Rules from the pre-independence war regime.

It did not take long for bail petitions to reach the High Courts under the 1962 Rules. I only flag two such cases here, which reflect the broader theme prevailing across the decisions of this time. In Govindankutty (1963), the Kerala High Court was dealing with the bail application of a publisher accused of printing a report prejudicial to the war effort. Rule 155 was invoked by the prosecutor to justify opposing bail. Dealing with the clause, the High Court observed that:
It is stated that this Rule is quite unreasonable and repugnant to the elementary notions of Criminal Jurisprudence that a person is presumed to be innocent until it is proved that he is guilty. Neither the Act nor the Rules indicate any attempt to depart from these well-settled principles. Rule 155 merely indicates that where a person is accused of an offence under the Rules the court may not liberate him on bail pending the trial, except when it has reasonable grounds to believe that he is innocent. When the court comes to decide the case, it must acquit the accused if the prosecution has failed to establish the charge. Whether unreasonable or not laws lawfully made have to be given effect to by courts. It must be remembered that many provisions which would appear very harsh or unreasonable in peace time may be justified by necessities of war [Emphasis mine].
The parallels in language used here with the Madras High Court's opinion addressing the legality of the Defence of India Rules in 1942 in Bhuvaraha Iyengar (discussed in the last post) are striking. 

The High Court in Govindankutty noted that the validity of the rule had not been challenged. Seven months later, the same bench (Govinda Menon J.) dealt with such a challenge to Rule 155 in Hermen D'Cruz (1963). The High Court dismissed the challenge, relying on similar dismissals by High Courts to challenges against the validity of Rule 130-A raised during the Second World War, such as Bhuvaraha Iyengar. It was as if nothing had changed with the passing of the Constitution and India becoming independent. Much like the Madras High Court before it had done, the Kerala High Court now noted that since "grave charges" were levelled in the FIR and the chargesheet, it was "impossible for any court to be satisfied that there are reasonable grounds that the petitioner is not guilty of the contravention of the rules."

Summing Up

War, followed by a tragedy that was nothing short of a war, and then a war again. These were contexts in which a restrictive bail regime was prescribed which circumscribed not just powers of magistrates to grant bail, but also sessions courts and the High Courts. Besides the social and political context surrounding these statutory clauses, attention must also be paid to their catchment area. Even the Defence of India Acts did not introduce a catch-all clause that made the restrictive bail regime applicable to all crimes. Instead, the idea was to pick and choose the kinds of offences justifying these harsh measures. When it came to circumstances akin to war in the eyes of the legislature — essential supplies and the Punjab agitations — the catchment area of the restrictive regime was even narrower, and applied to crimes which had a prima facie element to them which gave the accused at least some chance to be able to discharge the onerous burden placed upon him. Thus, being caught with goods without a license was a situation which the accused could very well explain. This was unlike the wartime measures which imposed restrictions on bail for conduct such as publishing 'prejudicial reports', proving which relied a great deal on the subjective satisfaction of wartime censors and the courts as to the contents of materials.

The next post will turn to statutory developments from the 1970s and thereafter, bringing us to the most recent avatars of the restrictive bail regimes.

Monday, March 4, 2024

Jail is Not the Rule — A History of Restrictive Bail Regimes Pre-Independence

 (This is the second post in a series discussing restrictive bail regimes)

This post looks at restrictive bail provisions through Indian legal history, drawing the line at India's independence. The next post will look at post-independence history. A similar exercise was attempted several years ago on the Blog, and a gradual increase in digitisation has meant that even within this short span of a decade, one can try to offer a more nuanced and textured presentation of the issues involved here. However, since this post is, again, based on publicly available material, it may have missed out on some facets, and readers are advised to keep that caveat in mind. 

Restrictive Bail Provisions and the Criminal Procedure Codes pre Independence

If we look at bail provisions in the Criminal Procedure Codes of 1882 and 1898 (prior to 1923) in terms of non-bailable offences, it would appear that bail really was the exception for the colonial regime when it came to magistrate courts [the gradual changes to the regime are captured in this paper]. Section 497(1) in the 1898 Code (common in material aspects with the 1882 Code) stated that a person brought before magistrate's court after arrest "shall" not be released on bail if "there appear reasonable grounds for believing that he has been guilty of the offence of which he is accused". This was different from situations where during investigation / inquiry / trial the material only showed "sufficient grounds for further inquiry into his guilt" [Section 497(2)]. Such restrictions were absent when it came to courts of session and the High Court, upon whom Section 498 of the Code conferred an unfettered power to grant bail. 

Significant amendments were made to the 1898 Code in 1923. One such amendment was to Section 497(1) which changed the restriction upon magistrates in granting bail only for offences punishable with death or with transportation for life as opposed to all kinds of non-bailable offences. Thus, the policy towards bail was greatly liberalised, but it was felt that some fetters ought to be remain on how magistrate's exercised their discretion. After all, some members called the magistrates 'stupid' and 'weak' during the course of the legislative debates surrounding the 1923 amendments [discussed here at pp. 61-63]. Importantly, this test in Section 497(1) of the 1898 Code was retained in the 1973 Code as well, under Section 437(1).

Old commentaries on the 1898 Code (see p. 1474 here and p. 1183 here) suggest that the legal position prior to 1923 was that bail ought not to be granted by magistrates in non-bailable cases, and that while such restrictions were absent in provisions pertaining to superior courts it did not mean that this was treated as a license to grant bail liberally. The changes in 1923 were acknowledged by the commentators as having liberalised the bail regime and having been interpreted by courts to that effect as well. However, it was a mistake to think that the 1923 amendments had liberalised the regime to such an extent that the merits of the accusations were now altogether irrelevant.

What is important for us here is the discussion on how to construe the test laid down by Section 497(1) which required magistrates to ask whether "there appear reasonable grounds for believing that he has been guilty of the offence of which he is accused". There are two perspectives from which this restriction ought to be considered: first, how did courts read the letter of the law, and second, how was it applied in practice. The old commentaries referred to above offer some insight as to the first aspect, confirming that 'reasonable grounds' was a judicial determination based on the available material which was highly fact-specific. The second aspect, of how courts then applied this vague test, therefore turned on the practice of criminal law at the time. To appreciate this requires some elucidation as it is quite different from how things are done today when it comes to the investigations generally, and specifically the prosecution of serious crime that is punishable with death or transportation for life (today, life imprisonment). 

In respect of investigations, police were notorious for not maintaining proper records of statements of witnesses recorded during investigations under Section 161 of the Code. Legally, there was no clear obligation on police to record statements separately within the case diary, and there was absolutely no obligation akin to Sections 173(5) or 207 of the 1973 Code to supply a copy of the police report and all statements of witnesses to the accused upon completing the investigation. The only obligation to supply copies of witnesses arose when the accused wished to cross-examine the witness who took the stand where a witness claimed to have made a prior statement and was now deposing contrary to it. 

How would courts deal with framing of charge or appreciating any aspect of the case pre-trial you might wonder, considering how ubiquitous the Section 161 statements are for these issues in the administration of criminal law today. Well, the answer lies in the committal process [see Section 206 of the 1898 Code]. It was not the unsigned, unsworn testimony of the witness which determined issues such as charge and the sufficiency of material prior to trial proper, as it is today. Instead, the committal hearings before the magistrate required the prosecution to examine, on oath, the witnesses that it sought to rely upon to establish its case. The accused had a right to cross-examine these witnesses as well. To help imagine this process, consider what happens today in proceedings instituted upon a complaint in warrant triable cases under the 1973 Code. There are no Section 161 statements in such cases, and the prosecution must examine its witnesses on oath prior to framing charge, with the accused having a right to cross-examine these witnesses as well.

What this trip down memory lane shows us is that while the test as it was under Section 497(1) of the 1898 Code may have been carried forward by the 1973 Code as well in Section 437(1), but the material which formed the basis for applying the test was fundamentally different when it came to applying the test within the 1898 Code's context. Sworn testimony of witnesses who were available from cross-examination was replaced with unsigned, unsworn statements recorded by police officers which the law itself declares ought not to be used as substantive evidence. I will return to this point later on in the series, but it is so significant and rarely raised that it merits being flagged at the outset itself. 

Restrictive Bail Provisions and Special Laws

The previous part referred to the classification drawn by Section 497(1) and (2) of the 1898 Code. The former (at least till 1923) restricted the power of magistrates to grant bail where reasonable grounds existed to support a belief that the accused was guilty, while the latter permitted bail if the material was only enough to suggest further grounds for inquiry into guilt. 

Keeping this in mind, perhaps the first proper restrictive bail regime we encounter was under the Criminal Law Amendment Act of 1908, one of the harshest statutory measures crafted by the colonial regime to punish revolutionaries at the time. Amongst its provisions was a clause, Section 12, which stated that a person shall not be released on bail "if there appear sufficient grounds for further inquiry into the guilt of such person." The reference to Section 497 helps appreciate the draconian nature of this threshold. Having 'sufficient grounds for further inquiry' was nothing but a polite way of allowing bail rejections where the police averred that they had a case. These parts of the 1908 were repealed in 1922, while the remaining parts of it pertaining to declaring certain associations as unlawful and proceeding against them remain in force even to this day.

Perhaps it was the presence of the 1908 Act that did not necessitate further restrictions upon the bail regime during the First World War. Its repeal in 1922, coupled with the liberalising influence of the 1923 amendments, meant that when the Second World War reached the subcontinent, the colonial regime was without comparable legislation to curb the grant of bail. When the War came to India, the government responded with the Defence of India Act 1939 and rules made thereunder, which allowed for a truncated trial for many crimes that had any bearing on the war effort. Still, in 1939 itself, this war-based procedural regime did not have a dedicated restrictive bail regime. That came in February of 1941 with the introduction of Rule 130A which read as under (p. 192 here):

Notwithstanding anything contained in the Code of Criminal Procedure, 1898, no reason accused or convicted of a contravention of these Rules shall, if in custody, be released on bail or on his own bond, unless — 

(a) the prosecution has been given an opportunity to oppose the application for such release, and

(b) where the prosecution opposes the application and the contravention is of any such provision of these Rules as the Central Government or the Provincial Government may by notified order specify in this behalf, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such contravention.

The archives suggest that the proposal emanated from provincial governments which were troubled by how quickly bails were granted by courts without adequately hearing the prosecution. They do not offer much by way of discussion on the specific test that was added in clause (b). Is this because the test was no different from the existing regime under the 1898 Code? I would caution against such a reading, because Rule 130A inserted a rather different set of restrictions.

First, Rule 130A applied to all courts, which was a significant departure from the existing position that did not fetter the discretion of sessions courts and the High Courts to grant bail no matter what the allegations were. Second, Rule 130A now vested great power with the government, by placing a premium on its decision to oppose the plea for bail. If the prosecution did not oppose bail, then the additional restrictions would never come into play. Third, the test itself was worded differently than Section 497(1) which cast different obligations on the players. Section 497 of the Code was read as placing the onus upon the prosecution asking it to furnish material to show reasonable grounds existed to believe a person was guilty, whereas Rule 130A placed asked the accused to establish reasonable grounds to believe that he was not guilty. The former resembles the burdens at trial - if the prosecution did not establish its case first, the accused would not have any case to answer. The latter invited the court to assume the truth / veracity of what the prosecution brought forth, and burdened the accused to demonstrate the grounds within this material which supported his innocence.

The validity of the provision was challenged in re V. Bhuvaraha Iyengar [AIR 1942 Mad 221], where it was argued that the clause departs from the "fundamental principle" that a person is presumed innocent until proven guilty. The Madras High Court rejected the contention, stating that the impugned Rule did no such thing but only indicated "that where a person is accused of an offence under the rules the Court may not liberate him on bail pending the trial, except when it has reasonable ground to believe that he is innocent. When the Court comes to decide the case, it must acquit the accused if the prosecution has failed to establish the charge." That is a non-reasoned answer if there ever was one. The Court also rejected the bail request, noting that "grave charges are alleged against the petitioner by a responsible police officer and a the stage at which the applications for bail were made it was impossible for the magistrate or the sessions judge to be satisfied that there were reasonable grounds for believing that the petitioner was not guilty of a contravention of the rules, and that is the position now." 

The above extract gives us a glimpse of what Rule 130A was meant to achieve: a practical annulling of bail prior to the cross-examination of key witnesses at trial for the offences which were designated as being important to the war effort. In an already truncated legal procedure the court would never be faced with a situation where grave charges were not levelled by responsible officers with some material to support their claims, except for the most egregious of false cases. A court would presumably only be able to develop reasonable grounds to believe that the person was not guilty during a trial due to cross-examination of witnesses as at trial the burden still lay upon the prosecution to prove guilt as held by the Madras High Court.

Next Post 

This post has surveyed the historical position in the general law and the special law on matters of bail, drawing the line at 1947. We saw how the general position on bail changed from being a very restrictive one — at least in respect of magistrate courts — to a more liberal one during the inter-war period. The onset of the Second World War brought with it a new set of restrictive measures and introduced Rule 130A in the Defence of India Rules. In the next post, we will see how the memories of this wartime measure would continue to echo all through the history of the constitutional republic of independent India.

Friday, March 1, 2024

Jail is not the Rule - Contesting Restrictive Bail Regimes (new series)

Growing up, the soundtrack of Amar Prem was very popular in my house. I never understood it much, but as I grew older, I came to love it too. Why such a random start? Because it is a few lines from one of its songs, called Chingari Koi Bhadke, that I have been stuck on for the past few days. The poetry of its lyric (crooned by Kishore Kumar) is laced with intriguing posers, and one of them asks us that if the boatman is the one responsible for keeping us afloat at sea in choppy waters, what will happen if the boatman decides to sink the ship? 

Let me use a different frame of reference to convey the issue which the song poses. If our constitutional courts are the ones responsible for keeping the flame of fundamental rights and personal liberties ablaze even as the other conjoint branches of the Indian State are determined to snuff it out, what will happen if constitutional courts decide to thumb out the flame as well? This is exactly the dilemma put to us when the courts begin to uncritically state that for some situations "jail is the rule" because the legislature appears to have said so, and proceed to deny bail and condemn a person to incarceration pending an adjudication of his guilt. 

This was the position recently endorsed in a decision of the Supreme Court in context of Section 43D of the Unlawful Activities Prevention Act 1967 ['UAPA']. Even though this opinion may only be by Two Justices and arguably incorrect for failing to even refer to binding precedent, its existence has emerged as a lightning rod to galvanise anti-liberty views on how judicial discretion should be exercised. It did not take long for the Madras High Court to repeat the mantra when dealing with another restrictive bail clause, that under Section 45 of the Prevention of Money Laundering Act 2002 ['PMLA']. 

At this stage you might think - well, so what? Judgments adopting a highly restrictive view on matters of liberty are as old as the Constitution itself, they coexist with judgments adopting a more critical view of the exercise of state power to ensure that the deprivation of liberty is not unjust, and good advocacy lies in the ability to differentiate the bad ones and use the good ones. The "jail is the rule" mantra is no exception to this time-tested logic. 

To which, I would urge you to reconsider this accepted wisdom and ask whether a matter such as personal liberty pending trial is one which should be subject to vagaries of 'good' advocacy or be considered a matter that is too fundamental to be trifled with in such a manner. If you agree with the latter thought, then I would also ask you to consider that over the past 74 years, restrictive bail clauses are now found across nearly twenty statutes across the central and state laws, and have become a key prong in lawfare tactics adopted in India. 

Contending with, and contesting, the restrictive bail clauses splattered across the Indian legal landscape is thus slowly emerging as the pre-eminent problem for both lawyers and scholars who are vested in the idea that the Constitution is a document designed to protect personal liberty and only permit its deprivation in a manner consistent with proportionality, fairness, and reasonableness. This Blog has dealt with such clauses in the past, both in terms of specific statutes and a more generic frame of reference, and offers an archive to help understand the issues. 

Over the next few weeks, we will develop on the more generic approach to complement the older posts which are now almost nine years old. The aim is to adopt a similar flow - start with the history, to then contend that the clauses are unconstitutional, and knowing just how unlikely such a claim is to succeed, also suggest ways in which courts can (and must) insist upon a fairer application of the restrictive bail clauses.

Sunday, February 18, 2024

Call for Submissions: NLSIR Vol. 36(2)

(This is a call for submissions for the National Law School of India Review)

NATIONAL LAW SCHOOL OF INDIA REVIEW (NLSIR)

VOL. 36(2): DEMOCRACY, FREE EXPRESSION, AND PRESS CENSORSHIP

INTRODUCTION

The freedom of expression finds expression in the world’s largest democracy in Article 19(1)(a) of the Constitution of India. In any democratic polity, accountability, checks and balances, and transparency among various institutions are of paramount importance. As an institution, the media and the free press play a critical role in upholding accountability and transparency norms in public life. In India, particularly, the press has often been referred to as the “fourth pillar” of Indian democratic life. 

Over time, serious questions have been raised about the independence of the media and the press in India. In 2023, India ranked 161 out of 180 countries in the Press Freedom Index, the lowest it has ever been. This comes at the same time that state authorities arrested Prabir Purkayastha, the editor of NewsClick, an independent Indian news website. Purkayastha was booked under terror charges on allegations of money laundering and promoting Chinese propaganda.

The press in India is, and has always been, a prominent institution in exposing various issues that affect public life. The undermining of such an institution raises important questions of academic interest and warrants in-depth analyses.

Volume 36(2) will focus on the multiple legal issues around press freedom in India. The Special Issue aims to analyse the relationship between various laws and press freedom. In doing so, it emphasises the deeply intertwined relationship between press freedom and democracy in the Indian context.

VISION FOR THE ISSUE

The vision underlying the issue is prompted by repeated instances of undue influence, both overt and subtle, that have raised questions about the extent of freedom of press in India. Governmental interventions, as well as corporate influence, have contributed extensively to the suppression of the free press.

There have been numerous instances of such undue influence over the past few years. From the crackdown of press freedom in Jammu & Kashmir, to the blocking of independent news outlets, to increasing concentration vis-à-vis corporate ownership of media houses, the press in India has come under increased strain. This raises pertinent issues with respect to the health of Indian democracy and public discourse.

This issue seeks to unpack all these factors. An illustrative list of issues that we seek to cover in this Special Issue are:

a) Investigating how cultural norms, social identities, and power dynamics shape freedom of speech and expression in India, and the implications for inclusivity and social cohesion.

b) Analysing the influence of economic factors, such as corporate ownership, advertising revenue, and market competition, on media independence and editorial autonomy.

c) Exploring the role of digital platforms, social media, and online journalism in facilitating or restricting freedom of speech, and the challenges posed by online censorship and misinformation/disinformation.

d) Assessing the adequacy and effectiveness of existing laws and regulations governing press freedom and exploring potential reforms to enhance media freedom and accountability.

e) Assessing the legal framework governing corporate liability for media content, including defamation, privacy violations, and other legal challenges, and analysing case law and legislative developments in this area.

f) Examining the role of whistle-blowers in exposing corporate malfeasance, corruption, and unethical practices in the media industry, and assessing the adequacy of legal protections and institutional mechanisms for safeguarding whistle-blowers’ rights.

g) Assessing the constitutional protections afforded to journalists’ rights, including the freedom to report, investigate, and publish news without fear of reprisal, and analysing judicial responses to attacks on journalists and media organizations.

The Special Issue will include both invited as well as submitted contributions. We cordially invite scholars from diverse areas of study to be part of, and provide their own contributions to, this Special Issue. We invite scholarly articles, empirical research, policy analyses, etc., that contribute to understanding press freedom in India. Interdisciplinary approaches and comparative law papers are particularly welcome.  

SUBMISSION GUIDELINES

Submissions for the Special Issue may be made in accordance with our Submission Guidelines under any of the mentioned categories. For further clarity on the categories, please refer here.

Interested authors are requested to submit their manuscripts via our Digital Commons platform. Please refer to this guide for instructions and clarifications with respect to navigating Digital Commons.

The deadline for submissions is 15th May 2024.

Please note that we do not accept submissions over email.

NLSIR SYMPOSIUM 

Once the Special Issue is finalised, we will invite all authors to be a part of the annual NLSIR Symposium conducted in the form of a roundtable discussion. The transcript of the same will be published as a part of Vol. 36(2).

CONTACT

For any queries with respect to Vol. 36(2), please feel free to reach out to us at mail.nlsir@gmail.com. 


Sunday, February 4, 2024

Guest Post: The Supreme Court, Default Bail, and the Question of 'Incomplete' Chargesheets

(This is a guest post by Kartik Kalra)

The Supreme Court delivered its judgment in Central Bureau of Investigation v. Kapil Wadhawan on January 24 ('Wadhawan'). It held that the Respondent-accused’s previous release on default bail sanctioned by the trial court, and affirmed by the Delhi High Court, was incorrect, as these findings were based on an incorrect appreciation of the “sufficiency” or “completeness” of the police investigation when assessing applications u/s 167(2) of the Code of Criminal Procedure, 1973 (“CrPC”). 

In this post, I propose that the Court’s prohibition on assessing the investigation (through the report commonly called a 'chargesheet') for examining its completion constitutes a breach of the state-citizen compromise underpinning default bail. Given the crucial nature of pre-trial liberty in contemporary criminal procedure, I propose that a high-scrutiny enquiry into a chargesheet's sufficiency (and thereby, an investigation’s completeness) must be undertaken by courts at the stage of assessing default bail, as a bureaucratic assessment of the bare-bone, physical filing of a charge-sheet substantially endangers civil liberties.

I make this argument in the following manner – first, I discuss the facts in Wadhawan, noting similarities with the currently “recalled” judgment of the same Supreme Court in Ritu Chhabaria v. Union of IndiaSecond, I discuss the judgment in Wadhawan, arguing that the Court trivialised aspects of the chargesheet’s “incompleteness” highlighted by courts below, to seemingly doctrinally forbid an enquiry into a chargesheet’s sufficiency. Third, I propose that the present political economy of pre-trial detention – where prolonged incarceration constitutes punishment for pre-trial detainees – necessitates high-scrutiny enquiries into charge-sheets’ contents by courts authorising default bail.

Ritu Chhabaria Analogue: The Problem of Judicial Scrutiny into Chargesheets
Wadhawan arose with filing applications for default bail u/s 167(2) of the CrPC, which mandates the accused’s release from pre-trial detention if the police have not completed investigation within sixty or ninety days of remand. This aspect of completing an investigation is reflected by the investigating agency filing a chargesheet under Section 173 of the Code. 

In Wadhawan, the investigating agency (the CBI) filed a chargesheet within the stipulated time (which, the trial court had held after arguments, was ninety days). The trial court even took cognizance of offences on its basis. After this, the accused filed applications for bail under Section 167(2), arguing that the investigation was incomplete, and the chargesheet was nothing but a means to frustrate the right to default bail.

The issue, therefore, concerned the chargesheet’s contents, and deliberating the completeness or lack thereof of the investigation by the CBI. A materially similar issue arose before the Court in Ritu Chhabaria – there, the police filed a chargesheet, which the Court found incomplete, and held that it did not disentitle the accused from being released. The opinion discouraged other courts from “mechanically accepting incomplete chargesheets”, prompting an enquiry into its contents, which would enable a court to determine the investigation’s completeness (¶33). Of course, the opinion has since been “recalled” by the Supreme Court itself in Directorate of Enforcement v. Manpreet Singh Talwar, forbidding courts from relying on Ritu Chhabaria, but not specifically depriving courts from considering the argument therein (which was not novel at all). 

This enquiry into contents of a chargesheet is important to preserve the moral value of pre-trial detention, for the scheme of sixty/ninety days under section 167(2) is designed with the notion that detention without probative material pointing to the accused’s guilt must be for a limited duration. Disingenuous chargesheets aiming to pin guilt on the accused preliminarily, awaiting (a long) process of trial, must be deeply scrutinised by courts. 

Antony Duff, for example, notes that the legitimacy of pre-trial detention lies in citizens’ obligation to account for the reasonable fears their status as an “accused” generates in others’ minds by agreeing to a degree of social exclusion, especially when the alleged offences are heinous in nature. When, however, no attempt is made to enquire into an accused’s guilt, and probative material pointing thereto is lacking even after the completion of sixty/ninety days, the accused’s obligations to account for social fears must be recognized as having diminished, for they are – overall – presumed innocent of having committed the offence.

The above, of course, is without prejudice to one’s release prior to the completion of these sixty/ninety days, which is done through ordinary bail. The extent of one’s obligation to account for social fears reduces if it can be demonstrated that they would dissociate from, and enable the peaceful completion of the fact-finding process, for it has been shown that they pose no great social risk to warrant pre-trial detention. In case, however, one has been unable to obtain bail due to, for example, the court’s assessment of the accused’s likely involvement in the offence, the sixty/ninety duration is the maximum period – without additional probative material pointing to their guilt in the form of the charge-sheet – for which they can be detained. The completion of these days is deemed a sufficient discharge of one’s obligation to account for social fears, which would be trumped by their presumption of innocence.

Courts must, therefore, enquire deeply into the police’s fact-finding process, represented through the charge-sheet, to determine whether the guilt being preliminarily pinned on the accused has been arrived at through a genuine fact-finding process, or it is merely a disingenuous attempt to “scuttle” – as noted in Ritu Chhabaria – the accused’s release.

The Instant Case: Trivialising “Incompleteness” to Forbid Sufficiency Enquiries
The allegations in Wadhawan were of bank fraud — alleged misappropriation of loans taken from banks by diverting proceeds for various purposes into various companies. The charge-sheet filed within ninety days – the accused claimed – was nothing but “a subterfuge or ruse to defeat the indefeasible right…u/s 167(2)”. The trial court agreed, holding that the investigation, both into allegations against the accused as well as other persons and companies, was incomplete, and such a chargesheet could not defeat default bail (¶40-42). The Delhi High Court concurred, holding that this assessment was correct, and “substantial investigation even qua the present accused persons [was] incomplete” (¶31). It also analysed the chargesheet’s contents independently, holding that the “material collected by the investigating agency so far… falls too short” (¶31). Its remarks align with the underlying purposes of pre-trial detention discussed above, emphasising on the wrongfulness of authorising detention without probative material pointing to the accused’s guilt:

33. …[I]n the report filed by the investigating agency there should be sufficient evidence to bring home the guilt of the accused. The purpose should not be merely to detain the accused…The detention during investigation or trial cannot be turned into a punitive detention. It is also a settled proposition that further investigation can be conducted only after the investigation is complete.

Given the insufficient probative material pointing to the accused’s guilt, which was reflected in an incomplete chargesheet, the High Court refused to authorise further pre-trial detention.

This entire line of enquiry into a chargesheet’s contents, however, has been disagreed with by the Supreme Court, which appears to place greater emphasis on the ritualistic filing of a chargesheet as against a deeper enquiry into its contents to decide the issue of default bail. The Court, I argue, does this in two ways – first, it modifies the flaws of the instant chargesheet, trivialising them to justify default bail’s general legal unavailability after any chargesheet has been filed; second, it holds that a flawed or incomplete chargesheet (especially where the alleged incompleteness is minimal, like the instant case) is – for all purposes – a chargesheet, which is all the responsibility that Section 167(2) envisions placing on the investigating agency’s part.

The instant chargesheet, it holds – contrary to the Special Judge (CBI) and the High Court – did not suffer from any major flaw, having only two minor errors – first, investigation was pending against a few co-accused but complete against the accused; and second, only a few documents were missing in the chargesheet (¶19-20; 23). These observations, it must be noted, deviate from the factors cited by both lower courts to conclude the investigation’s incompleteness, which noted the investigation’s substantive incompleteness against the accused in the instant case, as well as many aspects of the CBI’s allegations being uninvestigated. The Supreme Court, by departing from factors causing the chargesheets to be incomplete, trivialises the factors causing incompleteness, which it subsequently invokes to bar an enquiry into charge-sheets’ contents as a matter of law:

22. …The report is complete if it is accompanied with all the documents and statements of witnesses as required by Section 173 (5). As settled in the afore-stated case, it is not necessary that all the details of the offence must be stated.

23. The benefit of proviso appended to sub-section (2) of Section 167 of the Code would be available to the offender only when a chargesheet is not filed and the investigation is kept pending against him. Once however, a chargesheet is filed, the said right ceases…

In this way, the Court’s trivialisation of the instant chargesheet’s flaws transforms into a general legal prohibition on enquiring into its contents. Though I cannot comment on whether the charge-sheet in the instant case was, in fact, complete, it must be noted that the Supreme Court – leave offering reasons to depart from concurrent findings of fact of two lower courts – does not even acknowledge this departure: both courts below held the chargesheet disclosed an incomplete investigation into the accused, while the Supreme Court held the same investigation was complete, with only allegations against the co-accused remaining pending. Further, the Supreme Court did not engage with the High Court’s reasoning proposing the necessity of substantial probative material in the chargesheet pointing to one’s guilt, holding the physical act of filing a document titled “chargesheet” sufficient to defeat the accused’s release. This unfortunate conceptualisation of state-protective criminal procedure is exacerbated in the contemporary economy of pre-trial detention, where bail adjudication acquires centrality.

On the Necessity of High-Scrutiny Enquiries into Charge-Sheets at the 167(2) Stage

The centrality acquired by bail adjudication in contemporary criminal procedure, as has been noted, arises from the extraordinary duration taken by full-fledged criminal trials, which take, on average, between three and nine years (91). In such a situation, for accused persons whose guilt has not been conclusively established through procedurally-sound processes of trial, liberty at the pre-trial stage is crucial. Such liberty, however, is determined based on a court’s weighing of likelihoods: bail adjudication generally involves factual enquiries into the likelihood with which one committed the alleged offence. This line of questioning, which aims to enquire into the factual guilt of the accused to adjudicate on bail, has become the norm, likely to result in skewed rejections of bail whenever a court deciphers a semblance of one’s involvement.

Given the uncertainty involved in bail adjudication that is likely to play against the accused, default bail – where the accused possesses an assured release in the absence of probative material pointing to their guilt – must be held to this basic minimum standard, where this material is, in fact, shown to be in existence at the moment of assessing default bail’s availability. Despite Chhabaria having been “recalled” by the Supreme Court, many courts do seek to uphold this basic minimum: in Fakhrey Alam v. State of Uttar Pradesh, for example, the Supreme Court released an accused on default bail in an alleged UAPA offence, as chargesheets were “preliminary” or “supplementary” in character (¶11); and in Chitra Ramkrishna v. CBI, the Delhi High Court found that filing of “incomplete/piece-meal charge sheet[s]” could not defeat default bail (¶43).

In case the enquiry at this stage is confined solely to the timely filing of a physical document titled “chargesheet”, without a deeper scrutiny into its contents that aims to decipher the genuine collection of probative material, it would tilt the already skewed balance of criminal procedure further towards the state. It would mean that an unsubstantiated semblance of guilt is sufficient to warrant pre-trial detention by rejecting regular bail, and that a chargesheet premised on an “incomplete” investigation – that has not sought to, or been unable to genuinely determine the accused’s involvement – also enables the same, lengthy pre-trial detention. This constitutes a large normative hole in pre-trial detention’s underpinnings.

The pre-trial detention stage, as noted above, can be conceived of as a conscientious citizen’s accommodation of reasonable social fears emanating from the fact of an allegation having been made against them – especially when the alleged offence is heinous in character – to separate from society for a duration that enables a proper fact-finding. This compromise, however, becomes unreasonably stretched when one is expected to undergo pre-trial detention despite the demonstration of tangible reasons why such social fears are unwarranted (in regular bail, for example, where one shows that they would peacefully dissociate from an investigation), and a breach on the state’s part to genuinely undertake fact-finding into the accused’s involvement with the offence. In case the state alleges one’s involvement for the sole purpose of preventing release, without possessing a genuine, objective belief in their guilt, it would be difficult to justify the accused’s corresponding obligation to undergo pre-trial detention. When the state’s propensity to breach the compromise underpinning pre-trial detention becomes codified into law by the Supreme Court – which authorises it to defeat accused persons’ release without having fulfilled its end of the bargain – pre-trial detention becomes an avenue of untrammelled state power, wholly unreflective of the state-citizen compromise.

Conclusion
On this basis, therefore, I submit that the Supreme Court’s judgment in Wadhawan constitutes a breach of the pre-trial detention compromise, seemingly forbidding enquiries into the state’s fulfilment of its duty to investigate, and to genuinely express its belief in the accused’s guilt. The Court, instead of assessing the tasks to be fulfilled by the police that are expressed through the chargesheet, prizes the mere filing of the document, finding it sufficient for denying release. The Court does this by trivialising the flaws of the chargesheet, holding them insufficient to warrant the release, meshed with suggesting a general prohibition from enquiring into a chargesheet's contents.

Saturday, February 3, 2024

Guest Post: The Curious Case of Last Seen Evidence

(This is a guest post by Manya Gupta)

The doctrine of last seen evidence “LS” is one of the major kinds of evidence under the IEA “Act” which provides for an inference of guilt on the accused if they are last seen with the deceased, and subsequently the victim is found dead.

It is deduced from Section 7 of the Act which provides for fact(s) which is the occasion, cause or effect, immediate or otherwise, of a relevant fact, or a fact in issue to be relevant under the scheme of the Act.

It is one of the most interesting pieces of evidences in the circumstantial chain; since it effectively denotes a period of vacuum wherein the whereabouts of the accused and the victim are unknown and there is a gap in the timeline in which nothing is known about the whereabouts of either; this gap is then sought to be filled under what fundamentally is, an assumption; since the victim was last seen with the accused, the accused must have committed the act.

While this serves as an important piece of evidence and is a crucial part of the circumstantial chain, the inherent nature of this kind of evidence requires careful consideration and testing since it only relies on what essentially, is a gap in the factual timeline. Therefore, it has been reaffirmed, in Satpal Singh that LS evidence cannot be a basis for sole conviction, and must be corroborated.

The concern of this piece is an attempt to dissect the judicial process of evaluating last seen evidence and address inherent problems in considering such evidence. It shall also attempt to analyse possible safeguards that can be used by courts as preventive rule-based jurisprudence in LS evidence.

Context and Time Gap

A large majority of the uncertainty and inconsistent application of LS evidence arises from basic factual premises of the time between which the accused and deceased were seen and the time of death; the place where they were seen together etc. These factors determine whether LS evidence can even be used, and also affect the explanation and defence used by the accused.

Time gap in LS evidence is crucial, since by sheer logic, the longer the gap, the theoretical probability of the alleged fact to be true decreases. This increase has been sought to be explained by courts by several arguments, the most prominent being the possibility of interference; there has been an inconsistent judicial trend on the time gap that must be present for LS evidence to be relevant. Starting from Bodhraj, the court held that a long time gap makes LS irrelevant, and it only can be used when the time gap between the point of last seen and the discovery of the deceased is very small. This has been changed, the prevailing position is that even if there is a long duration of time, if the state is able to prove the accused was in exclusive possession of that place, LS can be considered.

The establishment of a test for time gap for the possible range of gap is left to Courts and the judicial trend of inconsistencies is evident, as observed in Reena Hazarika, that a ruling on gap is overturned at the appellate stages criticising either an unreasonable time gap; or lack of consideration to the defence explanation of the gap.

Further, there can be additional factors that can either refine, or adulterate the time gap, adding to the context for the evidence; taking the hypothetical of a crowded location such as a marker or a bar as opposed to a silent, unfrequented place, the former would call for a higher burden on the prosecution to prove a prima facie case.

This was observed in Satpal Singh, an oft cited case, where the Court stated that the last seen theory is applicable when the testimonies conclusively establish that the accused and the victim were together and an inference can only be derived by the court when there is no probability or possibility of someone interrupting them.

The Role of Presumptions in LS Evidence

Before S. 106
LS evidence, when proved is used for raising an inference under S. 106 of the Act; the accused has a burden to explain the circumstance since the accused is deemed to have special knowledge of explaining their presence. However, the prosecution needs to establish basic facts before invoking S. 106, the nature of these facts remains vague.

The initial burden on the prosecution per Reena Hazarika, which has been reaffirmed, is that mere invocation of the LS theory sans facts “cannot suffice and the prosecution must establish a prima facie case”.

This establishment of a prima facie case seems to be equivalent to the establishment of facts or foundational facts under S. 106 and thus far has not been conclusively defined, and is arbitrary especially in such evidence; is it the mere fact of proving that the accused was indeed last seen with the deceased, or is it a step above such as proving the proximity of the time gap and the probability of interference.

The Delhi High Court recently, in Gurdeep Singh, laid down principles on the usage of S. 106 and LS evidence, wherein these facts were said to be “foundational facts” and the said facts were facts like establishing a close connection between the accused and deceased and possession of the property wherein the body was found to be of the accused.

However, another position taken by courts is to interpret prima facie as other circumstances, as in if the prosecution has proven other circumstances to a certain extent.

Hence, the question becomes the inconsistent burden often placed on the prosecution to establish the vague standard of a prima facie case and foundational facts.

Shifting the Burden of Proof

The second question is what happens after the prosecution has established prima facie facts i.e., what is the burden of special knowledge on the accused. If the accused is unable to disprove or explain the circumstance, the Court is empowered even ordinarily to deduce facts based on other facts and raise a presumption under S. 114.

The moment when the accused fails to fulfil the burden under S. 106, the Courts apply S. 114 to raise an inference. This section will discuss what happens once S.106 has been applied and what does it take to discharge the burden on part of the accused.

The burden of special knowledge under S. 106 has its roots in the fact that some things can only be explained by some people, and it is unfair for the prosecution to prove a fact that is virtually impossible and “disproportionately difficult” for it to prove.

The special knowledge in this case, is that only the accused could know what he was doing there, and while this a reasonable assumption to make, it must be carefully done.

S. 106 has its application usually in questions of fact and requires the prosecution to prove a substantial fact; it is used either when the question is of possession of an article or facts such as residence or other general questions about the accused’s history, injuries etc. Or is applied when the prosecution has established other facts such as explanation of bodily injuries.

However, in LS, while the accused must explain their presence in the situation, the inference being made is quite starkly different; that of a serious inference that he had committed the crime. This is because the explanation is not of a simple fact in the chain, rather it is the question of whether the accused had a role to play in the death.

The presumption is of the accused killing the deceased, or having a role to play in their death since they were last seen with them, to illustrate, if the accused fails to prove their possession of bangles that were on the deceased’s hand, the inference is directly connected to the accused stealing those bangles; in LS, the inference is of a wider scope and connecting the accused’s physical presence at a location which is extended to inferring a possible role in the killing of the deceased.

While the accused is in the position to know their whereabouts, the S. 106 burden unintentionally leads to a sudden inference which jumps the gun; that the accused has played a role in the death of the deceased, since the act of the killing in LS evidence is the event that took place in vacuum and which remains unknown. Not all circumstances that complete the chain of events are equal and last seen constitutes an important circumstance and this inference is vastly different than the otherwise factual inferences that arise out of S. 106 in other offences.

It has proven to be problematic, especially when the circumstance of last seen coupled with other facts could be a basis for conviction and the question of what counts as an explanation on behalf of the accused, is legally tenuous.

An Unfair Burden on the Accused?

The aforementioned variables of context and time gap have made the job of the defence extremely difficult; the explanation is of the fact of being there and is highly subjective even for courts to decide. Since the explanation is essentially a defence of the accused having not committed the act, is often interpreted at a very high standard, thus making the essence of S. 106 and presumptions, meaningless.

Consequently, courts have ruled inconsistently across a wide spectrum of possible explanations; on one hand, they have ruled that the prosecution’s witnesses lack credibility since there was no reason for the deceased to take a lift in the accused’s car since he was proceeding in the opposite direction, giving a wide bench; and in another, have failed to consider the accused’s explanation when he was only seen with the deceased in a crowded bar.

In a similar turn of events, they have placed the burden on the accused to explain how the deceased (his wife) died by strangulation when they were sleeping in their bedroom, whereas in another, have stated that mere companionship and the fact that they were sleeping in the same room together cannot be sufficient to raise an inference.

The standard on the accused under S. 106 per Reena Hazarika, is of preponderance of probabilities, however, the explanation is often treated inconsistently and dependent on the singular judge.

I propose that rather than looking at the standard under S. 106, the Court must, while reaffirming preponderance of probabilities under S. 106, must also establish guidelines for the subsequent presumption that is made under S. 114 and delineate the scope of the inference. This standard can be derived from Reena Hazarika and the explanation on part of the accused, even if inadequate, cannot be mandatorily conclusive, something courts have rarely considered.

Famously, in the Arushi Case, the Court held that the burden of proof is on the accused servant, who was in the house under S. 106, and when he tried to explain that he was sleeping and the AC drowned all noise, the court disbelieved this, and believed the version of the prosecution without the prosecution ever having established their facts.

There seems to be a certain hesitance in courts letting a fact remain unproved, as Sekhri puts it, the Judge wrongly held the prosecution to a lesser burden, simply because there were no witnesses barring the accused and confused the persuasive burden to prove the charge and the burden under S. 106 to prove facts. If the accused fails to discharge the burden under S. 106, then a fact does not necessarily need to be held as proved by the other side and can remain unproved and inconclusive.

Conclusion
The hasty conclusions offered by an inconsistent, unprincipled application of the last seen doctrine amounts to an abuse of S. 106, per Kirti Pal and ordinary jurisprudence of presumptions; S. 106 is to be made when the fact to be proved would be disproportionately hard for the prosecution since the accused is in the only position to have “special” knowledge against all others.

However, extending the same treatment to S. 106 under last seen is dangerous, best explained by the House of Lords in Attygale v. R, stating that “if S. 106 is to be interpreted as, in a murder case, for the accused to prove he did not commit the murder, because who could know better than him whether he did or did not”, it would defeat the purpose of the balance of burden of proofs in criminal law.

Monday, January 29, 2024

Call for Submissions - NLS Business Law Review


The Editorial Board of the NLS Business Law Review (NLSBLR) for 2023-24 is inviting original and unpublished submissions for the upcoming print Volume 10 of the Journal.

About NLSBLR

The NLSBLR is a student-run journal at the National Law School of India University (NLSIU), Bengaluru, India’s premier law school. Our goal is to recognise and foster cutting-edge academic scholarship on commercial law. Over the years, since the publication of our first volume in 2015, we have featured scholarship by a diverse range of leading academics, advocates, judges, scholars, and other luminaries, such as Justice V. Ramasubramanian (Judge, Supreme Court of India), Mr. Philip R. Wood CBE, KC (Yorke Distinguished Fellow, University of Cambridge), Prof. (Dr.) Regis Bismuth (Professor, SciencesPo Law School), Mr. Matthew Hodgson (Partner, Allen & Overy LLP), Mr. Rajat Sethi (Founder & Managing Partner, S&R Associates), and Prof. (Dr.) James J. Nedumpara (Professor, Jindal Global Law School).

The Journal is accompanied by the NLSBLR Blog, which carries shorter and contemporaneous pieces on recent developments in commercial law.

The Journal is indexed in prominent databases like HeinOnline, SCC Online, and the Indian University Grants Commission's Consortium for Academic Research and Ethics (UGC-CARE).

Our Mandate

The Journal intends to foster academic scholarship in commercial law by examining the myriad regulatory and legal frameworks, be it domestic or international, that impact business and commerce in either India or abroad. We particularly welcome submissions with a comparative law perspective, with a focus on India or the developing country context generally. Our mandate, amongst other things, includes company law, securities law, banking and finance, tax law, international investment law, international commercial arbitration, commercial dispute resolution, intellectual property law, contract law, and employment law.

Submission Guidelines

Detailed submission guidelines (along with the process for submission) for the Journal are available on our website. In brief, we accept submissions that fall within the following categories:

1. Long Form Articles: Between 6,000 and 10,000 words. Submissions in this category are expected to engage with the topic, its theme, and available literature comprehensively so as to offer a novel and original reassessment.

2. Essays: Between 4,000 and 6,000 words. Submissions in this category are comparatively more concise and limited in their scope. Essays usually deal with a very specific topic as compared to Long Form Articles.

3. Case/Legislative Comments: Between 1,500 to 3,000 words. Submissions in this category are expected critically analyse a recent court decision or legislative/policy proposal, either in India or abroad, and comment on its implications.

4. Book Reviews: Between 2,000 to 3,000 words. Submissions in this category are expected to critically analyse and engage with a recent academic book that falls under our mandate.

We recommend that potential authors choose a topic that is contemporarily relevant. We especially encourage undergraduate, graduate, and postgraduate students to consider writing for the Journal. We also welcome purely theoretical/philosophical/jurisprudential pieces.

Submissions must be accompanied with an abstract of not more than 250 words. Further, submitted manuscripts must not contain any biographical information regarding the authors, such as names, institutional affiliations, acknowledgements, etc. This information can be added at a later stage if the manuscript is accepted for publication. Finally, submissions made to the Journal must be on an exclusive basis and not be under concurrent consideration by any other academic or non-academic publication.

To reiterate, we request all potential authors to go through our submission guidelines thoroughly before submitting their manuscripts.

Contact

In case of any queries or concerns, please contact us at nlsblrjournal@gmail.com. Communication, regarding the Journal, addressed to other email addresses will not receive a response.